*1 AYERS; ADELUNG, JR., ROBERT AYERS AND MAE WARREN J. ADELUNG, ADELUNG, CHERYL AND JILL BY HER GUARDIAN LITEM, ADELUNG, JR.; BARALUS, AD WARREN J. CHRIS JOYCE BARALUS, BARALUS; BORTOLOMETTI, AND STELLA JOHN BORTOLOMETTI, MARTHA BORTOLOMETTI, AND ADAM BY HIS LITEM, BORTOLOMETTI; GUARDIAN AD BAT JOHN CARL L. TAGLIA, BATTAGLIA, DENISE AND SHERRY ANN AND JOSEPH BATTAGLIA, LITEM, PETER BY AD THEIR GUARDIAN CARL L. BATTAGLIA; THEODORE R. BEEKMAN AND HOLLY BEEKMAN BEEKMAN, AND AND JEFFREY BY THEIR JACQUELINE LITEM, BEEKMAN; GUARDIAN AD THEODORE R. ANTHONY BENDER, BENDER, BENDER, SCOTT, MARJORIE DAVID AND BENDER, AND BY JAMES STEVEN THEIR GUARDIAN AD LI TEM, BENDER; BENESCH, ANTHONY REGINALD KATHLEEN BENESCH, BENESCH, KELLY AND AND REGGIE BY THEIR LITEM, BENESCH; AD GUARDIAN REGINALD BRUCE R. BID WELL; BODNARCHUK, BODNARCHUK, DANIEL MARGARET BODNARCHUK, LITEM, AND MATTHEW BY HIS AD GUARDIAN BODNARCHUK; BRACCO, BRACCO, DANIEL ANTHONY ANN JO ANN, BRACCO, AND LORI STEPHANIE AND BY MICHELLE LITEM, BRACCO; THEIR GUARDIAN AD ANTHONY LOUIS BRANDENBERG, BRANDENBERG, PATRICIA TAMI BRANDEN BERG, REBECCA, MELISSA, BRANDENBERG, AND AND JACK LITEM, BRANDENBERG; BY THEIR GUARDIAN AD LOUIS BROWNLEE, BROWNLEE, CLARENCE GAYLE AND MATTHEW BROWNLEE, LITEM, AND ADAM BY THEIR AD GUARDIAN BROWNLEE; BURNS; CLARENCE GARY J. ANGELO CHRISTO CHRISTO; CLAYTON; AND MARIE MILDRED M. JAMES CO BURN, JAMES, JR., JUDY COBURN AND AND JENNIFER CO BURN, COBURN; LITEM, BY THEIR GUARDIAN AD JAMES COPE, COPE, BY RICHARD CHRISTINE COPE AND JASON HIS LITEM, COPE; GUARDIAN AD AND RICHARD GERALD CRIBB CRIBB; CRISTANTIELLO, LINDA JOSEPH YVONNE CRISTAN TIELLO, GINA, CAROCCIA, AND JOHN AND PATRICIA BY THEIR LITEM, CRISTANTIELLO; AD PETER GUARDIAN JOSEPH J. CUL LARI; DAVIS, TERESA DAVIS AND CHRISTINA A/K/A CONCET LITEM, DAVIS, TA BY AD FRANCESCA HER GUARDIAN TERESA DAVIS; DEAN, DEAN, JEROME, AND STE MARTIN BERNICE HARRELSON, VEN AND BY THEIR AD ROBERT GUARDIAN LITEM, DEAN; MARTIN JOSEPH A. DEANGELO AND JANICE DEANGELO; ELIZABETH AND ARIE DEWAARD DEWAARD LITEM, DEWAARD, AND BY AD JOLANDA HER GUARDIAN DEWAARD; DEVITO, ARIE DEVITO AND MI JOSEPH JOANN CHELLE, DEVITO, LENORE AND BY THEIR GUARDIAN JOSEPH LITEM, DEVITO; AD DJAMBINOV AND ANNA JOSEPH VERA *2 DJAMBINOV; DOYLE, F. JOANN DOYLE AND JAMES KEVIN DOYLE; DOYLE, LITEM, BY AD KEVIN GEORGE HIS GUARDIAN ECKELSON, ECKELSON, PATRICIA ECKELSON AND JOHN BY LITEM, ECKELSON; AD HIS GUARDIAN GEORGE ROBERT ETLING, ELIZABETH ETLING AND KEITH AND ROBIN ANN ETLING, LITEM, ETLING; BY THEIR GUARDIAN AD ROBERT LINDA, DAVID, DEBORAH, JOHN H. AND FLOYSTROP JAMES FLOYSTROP, LITEM, AND KENNETH BY THEIR GUARDIAN AD FLOYSTROP; FORGUS, JR., JOHN H. STEPHEN ROSEMARY FOR III, STEPHEN, LITEM, GUS AND BY HIS GUARDIAN AD STE FORGUS, JR.; GATTOLA; PHEN FREDERICK JOHN GERDES KATHLEEN, AND PATRICIA GERDES AND AND JOHN D. ROB GERDES, LITEM, GERDES; ERT BY THEIR GUARDIAN AD JOHN GRILLO, GRILLO, ROBERT ADELE GRILLO AND GINA BY HER LITEM, GRILLO; GUARDIAN AD ROBERT GARY L. GUNDACK ER, JANICE M. GUNDACKER AND AMY AND ADAM GUNDACK ER, LITEM, GUNDACKER; BY THEIR GUARDIAN AD GARY L. HARPE, HARPE FORREST AND ELSE ROBERT HELLE AND HELLE, ELSE HELLE AND JULIE BY HER GUARDIAN AD LI TEM, HELLE; HAYWARD, ROBERT MARK E. SUSAN HAYWARD HAYWARD, III, LITEM, AND MARK E. BY HIS GUARDIAN AD HAYWARD; E. MARK EDWIN L. AND KEIL MARIANNE KEIL KEIL, JR., LITEM, AND EDWIN BY HIS AD GUARDIAN EDWIN L. KEIL; ROBERT KELEMEN AND ARLENE AND MI KELEMEN KELEMEN, LITEM, CHAEL BY HIS AD GUARDIAN ROBERT KELEMEN; KELLY, JOSEPH E. ANNELIESE KELLY AND SAN KELLY; DRA BETTY ANN KEMERLE AND AND STEVEN KEMERLE, LITEM, CHRISTINA BY THEIR GUARDIAN AD BETTY KEMERLE; KJEMS, KJEMS, KJEMS, ANN ARNE ELSE INGE LISA ARNE, JR., KJEMS, AND AND DONNA MARIE BY THEIR GUARD LITEM, KJEMS; AD IAN ARNE EDWARD KORZENOK AND JU LIA KORZENOK AND CHRISTINE AND LEE ANN KAREN KOR ZENOK, LITEM, BY THEIR AD GUARDIAN EDWARD KORZE NOK; LAFKAS; JAMES AND LAFKAS HELEN LAMONI JOSEPH CA, LAMONICA, LAMONICA, JR., PEGGY JOSEPH LISA AND LAMONICA, LITEM, JENNIFER BY THEIR AD GUARDIAN JO LAMONICA; SEPH KENNETH C. LAPLANTE AND CELESTE LA PLANTE; LEIGHTON, J. PETER ELAYNE A. LEIGHTON AND LEIGHTON, LITEM, SANDRA CLAIRE BY HER GUARDIAN AD J. LEIGHTON; LINDES; PETER RICHARD LINDES AND MAVIS LIPPINCOTT; PEARL WILLIAM J. LODATO AND PATRICIA C. AUMACK, LODATO AND ROBIN AUMACK AND BRIAN BY LITEM, LODATO; THEIR AD GUARDIAN WILLIAM J. PAUL LO LOGUE; LUSTER, GUE MARY AND MICHAEL ERNA LUSTER LUSTER, AND CHRISTINE AND BY CATHRYN GUARDI- THEIR LITEM, LUSTER; MASSARO, MICHAEL AD ANTHONY PHYL- AN ANTHONY, LIS MASSARO AND III MASSARO, AND TERESA ANN LITEM, BY THEIR MASSARO; GUARDIAN AD ANTHONY THEO- DORE MAYO, MAYO AND EILEEN MAYO AND ROBERT BY HIS LITEM, MAYO; AD MCCARTHY, GUARDIAN THEODORE JAMES MCCARTHY, SUSAN MCCARTHY AND TREVOR AND DANA BY MCCARTHY; THEIR GUARDIAN AD LITEM JAMES AND TARA MCCARTHY, BY PROSEQUENDUM, HER ADMINISTRATOR AD MCCARTHY; MCELROY; JAMES FRANCIS DONALD MCGEE MCGEE; AND SUSAN GORDON MCKINNON AND PATRICIA MCKINNON; MERRILL; R. DAVID MERRILL AND RUTH EU- MILLS, GENE D. SANDRA J. MILLS AND WAYNE AND ERIC MILLS, LITEM, BY THEIR MILLS; GUARDIAN AD EUGENE D. MOORE, MOORE, DENNIS MARGARET MOORE AND SCOTT BY LITEM, MOORE; MULLEN, HIS GUARDIAN AD DENNIS JOHN JOHN, JR., DIANE MULLEN, MULLEN AND AND JOYCE BY LITEM, MULLEN; THEIR GUARDIAN AD *3 JOHN NORMAN MYERS, MARK, HANNAH AND MYERS DAVID AND ILANA MYERS, LITEM, BY MYERS; THEIR AD GUARDIAN NORMAN OCHS, OCHS, GILBERT ELEANOR MARGARET RICKERT AND OCHS, LITEM, DEBBIE BY OCHS, HER AD GUARDIAN GILBERT PALOCIN, MICHAEL JEAN PALOCIN AND MICHAEL J. AND PALOCIN, LITEM, MICHELLE JEAN BY THEIR AD GUARDIAN PALOCIN; MICHAEL PATRICK PIAGGIO AND FRANCIS PIAGGIO PIAGGIO, LITEM, AND JEANNETTE BY HER GUARDIAN AD PIAGGIO; PATRICK BRUCE REINARTSEN AND REIN JOYCE REINARTSEN, III, ARTSEN AND BRUCE BY HIS GUARDIAN AD LITEM, REINARTSEN; BRUCE JOSEPH REISINGER AND REISINGER; RODRIGUEZ, ODETTE ISMAEL BRIGID RODRI ISMAEL, JR., RODRIGUEZ, AND GUEZ RICHARD AND WILLIAM LITEM, RODRIGUEZ; BY THEIR AD GUARDIAN ISMAEL RENAR DO ROMANO AND JOYCE AND ROMANO RA AND CARINA RO MANO, BY THEIR GUARDIAN AD LIEM RENARDO ROMANO ROMANO, AND RONALD BY HIS ADMINISTRATOR AD PROSE QUENDUM, ROMANO; ROMEO, RENARDO JOSEPH DEBRA RO ROMEO, MEO AND ROCCO AND ADENA BY THEIR GUARDIAN LITEM, ROMEO; SALEK, AD JOSEPH VINCENT MARLENE SA LEK, SALEK, KAREN SALEK AND VINCENT BY HIS GUARDIAN LITEM, SALEK; SCHADEWALD, AD VINCENT WILLIAM W. LIN LINDA, DA SCHADEWALD AND DONNA AND F. WILLIAM SCHA DEWALD, LITEM, BY THEIR GUARDIAN AD WILLIAM W. SCHA DEWALD; SCHROTH, E. WAYNE MARIE SCHROTH AND GER SCHROTH, LITEM, ARD AND MARC BY THEIR GUARDIAN AD SCHROTH; SKELTON, E. WAYNE DAVID ELEANOR SKELTON SKELTON, LITEM, AND DAVID BY HIS GUADIAN AD DAVID SKELTON; SMEDLEY; JOSEPH SMEDLEY AND MAUREEN SPANO; STAMOS, AND CARMELLA FRANK P. SPANO GUS KAR HELEN, STAMOS, EN AND AND STAMOS JOHN OURANIA BY LITEM, STAMOS; THEIR AD GUARDIAN GUS P. STAMOS JOHN STAMOS; SWANSON, AND SYLVIA JAMES SHEILA SWANSON SWANSON, AND TIGHE AND BRENN BY THEIR GUARDIAN AD LITEM, SWANSON; JAMES LASLO TAKACS AND MARGARET TAKACS; TOBIAS; ERNEST AND TOBIAS CYNTHIA BELLO TOTH, TOTH, TOTH, PATRICIA AND MICHELLE AND ROBERT LITEM, BY TOTH; THEIR AD GUARDIAN BELLO BARBARA AND TREACY, LITEM, KATHLEEN BY THEIR GUARDIAN AD BRIAN TREACY; TYRANSKI, HENRY JOANNE TYRANSKI AND KIM BERLY, TYRANSKI, AND TROY MARTIN BY THEIR GUARDIAN TYRANSKI; LITEM, AD HENRY CHARLES AND UNTISZ MARY UNTISZ; M. JOHN URGO AND DIANA M. URGO AND JOHN URGO, LITEM, URGO; BY HIS GUARDIAN AD JOHN M. RONALD NOTE, NOTE, JR., VAN NANCY VAN AND NOTE RONALD VAN LITEM, NOTE; BY HIS GUARDIAN AD RONALD VAN FRANK VILARDI; VILARDI AND CONCETTA MICHAEL WALLACE AND WALLACE; JUDITH A. RICHARD WENDT AND LINDA WENDT WENDT, AND AND MELINDA LAURI BY THEIR GUARDIAN AD LITEM, WENDT; RICHARD A. WILLIAM WHEELER AND JOAN WHEELER; MARGARET WOJCIECHOWSKI AND GREGORY WO JCIECHOWSKI; ADELUNG, MICHAEL BY HIS GUARDIAN AD LITEM, JR.; ADELUNG, BRACCO, WARREN J. TONI ANN BY HER LITEM, BRACCO; GUARDIAN AD ANTHONY MICHAEL COPE BY LITEM, COPE; HIS AD GUARDIAN RICHARD ELI DJAMBINOV DJAMBINOV; ECKELSON; AND NANCY RICHARD JENNIFER GRILLO, LITEM, HER GRILLO; BY AD GUARDIAN ROBERT HELLE, LITEM, CHRISTINE BY HER GUARDIAN AD ROBERT HELLE; KELLY; FREDERICK KENNETH LINDES AND DOUG- LINDES, LITEM, LAS BY THEIR AD GUARDIAN RICHARD LINDES; MCELROY; MCKINNON, CHRISTINE M. JOHN BY HIS MCKINNON; MOORE, GUARDIAN AD LITEM GORDON BRIAN *4 MOORE; BY HIS GUARDIAN AD LITEM DENNIS CARLOS A. RODRIGUEZ, CARMEN N. RODRIGUEZ AND D. CARLOS RODRI- LITEM, RODRIGUEZ; BY AD A. GUEZ HIS GUARDIAN CARLOS SMEDLEY, LITEM, JENNIFER BY HER GUARDIAN AD JOSEPH TOBIAS, SMEDLEY; LITEM, BY AD JASON J. HIS GUARDIAN TOBIAS; TREACY; ERNEST BRIAN TREACY AND VIRGINIA CHRISTINE, AND BY THEIR AD DENISE UNTISZ GUARDIAN WHEELER, LITEM, UNTISZ; BY F. HIS CHARLES WILLIAM LITEM, WHEELER; AD WILLIAM DEBORAH WO- GUARDIAN JCIECHOWSKI; FOX, AND BY KATHLEEN FOX JEROME HIS LITEM, FOX, GUARDIAN AD KATHLEEN PLAINTIFFS-APPEL- CROSS-RESPONDENTS, JACKSON, v. OF LANTS AND TOWNSHIP A THE JERSEY, MUNICIPAL CORPORATION STATE OF OF NEW DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
Argued February Decided May 1987. 7,May
Decided 1987. *7 Phillips argued Steven J. and Arnold C. Lakind the cause appellants cross-respondents Phillips and (Levy Konigs- & Lakind, Blumstein, Blader, berg Szaferman, & Waiter Phillips, Steven J. Arnold Lakind and Donald attorneys; C. I. Marlin, briefs). on the
James Stewart and H. Curtis Meanor argued the cause for Sacks, respondent cross-appellant (Podvey, Meanor & Ca- tenacci, attorneys). opinion
The by Court was delivered STEIN, Justice. application this case we consider the Jersey of the New (the Act), N.J.S.A. 59:1-1 to 12-3,
Tort Claims Act to the claims by Township asserted 339 residents of against Jackson municipality. litigation
The involves claims for sustained because plaintiffs’ well water pollutants was contaminated toxic leaching Cohansey into Aquifer from a landfill established operated by trial, Township. Jackson After an extensive jury township found that the had created a “nuisance” and “dangerous operation condition” virtue its landfill, unreasonable,”—a pre- that its conduct was “palpably requisite under N.J.S.A. 59:4-2—and that was the recovery it proximate cause of the sup- contamination of water ply. jury aggregate verdict resulted in an judgment of $15,854,392.78, among varying be divided *8 The jury amounts. returned for of individual awards each the plaintiffs proxim- varied in that accordance with such factors as landfill, ity to the duration and of extent the contaminants, age and the of the claimant. provided compensation
The verdict for three distinct claims $2,056,480 injury: was for emotional caused awarded distress by knowledge they ingested the that had water contaminated by $5,396,940 up years; toxic chemicals for to six was awarded for quality during twenty the deterioration of their of life the water; they deprived months running when were and $8,204,500 was awarded cover the future cost of annual plaintiffs’ expert medical surveillance that testified would necessary plaintiffs’ susceptibility increased to can- because verdict, approxi- The of the cer and other diseases. balance $196,500, represented expenses in- mately miscellaneous not appeal.1 volved this Appellate upheld portion judgment of the Division damages impairment
awarding plaintiffs quality of their (1985). N.¿Super. It life. 202 reversed award for distress, concluding damages that such emotional constituted suffering” recovery is barred “pain and which N.J.S.A. 59:9-2(d). Appellate Id. at 116. The Division also set aside the $8,204,500 expenses, concluding award for medical surveillance “impossible say significantly that it is that defendant has so probability’ any plaintiffs increased ‘reasonable develop justify imposing upon will cancer so as to defendant the early of lifetime medical financial burden surveillance for clini- signs (citation omitted). cal of cancer.” Id. at 122 addition, Appellate Division affirmed the trial court’s plaintiffs’ dismissal of claim for for their enhanced disease, 125-26, upheld risk of id. at and the trial court’s $850,000, judgment by reduction of the the amount for which plaintiffs Ernst, settled before trial with codefendant John Township engineer, Appellate Jackson id. 126-27.2 The plaintiffs’ Division also affirmed the trial court’s dismissal of Rights claim under the federal Civil Act of 42 U.S.C.A. 1983. at 128. Id. § components juiy computed jury 1The of the verdict were on the basis of the prepared by They vary
