Kenney v. Scientific, Inc.

• Decision Date: 03 April 1985
• Citation: 497 A.2d 1310,204 N.J.Super. 228
• Parties: , 15 Envtl. L. Rep. 20,403 John J. KENNEY and Mary C. Kenney, his wife, et als., Plaintiffs, v. SCIENTIFIC, INC., et als., Defendants.
• Court: New Jersey Superior Court

Page 228

204 N.J.Super. 228

497 A.2d 1310, 15 Envtl. L. Rep. 20,403

John J. KENNEY and Mary C. Kenney, his wife, et als., Plaintiffs, v. SCIENTIFIC, INC., et als., Defendants.

Superior Court of New Jersey, Law Division Middlesex County.

April 3, 1985.

Brian D. Drazin, Thomas J. DiChiara and Dennis A. Drazin, Red Bank, for plaintiffs (Drazin & Warshaw, Red Bank, attorneys; Brian D. Drazin, Thomas J. DiChiara and John R. Connolly, Jr., Red Bank, on the briefs).

Richard F. Engel, Deputy Atty. Gen., for defendant State of New Jersey (Irwin I. Kimmelman, Atty. Gen., attorney).

Thomas J. Kelly, Short Hills, for defendant Township of Edison (Hurley & Vasios, Short Hills, attorneys).

Jack L. Lintner for defendant Borough of Wallington (Golden, Lintner, Rothschild, Spagnola & DiFazio, Somerville, attorneys; Jack L. Lintner, Somerville, on the brief).

Michael L. Dermody, Roseland, for defendant Township of Old Bridge (Greenberg, Margolis, Ziegler & Schwartz, Roseland, attorneys; Jeffrey D. Light, Roseland, on the brief).

Clyde A. Szuch, Morristown, for 101 defendant "generators" (Pitney, Hardin, Kipp & Szuch, Morristown, attorneys). ¹

David J. Novack, Short Hills, for five defendant "haulers" (Budd, Larner, Kent, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, attorneys; David R. Gross, Short Hills, on the brief). ²

JOELSON, J.S.C. (retired and temporarily assigned on recall).

The 95 plaintiffs reside in the vicinity of landfills located in the Township of Edison. One of these landfills, Kin-Buc, is privately owned and operated. Plaintiffs allege that another landfill adjoining Kin-Buc is owned and operated by the Township of Edison. Further alleging that the operation or maintenance of the landfills caused them to suffer various physical and emotional disabilities and also property damage, they have brought action against the owners and operators of the landfills as well as against approximately 625 enterprises (hereinafter "generators") which allegedly generated waste which was hauled to the Kin-Buc landfill, and against approximately 25 companies (hereinafter "haulers") which transported the waste. For reasons which will be developed hereinafter, the complaint joined as defendants the State of New Jersey through the Department of Environmental Protection and Department of Transportation, and have also joined the County of Middlesex. The Township of Old Bridge and the Borough of Wallington have also been joined as generators.

The complaint, which is sprawling and general, does not appear to allege specifically that any of the generators sent waste to the landfill of the Township of Edison. As a matter of fact, in opposition to several individual generators' earlier motions for summary judgment based upon the assertion that they were erroneously joined as defendants, counsel for plaintiffs certified that the names of the generators were learned from the records of the U.S. Environmental Protection Agency and the New Jersey Department of Environmental Protection regarding the Kin-Buc landfill. However, as far as concerns the landfill of the Township of Edison, the complaint does specifically allege that the Township of Edison owned or operated its landfill near Kin-Buc, "thus further saturating the earth and causing additional percolation and/or complicating the hydrogeological conditions of the general area."

This opinion will deal with various motions for summary judgment made by (1) the State; (2) the Township of Edison; (3) the generators, including the Township of Old Bridge and the Borough of Wallington, which the court considers to be in the nature of a generator, and (4) the haulers. ³

THE STATE OF NEW JERSEY

Tort claims against public entities are governed by the Tort Claims Act, N.J.S.A. 59:1-1 et seq. Insofar as plaintiffs seek to hold the State liable for the licensing or failure to revoke the license of a landfill or for the licensing of a hauler, they run afoul of N.J.S.A. 59:2-5 which follows:

A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.

