Rutgers, State University of New Jersey v. Grad Partnership

Decision Date14 December 1993
Citation269 N.J.Super. 142,634 A.2d 1053
Parties, 87 Ed. Law Rep. 977 RUTGERS, the STATE UNIVERSITY OF NEW JERSEY, Plaintiff-Appellant, v. The GRAD PARTNERSHIP, f/k/a Frank Grad & Sons, Dames & Moore, and Frank Lehr Associates, Defendants-Respondents, and Carl Buhr, Inc., Richardson Engineering Co., ABC Corporations 1-50 and John Does 1-50, Defendants.
CourtNew Jersey Superior Court — Appellate Division

Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, for appellant (Richard F. Ricci and Stephen R. Buckingham, on the brief).

Smith, Mullin & Kiernan, West Orange, for respondent The Grad Partnership (Jon W. Green, of counsel and on the brief).

Bressler, Amery & Ross, Florham Park, for respondent Dames & Moore (J. Michael Riordan, Kevin M. Kilcommons, and Eric J. Nemeth, on the brief).

Respondent Frank Lehr Associates did not file a brief.

Before Judges BAIME, CONLEY and VILLANUEVA.

The opinion of the court was delivered by

CONLEY, J.A.D.

This appeal causes us to consider whether the ancient, and now almost dead, doctrine of "nullum tempus occurrit regi" (no time runs against the sovereign) bars defendants' reliance upon N.J.S.A. 2A:14-1.1. The trial judge concluded that the doctrine applied only to statutes of limitations, that N.J.S.A. 2A:14-1.1 was something different (a statute of repose), and that, in any event, nullum tempus occurrit regi (nullum tempus ) is no longer favored. As to the latter, he is correct. See N.J. Educ. Facilities Auth. v. Gruzen, 125 N.J. 66, 75, 592 A.2d 559 (1991); Holloway v. State, 125 N.J. 386, 398, 593 A.2d 716 (1991). See also Devins v. Bogota, 124 N.J. 570, 579, 592 A.2d 199 (1991). Compare N.J.S.A. 2A:14-1.2 (as of January 1, 1992, actions by the State must be commenced within ten years of accrual of the cause of action). 1 We disagree, however, that the doctrine was not applicable to Rutgers at the time it filed its complaint and hold that it precludes defendants' reliance upon N.J.S.A. 2A:14-1.1.

In 1962, Rutgers hired defendant Grad to design its Engineering Building "C" at its New Brunswick facility. Grad's responsibilities included designing an underground piping system to be used for discharging chemicals from the engineering building into an on-site acid neutralization pond. Defendants D & M and Lehr acted as soil engineers for the installation of the piping system and participated in the system's design and installation. The system was installed in early 1963.

During renovations to the "C" Wing in 1987, Rutgers discovered that glass drainage pipes under the basement floor were cracked and that chemicals were being discharged into the lands and waters of the State, resulting in soil and groundwater contamination. The New Jersey Department of Environmental Protection and Energy required Rutgers to dispose of the contaminated soil and to install groundwater monitoring wells.

Rutgers ultimately learned that the glass piping was inappropriate for its intended purpose, that the soil in which the pipe was laid was improperly compacted, and that the piping system had been improperly designed and installed. It accordingly brought this suit, sounding in both contract and tort, against defendants on December 26, 1991 which the trial court then dismissed upon defendants' motion pursuant to N.J.S.A. 2A:14-1.1.

That statute provides:

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, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, 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. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

Unless nullum tempus applies, it is undisputed that Rutgers' complaint would be barred by this ten-year time period.

Nullum tempus means that time does not run against the State or any of its agencies or subdivision. Port Auth. of N.Y. & N.J. v. Bosco, 193 N.J.Super. 696, 699, 475 A.2d 676 (App.Div.1984). Fashioned at common law, N.J. Educ. Facilities v. Gruzen, 125 N.J. at 74, 592 A.2d 559, nullum tempus literally means "time does not run against the king," Devins v. Bogota, 124 N.J. at 575, 592 A.2d 199, and takes its life from the ancient rationale that "the king established his own rules for litigation," id. at 576, 592 A.2d 199, and that "the king was too busy protecting the interests of his people to keep track of his lands and to bring suits to protect them in a timely fashion." Ibid. Absent inclusion either expressly or by implication of the State in a statute of limitations, nullum tempus operates so that such a statute, "should not be read to affect adversely the State's rights[.]" Ibid. See Livingston Bd. of Educ. v. U.S. Gypsum Co., 249 N.J.Super. 498, 505, 592 A.2d 653 (App.Div.1991); N.J. Educ. Facilities Auth. v. Conditioning Co., 237 N.J.Super. 310, 319, 567 A.2d 1013 (App.Div.1989), aff'd in part, rev'd in part on other grounds, sub nom., N.J. Educ. Facilities Auth. v. Gruzen, 125 N.J. 66, 592 A.2d 559 (1991); State v. Scientific Coating Co., Inc., 228 N.J.Super. 320, 324, 549 A.2d 874 (App.Div.1988). See Trustees of Public Schools v. City of Trenton, 30 N.J. Eq. 667, 683 (E. & A. 1879). N.J.S.A. 2A:14-1.1 does not expressly or by implication apply to a cause of action brought by the State.

Characterizing N.J.S.A. 2A:14-1.1 as a statute of repose (Newark Beth Israel v. Gruzen, 124 N.J. 357, 363, 590 A.2d 1171 (1991)) as opposed to a statute of limitations, and further considering the scope of nullum tempus as extending only to statutes of limitations, the trial judge concluded Rutgers could not rely upon that concept to avoid the otherwise applicable time limitation in N.J.S.A. 2A:14-1.1 and thus found the State's complaint barred by the ten-year period set forth therein. We can find, however, no basis for limiting nullum tempus to only what might be characterized as pure statutes of limitation and neither do we think the characterization of N.J.S.A. 2A:14-1.1 as a statute of repose either necessarily accurate, or if accurate, much of a distinction. The motivating policy for nullum tempus, ancient though it may be, speaks to all time limitations or restrictions upon a State's right to pursue its claims. There can be no doubt that N.J.S.A. 2A:14-1.1 imposes a time restriction or limitation against designers, planners and builders for damage claims arising out of defective and unsafe conditions of improvements to real property. No such action "shall be brought ... more than 10 years after the performance or furnishing of such services and construction...." Ibid.

We acknowledge that N.J.S.A. 2A:14-1.1 "is not a conventional statute of limitations." Newark Beth Israel v. Gruzen, 124 N.J. at 363, 590 A.2d 1171. Such a statute fixes a period of time within which an injured person must commence litigation or be forever barred and normally commences that time period from the moment the cause of action accrues. Ibid. See White v. Violent Crimes Compensation Board, 76 N.J. 368, 374-75, 388 A.2d 206 (1978). N.J.S.A. 2A:14-1.1 does establish a period of time within which claims may be brought, but commences the time period not from accrual of a cause of action, but from the date of completion of the real property improvement from which potential causes of action could arise.

And, thus, in Rosenberg v. North Bergen, 61 N.J. 190, 293 A.2d 662 (1972), the Court rejected plaintiff's contention the statute unconstitutionally barred her cause of action before it arose. In doing so it noted the statute was not a typical statute of limitation. In response to the claim of unconstitutionality, the Court pointed out that the statute did not in all respects bar a cause of action, rather prevented what might be a cause of action from arising where the accrual was beyond ten years of completion of the work--thus the label statute of repose. 61 N.J. at 199, 293 A.2d 662. See Newark Beth Israel v. Gruzen, 124 N.J. at 363, 590 A.2d 1171.

And in O'Connor v. Altus, 67 N.J. 106, 335 A.2d 545 (1975) in determining whether the infant tolling statute applied to the ten-year period, the Court again observed that the statute "is not a typical statute of limitations," but rather is a "special statutory limitation or 'hybrid'." 67 N.J. at 121, 335 A.2d 545. On the one hand, if the cause of action or injury occurred after the ten-year period, it barred a right of action from ever coming into existence. But, as to causes of actions or injuries arising within the ten years, the statute operated "like any other statute of limitations" and merely disallowed the institution of suit. 67 N.J. at 122, 335 A.2d 545. Viewed in this light, the infant tolling statute would apply, but only to the extent that it did not extend the period in which to bring suit beyond the ten years after completion of construction. 67 N.J. at 123, 335 A.2d 545.

But whether N.J.S.A. 2A:14-1.1 is considered an atypical statute of limitations, a hybrid, or a repose provision, the fact remains that it is still a limitations provision which is triggered by the running of time. It merely calculates the running of that time from a different starting point. The reasons for its existence, though, are no different from the policy...

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