Russo Farms, Inc. v. Vineland Bd. of Educ.

CourtUnited States State Supreme Court (New Jersey)
Citation675 A.2d 1077,144 N.J. 84
Parties, 109 Ed. Law Rep. 800 RUSSO FARMS, INC., a New Jersey Corporation; RFC Container Co., Inc., a New Jersey Corporation; Thomas Russo; Eva Russo, His Wife; Pasquale Russo; Mario Russo; Estate of Pasquale Russo, Plaintiffs-Respondents, v. VINELAND BOARD OF EDUCATION; City of Vineland; Glenn A. Kahley; Art Anderson, Inc., a New Jersey Corporation, Defendants-Appellants, and Lippincott Engineering Association; Daniel W. Jacobs, P.E.; John Doe; Jane Doe and Mary Doe (Fictitious), Defendants.
Decision Date07 May 1996

Eric M. Wood, Atlantic City, for appellant City of Vineland (Horn, Goldberg. Gorny, Daniels, Plackter & Weiss, attorneys).

Robert A. De Santo, Vineland, for appellant Vineland Board of Education (Gruccio, Pepper, Giovinazzi, De Santo Farnoly, attorneys).

Sarannah L. McMurty, Mount Laurel, for appellant Art Anderson, Inc. (LaBrum and Doak, attorneys; Ms. McMurty and Michael G. Brennan, on the briefs).

Christine M. Cote, Atlantic City, for appellant Glenn A. Kahley (Cooper Perskie April Niedelman Wagenheim & Levenson, attorneys; Ms. Cote and Michael R. Litke, on the briefs).

Walter T. Wolf, Mount Laurel, for respondents (Wolf Professional Association, attorneys; Matthew S. Wolf, on the brief).

The opinion of the Court was delivered by


Plaintiffs assert that the Vineland Board of Education (the Board), the City of Vineland (the City), the architect, Glenn A. Kahley (Kahley), and the general contractor, Art Anderson, Inc. (Art Anderson), are liable to them for damage to their crops and farmland from flooding that was caused by the improper siting and construction of a public school across the street from their property and by an inadequate drainage system on a bordering street. The school was constructed in 1979, but plaintiffs did not file suit until 1990.

At issue in this appeal is whether the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, and the six-year statute of limitations governing actions for tortious injury to real property, N.J.S.A. 2A:14-1, bar plaintiffs, claims against the Board and the City, and whether that six-year statute of limitations and the ten-year statute of repose set forth in N.J.S.A. 2A:14-1.1 bar plaintiffs' action against the architect and the general contractor. Specifically, we must determine whether each incursion of floodwater constitutes a continuing tort, and whether the statute of repose begins to run from the date of substantial or full completion of construction.


Plaintiffs, individually and through various corporations (collectively, Russo), own or lease several connected parcels of land in Vineland, New Jersey that have been used as a single unit for farming. Plaintiffs have owned three of the lots since 1970 and purchased seven other lots after 1985.

Those parcels of land are bordered on the south by Grant Avenue, and on one side by South East Avenue, a road that is perpendicular to and intersects with Grant Avenue. While Grant Avenue apparently has had a drainage system, the street historically has been the site of flooding due to inadequate drainage.

In 1977, the Board decided to construct the Dr. William Mennies School on the southern side of Grant Avenue, across from plaintiffs' property. The site chosen was on a portion of land with a higher elevation than both Grant Avenue and the Russo farmland across the street. The Board hired Kahley, an architect, to design the building, advise the Board, and supervise construction. He also was to review and approve requests for payment by the contractors.

The Board also hired Daniel W. Jacobs, P.E. and Lippincott Engineering Associates as structural engineers to perform tests and recommend a design to ensure a proper drainage system. Lippincott recommended to Kahley that the construction plans include one or two drainage basins to handle runoff of rainwater.

In March 1978, the State Department of Education approved the building plans, and construction began. In May 1978, the Board signed an American Institute of Architects (AIA) standard-form contract with Art Anderson, under which that company would act as general contractor, responsible for all construction work. Under the contract, Anderson was to be paid, every month, 90% of the amount earned in the prior month; on "Substantial Completion," 100% of the money was to be paid, less retainage "for all incomplete Work and unsettled claims." The entire unpaid balance was to be paid when the work was completed and a final certificate of payment was filed.

On September 5, 1979, the State Department of Education issued an Occupancy Permit because its "inspection of the project indicates that the building is substantially completed." Several days later, a Certificate of Substantial Completion, an AIA standard form, was issued by Kahley to the Board because "construction is sufficiently complete ... so the owner can occupy or utilize" the building "for the use for which it is intended." Since September 1979, regular elementary school classes have been held in the building. On April 11, 1980, a request for final payment was submitted to the Board with a certification by Kahley that the project was 100% complete. Also on that date, an invoice was filed by Art Anderson seeking, pursuant to the contract, 100% of payment less retainage. In accordance with the contract, the surety consented to the release of final payment, less retainage.

Although the building was substantially completed in September 1979, a "punch list" of items that required completion was compiled, including replacement of damaged ceiling tiles, cleaning carpets, caulking doors, and installing toilet partitions. By November 7, 1980, most of these items were completed, and the punch list was fully completed by February 19, 1981.