The immunity which is granted by N.J.S.A. 59:2-5 "is pervasive and applies to all phases of the licensing function, whether the governmental acts be classified as discretionary or ministerial." Malloy v. State, 76 N.J. 515, 520, 388 A.2d 622 (1978).

The comment to N.J.S.A. 59:2-5 is significant. It states:

This immunity is necessitated by the almost unlimited exposure to which public entities would otherwise be subjected if they were liable for the numerous occasions on which they issue, deny, suspend or revoke permits and licenses. In addition, most actions of this type by a public entity can be challenged through an existing administrative or judicial review process. [Citations omitted]

Furthermore, insofar as plaintiffs seek to hold the State liable for improperly or inadequately inspecting a landfill, they are barred by N.J.S.A. 59:2-6 which follows:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it, nor shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in chapter 4 [ N.J.S.A. 59:4-1 to -9]

The comment to N.J.S.A. 59:2-6 is also important. It states:

This immunity is essential in light of the potential and existing inspection activities engaged in by public entities for the benefit of the public generally. These activities are to be encouraged rather than discouraged by the imposition of civil tort liability. The inclusion of the reference to Chapter 4 [ N.J.S.A. 59:4-1 et seq.] is intended to indicate that this immunity shall not apply when dangerous conditions of public property are involved. In those cases Chapter 4 of [497 A.2d 1315] this act provides the controlling principles of liability.

Additionally, if it is plaintiffs' contention that the State failed to regulate or supervise a landfill as required by law, their claim is barred by N.J.S.A. 59:2-4 which provides:

A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.

Plaintiffs do not rely on any theory of strict liability against the State. Indeed, N.J.S.A. 59:9-2b specifically bars any judgment against a public entity based upon strict liability. However, in the brief submitted on their behalf, plaintiffs rely on N.J.S.A. 59:4-2 which deals with the liability of a public entity "for injury caused by a condition of its property." Noting that the final paragraph in N.J.S.A. 59:4-2 provides that a public entity shall not be liable "for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable," they contend that summary judgment should be precluded in order to afford them the opportunity to prove "palpably unreasonable" conduct on the part of the public entities. The court considers plaintiffs' reliance on N.J.S.A. 59:4-2 to be misplaced because the case before the court does not deal with a condition of public property of the State of New Jersey. The Kin-Buc landfill is privately owned and operated, and the adjacent landfill is owned and operated by the Township of Edison, the liability of which will be considered hereinafter. Plaintiffs rely on N.J.S.A. 59:4-1c which defines public property as "real or personal property owned or controlled by the public entity." They argue that since the landfills were subject to extensive and pervasive regulation by the State, they were "controlled" by the State within the meaning of N.J.S.A. 59:4-1c. However, government regulation does not convert private property into public property, nor convert municipal property into State property. In Bosch v. Hain, 184 N.J.Super. 204, 445 A.2d 465 (Law Div. 1982), which is relied upon in plaintiffs' brief, the court did discuss the possibility that extensive regulatory control of private property might result in the property being regarded as public within the intendment of N.J.S.A. 59:4-2. However, plaintiffs overlook the fact that in Bosch, the court found it "unnecessary for the court to resolve this difficult question." Id. at 210, 445 A.2d 465.

However, in an earlier case, Danow v. Penn Central Transportation Co., 153 N.J.Super. 597, 380 A.2d 1137 (Law Div. 1977), which was not referred to in Bosch, a court ruled definitively as follows:

The word "controlled" in N.J.S.A. 59:4-1(c) should not be construed as extending beyond possessory control. The broad construction urged by plaintiff would enlarge governmental tort liability, without authority in decisional law or legislative history. [Id. at 603, 380 A.2d 1137]

The logic of the Danow decision is buttressed by the fact that to extend N.J.S.A. 59:4-2 to property not in the possessory control of the State would be to expose the State to enormous liability. One has only to consider the pervasive State control in the areas of, for instance, the casino and liquor industries to realize the undesirability of adopting the theory urged upon the court by plaintiffs.

Plaintiffs' brief also relies on N.J.S.A. 59:2-3d as raising a question of fact as to whether the State acted in a manner that was "palpably unreasonable." Here again this court finds plaintiffs' reliance misplaced. Although it is true that the words "palpably...