verdict summaries the trial court. somewhat from the opinion Appellate amounts set forth in the Division. judgment, 2In its final the trial court reduced award an $450,000. represented proceeds additional This sum of a settlement Township third-party plaintiff, reached between defendants, Builders, including third-party various defendants and Mastercraft Associates, Becker, Municipal Chadwick Jacob East Windsor Utilities Authori- Brothers, Lewis, ty, Cartage, Stanley Septic, Freehold Hecht Hans John propriety appeal. is not contested in this David Italiano. The of this setoff *9 granted plaintiffs’ petition We for certification review the portions Appellate decision, of adverse the Division granted and cross-petition defendant’s to review the affirmance of the dam- age impairment award for of quality of life. 102 N.J. (1985). part We affirm in part now and reverse in the judgment Appellate Division.
I provided The evidence at ample support trial jury’s the conclusion the township operated Legler that had the landfill in manner, palpably a finding a township unreasonable that the did not Appellate contest before the Briefly Division. summa- rized, proof the prior showed township operat- to 1971 the subject ed another landfill complaints by that was the neighboring residents at least one citation for violation of regulations. prior state When the capacity landfill’s ex- was hausted, opened township Legler the in landfill 1972. Department (DEP) granted of Environmental Protection con- landfill, permit ditional excluding liquid the new or soluble limiting depth industrial wastes and deposits waste to a specific grade groundwater. above the level of the The evi- that, inception dence opera- indicated from the of the landfill’s tion, township failed to monitor quantity types liquid dumped landfill, ignored duty waste its depth control and limit the of the trenches in which wastes deposited. were There was substantial evidence that the town- ship disregarded DEP, imposed by the conditions and that the township’s negligent operation the landfill resulted in chemi- groundwater cal contamination of the the area and the underlying aquifer. prove expert testimony
At trial offered chemical contamination their wells was caused the town- ship’s operation improper testimony of the landfill. The estab- that, concentrations, varying following lished chemical by plaintiffs used substances had infiltrated various wells *10 acetone; benzene; chlorobenzene; chloroform; source: water dichlorofluoromethane; chloride; ethylbenzene; methylene me- ketone; isobutyl 1,1,2,2-tetrachloroethane; thyl tetrahydrofu- ran; 1,1,1-trichloroethane; trichloroethylene. ground- and A expert probable water described the movement and concentra- migrated tion of the chemicals as they from the landfill toward A plaintiffs’ toxicologist wells. summarized the known hazard- ous of characteristics the chemical substances. He testified chemicals, of that the twelve identified four were known carcin- ogens. potential Other toxic effects identified the toxicolo- gist kidney damage, included liver mutations and altera- genetic material, damage tions reproductive to blood and systems, neurological damage and skin irritations. The toxicol- ogist also testified about in the differences extent the of exposure experienced by chemical plaintiffs. expert various An diagnosis in the of by exposure treatment diseases caused to toxic plaintiffs required substances testified that the annual medical examinations to possible diagnosis afford earliest of chemically induced opinion illnesses. Her program was regular medical improve surveillance would cure, treatment, prospects life, prolongation of and mini- pain disability. mization of
A substantial than plaintiffs gave number—more 150—ofthe testimony respect damages, describing with detail impairment quality during period of their life they running water, were without they and the emotional distress regard claims, suffered. With to the emotional distress plaintiffs’ testimony detailed their emotional reactions chemical deprivation contamination of their wells and the supply, their water as well their as their fears for health of family Expert psychological testimony members. was offered plaintiffs’ they compen- to document claims that had sustained psychological damage sable aas result of the contamination their wells.
We now consider each of the damage claims in the context of the evidence adduced legal principles at trial and the application that should inform our of the Tort Claims Act. Quality Life In November Legler residents of the of Jack- area Township son were advised the local Board of Health not to *11 water, drink their well washing and to limit bathing and prolonged exposure avoid warning the water. This was by issued after Board tests disclosed that a number of wells Legler in the township area of the by were contaminated toxic Initially, chemicals. the township provided water to the affect- ed in residents water tanks transported that were by tank trucks to various in neighborhood. locations Plaintiffs containers, brought their own filled them with water from the tanks, transported and the water to their homes. water-supply system
This was soon replaced discontinued and home-delivery system. a in Residents need of water a tied cloth on white their gallon mailbox and received a 40 barrel containing plastic liner filled with water. The filled barrels weighed pounds off, in excess of 100 and dropped were needed, properties Legler-area on the of the residents. The family-members frequently required were to move the barrels protected area, to a garage either inside a or inside the resi- dence. Residents in garages who stored the barrels testified that the in water froze cold weather. Other or residents rolled dragged their their barrels into homes. In order to use drinking, washing cooking, bathing, water the residents filled containers with water from the barrels to meet the varying occasion, needs their households. On dirt there was or debris in township requested the water and the would be provide a replacement barrel. Appellate
The opinion Division described the inconvenience experienced by one resident: hauling One witness, who suffered from testified to arthritis, her water
drinking, cooking bathing nine as she up steps because, said, get hauling I was no could the water [t]here way upstairs except by pot after out of the containers, ... which was a considerable pot amount of hauling just drinking bathing to use for the children and everyday cooking. N.J.Super. [202 117.] noted, Appellate As the running Division the lack of water was an among understandable source of tension and friction mem- plaintiffs’ households, bers nearly years who for two compelled primitive were to obtain water this manner. Id. charged The trial court jury claim for “quality “inconveniences, encompassed of life” aggra- vation, unnecessary expenditure of time and effort related homes, to the use of the water hauled to their as well as to lives, disruption other including disharmony their in the family aggregate unit.” jury verdict on this claim was $5,396,940. represented This average slightly an award of over $16,000 plaintiff; thus, for each family consisting unit of four average $64,000. received approximately an award of Appellate Court, Division and before this defendant argues segment that this verdict is barred the New Act, Jersey provides: Tort Claims which *12 damages against No shall be awarded a or for public entity public employee suffering resulting injury; and from pain that this any however, provided, damages suffering limitation on the of for and shall not recovery pain apply disfigurement cases of of loss permanent function, or bodily permanent dismemberment where the medical treatment are in excess of expenses 59:9—2(d).] [NJ.S.A. $1,000.00. legislative Defendant contends that the restricting intent in damages “pain suffering” for and encompass was to claims for “non-objective” all injuries, statutory unless the threshold of severity expense of of treatment is met. The town- ship inconvenience, asserts aggravation, that the effort and disruption of family the unit that resulted from the loss of plaintiff's supply water “pain suffering” was but a form of and uncompensable and therefore under the Act. Appellate
The rejected township’s contention, Division the concluding that there was a clear distinction between subjectively damages suffering, the measured for and which are not pain objectively the Tort Claims and Act, those which affect compensable by quality causing of through life an with interference the use of one’s land inconven- NJ.Super. ience of and activities. disruption daily [202 118.] agree Appellate
We with the Division’s conclusion. The against Tort ban recovery damages “pain Claims Act’s of suffering resulting any from injury” apply is intended to to intangible, subjective feelings of discomfort that are associ personal injuries. ated with It not was intended to bar claims for inconvenience associated with the invasion of property As charge interest. the trial explained, plaintiffs court’s sought damages compensate to multiple them for the inconven running Although iences associated with a lack of water. disruption plaintiffs’ of is supply “injury” water an under the Act, 59:1-3, here, right N.J.S.A. the interest invaded potable running plaintiffs’ wells, obtain water from own is qualitatively “pain suffering” different from to a related personal injury. Appellate
As the acknowledged, Division claim quality of life from derived the law of nuisance. NJ.Super. long recognized at 117-18. It has been inconvenience, damages for annoyance, and are re discomfort Sterling coverable a nuisance action. See v. Velsicol Chem. Dobbs, (W.D.Tenn.1986); Corp., F.Supp. D. Reme 5.3, (1973); Keeton, Dobbs, dies at 334 see also W. D. R. § Owen, Keeton D.& Prosser and Keeton on the Law Torts (5th 1984) (quoting Dobbs, at 639 approval ed. with from § supra). (Second) (1977) Restatement Torts sets § categories compensation respect out three distinct with of an in land: invasions interest (a) the difference between the value of the land the harm and the before
value after the or at in an harm, case, election cost [plaintiff’s] appropriate been incurred; restoration has or may reasonably (b) loss of use land, (c) him discomfort and annoyance occupant. [M] *13 damages components While the first of these constitute for two land, plaintiff’s enjoyment the interference of his with use and category the third compensates plaintiff personal for his flowing losses directly from such an invasion. See v. Kornoff Kingsburg Co., 265, 273-75, 507, Cotton Oil 45 Cal.2d 288 P.2d (1955); Co., 1, 512-13 Miller Colo.App. 4, v. Carnation (Colo.Ct.App.1977); Guinn, P. 2d Rust v. 429 N.E.2d such, 303-04 (Ind.Ct.App.1981). damages As for inconven ience, discomfort, annoyance and grounds constitute “distinct compensation ordinary for which in person cases the possession is entitled to recover in addition to the harm to his proprietary interests.” Restatement Second Torts § (1977). comment e
Accordingly, we quality conclude that the damages of life represent compensation for losses damage associated with property, agree and Appellate with the they Division that do not pain suffering constitute under the Tort Claims Act. We judgment therefore sustain the quality of life damages.