The construction of the new school, however, allegedly caused damage to the plaintiffs' property. Their expert, Alan Cohen, stated that the contractor and architect negligently ignored the design specifications and constructed the drainage basins improperly. Instead of flowing into the basins, rainwater would run down the driveway, onto Grant Avenue, combine with the other water that Grant Avenue's inadequate drainage could not handle, and flood the Russo fields.

Thomas Russo testified at his deposition that

I started seeing water in the fields that ... I had not seen before not too long after the School was built.... I do not remember if it was the first year or the first growing season or the ... beginning of the next growing season.... A short time frame after the school was built.

Mario Russo described the early damage in 1980 and 1981 as "general water erosion. It was very evident that we had gullies through the ... property. We also had standing water and as a result, very poor crops. Bare areas without crops wherever the water laid." Plaintiffs explained, however, that Vineland was suffering through a three-year dry spell that started around the time that the school was completed, and that therefore the flooding and damages were minimal in those early years. In the mid-1980s, the rains returned and the flooding worsened. By 1987, the floodwaters washed off the topsoil and left the farmland with an inferior layer of soil. Eventually, the Russo crops suffered from water rot and were severely damaged. Specifically, plaintiffs claim that the flood waters resulted in soil erosion, soil-nutrient depletion, decreased crop production and a diminution in value of their property.

At one point, plaintiffs had constructed a dike to protect the farmlands, but that resulted in worse floods on Grant Avenue, so it was removed. Later, plaintiffs constructed a berm on its property alongside South East Avenue to prevent the runoff from that road from flooding its property.

Thomas Russo spoke to several city officials in an attempt to remedy the problem. On August 24, 1987, he sent the following letter to the Mayor of Vineland:

Enclosed please find two copies of letters sent from our farming operation. After many phone calls to your office, I am confused about your casual attitude towards the problem.

We can no longer allow this situation to continue. We are again asking for you to come to the office as soon as possible.

Your immediate attention to this situation will be appreciated.

The record does not include the letters enclosed with the letter of August 24, 1987. Plaintiffs contend that their letter served as a notice of claims, a prerequisite to any suit against governmental entities under the Tort Claims Act.

On June 11, 1990, as the flood damage intensified, plaintiffs filed an official notice of claim with the City and the Board. On July 18, 1990, plaintiffs filed a twelve-count complaint against the City, the Board, Lippincott, Daniel Jacobs, Kahley and several "John Doe" defendants including the contractor. (The complaint ultimately was amended to replace one John Doe with Art Anderson).

Plaintiffs asserted both tort claims and claims for inverse condemnation against the City and Board. They also sought a preliminary injunction against both to correct the drainage problem, as well as damages. Plaintiffs asserted two claims against Kahley: negligent design and negligent construction of the school property. Plaintiffs also alleged negligence against Lippincott and Jacobs for their design and construction of the drainage. Finally, the plaintiffs sought damages from Art Anderson for negligent construction of the school.

On August 3, 1990, the trial court ordered the City to construct a detention basin on Grant Avenue between plaintiffs' property and the property of the Board. The City complied and the water problem on Grant Avenue ceased.

In March 1991, the City commenced a separate suit, seeking an order compelling Russo to remove the berm that Russo had built along South East Avenue. Russo counterclaimed, arguing that South East Avenue constituted a dangerous...

To continue reading

Request your trial
71 cases
  • Interfaith Community Org. v. Honeyweil Intern., Civil Action No. 95-2097(DMC).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 21 Mayo 2003
    ...barred by the six-year statute of limitations, N.J. Stat. Ann. § 2A:14-1, as Honeywell contends. See Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 1084-86 In Russo Farms v. Vineland Bd. of Educ, the New Jersey Supreme Court held that a party who creates a hazard (there, ......
  • Am. Premier Underwriters Inc. v. Gen. Elec. Co.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 31 Marzo 2012
    ...but instead argues that New Jersey courts recognize the continuing tort doctrine. Accord Russo Farms, Inc. v. Vineland Board of Education, 144 N.J. 84, 675 A.2d 1077 (1996) (setting forth principles governing continuing tort doctrine under New Jersey law). In Russo Farms, the Supreme Court ......
  • Ewing v. Cumberland Cnty., Civil No. 09–5432 (JBS/AMD).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 25 Marzo 2015
    ...person, even if harmless.” Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431, 439 (1983) ; see also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 1087 (1996) ; Kelly v. Cnty. of Monmouth, 380 N.J.Super. 552, 883 A.2d 411, 415 (N.J.Super.Ct.App.Div.2005).There is more tha......
  • Schneider Nat. Carriers, Inc. v. Bates
    • United States
    • Supreme Court of Texas
    • 1 Octubre 2004
    ...564 (1959); Sundell v. Town of New London, 119 N.H. 839, 409 A.2d 1315, 1320-21 (N.H.1979); Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 1085 (1996); City of Sioux Falls v. Miller, 492 N.W.2d 116, 118(S.D.1992); Breiggar Props., L.C. v. H.E. Davis & Sons, Inc., 52......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT