Ironbound Health Rights Advisory Com'n v. Diamond Shamrock Chemicals Co.
| Decision Date | 08 August 1990 |
| Parties | IRONBOUND HEALTH RIGHTS ADVISORY COMMISSION, et al., Plaintiffs-Appellants, v. DIAMOND SHAMROCK CHEMICALS COMPANY, et al., Defendants-Respondents. John BRENNAN, et al., Plaintiffs-Appellants, v. DIAMOND SHAMROCK CHEMICALS COMPANY, et al., Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Michael Gordon, for plaintiffs-appellants (Gordon, Gordon & Haley, P.C., attorneys; Timothy S. Haley, Gordon and Stefanie A. Brand on the brief; Michael Gordon, West Orange, on the reply letter brief).
George W.C. McCarter, for defendants-respondents (McCarter & English, attorneys; George W.C. McCarter, of counsel and on the brief; J. Forrest Jones and Kevin J. Connell, Newark, on the brief).
Before Judges Bilder, Ashbey and A.M. Stein.
The opinion of the court was delivered by
A.M. STEIN, J.A.D.
We granted leave to appeal from the Law Division's order granting defendant Diamond Shamrock Chemicals Company partial summary judgment on the claims for emotional distress set forth in paragraph No. 192 and Counts Eight and Nine of plaintiffs' amended complaint. We affirm.
In Mauro v. Raymark Industries, Inc., 116 N.J. 126, 137, 561 A.2d 257 (1989) the New Jersey Supreme Court specifically left undecided the question of whether exposure to toxic chemicals without physical injury gives rise to a claim for emotional distress damages. This case is not a suitable vehicle for resolution of all dimensions of that issue.
Plaintiffs are ninety-seven individuals, and estates of individuals, who lived, worked and conducted business in the vicinity of the Diamond Shamrock plant in the Ironbound section of Newark. 1 They claim to suffer mental distress from the knowledge or belief that they were exposed to dioxin, a highly toxic by-product of the agricultural chemicals manufactured by Diamond Shamrock at this plant from 1957 to 1970. The underlying facts describing the basis of the claimed exposure are set forth in Judge Long's opinion in our earlier decision in I.H.R.A.C. v. Diamond Shamrock Chem., 216 N.J.Super. 166, 168-169, 523 A.2d 250 (App.Div.1987).
Paragraph No. 192 of the amended complaint alleges that As a direct ... result of defendant Diamond's activities, the individual plaintiffs have suffered extreme emotional distress proximately caused by the ... inhalation and absorption of [dioxin] and other toxics, ...
Count Eight states:
Defendant Diamond knew of the dangers of [dioxin] and other toxics that Diamond placed into the environment in the area surrounding 80 Lister Avenue and defendant Diamond failed to warn of the danger or take action to prevent the danger to plaintiffs.
Individual plaintiffs have suffered and will continue to suffer emotional and mental distress, including fear and anxiety.
Count Nine states:
Defendant Diamond negligently created dangers by its manufacture of [dioxin] and other toxics and its negligent placement of these materials in the environment surrounding 80 Lister Avenue.
Individually, plaintiffs have suffered and will continue to suffer emotional distress including fear and anxiety.
Plaintiffs claim exposure to toxic substances in a variety of ways: that it was brought to some homes on the clothing and shoes of plant workers, contact being made when plaintiff spouse would wash her husband's clothes; from consumption of fruits and vegetables purchased at a local farmers' market or grown in neighborhood yards; from playing as a child at and around the factory site; in one instance, by a son who ministered to the chloracne sores on the body of his father, a plant worker (chloracne results from exposure to toxic chemicals, in this case dioxin, and manifests itself in acne-like skin eruptions); and one plaintiff who believed that the Department of Environmental Protection found evidence of dioxin in his home.
Plaintiffs concede that they sustained no physical injuries from their claimed exposure to dioxin. There are no present symptoms of severe emotional disturbance or a recognized mental illness. None of them have had physical examinations. One plaintiff, asked at deposition if he had ever been or wanted to be tested to determine if he had any toxic substance in his body, replied,
Giving plaintiffs the best inferences from the record before us, their claimed emotional distress is the fear that they might some day become seriously ill from the previous inhalation and absorption of dioxin. They are apprehensive. Their concerns may be understandable but they...
To continue reading
Request your trial
-
Voorhees v. Preferred Mut. Ins. Co.
... ... , further serving to interfere with her rights of privacy and to inflict upon her severe ... See Advisory Com'n v ... Page 588 ... Diamond Shamrock, ... (App.Div.1990), which held that toxic chemicals without physical injuries could not support a ... ...
-
De Milio v. Schrager
...no recovery despite continual exposure to asbestos products); see, also, Ironbound Health Rights Advisory Commission v. Diamond Shamrock Chemicals Co., 243 N.J.Super. 170, 174-75, 578 A.2d 1248, 1250 (App.Div.1990) (residents' exposure to toxic chemicals without accompanying physical injury......
-
Sullivan v. Combustion Engineering
...Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 563, 495 A.2d 495 (Law Div.1985). See also Advisory Com'n v. Diamond Shamrock, 243 N.J.Super. 170, 174-175, 578 A.2d 1248 (App.Div.1990), where we stated that plaintiff's anxieties were not compensable in the absence of "serious mental ill......
-
Theer v. Philip Carey Co.
...where the resultant emotional distress is severe, substantial and tantamount to physical injury. Advisory Com'n v. Diamond Shamrock, 243 N.J.Super. 170, 174-75, 578 A.2d 1248 (App.Div.1990). However, if there is no physical injury and the emotional distress is only that generally arising fr......
-
Combatting fear of future injury and medical monitoring claims.
...of AIDS, AIDS: ONE 255, 257 (James Vculek ed. 1988). (55.) See Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248 (N.J.Super. 1990). (56.) Ball, 755 F.Supp. at 1372. (57.) See Potter, 863 P.2d 795. Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992). (58.)......
-
Conning the IADC newsletters.
...appellate court dealt with the fear of cancer issue in Ironbound Health Rights Advocacy Commission v. Diamond Shamrock Chemical Co., 578 A.2d 1248 (N.J.Super. 1990). Diamond Shamrock had operated an agricultural chemicals manufacturing facility for several years, during which time toxics su......