Emotional Distress jury plaintiffs verdict awarded for emotional $2,056,480. distress in aggregate amount of The individual ranged $14,000. verdicts from $40 Many of the testified about their emotional reac- knowledge tions to the that their well-water was contaminated. Most plaintiffs’ testimony on the issue of emotional distress relatively general. was brief and Typically, their testi- mony did not indicate that the emotional distress resulted in physical symptoms required medical treating treatment. No physicians regarding plaintiffs’ testified emotional distress Nevertheless, claims. the consistent thrust of the testimony offered numerous they witnesses was that suffered anxiety, stress, fear, depression, feelings and that these were direct- ly causally knowledge related to the they and mem- family ingested bers their had exposed and been to contam- inated water period. substantial time
573 testimony Plaintiffs also presented experienced from clini- an psychologist, Margaret Gibbs, cal Dr. had who administered a variety psychological of plaintiffs. tests to 88 of the adult The levels, measured depression, feelings control, tests stress of and Dr. personality. plain- Gibbs sample testified that the of stress, tiffs she tested manifested abnormally high levels of depression, health psychological problems. concerns and She expressed the opinion that psychological conditions ob- by causally served her were related to the of contamination plaintiffs’ supply. water Division, Appellate township
Before
challenged the
jury
awarding damages
verdict
for emotional distress on two
grounds.
township
The
contended that
had not
proved that
experienced
the emotional
by
distress
them was
by any
physical
manifested
symptoms
injuries,
discernible
or
arguing
proof
of
physical
related
symptoms
prereq
was a
559,
uisite
recovery
Busch,
under Falzone v.
569
N.J.
(1965),
88,
(1980).
and
Jaffee,
Portee v.
84 N.J.
The trial
court,
denying
summary judgment,
defendant’s motion for
acknowledged
significance
had
proof
physical
of
of
damage
sickness to sustain a
claim
on
based
emotional
Ayers
Jackson,
Township
distress.
v.
189 N.J.Super.
of
(Law Div.1983);
Dam,
Eyrich
see
Eyrich
also
v.
for
N.J.Super.
(App.Div.)(citing
(Second)
253-54
Restatement
(1965)),
denied,
(1984).
Torts
436A
certif.
wastes have a serious illness can characterized as precipitated anything suffering. other than It is a measure their pain entirely threatening, subjective though a which, situation never material- responses objective injury. into ized manifestations Under we circumstances, although damages intangible might conclude that for these harms recovera- non-governmental ble from nuisance, to a the lan- entity, consequential guage 59:9-2(d), barring N.J.S.A. from “for public pain entity suffering resulting injury,” from any herein. clearly precludes recovery [202 N.J.Super. 116.] *15 us, plaintiffs Before Appellate contend the that Division misconstrued the bar They argue Tort Claims Act. that Legislature’s prohibit damages pain intent was to for and suffering resulting injury from a physical only. Plaintiffs maintain that their emotional claims not distress should by Act, they “independent barred because based are on injuries,” and pain do not suffering constitute and to incidental physical injury. They a emphasize also that their emotional compensable claims distress are because we have abandoned requirement of physical impact a recovery condition to for emotional distress. acknowledge longer
We that our require proof cases no causally-related physical impact a recovery to sustain for emo- 93, tional distress. Jaffee, supra, See v. 84 Portee N.J. at and Busch, Nevertheless, v. supra, Falzone 569. N.J. at we reject plaintiffs’ that assertion the Tort Claims Act’s limitation against recovery “pain suffering resulting any and from injury” does not to apply claims based on emotional distress. construing statutory
In language, cognizant we are that legislative the immunity intent was re-establish of all governmental except in Jersey bodies in New the circumstances enumerated in the Act. See Birchwood Lakes Club Colony v. Lakes, (1982); Borough English N.J. v. of Medford Auth., Housing N.J.Super. (App.Div. Newark 428-29 1976). We are cautioned the Comment 59:2-1 N.J.S.A. that an not, be whether and should should immunity applies [t]he approach if utilizing attach. liability It this courts will approach hoped against
exercise restraint in the of novel causes of action acceptance public entities. N.J.S.A. [Comment, 59:2-1.] barring addition to pain suffering resulting from an injury, the Act precludes also recovery against govern- mental prejudgment interest, entities for 59:9-2(a), N.J.S.A. claims, strict liability 59:9-2(b), punitive id. at damages, id. at 59:9-2(c), subrogation claims, 59:9-2(e). id. at
Addressing first contention that emotional distress “injury” is not an as that term is used in the Tort Act, Claims we observe that broadly the Act injury defines include
death, injury person, damage property to a any injury to or loss of other person may a by private person. suffer that would be actionable if inflicted [N.J.S.A. 59:1-3.] statutory expansive definition is unqualified and clear- ly accommodates “emotional distress” as an “that a person may suffer that would be actionable if inflicted private person.” The term “injury” is also used N.J.S.A. 59:4-2, which scope public defines the entity liability.3 Plain- ly, if emotional distress did not constitute an injury under this section, plaintiffs could not have asserted a cause of action for *16 emotional distress under the Act. discern We no basis in the legislative history or in the statutory scheme of the Act for assigning meaning a more restrictive “injury” to the term as 59:9-2(d), used in N.J.S.A. the liability section that limits for pain suffering, and than that accorded to the same word in the section imposes of the Act that liability public entity. on a Accordingly, we hold that claims for emotional distress are encompassed by “injury” 59:9-2(d).4 the term in N.J.S.A. provides, pertinent part,
3N.J.S.A.59:4-2 in that public entity injury by property [a] is liable for caused a condition of its if plaintiff property dangerous establishes that the was in condition at the injury, injury proximately by dangerous time of the that the was caused condition, dangerous reasonably [and] that the condition created a foresee- * * injury [Emphasis able risk of the kind of which was incurred *. added.] Act, 4Interpreting the California Tort Claims which served as model for the Act, Auth., 107, Jersey Jersey Turnpike New S.E. W. Co. Friel v. New 73 N.J. 122 576 “pain suffering”
The term and is not defined in the Act. The Comment N.J.S.A. 59:9-2 describes the limitation on pain suffering reflecting for and as policy judg “the ment that in view the presently facing economic burdens public entities a claimant not be for should reimbursed non-ob jective types damages, pain suffering, as except such and in * * aggravated Comment, *.” circumstances N.J.S.A. 59:9-2. are in full We accord Appellate with the conclusion of the subjective Division symptoms stress, that depression, concerns, health and anxiety described and expert their “pain suffering witness and resulting constitute any injury” 59:9-2(d). from as is phrase that used in N.J.S.A. recognized We have in involving damages other contexts sought emotional distress that injury to be redressed can fairly pain suffering. be described as and Evers v. See Dol 399, linger, (1984) 95 410 (“Certainly compensable injury N.J. pain suffering the form of mental and in a context medical malpractice new”); Allen, 421, is not Berman v. 80 N.J. 433 (1979)(“courts recognize have come to mental emotion just physical al pain”); distress ‘real’ as Zahorian v. 399, (1973) Russell Real 62 Agency, Fitt Estate N.J. (affirming “pain suffering” an award of intended $750 compensate plaintiff for mental experienced distress as a discrimination); U.S., 203, result of v. DePass F.2d cf. (7th Cir.1983) (Posner, J., (“ dissenting) ‘pain suffering’ (1977), Supreme "injury” Court of California held that the term distress, encompassed reasoning statute claims for emotional that an "feelings" is "of kind that would the law if it were inflicted redress private person.” Superior Delta Dist. Farms Reclamation No. 2028 v. Court of 699, 711, 494, 1168, 502, Joaquin Cty., CalRptr. San 33 Cal.3d 660 P.2d 1176, denied, (1983). cert. 464 U.S. 78 L.Ed.2d 104 S.Ct. *17 "injury" The term is defined in the California Act as death, injury person, damage any property, to a or or loss of other character, injury person may person, reputation, a that suffer to his estate, feelings by of such it would be if inflicted nature that actionable (West private 1980).] person. a 810.8 [Cal.Gov't.Code § just suffering physical pain does not mean but and includes the unhappiness by disfiguring crippling injuries”). caused and
Assuming as we that tortiously-inflicted do emotional distress limb, “injury” is much an under a the Act as broken it is subjective symptoms depression, fear, that evident such as anxiety—either consequence as a of emotional distress or a “pain suffering” purposes broken limb—constitute for the the Tort Claims Act. doubt, record, We have no based on our of the review that many experienced of the understandably substantial emotional distress as result of the contamination of their However, supply. legislature expressly water has deter- pain mined that the suffering their occasioned emotional compensable by damages distress not from Jackson Town- ship. Jersey The Tort recovery New Claims Act bars the damages. Accordingly, Appellate such we affirm the Division’s portion jury awarding damages reversal of that verdict for emotional distress.
Claims Enhanced Risk and Medical Surveillance by plaintiffs seeking No claims recovery were asserted specific illnesses caused their to chemicals. Rath- er, they claim for the risk of enhanced future illness exposure. They to such seek to attributable also recover the expenses physi- of annual medical examinations monitor their symptoms health cal and detect of disease at the earliest possible opportunity. trial, granted
Before
court
the trial
defendant’s motion for
summary judgment dismissing
risk claim.
the enhanced
It held
plaintiffs’ proofs, with the
benefit of all favorable inferenc-
es,
probability”
plain-
would not
establish
“reasonable
tiffs would sustain future
as a result
chemical contam-
supply.
(citing
ination of their
at 567-68
N.J.Super.
water
(1959)).
Sherry,
v.
trial court also
Coll
N.J.
risk
recognition
observed that
of the enhanced
claim would
*18
* * *
jury
cause
“speculate
to
to the future health of
[as]
* * *
plaintiff,”
each
spectre
potential
raise “the
claims
increasing
However,
proportion.”
boundless
Id.
the court
specifically noted that
injury
future claims for
attributable to
exposure to contaminants in the
supply
water
would not be
by
barred
the statute of limitations. Id.
With to the claims for medical expenses, surveillance the trial court denied summary judgment motion, defendant’s 189 N.J.Super. at jury and the verdict included $8,204,500 for medical Appellate surveillance. The Division reversed, concluding that the claims for medical surveillance expenses, risk,” like the claims for specula- “enhanced were too recognition tive to warrant under the Tort Claims Act: Faced with the admitted witness inability the in expert quantify creased risk, we cannot rule out such increase is so probability meaningless. guid small as to quantifying microscopically Without some ance it significantly becomes that defendant has so impossible say increased (1959), Coll the "reasonable v. 29 N.J. Sherry, probability,” 166, 175 any justify imposing will cancer so as to develop defendant upon financial burden of signs lifetime medical surveillance clinical early reaching Legislature’s cancer. this conclusion we heed the hopeful expecta tion that "the courts will exercise restraint in the of novel causes of acceptance against action N.J.S.A. 59:2-1. entities.” Comment, public at [202 N.J.Super. 122-23.] As a result of the trial Appellate court’s and Division’s rulings, plaintiffs are left to await actual manifestation of physical injury attributable their to toxic chemicals they before can institute and damage sustain a claim for personal injuries against Although defendant. the trial court any observed that such future suits could avoid the bar of rule,” statute of limitations “discovery virtue of our NJ.Super. Appellate characterization of Division’s nonbinding or another that statement as dictum defers to this determining subsequent personal court the task of whether *19 against this maintained. injury may suits defendant indeed be interim, any plaintiff Appellate ruling, In the under the Division regular periodic or medical surveillance for the who obtains detecting physical express purpose of adverse conditions attrib- personally the utable to to toxic chemicals must bear expense to the extent its cost is not covered of that evaluation by plaintiffs’ own health insurance. view, effectuating
In these decisions fall short of the our claims are asserted policies of the Tort Claims Act where public entity wrongful exposure to toxic chemi- against a for Although Appellate concur Division’s refusal cals. we with risk, recognize plaintiffs’ damage claim based on enhanced to an for medical disagree with its conclusion that award we supported by record. We damages surveillance cannot be this clarify the statute of appropriate also deem it the effect of limitations, 2A:14-2, single controversy doc- N.J.S.A. and the personal injuries. on future claims for trine
1. of the enhanced risk and medical surveillance Our evaluation manage- in the requires that we focus on a critical issue claims litigation: stage in the evolution of a ment of toxic tort at what requiring respon- injury tort law intercede toxic should party pay damages? sible outset, recognize presented must that the issues
At the we recurring. note the like it will be We this case and others experience attempting and science difficulty that both law society complexities of industrialized emerging deal with facet implications for human health. One consequent and the here, years of represented in the form of problem of that practices. However improper disposal inadequate and waste manage- those waste dimly callously consequences of practices may perceived, consequences ment have been those upon According are now us. to the Senate Committee on Works, Environment and than ninety percent Public more of all produced hazardous chemical the United wastes States have disposed been of improperly. S.Rep. Cong., No. 96th 2d (1980) (citing estimates). Sess. 3 EPA In staggering problem removing—or addition to the containing—the least past practices, hazardous remnants of legal there problem compensating remains the moral and past human products. victims misuse of chemical Govern- response problem compensation mental to the has been slow. enacting Comprehensive Response, Environmental Com- pensation (CERCLA), and Liability Act of 1980 42 U.S.C.A. (West 1983), commonly 9601-9657 more the Super- called §§ legislation, Congress deliberately fund provision made no recovery personal property *20 damage resulting from to hazardous waste. Zazzali Grad, Rights & “Hazardous Wastes: New and Remedies? The Report and Superfund Study of the Group,” Recommendations 446, (1983) (hereinafter 13 Seton Hall L.Rev. Zazzali & Grad). Instead, Congress provided Study for the creation of a Group propose to problem compensa- solutions to the of victims’ 9651(e). tion. 42 Superfund Study U.S.C.A. Group, § recognizing difficulty adapting the legal traditional doctrines grievances victim, to redress tort toxic recommended a no-fault victims’ compensation fund similar in to structure compensation workers’ place laws in in the states. Zazzali See Grad, supra, (1983). & Hall at 464 Seton L.Rev. Under the Study Group's recommendations, compensated by victims fund right would maintain their to sue under traditional tort principles, assuming they prob- could overcome the numerous proving injury date, lems of and causation. Id. at To 464-65. Study none of Group’s regarding recommendations victims’ compensation adopted.5 comprehensive has Without a been response problem compensating victims governmental exposure, only remedy lies within the of toxic available legal system. statutory or administrative mechanisms for the absence injury resulting claims from environmental contam-
processing ination, struggled common-law courts have to accommodate litiga- peculiar of toxic-tort tort doctrines to the characteristics overwhelming of the commentators who tion. The conclusion failed, has accommodation have the result that the evaluated ill-suited to the resolution of that common-lawtort doctrines are claims, statutorily-authorized such and that some form required injuries if the sustained compensation procedure is fairly redressed. chemical contamination are victims of Weiss, Toxic Ginsberg Liability Law Torts: & “Common See 859, (1981) 920-30 Remedy,” A L.Rev. Phantom Hofstra Rosenberg, (hereinafter Weiss); “The Causal Con- Ginsberg & Exposure Mass A ‘Public Law’ Vision of nection in Cases: (hereinafter 851, (1984) System,” Tort 855-59 Harv.L.Rev. Trauberman, “Statutory Reform of ‘Toxic Torts’: Rosenberg); Scientific, on the Legal, and Economic Burdens Chem- Relieving (herein- 177, (1983) Victim,” 7 188-202 ical Harv.Envtl.L.Rev. Trauberman); “Developments in the Law—Toxic Waste after (hereinafter (1986) Litigation,” 1602-31 99 Harv.L.Rev. Note, Waste”); Inapplicability “The “Developments—Toxic The Exam- Analysis Tort Risks: Traditional Environmental Compensation,” 35 Pollution Victim Stan.L. ple Toxic Waste Note, (1983) (hereinafter “Traditional Tort Rev. 581-88 Analysis”). judicial to demonstrate variety
A of factors are cited *21 Among the is unworkable. exposure of mass claims resolution expo- to mass practical are difficulties endemic obstacles cited 1986, Pub.L. No. Superfund Act of 5The Amendments Authorization (West 99-499, Supp.1987)) (codified makes § at 42 U.S.C.A. 9658 100 Stat. 1613 compensation provision fund. no for a victims’ litigation, sure including parties respon identification of the sible for damage; responsible environmental the risk par that ties are judgment-proof; expense of compensating expert specialized toxicology witnesses fields epidemiol such as ogy; strong temptation premature and the settlement be cause of complexity the cost and of protracted multi-party litigation. Weiss, Ginsberg supra, & L.Rev. at Hofstra Trauberman, 924-28; supra, 189-91, 7 Harv.Envtl.L.Rev. at Note, 200-01; Analysis,” “Traditional Tort supra, 35 Stan.L. Rev. at 584-86.
