655 A.2d 447 | N.J. Super. Ct. App. Div. | 1995
The opinion of the court was delivered by
Plaintiffs own and farm property in Vineland, New Jersey.
The defendants who are parties to this appeal are the Vineland Board of Education, Glenn A. Kahley, Art Anderson, Inc., and the City of Vineland. Plaintiffs allege that the Board of Education is liable to compensate them for the damage to their crops and farmland because it owns and operates the high school; Mr. Kahley, because he was the architect who designed and sited the school building; Art Anderson, Inc., because it was the general contractor who built it; and the City of Vineland,
The Law Division granted defendants’ motion for summary judgment, dismissing plaintiffs’ claims against each of the defendants on the ground that every claim was barred by a statute of limitations, a statute of repose, or the notice provisions of the Tort Claims Act. Plaintiffs have appealed, and our review requires us to consider how each of these statutes affects plaintiffs’ claims.
Plaintiffs assert both tort claims and claims for inverse condemnation against the Vineland Board of Education and the City of Vineland. Plaintiffs allege that the Board, by constructing its school building at a location and in a manner which caused flooding to their farmland, was maintaining a nuisance and committing a trespass or other negligent tort, or had “taken” their property by the exercise of its power of eminent domain. They also contend that the City acted tortiously or is liable for a “taking” because it failed to install proper drainage facilities under
The motion judge ruled, and we agree, that, pursuant to the Tort Claims Act, N.J.S.A. 59:8-7, -8, filing a notice of claim within ninety days and commencing suit within two years after the “accrual” of plaintiffs’ cause of action was a prerequisite to their maintaining any of their nuisance, trespass or other tort claims against the Vineland Board of Education and the City of Vineland. See N.J.S.A. 59:1-2; Polyard v. Terry, 160 N.J.Super. 497, 506, 390 A.2d 653 (App.Div.1978), aff'd. o.b., 79 N.J. 547, 401 A.2d 532 (1979); Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 449 A.2d 472 (1982). Plaintiffs’ claims are also subject to N.J.S.A. 2A:14-1, which requires “every action at law for trespass to real property [and] for any tortious injury to real ... property ...” to be “commenced within 6 years next after the cause of any such action shall have accrued.” See Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N.J. 130, 137-40, 238 A.2d 169 (1968) (cause of action for negligent injury to real property is governed by N.J.S.A. 2A:14-1 and, subject to discovery principle, accrues when injury occurs).
Compliance with the Tort Claims Act was not a prerequisite to plaintiffs’ pursuing their claims for inverse condemnation. See Estate of McGrath v. North Jersey Dist. Water Supply Comm’n, 224 N.J.Super. 563, 570, 540 A.2d 1350 (Law Div.1986); cf. Lloyd v. Borough of Stone Harbor, 179 N.J.Super. 496, 512, 432 A.2d 572 (Ch.Div.1981). However, plaintiffs’ claims of inverse condemnation are subject to the six-year statute of limitations, N.J.S.A. 2A:14-1. See Morey v. Essex County, 94 N.J.L. 427, 430, 110 A. 905 (E. & A.1920); Harisadan v. East Orange, 187 N.J.Super. 65, 70, 453 A.2d 888 (App.Div.1982); Blazer Corporation v. N.J. Sports and Exposition Authority, 195 N.J.Super. 542, 552-553, 480 A.2d 953 (L.Div.1984), aff'd on other grounds, 199 N.J.Super. 107, 488 A.2d 1025 (App.Div.1985). See also Charles C. Marvel, Annotation, Inverse Condemnation—Limitations, 26 AL.R.4th 68 (1983).
Plaintiffs served their notice of claim on the City of Vineland on August 24,1987, and filed their complaint on July 18, 1990. The time bar limiting plaintiffs’ nuisance, trespass and other tort claims against the City is established by N.J.S.A. 59:8-8b (“The claimant shall be forever barred from recovering against a public entity if ... b. Two years have elapsed since the accrual of the claim____”) See Tower Marine, Inc. v. City of New Brunswick, 175 N.J.Super. 526, 420 A.2d 1029 (Ch.Div.1980). Since plaintiffs served their notice of claim on the City on August 24, 1987, they must have “discovered” those claims before that date. Their claims for damages therefore began to accrue no later than August 24, 1987. Consequently, since they filed their complaint July 18, 1990, their only nuisance, trespass or other tort claims against the City which are not barred by the two-year period of limitations of the Tort Claims Act, N.J.S.A. 59:8-8, are claims for damage, if any, sustained between July 18, 1988 and May 1990.
As previously mentioned, N.J.S.A. 2A:14-1 required plaintiffs to institute their inverse condemnation action within six years after the accrual of their claims, but those claims continued to accrue as long as the Board’s conduct caused the plaintiffs’ property to be subject to continual flooding. See Morey v. Essex County, supra; Harisadan v. East Orange, supra. Cf. Delaware & Raritan Canal Co. v. Lee, supra, 22 N.J.L. at 251; Delaware & Raritan Canal Co. v. Wright, supra, 21 N.J.L. at 470. Because the motion judge dismissed plaintiffs’ claims solely on the ground that they were time barred, we will assume that, as plaintiffs allege, the actions of the Board and of the City constituted temporary “takings
Plaintiffs’ claims against Glenn A. Kahley, the architect for the school building, and Art Anderson, Inc., the general contractor, allege only that these defendants were negligent in preparing the plans for the building and supervising its construction. Both of those defendants rely on N.J.S.A. 2A:14-1; Art Anderson, Inc.