Although state statutes limitations invariably are procedural identified as exposure litigation, obstacles to mass posed the extent of the problem by such statutes widely varies jurisdictions. among Weiss, Ginsberg & supra, 9 Hofstra 259; L.Rev. 921 & n. “Developments—Toxic Waste,” supra, 99 Harv.L.Rev. long 1606-07. Because of the latency period typical of by pollutants, illnesses caused chemical victims often injury discover their and the existence a cause long of action expiration limitations, after the personal-injury statute of period where limitations is calculated from the date of the exposure. Most jurisdictions have problem remedied this adopting a “discovery version of the rule” that tolls the statute injury until the is discovered. New Jersey’s states follow New discovery rule that tolls the statute until the victim discovers injury both the and the suggesting party facts may third responsible. Lynch Rubacky, supra, v. (citing at 70 N.J. Lopez 267, 272, (1973)); v. Swyer, 62 N.J. “Develop see Waste,” supra, ments—Toxic 99 Harv.L.Rev. at 1606-07. However, we note pre-empts that CERCLA now state statutes they provide limitation where period that the limitations personal-injury or property-damage prompted by suits to hazardous substances starts on a date earlier than the “federally required That commencement date.” term is defined (or plaintiff as “the date reasonably known) knew should have * * * personal property damages were * * * caused or contributed to the hazardous substance
583 and Authorization Act of Superfund Amendments concerned.” 99-499, 1613, (codified 42 1986, 1695-96 No. 100 Stat. Pub.L. (West Supp.1987). 9658 U.S.C.A. § party include single controversy “requires rule The failure against adversary and its related claims an the action all action.” Aetna the maintenance of a second precludes do so Bros., Inc., 550, (1981). Ins. Co. v. Gilchrist 85 N.J. 556-57 where, here, may recovery doctrine bar as suit is instituted to damages compensate recover consequences for the immediate pollution, of toxic the litigation but initiation of additional de- when, ever, pends upon if physical injuries threatened pollution are manifested. NJ.Super. at we implied, 202 Appellate Division
As the litigants in this case. for the resolve such issues need not in interest parties Nevertheless, appropriate that all of the it is controversy nor the single doctrine neither the understand that 2A:14-2, timely- limitations, preclude a will N.J.S.A. statute of future prompted by the of action filed cause con related to the tortious “discovery” of a disease statute litigation. The bar of the in this at issue duct because, Jersey’s discovery New under is avoided limitations is until the victim not accrue rule, of action does the cause indicating that a and of the facts injury or disease aware Rubacky, responsible. Lynch v. may party is or third rule, Moreover, controversy single at 70. supra, 85 N.J. “ expense of the delays and wasteful avoid the ‘to intended splitting of from the litigation results which multiplicity of ” Schlanger, (quoting Ajamian v. controversy,’ id. at 58, L.Ed.2d denied, 75 S.Ct. 483, 485, 348 U.S. cert. N.J. filed claim applied to a toxic-tort (1954)), sensibly be cannot merely exposure, years after is manifested disease when prop recover previously to plaintiff sued the same because case, rule is In such a injuries. damage or other erty noted, cause of action since, second inapplicable literally hence, manifested; it could until the disease not accrue does claims. the earlier joined with not have been Accordingly, principle we concur with advanced *23 court, 568, 189 N.J.Super. by trial at and endorsed other courts, and state Hagerty Servs., federal see L L v. & Marine Inc., 315, Cir.), (5th F. 2d grounds, 788 320-21 modified on other (5th Cir.1986); 256 Cox, 797 F.2d Eagle-Picher Indus. v. 481 517, (Fla.Dist.Ct.App.1985), So.2d 519-21 that neither the stat of single ute limitations nor the controversy rule bar should timely of causes action in toxic-tort cases instituted after dis covery of a or injury conduct, disease related to tortious al though prior there has litigation parties been between the of different claims based on the same tortious conduct. See 556, Devlin v. Corp., Johns-Manville 202 N.J.Super. 568-70 (Law Div.1985). commonly judicial
Another identified obstacle to resolution of mass tort claims is the difficulty by encountered plaintiffs in proving negligence. Although causes of action for trespass and nuisance may be property available to redress Weiss, injuries, see Ginsberg supra, 880; & 9 L.Rev. at Hofstra Note, Analysis,” “Traditional Tort supra, 35 Stan.L.Rev. at 581, personal injury most litigation actions toxic tort seek recovery on the of negligence, basis the defendant’s see “Devel Waste,” opments—Toxic supra, 99 Harv.L.Rev. at 1610-11. But Jersey, Dep’t State New Envtl. Protection v. cf. of Corp., (1983) Ventron N.J. (holding 488-93 that the disposal of toxic an abnormally dangerous wastes is activity strictly damage landowner is liable for to others caused toxic disposed wastes stored or property); of on his 58:10-23.11g(c) N.J.S.A. (imposing liability strict cleanup and removal any person costs on discharged who has a hazard substance). ous frequently argued It is negligence that a unfairly plaintiffs standard imposes on the difficult burden establishing by analysis a cost-benefit that the cost to defend taking ant of precautionary outweighed measures probability gravity Trauberman, supra, harm. 7 Haro. 192-97; Waste,” “Developments—Toxic Envtl.L.Rev. at supra, (citing (Second) Harv.L.Rev. at 1611-12 Restatement (1965)). frequent proposal A the substitu- Torts involves § liability negligence place tion of strict doctrine in of a standard. Weiss, 899-913; Ginsberg supra, & L.Rev. at “Devel- Hofstra Waste,” opments—Toxic at 1612-17. supra, 99 Harv.L.Rev. By far the most problem difficult to overcome litigation tort proving toxic is the burden of causation. “Devel- Waste,” 1617-30; opments—Toxic at supra, 99 Harv.L.Rev. Note, Analysis,” supra, “Traditional Tort 35 Stan.L.Rev. case, typical plaintiff prove In the must 583-84. tort conduct, Keeton, proximate tortious cause. W. D. Dobbs, Owen, R. Keeton & D. Keeton on the Law Prosser & (1984). Ordinarily, proof of causation Torts at 164-65 § requires the of a sufficient nexus establishment between injury. In toxic tort plaintiff’s defendant’s conduct and the *24 cases, proving invariably of is made more the task causation complex long latency period because of the of illnesses caused The or by carcinogens or other toxic chemicals. fact that ten exposure the twenty years may or more intervene between highlights practical difficulties the manifestation of disease the Moreover, prove the encountered in the effort to causation. by afflicted segments population of the entire are fact that requires plaintiffs, toxically-induced and other diseases cancer argument that other exposure, to counter the years after their intervening forces the “cause” of their exposures or were Judge Jenkins in injury. thoughtful analysis by The District (D. 1984), States, F.Supp. 247 Utah rev’d Allen v. United (10th Cir.1987), a case involv- grounds, 816 on other F.2d cancer, nuclear fallout and ing relationship the causal between exposure in mass explains problem graphically the causation litigation: conduct and defendant’s In most the factual connection between cases, genuinely is injury the cause-and-effect Often, is not in dispute. injuring a bottle of A’s strikes B, him; product explodes, obvious: A’s vehicle causing injuring B’s land, on A’s flows onto water B; property impounded damage. immediate singling source the defendant as the factual connection out In this the case, genuine injuries in Determi- is much dispute. the and deaths very of or cause-in-fact, nation factual is connection, issue the by complicated injuries (various leukemia), the nature of suffered forms cancer and the alleged (ionizing of the causation nature mechanism radiation from nuclear ** *), fallout the time factors and other in extraordinary variables involved tracing causal any between the two. relationship ionizing At this there point, to be no whether or not appears question radiation causes cancer and leukemia. It Once more, does. it seems however, what is important clarify meant “cause” in relation to radiation and
cancer.
When we refer to radiation as a
do not
cause, we
mean that it causes every
indicating
case of cancer or leukemia.
Indeed,
evidence we have
radiation
in the causation of
cancer
leukemia
all
shows
not
cases
cancer are
caused
radiation.
we
Second, when
refer to
as a cause of cancer,
radiation
we do not mean that
individual
to a certain amount of radiation
every
exposed
will
cancer. We
develop
mean that a
to a certain
simply
population exposed
greater
dose of radiation will show a
incidence of cancer than that same
would have shown in the
population
absence of the added radiation.
(1981),
Radiation and Human Health 54-55
Gofman, M.D.,
J.
PX-1046.
long
The
of cause-in-fact is
question
complicated by
additionally
delay,
period,
latency
known often as the
between the
to radiation and the
Assuming
originates
single
observed cancer or leukemia.
that cancer
in a
cell,
organ
cells,
few
in a
or
it
particular
take
before those
tissue, may
years
cells
into
millions or billions
multiply
detectable tumor.
comprise
****$#$*
* * *
distinguishing
one factor
problem
cancer
latency period
causation
from the cause-in-fact
questions
found
most
tort
relationships
e.g.,
cases;
“cause” is far more
immediate and
A
normally
direct,
observable,
gun
wounding
great
length
fires a
at B,
him. The
of time involved
seriously
* *
*
“intervening
injury
allows
involvement
sources of
possible
causes,”
from
wholly
the defendant’s
which obscure the factual connec-
apart
activities,
wrongful
tion
between
and the defendant’s
plaintiff’s
purportedly
passage
conduct. The mere
time is sufficient
raise doubts about "cause”
legal
minds of a
far
accustomed to
more immediate chains of
system
(citations omitted).]
events.
405-06
[Id.
*25
forced the Allen court to invoke
These difficulties
analogies
other cases that
upon
have relied
factual connections between
plaintiffs
liability,
proof
and
as a
where
of
defendants
basis for
Tice,
Id.
v.
(citing
causation was
at
Summers
unavailable.
(1948)
hunting accident,
33 Cal.2d
(during
Although acknowledge, must, we array as we complex practical problems and doctrinal litigants confound and courts in mass-exposure litigation, toxic-tort we are confronted fairly this case with manageable narrow issues. A legally financially responsible defendant has been identified jury and a has determined “palpably fault under the unreason- Act, 59:4-2, able” standard of the Tort Claims N.J.S.A. standard satisfy more difficult to than ordinary negligence. No statute of questions litigation. limitations are raised this Nor are we confronted with insurmountable issues of causation: testimony plaintiffs’ experts persuasively has established relationship wrongful between defendant’s conduct and the plaintiffs’ wells; contamination do not seek damages for presently-existing illness or disease attributable to wrongful legal defendant’s conduct. The issue we must re- solve, in jury’s the context of the determination of defendant’s Act, liability proof under the unquantified is whether the of an enhanced risk of illness or a need for medical surveillance is justify compensation sufficient to under the Tort Claims Act. acknowledged proving view the difficulties of causation manifest, once evidence of disease is a determination of the compensability post-exposure, partic- pre-symptom injuries is *26 important assessing
ularly ability of tort law to redress plaintiffs of litigation. the claims toxic-tort
2. Much of the same evidence was material to both the en- hanced risk and Raviv, medical surveillance claims. Dr. Dan geohydrologist,6 testified as to the movements and concentra- tions of the various they migrated chemical substances as from the landfill toward Joseph Highland, wells. Dr. toxicologist, applied Dr. Raviv’s gave testimony data and con- cerning the of exposure plaintiffs. level of High- various Dr. compiled toxicity profiles land also of the chemical substances wells, in the found and testified concerning the health hazards posed by exposure the chemicals and the levels at which ad- health verse effects had been experimentally observed. Ac- Highland, cording to Dr. four of the chemicals were known to carcinogenic, and at least four capable of the chemicals were adversely affecting reproductive of system causing birth of defects. Most the chemical produce substances could ad- kidney, verse effects on the liver as well as on the nervous system. For chemicals, at least six of no data was available regarding carcinogenic potential. He also testified that exposure multiple posed chemical substances additional haz- ards to of because the possibility biological interac- among tion plaintiffs. chemicals enhanced the risk to Highland Legler residents, Dr. testified that the area because exposure chemicals, of their to toxic had an increased risk of cancer; that unborn children and infants susceptible were more to the disease biological because of their immature defense systems; and that the extent of the risk was with variable degree Highland to the chemicals. Dr. testified that he could quantify not the extent the enhanced risk cancer because of the lack of scientific concerning information occurrence, flow, behavior, 6Geohydrology production deals with the underground water. *27 the effect of the interaction of the various chemicals to which plaintiffs However, exposed. were jury the could reasonably have inferred testimony risk, from his although that un- quantified, medically significant.. was Highland
Dr. also testified that a of sample plaintiffs twelve to their was studied assess susceptibility increased liver to kidney prepared disease. A Highland table Dr. and admit- ted in evidence described having these twelve as a moderate, high, very high or contracting likelihood of liver or renal of exposure disorders because their to chemical sub- aliphatic stances hydrocarbons (CAH’s).7 known chlorinated Highland Dr. exposure also testified that to chemicals had already physical injury caused actual plaintiffs through to its genetic adverse effects on the material within their cells.8 category methylene 7The chemicals found in wells in this were: chloride, chloroform, 1,1,1-trichloroethane, dichlorofluoromethane, 1,1,2-tri- 1,1,2,2-tetrachloroethane. chloroethylene, and Highland explained carcinogenic 8Dr. the effect of to materials in on, that, genetic may terms of a "switch” when turned affects the material may or not result in cancer: yet scientifically biological steps through- We don’t understand the real chain, exposure today agent out the whole how some initiates starts a process years ultimately in which from now itself manifests or is * * * seen as in a cancer an individual. progression steps What we do know that there a is is that must be occurring. analogy There is an or insult that occurs. I use the to a being upon exposures, generally, usually, switch turned on that when a on, switch is turned it’s not turned off. but, off; general, There are some where a can in cases switch be turned process throwing we believe that this is a switches and that series of ultimately switches is need[s] be thrown before the disease seen. Therefore, thousands, millions, you picture body, if one cell of in the being exposed, you may get which is a switch turned That’s the on. insult, use, biological damage, you injury, whatever term wish that upon exposure. may actually years occurs It seen in terms of 20 evident, may from a now when cancer becomes or it never be seen. That’s why probabilities. we did a what was risk assessment which deals with risk, disease, saying population We are increased risk of cancer, certainty everyone get a not that will cancer. in- a[n] There’s Daum, physician
Dr. Susan affiliated with the Mount Sinai Hospital diagnosis New York and specializing substances, of diseases treatment induced toxic testified that plaintiffs required program regular medical surveillance. Acknowledging Highland, her reliance report on the of Dr. Dr. plaintiffs’ exposure Daum produc- stated had to chemicals ed “a likelihood they develop reasonable will have now or consequences exposure.” health from this the purpose She testified that of the medical surveillance program permit was to possible diagnosis earliest of illness- es, cure, could to improved which lead prospects prolonga- *28 life, pain, tion of relief of and of disability. minimization Dr. Daum specified procedures the series of tests and that would appropriate program, constitute an procedure described each and explained purpose, its and estimated the annual cost of each test.
Although both the enhanced risk and medical surveillance claims Highland’s testimony, are based on Dr. supplemented claim, Dr. testimony Daum’s in the case of the surveillance these claims seek redress the for invasion of distinct and different interests. The claim damage enhanced risk seeks a award, any expenditure funds, not of of because but because plaintiffs unquantified injury contend that the their health and expectancy presently compensable, life should be even though is no evidence disease manifest. Defendant not does dispute relationship plaintiffs’ the causal exposure between the diseases, to toxic plaintiffs’ chemicals and the increased risk of risk creased from the In some individuals where the switches exposure. on, are turned cancer, have with wound a ultimately they may up biological on, insult, others where the is switch turned where there’s other take factors in life and that never becomes maybe clearly place manifested. biological change, something kind occurs, believe, the that we By with genetic along the material in the cell to start other process, way things cell, affect that it switches, more make become ultimately flip cancer cell as a cancer. manifest ultimately physical but contends probability plaintiffs that the actually that will ill become from their to chemicals is too remote to compensation warrant principles under tort law. contrast, By for the claim medical surveillance does not seek
compensation unquantifiable for injury, an but rather seeks specific damages monetary periodic measured the cost of medical examinations. The invasion which is redress sought is the spend fact that have been advised to tests, money for medical they cost not would have incurred their exposure absent to toxic chemicals. Defendant contends claim for medical surveillance cannot be sustained, law, as a if plaintiffs’ matter of risk of enhanced probable is not sufficiently compensable. to be our however, view, recognition of the medical surveillance claim necessarily not dependent recognition on of the enhanced risk claim.
3. The trial court jury declined to submit the issue liability defendant’s increased risk con- cancer, tracting damage, kidney liver or other diseases migrated associated with the chemicals that had from the withheld, landfill their wells. If the issue not been had jury could have from the all of concluded evidence most or *29 plaintiffs significantly had a unquantifiably but enhanced diseases, risk of identified enhanced was that such risk to attributable defendant’s conduct. preliminary significant
A is a question exposure whether resulting to in risk toxic chemicals an enhanced of disease an “injury” purposes Claims The Act Tort Act. injury “damage any defines to of property include to or loss injury other person may a suffer that would be actionable by private if person.” inflicted 59:1-3. We note N.J.S.A. also any “the “injury” the Restatement defines invasion legally (Second) protected interest another.” Restatement 7(1) (1965): Torts §
592 * * * “injury”
The word
is used
to denote the fact that
has
there
been an
which,
legally protected
legal consequence
invasion of a
interest
if it
were
act,
person suffering
of a tortious
would entitle the
the invasion to maintain an
* * *
tort.
action of
most usual form of
is the infliction of some
harm,
may
injury although
but there
be an
no harm is done.
Comment
[Id.
a.]
view,
by significant
In our
an enhanced risk of disease caused
clearly
“injury”
to toxic chemicals is
an
under the Act.
case,
In this
neither the trial
Appellate
court nor the
Division
challenged the contention that the enhanced risk of disease was
tortiously-inflicted injury,
proof
but both concluded that the
quantifying the likelihood of disease was insufficient
to submit
jury.
Appellate
the issue to the
As the
Division observed:
damages
prospective consequences
While it is true that
are recoverable for the
injury,
apprehended
of a tortious
it must be demonstrated that the
conse
quences
reasonably probable.
Sherry,
are
Coll v.
593 recognize potential for injury claims but unrealized unless the proof injury that the will occur is substantial. Our most recent question encounter damages with of enhanced risk occurred (1984). There, Dollinger, Evers v. N.J. diagnose doctor plaintiff’s failed to cancer and breast claim for damages sought recovery for her enhanced of risk recurrent by disease the misdiagnosis. occasioned Plaintiff underwent an mastectomy extended after properly diagnosed, her cancer was but the time was this her decided Court cancer ca.se reversing had judgment recurred. for defendant entered case, at the plaintiff’s plaintiff close of held that we on retrial was entitled prove negligence defendant’s increased the risk of metastasis and that increased such risk was a substan- producing tial factor in the recurrence of at disease. Id. 417. We address compensability declined to risk in enhanced the abstract: damage standing Whether is an risk,” alone, “increased actionable element
in a
is a
of which we
case
determination
malpractice
provocative question
leave for an
case does
N.J. at
not,
as this
answer.
requires,
[95
appeal
412 n. 7.]
Among the recent
toxic
cases rejecting liability
tort
damages based on
enhanced risk Anderson v.
Grace
W.R.
&
Co.,
(D.Mass.1986).
F.Supp.
case, recently
That
set-
amount,
Times,
23,
tled for an
Sept.
undisclosed
N.Y.
see
A16,
alleged
col.
involved defendants’
chemical contamina-
groundwater
Woburn,
tion of the
in areas of
Massachusetts.
DiPerna,
See
P.
generally
Mystery: Epidemic
Cluster
and the
Woburn,
(1985) (containing background
Children
Mass.
in-
experiencing
seizures
future;
in the
risk
epileptic
enhanced
of future
recovery
allowed
its low
epilepsy
because there was “no
despite
probability
speculation
guessing" regarding
injury.)
serious present
concurring
10In his
Handler
the view that
Evers, Justice
opinion
expressed
“there was an
evidential basis in this case at the time of trial for
ample
recognizing
increased risk
future cancer as
compensable
unquantified
form of
and an
of an actual
medical
element
independent
recurrence of cancer.”
formation on the Woburn Plaintiffs that two supplying City upon wells water to the Woburn drew water, exposure contaminated and that contaminated personal injuries among caused five deaths and severe water plaintiffs. Among personal injuries the claims for dismissed plaintiff’s damages before trial were claims for based on en- Relying regarding hanced risk. on the Massachusetts rule prospective damages, the Anderson court reasoned that “recov- ery depends establishing probability’ on a ‘reasonable that the (Second) harm occur.” (citing will Id. at 1231 Restatement e). However, Torts 912 comment the Anderson court held § plaintiffs satisfy failed to this threshold standard. They quantified alleged had not their “Nothing enhanced risk: present magnitude in the record indicates the of the increased risk or the diseases which may suffer.” Id. explained The court in recog- Anderson that its reluctance to nize the enhanced risk claims policy was based on two consider- recognition ations. Its first concern was that of the cause of speculative action would create a flood of lawsuits. Id. at 1232. addition, the court stated: denying damages A further reason for for the increased risk of future harm this action is the inevitable which would result if inequity were allowed. “To award based on a mere mathematical recovery significantly would those who do probability undercompensate actually develop (quoting cancer and would be a windfall to those who do not.” Arnett v. [Id. (Cal.Super.Ct. 1983)).] Dow Chem. No. at 15 729586, Mar. Corp., slip op. 21, majority of courts that have considered the enhanced agreed risk disposition issue have with the of the District Court in Anderson. Corp., See Schweitzer v. Consolidated Rail 758 936, (3rd Cir.1985)(“[Sjubclinical F. 2d 942 injury resulting from exposure to asbestos is insufficient to constitute the actual loss damage plaintiff’s required to a interest to sustain a cause of * * — *.”), 183, action denied, -, 88 cert. U.S. 106 S.Ct. (1985); Brown, 261, (8th 2d 152 L.Ed. Laswell v. 683 F.2d 269 Cir.1982) (alleged genetic latent cellular or defects associated testing; with nuclear personal injuries lawsuit for cannot “[A] upon harm.”), possibility be based the mere of some future cert.
595
denied,
1210,
1205,
(1983);
459
103
U.S.
Other action, emphasized hanced risk cause of have require but proof injury reasonably ment that of future certain. See Servs., supra, (“[A] v. L 2d Hagerty & L Marine 788 F. at 319 [damages can plaintiff only recover for enhanced he where risk] exposure probably can show that the toxic more than not will cancer.”); to Corp., lead Wilson v. F. Johns-Manville Sales 684 111, (D.C.Cir.1982) (holding 2d 116-19 that latent disease begin period cases statute of limitations does not until disease observing damages manifest on “recovery is that of based consequences may only consequences if future be had such are ”; ‘reasonably Corp., certain.’ v. Chemical Sterling Velsicol 321-22, for supra, F.Supp. (upholding 647 cause of action susceptibility injury to based on enhanced chemical contamina probability” tion wells where “reasonable standard met); 56, (1962) Corp., is v. 76 Lorenc Chemirad 37 N.J. (holding jury question that evidence was sufficient to raise probable); whether future onset of cancer Devlin v. was Johns- supra, N.J.Super. (rejecting en Corp., Manville at 565 except proof risk there is that it is hanced claim where reason probable ably or as a basis for for emotional distress surveillance). medical in Additionally, permitted recovery courts have several disease, risk where only plaintiff creased but exhibited present of disease. v. some manifestation See Jackson Johns- 394, (5th Cir.) Corp., (allowing Manville Sales 781 F. 2d 412-13 recovery for risk of cancer where evidence indicated increased fifty exposure, plaintiff greater due to had than asbestos
percent
cancer;
contracting
chance of
be
“[o]nce
comes
appears—then
plaintiff
actionable—once some effect
permitted
probable
to recover for all
future manifestations as
—
well”),
denied,
U.S.-,
cert.
106 S.Ct.
92 L.Ed.2d
(1986);
Susquehanna
v.
Corp.,
F.Supp.
Brafford
(D.Colo.1984) (acknowledging
17-18
that cause of action for
requires proof
increased risk of cancer
present physical
injury,
denying
but
summary judgment
defendant’s motion for
plaintiff
permit
proof
to offer
present genetic
and chromo
damage
radiation);
somal
due to
DePass v.
cf.