However, in accordance with the authorities already cited, we agree with plaintiffs that a new tort accrued with each new incursion of floodwater that damaged their crops or farmlands. The plaintiffs are not entitled to recover for flood damage before July 19,1984, but they are entitled to recover against Kahley and, except for the possibly immunizing effect of N.J.S.A. 2A:14-1.1, against Art Anderson, Inc. for all new damage which occurred less than six years before the commencement of their suit. See Stanley Development Co. v. Millburn Tp., 26 N.J.Super. 328, 331-32, 97 A.2d 743 (App.Div.1953) (“[E]ven where the concept of continuing wrong has been applied, recovery is ordinarily permitted only with respect to damages sustained dining the period of limitations preceding the suit.”), citing Morey v. Essex County, 94 N.J.L. 427, 110 A. 905 supra; Church of Holy Communion v. Paterson, Extension R. Co., 66 N.J.L. 218, 49 A. 1030 (E. & A.1901); Delaware & Raritan Canal Co. v. Lee, supra, 22 N.J.L. at 243; and Delaware & Raritan Canal Co. v. Wright, supra, 21 N.J.L. at 469.
A certificate of occupancy was issued for the school building on September 5, 1979, when the project was substantially completed. However, the record on appeal includes a punch list
N.J.S.A. 2A: 14-1.1
No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal ... arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.
[Emphasis added.]
Since plaintiffs filed their complaint July 18, 1990, Art Anderson, Inc. is immune from plaintiffs’ damage claims if the ten-year
No New Jersey decision has squarely decided whether the ten-year period for commencing an action like the present one against a general contractor dates from the substantial completion of construction or only from its full completion.
We conclude that the date when the ten-year time-bar matures under N.J.S.A. 2A:14-1.1 and the period of repose begins must be measured from the final date the person claiming repose and immunity from suit furnishes any and all services or construction which it has undertaken at the job site.
That statement of the law was quoted with approval by . our Supreme Court in Horosz v. Alps Estates, Inc., 136 N.J. 124, 131, 642 A.2d 384 (1994). It leads us to the conclusion that since Art Anderson, Inc. concedes that it performed at least some work on the school construction project or furnished some supplies or materials on or after July 18,1980, plaintiffs’ claims against it are not barred by N.J.S.A. 2A:14-1.1, although they remain subject to N.J.S.A. 2A:14-1.
Two other considerations bolster our conclusion that the ten-year period under N.J.S.A. 2A:14-1.1 commences only when the defendant contractor has fully performed all of its contractual
The case is remanded to the Law Division for further proceedings not inconsistent with this opinion.
The plaintiffs are all members of the Russo family and entities controlled by them. Some of the plaintiffs own various portions of the property which is the subject of this law suit and some of them farm it as lessees. However, the entire property is apparently operated as a single farm and all of the parties claiming
The City is a municipal corporation which is separate from the Board of Education.
The motion judge did not expressly decide whether plaintiffs' cause of action for inverse condemnation would survive the motions for summary judgment. However, the final judgment in this matter, apparently entered without objection as to form, purports to dismiss plaintiffs' complaint "as to all counts.” Plaintiffs argue inverse condemnation in their briefs to our court, but the defendants’ arguments do not discuss that cause of action. We have not attempted to decide whether the flooding which plaintiffs allege amounts to a taking by either the Board of Education or the City or both. See Hawkins v. City of La Grande, 315 Or. 57, 843 P.2d 400, 405-409 (1992); Cf. Doremus v. City of Paterson, 73 N.J.Eq. 474, 69 A. 225 (Ch.Div.1908); Miller v. City of Morristown, 47 N.J.Eq. 62, 20 A. 61 (Ch.Div.1890), aff'd 48 N.J.Eq. 645, 25 A. 20 (E. & A.1891).
Kahley does not challenge the motion judge’s ruling on summary judgment, issued before those which are the subject of the present appeal, that he is not immunized from liability by N.J.S.A. 2A: 14-1.1.
The parties have all assumed that N.J.S.A. 2A: 14-1.1 is applicable. Since the issue has not been argued and plaintiffs have not specified the "deficiency in the design, planning, supervision or construction ... or ... defective and unsafe condition of [the] improvement to real property” for which they contend Art Anderson, Inc. is responsible, we have also assumed the applicability of the statute. But cf. E.A. Williams, Inc. v. Russo Development Corp., 82 N.J. 160, 411 A.2d 697 (1980) (N.J.S.A. 2A:14-1.1 is inapplicable to claim against a surveyor for the mislocation of a building which did not create a hazardous or unsafe condition in the building, but only resulted in inconvenience and expense to the owner).
In Mahony-Troast Constr. v. Supermarkets Gen’l, 189 N.J.Super. 325, 460 A.2d 149 (App.Div.1983), an action seeking damages for deficiencies in the design and installation of a roof, the statute of limitations ran from the date of substantial completion of the entire structure. However, the pertinent statute of limitations was the six-year, accrual statute. See id. at 330, 460 A.2d 149.
Cf. W.V. Pangborne & Co. v. N.J. DOT, 116 N.J. 543, 553, 562 A.2d 222 (1989) (" 'completion' in public works contracts is the acceptance of the project, usually accompanied by final payment.”).