States, supra,
(Posner, J.,
United
We observe that the overwhelming weight scholarship on this issue right favors a of recovery for tortious conduct that causes a significantly enhanced risk injury. Gale & Goyer, “Recovery Cancerphobia and Increased Risk of Cancer,” (1985); Weiss, Ginsberg Cum.L.Rev. 723 supra, & *33 859; 9 Rosenberg, supra, 849; L.Rev. 97 Harv.L.Rev. Hofstra Trauberman, 177; supra, Note, 7 Harv.Envtl.L.Rev. “Personal Injury Litigation: Proposal Hazardous Waste A for Tort Re form,” 10 (1982-1983); Note, B. “In C.Envtl.Aff.L.Rev. creased Risk of Injury,” Cancer as an Actionable 18 Ga.L.Rev. (1984); Note, “Traditional Analysis,” supra, Tort 35 Stan. 575; Note, L.Rev. “Increased Risk of Disease From Hazardous Proposal Relief,” A Waste: for Judicial Wash.L.Rev. (1985). part, For the most the commentators concede the inadequacy of common-law remedies for toxic-tort In victims. stead, they statutory recommend or administrative mechanisms permit that compensation would to be awarded on the basis of significant disease, and risk of without the necessity proving of present injury. the existence of disposition this important
Our of and difficult issue requires alternatives, that we choose having between two each potential imposing for unfair consequences and undesirable A holding recognizes on the affected interests. that a cause of unquantified exposes action for enhanced risk claims the tort system, public serves, litigating and the it to task of vast of compensation numbers claims for on inju based threats of may imposes judges ries that never It juries occur. on and assessing damages disease, burden of of potential the risk guidelines without clear to compensa determine level of what may appropriate. tion be It undoubtedly would al increase escalating ready recogni rates. insurance It is clear that the action, tion of an “enhanced risk” cause of when particularly unquantified, generate litigation the risk is would substantial manage that would be difficult to and resolve. dissenting colleague, arguing
Our recognizing in favor of unquantified cause of action based an on claim of enhanced risk, points difficulty out that “courts of have not allowed the quantifying prevent offering compensation to them from assault, trespass, distress, privacy invasion emotional Post at 617-18. damage reputation.” Although lawsuits grounded in one may or more these causes action involve damages quantify, damages claims for that difficult such are on are awarded the basis of events that have occurred can contrast, proved be at the trial. the compensability time of depends of an upon enhanced risk claim likelihood yet may event that has not occurred and never occur—the contracting of one or diseases risk of which been more has contingent highly enhanced defendant’s conduct. It is the speculative quality unquantified of an claim on based risk manage enhanced that renders it novel and difficult to If litigated, juries resolve. such were be claims to be would asked to award for the enhanced risk a disease contracted, may expert without never the benefit testimo- contingent ny sufficient establish likelihood *34 event ever occur. will hand,
On the other denial of the enhanced-risk cause of action may mean plaintiffs that some of these will be unable to obtain compensation injury. Despite for their estoppel the collateral jury’s effect of the finding wrongful that defendant’s conduct wells, caused the plaintiffs’ contamination of those who con- tract diseases in the future exposure because of their to chemi- cals in their may prove well water be unable to a causal relationship exposure between such and their disease. We have already adverted to the substantial difficulties encountered attempting prove litiga- causation in toxic tort Supra tion. at 586-87. Dismissal of the enhanced risk may effectively preclude claims any recovery injuries for caused to chemicals in wells because of difficulty proving injuries manifested in the future product were not the intervening events or causes. may It mitigated be that this dilemma could by legisla- remedy tive that eases the proving burden of causation in toxic-tort cases where there has been statistically significant among incidence of disease exposed population. Other proposals legislative contemplate intervention a funded compensation persons source of significantly endangered by exposure to legislature’s toxic chemicals. We invite the atten- perplexing problem. tion to this and serious deciding recognition nonrecognition between plain- claim, tiffs’ enhanced-risk we feel constrained to choose the closely legislative alternative that most reflects the purpose in enacting the Tort Claims Act. We are conscious of the admoni- construing tion that in the Act courts should “exercise restraint acceptance in the against of novel causes of action public Comment, view, entities.” specula- N.J.S.A. 59:2-1. In our claim, unquantified tive nature of an enhanced risk the difficul- adjudicating claims, ties inherent in policies such and the under- lying the argue persuasively against recog- Tort Claims Act nition of Accordingly, this cause of action. we decline recognize plaintiffs’ unquantified cause of action for the en- disease, judgment hanced risk of Appel- affirm the *35 dismissing late Division such claims. We need and do not not decide a claim based on enhanced risk whether of disease that supported by testimony demonstrating is that the onset of the reasonably probable, supra, disease is see Coll v. Sherry, 175, could be maintained under the Tort Act.11 N.J. Claims
4. The claim for expenses medical surveillance stands on a footing from different the claim based on risk. enhanced It periodic seeks to recover cost of medical examinations intended to monitor health and early diag facilitate by plaintiffs’ exposure nosis and treatment of disease caused trial, competent toxic chemicals. At testimony medical was prove program regular offered to that a of testing medical reasonably necessary evaluation was and consistent with con applied temporary principles by physicians experi scientific diagnosis chemically-induced enced in the treatment injuries.12 Appellate rejection Division’s of the medical surveillance premise experts
claim is rooted that even if medical testify convincingly necessary, that surveillance medical is compensation fall, claim for for these costs must a matter of law, quantified, or, if quantified, the risk of is not if is reasonably probable. N.J.Super. not at 122-23. This analysis that the interven assumes reasonableness medical tion, and, therefore, depends solely on compensability, its sufficiency proof the occurrence of disease is noted, Dollinger, supra, 11As this Court in Evers v. at 412 n. N.J. damage whether is an declined to decide "increased risk” actionable element malpractice Supra in a case. at 588. Daum, expert, appropriate Dr. testified that it would be 12Plaintiffs period testing ranging for a one to three initiate the medical surveillance from exposure, establishing years purpose of data. She after the for the baseline regular then be com- testified that medical surveillance examinations should disease, years be ten menced at the onset of the risk of which she estimated to annually exposure, and should be there- after that the surveillance continued after. probable. We think this unduly impedes formulation ability recognize courts to may necessarily medical science properly intervene significant where there is unquantified but risk of serious disease. point
This
hypothetical
well-illustrated
case dis
opinion
cussed in the
Appeals
Court of
in Friends For
*36
All Children v.
Corp.,
Lockheed
(D.C.
The D.C. Circuit imposition Court of affirmed the of liability diagnostic on expenses, agreeing Lockheed for that the “proximately comprehensive diag- crash caused the need for a adopted nostic examination.” at 825. The Court Dis- Id. the reasoning trict Court’s no diagnostic examinations would necessary “but for the fact that these children endured explosive decompression hypoxia plane and aboard a which subsequently Appeals rejected crashed.” Id. The Court of argument Lockheed’s diagnostic that the need for examination compensable not a injury, citing approval was the with Restate- injury any legally ment’s definition of as “the invasion of protected (quoting interest of another.” Id. at Restate- 7). (Second) ment The held a Torts court reasonable § of compensable, need for medical examinations itself without proof injury: of other avoiding
It is difficult that an individual has an interest in dispute expensive diagnostic just avoiding examinations he or she has an interest in as physical injury. negligently When a defendant invades this the to which interest, is neither nor resistant speculative it is that the proof, defendant elementary paying should make the whole for the plaintiff examinations. [Ibid.'] The recently same issue was considered Fifth Circuit Servs., Inc., in v. L Hagerty supra, & L Marine 315. F. 2d Hagerty, In plaintiff employed was a tankerman on a barge being loaded with chemicals plant at a Union Carbide in Puerto Rico. Because of defect barge loading in the or both, equipment, Hagerty was completely drenched with dripolene, carcinogenic benzene, toluene, containing chemical xyolene. mishap sprayed again a later he was with experienced dizziness, same leg cramps, chemical. He and a stinging sensation his extremities. He consulted several and, suggestion, doctors at their periodic obtained medical and laboratory early tests to ensure detection and treatment of cancer. at 317. He his employer Id. sued and Union Carbide Corporation seeking damages disease, for his enhanced risk of for emotional distress contracting associated with fear of cancer, and for the cost of medical examinations to aid detecting symptoms of granted disease. The district court summary judgment for defendants. at 316. Id. affirming grant
Although summary judgment on the claim, appeals reversed risk the court as to the enhanced claims for emotional distress medical surveillance. court held that cognizable these causes of action were because plaintiffs injury was “discernible on the occasion when he was chemical,” drenched with toxic and that he was therefore “entitled to past, present recover all of his probable future harm attributable to defendant’s tortious con- Despite duct.” at 317. Id. its dismissal of the enhanced risk insufficiency claim because of proof likelihood n disease, the court viewed the cost medical an surveillance as *38 appropriate damage: item of Hagerty addition for mental distress, asserts any correctly continuing
that he is entitled to recover for the of his medical expense periodic A recover reasonable medical checkups. plaintiff ordinarily may expenses, past injury. which he incurs as a result of a future, demonstrated C. McCor-
603 (1935); Damages e.g., mick, Law 90§ Ross v. United see, States, (5th Cir.1981). F.2d 511, under the Moreover, “avoidable consequences he rule,” to submit to required treatment that is failure medically advisable; to do so bar future may for a condition he could recovery have thereby alleviated or avoided. McCormick, at see also supra, § 36, Gideon Johns- [v. (5th Cir.1985) Manville Hagerty F.2d Corp., 1129, 1139 testified that he ]. undergoes the at the advice of his checkups to ensure detection physician early agree and treatment of a cancerous condition. We possible that the reasonable damage cost of those be included in a award to the checkups may extent in that, were advisable past, they and, will medically future, remain probably (footnote omitted).] so. at 319 [Id. The same conclusion was the court in Askey v. by reached Occidental Corp. Chemical 102 A.D.2& N.Y.S.2d (1984). There, the court affirmed the denial of class certifica- tion in a toxic involving York, tort suit Niagara, New landfill that was the successor to the Love by Canal site maintained defendant. An underlying issue request for class certifica- tion was persons contention exposed to the toxic chemicals were entitled to be reimbursed for the cost of medical surveillance out of a fund to be established defendant. Although denying certification, class acknowledged the court that under plaintiffs New York law could maintain a cause of expense action to recover the of medical surveillance: would that under the [I]t offered here appear to toxic proof persons exposed emanating chemicals genetic from the landfill have an increased risk of invisible damage injury, and a cause of action for their present recover all may damages. The future “reasonably anticipated” medi consequential expense monitoring, damage cal could be a recoverable consequential provided degree can establish with a reasonable of medical that such certainty are to be incurred expenditures reason of their “reasonably anticipated” There is no doubt that such a exposure. would remedy permit early detection and treatment of maladies and that as a matter of public policy tort-feasor should bear its cost. 477 N.Y.S.2d at [Id. 247.] Compensation necessary expenses for reasonable and medical well-accepted legal is consistent with See McCor- principles. C. mick, Damages Handbook on the Law (1935). 90 at 323-27 § It is also important public consistent with the health interest fostering access testing expo- to medical for individuals whose sure to toxic chemicals creates an enhanced risk of disease. early diagnosis The value of patients and treatment for cancer *39 is well-documented. See Evers v. Dollinger, supra, 95 N.J. at (Handler, J., concurring): Harm in the form of increased risk of future cancer attributable to delay diagnosis and treatment has become so the medical commu- widely accepted by that the existence nity of such harm could be inferred from this reasonably knowledge. common A professional of the medical literature indicates survey agreed that it is within the medical universally in cancer community delay
diagnosis and treatment increases the risk of metastasis. usually Although some exposed individuals to hazardous may chemicals regular seek medical surveillance whether or not the cost is reimbursed, the lack of undoubtedly reimbursement will deter doing others from application so. An of tort law that allows post-injury, pre-symptom recovery in litigation toxic tort reasonable medical manifestly surveillance costs is consistent public with the interest in early detection and treatment of disease.
Recognition pre-symptom claims for medical surveillance important public serves other difficulty prov- interests. The ing causation, where the disease is years manifested after exposure, many has caused suggest commentators to that tort capacity law has no polluters, to deter because the costs of proper disposal are often by polluters viewed exceeding risk of tort liability. Ginsberg Weiss, & supra, 9 Hofstra 903-04; L.Rev. at Rosenberg, supra, 862-63; 97 Harv.L.Rev. at Trauberman, supra, 7 However, Harv.Envtl.L.Rev. at 209-10. permitting recovery for pre-symptom, reasonable medical-sur- expenses subjects veillance polluters significant liability proof when of the causal connection between the tortious plaintiffs’ conduct and exposure likely chemicals is to be readily most availability available. The of a remedy substantial before the consequences are mani- may fest also have the preventing beneficial effect of or miti- gating serious future illnesses and thus reduce the overall costs responsible to the parties.
Other compel considerations recognition pre-symptom of a medical inequitable individual, surveillance claim. It is for an wrongfully exposed dangerous toxic chemicals but unable to prove likely, pay expenses disease is to have to his own medical clearly necessary. when intervention is reasonable and contexts, In other provide compensation we have intervened to expenses for medical underlying even where the disease was *40 compensable. Cillo, not Procanik Procanik v. N.J. (1984), “wrongful birth,” an compen action for allowed we expenses sation for medical pain but disallowed the claims for suffering and for a diminished childhood attributable to Perkel, (1981), birth defects. In Schroeder v. we N.J. upheld parents the claim of for incremental medical costs raising fibrosis, associated cystic with a child who suffers from recognizing without “wrongful cause of birth” action based on condition. helpful analogy E.P.A.,
We find a
in
Mining
Reserve
v.Co.
(8th Cir.1975),
Accordingly, we hold that the cost of medical surveillance is a compensable item damages proofs demonstrate, where the through expert testimony reliable predicated upon signifi- chemicals, cance and extent of toxicity *41 chemicals, the seriousness of the diseases for which individuals risk, are at the relative increase in the chance of onset of disease in exposed, those early and the value of diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is necessary. view, reasonable and In our this hold- ing thoroughly rejection consistent with our damages claim for based on their injury. enhanced risk of That claim seeks damages impairment for the plaintiffs’ health, proof likelihood, extent, without of its or monetary value. contrast, the medical surveillance claim seeks reimbursement specific for the periodic dollar costs of examinations that are medically necessary notwithstanding the fact that the extent of plaintiffs’ impaired unquantified. health is
We proofs find that the in this case were sufficient to support the trial court’s decision to submit the medical surveil- jury, support jury’s lance issue to the and were sufficient to verdict.13
5. if tried as it were issue was medical surveillance The susceptible to a compensatory claim conventional instructed jury was so lump sum. The jury verdict request defendant’s court, plaintiffs’ nor and neither trial instruction. sought a different charge on this issue first time Division, argued for the defendant Appellate In the surveillance was damage for medical award lump-sum that a if the court were contended that Defendant inappropriate. award, it surveillance any part of the medical all or uphold fund, plain- to which actuar[i]ally-sound “create an should medical surveil- the cost of in the future for may apply tiffs compensa- are not otherwise proof that those costs upon lance * * * reimbursed,” so of the amounts or after deduction ble remand, court, the task on to the trial should leave of such a supervision creation and establishing “details of the to disburse of a fund that use Defendant contends fund.” by plaintiffs’ expert 13The medical surveillance tests were characterized as either ’’conventional’’or "non-conventional.” She testified that the tests should center, appropriate Hospi- be administered at an medical such Mount Sinai City, by "immunologists, epidemiologists tal in New York a team that included toxicologic background." and clinicians with The conventional tests include procedures that would be administered in the course of an annual routine physical generally examination and also include tests that are used in cancer diagnosis. widely The non-conventional were described as tests "not available” "improved understanding biology and based on the of tumors and the [the] * * developing immunologic system jury information about plaintiff averaged approximately $500 award for medical surveillance for each year per expectancy, expense projected by of life or about one-half the annual Dr. Daum. *42 object jury Defendant did not at trial to the submission to the of the cost of conventional, non-conventional, opposed Appellate the as to the tests. In the us, plain Division and before defendant contends that it was error to submit to jury the cost of the for the conventional tests since these tests were suitable general population. supports We are satisfied that the record the trial court’s permit jury determination to to consider both the cost of conventional and non-conventional tests. 608 particularly
medical surveillance is benefits suitable claims against public requirements entities because of the of the Tort judgments Claims Act that by be reduced of pay- amount 59:9-2(e). ments from collateral sources. N.J.S.A.
The damage indeterminate nature of claims in toxic-tort liti gation suggests court-supervised that the use of pay funds to accrue, they medical-surveillance claims as than lump- rather verdicts, sum may provide a more efficient mechanism for compensating plaintiffs. A funded settlement was used in the Agent Orange litigation. In re “Agent Orange” Prod. Liab. (E.D.N.Y.1985),aff’d, F.Supp. 818 F.2d Litig., 611 Cir.1987). use of to fund (2d insurance future medical frequently claims is recommended Ginsberg commentators. Weiss, supra, 928-40; & Rosenberg, L.Rev. at su Hofstra pra, 919-24; Trauberman, 97 Harv.L.Rev. at supra, Harv. 237-46; Note, Envt’l L.Rev. at Analysis,” “Traditional Tort supra, 614-16; Note, Stan.L.Rev. “Increased Risk of from Proposal Disease Hazardous Waste: A for Judicial Re lief,” supra, 60 Wask.L.Rev. at 648-52. argument
After requested supplemental oral we from briefs parties on this issue. Plaintiffs contend that medical sur- expenses veillance customary compensatory are a item of dam- ages; remedy that a fund plaintiffs would be unfair to impose would problems; severe administrative remedy might prove fund expensive more for defendants since improvements in medical technology long- could increase term costs of medical surveillance. Defendant contends that a fund actually mechanism insure would use the money provide for medical surveillance and would also a mecha- crediting nism for payments defendant with from collateral sources, required Tort Claims Act. view,
In our court-supervised the use of a fund to administer payments medical-surveillance in mass cases, particularly Act, for claims under the Tort Claims highly appropriate equitable powers. exercise of the Court’s
609 “Agent Orange” Litig., supra, In re Prod. Liab. Cf (since “implementation any 1402-03 F.Supp. at distribution principles impossible plan on traditional tort because of based causation,” proof appropriate it to a virtual absence was distributing “alternate methods of settlement consider [the] may premised cy on a rationale similar to the fund [that] testamentary interpretation.”); v. pres doctrine of Salorio (1983) (“ Glaser, often ‘Equity courts have N.J. recognized public policy, matters of convenience of administra- ” tion, weighed’ framing in practicality as matters to be Dobbs, decrees) 2.5, (quoting D. at 56 equitable Remedies § (1965)(a (1973)); equity court of “has Equity 30A C.J.S. § adapt framing a discretion in its decrees order to broad cases.”). particular mech- relief to the circumstances of Such a advantages lump-sum significant anism offers over a verdict. cases, offsetting a provides Tort Act it a method for For Claims Al- liability by payments defendant’s from collateral sources. availability parties sharply dispute though the this case costs, coverage surveillance-type a fund could of insurance establishing in the provide a method for credits convenient some, all, if not event insurance benefits were available plaintiffs. addition, liability fund would serve to limit the a A expenses actually incurred. defendants to the amount of attempts expenses, estimate future but lump-sum verdict to expended for actually will be predict cannot the amounts damage do Although awards purposes. medical conventional compensatory money paid in the use of not restrict public inter- damages, mass-exposure toxic-tort cases involve public litigation. The present in conventional tort ests not encourages by fund mechanism that interest is served health exposure. monitoring for of toxic regular medical victims defendants, liability limitation of public are Where entities tends actually expended for medical surveillance amounts taxes, objectives consistent with the reduce insurance costs and legislature’s recognition admonition avoid of novel causes of *44 Comment, action. N.J.S.A. 59:2-1.
Although may there be procedural ques- administrative and fund, in the operation tions establishment such a we encourage by its use trial in managing courts mass-exposure In litigation involving defendants, cases. public-entity we con- clude that the use of a fund to administer medical-surveillance payments general rule, should be the in the absence factors impractical that render inappropriate.14 it This will insure mass-exposure litigation that in against entities, future public damages medical-surveillance paid only compensate will be to for administered, medical actually examinations and tests encourage plaintiffs safeguard will to their health not allow- ing option them the of spending money the for purposes. other The fund mechanism legislative will also foster the objective of limiting liability public facilitating entities and the deduc- damage tion from awards of collateral-source benefits. However, upset jury we decline to awarding verdict damages medical-surveillance in this case. Such a result would plaintiffs, be unfair to these since the medical-surveillance issue was conventionally, tried party requested and neither the trial to court jury power withhold from the lump-sum return a plaintiff verdict for each by way order that relief of a fund provided. Moreover, could be jury verdict for medical-sur damages based, veillance was as was the verdict for claims, other on various distinguishing factors the individual plaintiffs, including age, and duration and of exposure extent toxic chemicals. Accordingly, the for verdict medical-surveil- guidelines 14lt is of this to set beyond down scope opinion trial courts establishing administering such funds. A administrator court-appointed will be The cost of administration be required. should borne defendants. A should established for procedure the submission and review of claims and to determine the payment, of collateral availability source benefits. We are confident can be procedures trial courts on a satisfactory developed by basis. case-by-case plain specific in a amount for each lance was the fund tiffs, limiting applicability in this case the thereby contemplates aggregate lump-sum an award concept, which any expenses of the medical-surveillance to reimburse available individually-allocated limita constraint of plaintiff, without mechanism that we now recognize that the fund tions. We also represents sharp break cases is novel and endorse in toxic-tort circumstances, we have practice. In such prevailing with our limiting application recognized the wisdom of previously only to matters confining application its rule of law or a new See Coons v. the rule has been announced. that arise after denied, (1984), Co., 96 cert. Honda Motor N.J. American (1985). Under the 83 L.Ed.2d S.Ct. U.S. circumstances, inappropriate impose think it would be we litigants this late procedure on these effective but novel this *45 protracted and exten litigation already has been stage in that judgment Appellate of the Division Accordingly, the sive. for medical surveillance setting jury aside the verdict is reinstated. jury and the verdict is reversed II Appel court and contend that the trial Plaintiffs also the federal dismissing their claim under erred in late Division assert 1871, 1983. Plaintiffs of 42 U.S.C.A. Rights Act § Civil (unreported), a Township ruling Adelung v. Jackson that the of New court for the District in the federal district related case for the cause of action recognizing a valid 1983 Jersey § binding in this property, is taking their wells and of unlawful issue, the re-examined trial court in this case action. The adequate state availability of an the that because of concluded Act, deprived not plaintiffs were Tort remedy under the Claims law, citing Parratt v. process of property without due of their (1981). 1908, 420. 527, 68 L.Ed.2d 101 451 S.Ct. Taylor, U.S. trial upheld the Appellate Division at 576. N.J.Super. 189 “law of the on the rejected plaintiffs’ reliance ruling and court’s discretionary “non-binding doctrine, describing it as case” 612 practice”
rule of prohibit not judge “does one from review- ing prior the ruling judge.” N.J.Super. of another 202 at 128. agree We improper it was not for the trial court to validity re-examine plaintiffs’ the 1988 claim. See v. State § Reldan, 187, (1985). 100 N.J. 203-07
We also note that since the decision of the federal court, Supreme Court, district the United partially States over ruling 527, 1908, v. Taylor, supra, Parratt 451 U.S. 101 S. Ct. “deprivation” L.Ed.2d has determined that proper no meaning process the of the ty within due occurs clause of the fourteenth amendment or injury property when loss of negligent, intentional, the result of rather than part acts on the Williams, 327, -, state officials. v. Daniels 474 U.S. 662, 663, (1986). Accordingly, S.Ct. L.Ed.2d al though based on grounds, different the trial court’s dismissal 1983 claim is Supreme consistent § with Court’s deci sion v. Daniels Williams. We therefore affirm the dismissal 1983 cause of action. §
Finally, Appellate Division affirmed the trial court’s plaintiffs’ judgment determination that should be reduced $850,000, amount for which settled their claims against township Ernst, engineer John a named codefendant. N.J.Super. at 126-27. The court held that such a result 59:9-2(e), was mandated N.J.S.A. whether or not Ernst was joint found to abe tortfeasor. agreement Id. We are in full reasoning with the employed by Appellate Division. opinion, For the judgment reasons stated in this *46 Appellate part Division is affirmed in part. and reversed in J.,
HANDLER, concurring part dissenting in and part. municipality This case operated involves a that a landfill over long period a palpably of time in way, directly a unreasonable subjecting its carcinogenic own residents to and toxic otherwise chemicals. These chemicals caused medical in the resi- dents, creating significant they develop a risk that would cancer The grave. risk of disease to these equally diseases and other experi- than risk of indisputably greater the disease residents is general Because of limitations population. the by enced and knowledge because number current scientific involved, the victims this toxic variety toxic chemicals quantify measure or the enhancement unable to were inability this to of disease. The Court focuses on of their risk risk, contamination, rather than on the measure the fact of any cannot recover dam- rules that these residents therefore Further, major- risk. while the ages to enhanced referable monitoring clearly a medical ity recognize does claim for is disease, the the enhanced risk of it rules that in referable to special limited item of is not future the award this compensation aggrieved plain- paid directly to to be treated tiffs, only expenses to actual but will be used reimburse court-supervised effect, holding In through fund. the Court’s a uncompensated grievously wronged persons leaves these by unreasonable injuries palpably the caused the defendant’s the toxic The Court thus affords victims tortious conduct. plaintiffs in exposure significantly protection than it would less the Court influ- respects actions. While in some other tort Act, Jersey Tort provisions of the New Claims enced 59:12-3, to and the of defendant as N.J.S.A. 59:1-1 status Act, entity considerations do governmental covered these Accordingly, require justify plaintiffs. not unfairness reasoning holding. part majority’s I from dissent in I. Pro- Department of Environmental Jersey the New Township permit Legler use granted
tection Jackson landfill, permit being conditioned on municipal this landfill as a guidelines. following safety certain municipality’s during guidelines next these municipality failed follow “palpably unreason- years. found to be seven Its conduct was result, As a the area’s “negligent.” ground- able”, simply not seriously underlying were contaminated. aquifier water and *47 At least 36 contaminants the drinking entered and bathing Township. Among water of of the 339 residents the identified proven carcinogens, chemicals were and toxic chemicals known liver, damage skin, the kidneys, genetic material, the the reproductive system. the dependent upon
Residents supply very this water early danger. year sensed the From within a Township’s the operation landfill, expressed residents concern about the quality of They their water. were the Township assured that the water was fit drink. complaints Residents’ even- tually prompted Department of Environmental Protection to investigate the contamination. testing After well water in the Township, Department and the local Board Health ad- vised residents in late 1978 exposure to minimize their to the well water. For years, the next two residents were forced to get their from forty-gallon water weighing containers approxi- mately pounds always reliably—to delivered—not their homes.
II. The essence of the claim for here is the reality physical injury wrongful caused to toxic peril chemicals and the increased of cancer and other serious diseases that the residents have incurred. The Court does not dispute the contamination, fact of toxic nor does it contest the significantly characterization of a risk enhanced of disease as a tortiously injury. inflicted majority also admits that “[d]is- may missal of the enhanced effectively preclude risk claims any recovery injuries by exposure caused plain- to chemicals in Nonetheless, tiffs’ majority wells.” effec- Ante at 598. tively plaintiffs any meaningful denies recovery. It asserts speculative “the unquantified nature of an enhanced risk claim, claims, the difficulties in adjudicating inherent such policies underlying argue the Tort Claims Act persuasively recognition of this against cause action.” Ante at 598. *48 recognizing exaggerates the this cause The Court difficulties imperative provide compen- and minimizes the of action to fair injurious seriously wrongs. sation for cannot, not, dispute denigrate does the The Court and exposure at chemi- expert testimony presented trial “that the to injury already physical plaintiffs had caused actual to cals through genetic its effects on material within their adverse the plaintiffs’ exposure produced and to chemicals had cells” “that develop that now and will they ‘a reasonable likelihood have ” consequences Ante exposure.’ health from this Highland gave Dr. Joseph testimony 590. uncontested that already had plaintiffs physical injury suffered from genetic damage to their cellular and material caused they exposed. to were These chemicals are chemicals which mutagenic agents: they destroy parts genetic material they may only This destruction affect the func- cells contact. may major organs. few it lead failure of of a cells or to the tion cancer, may likely starting points for and it It make the cells lead to in the children. may mutations victims’ majority recognizes injury. have suffered highly is the It is self-evident that toxic chemicals harm,” legally protected “an of a “infliction ... invasion Torts, 7(1) (Second) interest.” See Restatement and Com- § See ante “injury”). at 591-92. Neverthe- (1965)(defining ament less, injury majority plaintiffs’ concludes that cannot be from treating for their claims different redressed.1 Its reasons deriving “subjective from 1The Court also concludes claims “pain suffering.” anxiety" symptoms depression, such fear and are and compensable “pain suffering" apart injury itself are not from Claims Act. Ante at this case evidence Tort Claims 572-77. under essentially subjective symptoms with mental and consistent demonstrated distress; establish, any plaintiffs, suffering as to it did not emotional disability (i.e. clinically-diagnosed depression, injury or mental or emotional etc.). phobia, presented anxiety, are with the issue of whether Hence we not compensable injury proved would be mental or emotional condition such Co., 102 N.J. Tort Saunderlin v. E.I. DuPont Claims Act. under Cf. injury other unsupported claims are an fear of “vast numbers guidelines of claims” and a belief that no “clear [exist] compensation may determine what level of appropriate.” Ante at 597.
These reasons challenge are an evasion of the posed tortious that carries with it an enhanced risk of even injury, greater provide need compensation fair .the suffering innocent victims this injury. form of The Court postponed a similar determination in v. Dollinger, Evers 95 N.J. (1984). brought There woman claiming suit that her negligent diagnosis doctor’s and treatment enhanced the risk *49 that her cancer appeal would recur. While her of the trial judgment pending, court’s was she suffered a recurrence of the majority cancer. The decided it that need not decide whether risk, standing alone, enhanced is an actionable element. Id. at Nevertheless, 412 n. 7. the Court held that because the disease recurred, plaintiff had damages would be allowed to recover for enhanced risk. at 417. Id.
Allowing recovery for enhanced risk in Evers where the plaintiff subsequent suffered harm cannot be reconciled with recovery denial of present for enhanced risk in the case. majority professes The deny compensation to because it cannot “quantify” “measure” or the enhanced risk of injury. future The fact plaintiffs present that the in the not—yet— case have suffered symptoms justification extreme denying no recovery. As in Dollinger, Evers v. Court is ... trou- “[t]he seeming inability bled a quantify the risk of future But, adding cancer. incurrence future harm as re- a quirement recovery for the for such increased risk does not resolve the unquantified.” dilemma since the risk still remains (Handler, J., at 421 concurring). Id. When the Court allowed " (1986) (a showing objective psychiat ‘demonstrable medical evidence’ [of] disability" Act). compensable Compensation ric would be under Workers’ Evers, slightest in in it did not recovery for enhanced risk way quantified. that the risk be insist cognizable in plaintiffs’ claim is not majority reasons that does not rise to the level part the risk of future disease because Yet 591-599. probability.” “reasonable ante at See they have a proven have concedes that the court contracting serious diseases. “significantly ... enhanced risk” of generates explains why at 591. It nowhere a risk Ante compensated probability” of future can be “reasonable “significantly the likelihood of future while one that enhances” injury cannot. I illogic inconsistency.
I not criticize the Court do fair, is, compensate it just if it is only that stress enhanced risk of future unquantified for an in one case victim case disease, right deny recovery a second it cannot unquantified enhanced risk. involving a claim of “[T]o also merely injuries for ... because deny ... redress would constitute precise exactitude measured with cannot be Berman v. principles justice.” of fundamental perversion J., (Handler, concurring part (1979) Allan, 80 N.J. measur- pitfalls of part). “[Ejven where the dissenting in grap- refused to genuine, have not we ing damages have been justness and recognize the in order to complexities ple with the (1981) Perkel, 87 N.J. v. of relief.” Schroeder fairness *50 part). It is the dissenting in J., concurring part, in (Handler, experts, evidence, informed presented by reality injury of is ordinary experience, that sense and by common and tested might these losses ... damages. “Some of the benchmark puzzling to evaluate. sense, and difficult to define be hard for a nonetheless, a sound basis and constitute are, actual They Allan, Berman v. compensation.” and claim for redress lawful J., concurring part in and (Handler, at 446 80 N.J. supra, part). in dissenting difficulty quantifying of not allowed
The courts have assault, offering compensation from prevent them injury to 618 distress,
trespass, privacy, damage emotional of invasion or in reputation. invasion, The claim case this involves a tortious trespass gas as much an invasion of microscopic deposits see, on property, someone else’s e.g., Reynolds Metals Martin, (9th Cir.1964), v. 337 F. 2d Co. or as in surgery consent, performed patient’s see, e.g., without the Schloerndorff Society Hospital, New York 211 N.Y. 105 N.E. of v. (N.Y.1914). Susquehanna Corp., v. Cf. Brafford (D.Colo.1984) F.Supp. (recognizing plaintiffs’ claim of present in injury damage the form of chromosomal and in cancer). contracting creased risk of injury Where forms new courts, put have been developed before the courts have procedures, standards, and for determining appropri formulas compensation. perception ate expressed This Capron, was “Tort Liability Counseling”, Genetic 79 Colum.L.Rev. (1979): collective wisdom of [T]he on the community redress for a proper particular harm, informed common a desire to experience, sense, be fair to the arriving damage seems an parties, acceptable way verdict and probably (and sterile) one is to a more scientific preferable that excludes process objectivity elements achieve an
nonquantifiable aura and precision. The unquantified claim an enhanced risk should upon not be “dependpng] characterized as the likelihood of an yet event that not may has occurred never occur.” Ante at injury 597. The is involved an actual event: to toxic contamination, chemicals. moreover, The tortious is an event occurred; surely that has speculative it is not a or remote possible happening. Among consequences uncon- this genetic sented-to damage tangible invasion are and a risk of a disease, major peril that is real though even it cannot be precisely weighed. moreover, peril, measured or unques- tionably greater by persons than experienced similarly not exposed to toxic chemicals. The toxic and claim for damages are not only possible attributable to some future assault, event. Like claims based on trespass, the doctrines of defamation, privacy, invasion of suffered are solely consequential not damages, actual but also the disvalue *51 being subjected intrinsically to an harmful event. The risk resulting of dreadful disease from toxic and contam- frightening palpable any ination is more than deficits we may imagine feel many wrongful transgressions. from other
I morbidity am bothered the unintended of the Court’s My respect attitude. discomfort was similar with to the Court’s recognize refusal to a claim for enhanced in risk Evers: The inadvertent effect of such a court rule is that those who victims, unde- greater have in been in terms of their servedly survival, are not put peril to be for this unless have permitted suffered ... cancer. compensated peril they (Handler, concurring).] 95 N.J at 418 [Evers, supra, J., deciding recognize plaintiffs’ claims, In major- whether to ity problem sovereign focuses on the in defendants tort suits involving unquantified injuries. nature of certain The ma- however, jority, long-term fails to note the lost benefits when compensation injuries is not for Compensation allowed caused. See, Posner, negligent serves to deter e.g., behavior. R. Eco- (2nd 1977). Analysis nomic 142-43 Law ed. We disserve case, policy this municipality this where the defendant has conduct, engaged simply negligent in “palpably not but causing unreasonable” conduct real and serious to its recently following reply residents. This Court offered the to an argument particular recognized: that a cause not of action be addressing arguments, goals these we must in mind the central keep v. Inc. Consolidated
law of torts. As we said in Exp. Airlines, Rail, [People (1985) wronged 100 N.J. of the tort law is “that ], primary purpose injuries should be for their and that those persons compensated responsible wrong forcing should bear the their Moreover, cost of tortious conduct.” wrought tortfeasors for the harm have incentive pay they provides proper [Weinberg Grove, v. Penns N.J. for reasonable conduct. 486-487 (1987).] merely efficiency, But not as a matter of deterrence and also as justice, injuries required a matter of those who cause should be pay Recognizing for them. a claim for enhanced risk being in order to a tortfeasor from insulated from the appropriate prevent negligent real A should not but elusive of his conduct. tortfeasor consequences causing risk not allowed an increased that would escape responsibility negligence have existed his but for because of the statistical uncertainty simply (Handler, concurring).] 95 N.J. at 418 of the risk. [Evers, supra, J., *52 recognition The plaintiffs’ assertion that of open claims will a gate litigations compared flood of seems insubstantial when to actuality the of injury. Courts should not allow speculative fears or anxiety possible undifferentiated over a of litigation rush to defeat a sound and fair cause of action. Gwinnett, Kelly (1984). See v. majority N.J. The does not even the make effort to consider standards—e.g., proofs, presumptions, required burdens showings— minimal might that make claims for manageable enhanced risk more proper and more limited. The course is not injured to leave the legal legal without a recourse. If social conditions and stan- in way dards interact such a litigating that a certain kind of burdensome, claim parties becomes go interested can then to legislature seeking the reform. There is no reason to believe that, it, if circumstances warranted legislature the would not respond problems to litigation. reject in toxic tort majori- I the ty’s avoiding complexities solution of in litigation by excusing negligence allowing injuries and go uncompensated. majority speaks speculative
The compensat- nature of ing claims of if enhanced risk as such an anomaly would be in logical orderly the compensation. work of tort law is contrary. truth relatively the There are injuries few that can easily logically quantified. be or merely It not relatively “pain tort suffering” new claims like and “emo- tional distress” that are difficult quantify. isWhat logical compensating method evaluation for a claim tres- pass land, battery on surgery, of unconsented-to a violation personal privacy, an insult to jury character? When a $50,000 awards limb, an accident that led to the loss of a $50,000 logical quantification how is that injury? Posner, supra, cf. 2But 149: finger A victim who loses a sustains a be cost that can conceived of in ways including price various he would have demanded from someone purchase finger. who made a credible offer to The severe limitation of imposed by the Court inadequate this case is person unfair. No right her mind places would trade any with one plaintiffs. of these Does this suggest person not that a would have to paid be a considerable money, sum of more than permitted Court, here tolerating before injuries suffered plaintiffs? these Why should not jury permitted to make this determina **3 tion?
III. The Court does compensation award limited plaintiffs. to It upholds an award of million representing $8.2 the cost of future annual medical Nevertheless, surveillance. the majority deter- that, cases, mines at least for future “the use court-super- of a vised fund than lump-sum to [rather administer verdict] cases, payments medical-surveillance in mass particu- larly for Act, claims under the Tort Claims highly is a appropri- ate exercise of the equitable powers.” Court’s at Ante 608. The majority argues that the use of provides a fund a method offsetting a defendant’s liability by payments from collat- sources, eral public serves the health interest creating an incentive for to judgments use their pay to for medi- monitoring, cal purpose serves the of the Tort Claims Act by limiting liability public the entities. losses, they impair It is true earning capacity, that such if do not market pecuniary they have no dimension. But this is not because are not true losses; economic it is because of the absence of markets in mutilation. anything, speak
If persons it is more sensible to in terms of how much would paid they have to being exposed be before would consent to to toxic question chemicals then it would to ask a similar about a loss of a limb. majority's rejection I note that because the of the claim for enhanced risk Act, heavily today’s holding relies so narrowly on the Tort Claims must be read applying only brought against public-entity disagree to claims defendants. I compensation with the Court’s against denial of for such enhanced risk even as governmental Nevertheless, general question defendant. I consider the brought Jersey whether a claim for enhanced risk can be in the New courts to open question. still be an assumption
The fundamental tort the law is that individu wrongfully injured See, als are compensated. who should be (1978). e.g., Merenoff, 76 N.J. Where the Merenoff v. recognizes legal Court that has its defendant breached occurred, duties that an has recog Court should plaintiffs’ damages. nize the cause of action to and entitlement Allan, 436-37, (Han supra, See Berman v. at 444-46 N.J. dler, J., dissenting). majority present seems case to want to have it ways. accepts judgment
both It the lower court’s that Township legal duties, Township’s violated its and that injured citizens were majority violation. The does not overriding claim some policy justify immunizing reasons Township’s Further, recognizes actions. it en- damages, damages, compensate titlement least some that,for However, them for their injury. the Court holds compensation future cases of type, given this should not plaintiffs for injuries they type suffered. Instead a judicial supervision, escrow account must under be established payment going injured with plaintiffs only to the under limited circumstances. *54 persuaded
I am not that fairness or practicability dictate such stringent plaintiffs’ damages limitations Ordinarily, on award. to expenses reference future or the loss of future income is one way compensation to estimate what reasonable would be for a losses in (keeping compen- victim’s mind the limitations of such money rarely compensate fully lost, sation: can for what was compensation but it is the approximation best to that our offers). system special damages To that assume these are the and, equivalent adequate compensation then, of fair and to judicial supervision attempts attach conditions to such compensation underlying is to system. misunderstand the This system Court has never so before weakened the common-law compensation. singularly It inappropriate unfair and to awards, apply approach this more judgment limited to discrimi- nating against particular plaintiffs. this tort class of The Court in purports this case to adopt divine and this special of compensation rule an equitable as exercise of its is, judicial powers. however, hardly equitable It deny plain adequate recovery tiffs acknowledged tortiously inflict injury, ed compound denying this unfairness them full enjoyment of the only item of recog the Court involving nizes. In series a of cases children born with serious negligent care, birth defects due to medical this held Court parents both the lump and the child could recover—as sum damages—an upon award based the child’s future medical Cillo, expenses. v. Procanik 97 N.J. (1984); Schroeder v. Perkel, supra. recovery neither of those cases kept was judicial supervision under contingent upon or made showing money that the go pay would indeed for the medical ex penses. To do so in injustice the toxic tort cases would be an plaintiffs. these
IV. The Township citizens of Jackson endured extended toxic to serious chemicals township’s palpably because injuries unreasonable misconduct. Their are substantial—as real and readily injuries other which measurable as compensation. courts allow Plaintiffs’ claims in this case recognized fully compensated. should be majority’s grant only portion compensation decision to full limited disrespects go what through. have had to
For given, part the reasons I in from would dissent majority’s holdings.
For part in and reversal in part—Chief Justice affirmance WILENTZ, CLIFFORD, POLLOCK, and Justices GARIBALDI and STEIN—5.
Concurring part; dissenting part—Justice *55 HANDLER—1.