T & E Industries, Inc. v. Safety Light Corp.

• Decision Date: 27 March 1991
• Citation: 587 A.2d 1249,123 N.J. 371
• Parties: , 32 ERC 1931, 59 USLW 2609, 21 Envtl. L. Rep. 20,872, 13 A.L.R.5th 1041 T & E INDUSTRIES, INC., Plaintiff-Respondent and Cross-Appellant, v. SAFETY LIGHT CORPORATION; USR Industries, Inc.; USR Lighting, Inc.; USR Metals, Inc.; USR Chemicals Inc.; and US Natural Resources, Inc., Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Supreme Court

Page 371

123 N.J. 371

587 A.2d 1249, 32 ERC 1931, 59 USLW 2609,

21 Envtl. L. Rep. 20,872, 13 A.L.R.5th 1041

T & E INDUSTRIES, INC., Plaintiff-Respondent and Cross-Appellant, v. SAFETY LIGHT CORPORATION; USR Industries, Inc.; USR

Lighting, Inc.; USR Metals, Inc.; USR Chemicals

Inc.; and US Natural Resources, Inc.,

Defendants-Appellants and

Cross-Respondents.

Supreme Court of New Jersey.

Argued March 12, 1990.

Decided March 27, 1991.

Albert G. Besser, for defendants-appellants and cross-respondents (Hannoch Weisman, attorneys, Albert G. Besser, Kevin J. Bruno, and Brad R. Roth, on the briefs).

Edward A. Zunz, Jr., for plaintiff-respondent and cross-appellant (Riker, Danzig, Scherer, Hyland & Perretti, attorneys, Edward A. Zunz, Jr., Stuart M. Lederman, and Robert J. Gilson, on the briefs).

The opinion of the Court was delivered by

CLIFFORD, J.

This appeal takes us once again over the unsettled waters of toxic-tort litigation. See, e.g., Report of the Supreme Court Committee on Environmental Litigation 10 (1990) (pointing out the unavoidably-complex nature of environmental law and regulation). At the storm center of this case is a radium-contaminated site that is now owned by plaintiff, T & E Industries, Inc. (T & E), but was once owned by United States Radium Corporation (USRC), the predecessor corporation of all the defendant corporations. The primary issue is whether an owner of radium-contaminated property can hold a distant predecessor in title that is responsible for the contamination strictly liable for damages caused by its abnormally-dangerous activity. We hold that it can. We address as well several questions concerning damages.

I

A

Until 1943 USRC owned an industrial site on Alden Street in Orange. From around 1917 to 1926 it processed radium at that site. It extracted the radium from carnotite ore, which had been transported to USRC's plant from Utah and Colorado. USRC sold the radium for medical purposes and also used it to manufacture luminous paint for instrument dials, watches, and other products. It could, however, recover successfully only eighty percent of the radium from the ore. The unextracted radium was contained in "tailings," the solid by-products of the extraction process, which USRC discarded onto the unimproved portions of the Alden Street site.

Carnotite ore consists primarily of Uranium 238, radium, and vanadium. As the nucleus disintegrates, Uranium 238 decays into other elements, one of which is Radium 226. In turn Radium 226 emits gamma rays and decays into Radon 222, which is a naturally-occurring radioactive gas. Radon then decays into radon progeny or radon "daughters," which can adhere to walls, ceilings, dust particles, and, if inhaled, the tissue of the lungs. Gamma-ray exposure can cause bone cancer and leukemia, while radon inhalation can cause lung cancer.

It was not until the mid-1950s, however, that the scientific community engaged in any serious study of the epidemiological risks associated with radon. It did not generally accept the link between radon and lung cancer until the 1960s, and it was not aware of the problems generated by radioactive tailings until the late 1960s. The federal government, reflecting an unfortunate lag time, did not regulate the disposition of tailings until 1978.

Nevertheless, both the scientific community and USRC had suspicions about the hazards of radium at a much earlier date. In 1917 Florence Wall, an employee of USRC, calculated the amount of radium extracted from ore and measured its radioactivity. A graduate of Saint Elizabeth's College, Wall testified that she had learned very early that she should not touch radium and that she should wear protective clothing. For protection at work she wore a full-length lead-lined apron, much like a "mummy case."

Others too were concerned about handling radium. Wall recalled an incident involving Dr. Von Sochocky, the president of USRC, when radium lodged beneath his fingernail: he immediately "hacked" off his fingertip because he feared the effects of radium.

Another USRC employee, Gordon Cameron, who worked for the company from 1923 to 1926, extracted radium from the ore and removed the tailings from the plant. At work Cameron wore a rubber apron, rubber gloves, and rubber shoes. He also used rubber pails to carry the tailings. According to Cameron, he took those precautions primarily for protection from the harsh chemicals used in the extraction process, but he knew enough about the health hazards of radium "to keep away from it as much as possible."

In the early 1920s, USRC acquired still more evidence of the dangers of radium. Some of its employees applied the luminous paint to watch and instrument dials. After dipping their brushes into the paint, the dial-painters often sharpened the tip of the brush in their mouths, thereby ingesting a small amount of radium. Many of those employees eventually developed cancer. After discovering the problems associated with ingesting radium, USRC posted warnings cautioning its employees against sharpening the brushes in that fashion.

Radium processing at the Orange facility ceased in 1926, and USRC vacated the premises. Despite USRC's departure from Orange, the company retained ownership of that site and continued to produce fluorescent compounds, albeit in New York. In the mid-1930s USRC leased the premises to various commercial tenants, eventually selling the property to one of those tenants in 1943. During that interim, the risks posed by radium became increasingly apparent.

In 1932 there appeared in the American Journal of Cancer an article entitled "Cancer of the Lung in the Miners of the Jackymon," which dealt with the dangers of inhaling radon. Eight years later Drs. Evans and Goodman, two experts in the field of radiation, published an article entitled "Determination of the Thoron Content of Air and its Bearing on Lung Cancer Hazards in Industry," concerning radon and lung cancer. That article discussed how the refining of radioactive material produces radon. The authors reported that the inhalation of the gas is "known to be hazardous." Because of those hazards, they recommended that exposure to radon be limited.

In 1941 the U.S. Department of Commerce published a handbook (H-27) entitled "Safe Handling of Radioactive Luminous Compound." That handbook included detailed information on the effects of ingestion or inhalation of solid radioactive luminous compound, on the results of inhalation of radon liberated from compound into the air, and on the consequences of exposure of the whole body to gamma radiation. According to the handbook, "[t]he continued inhalation of radon may produce carcinoma of the lungs." Recognizing that "serious injury and even death may result from the injudicious handling of [radioactive luminous] compound[s]," the handbook provided safety guidelines for the handling of such materials, and concluded that radon concentration in the workplace atmosphere must be limited. The participation of J.E. Paul, a representative from USRC, on the advisory committee that prepared the materials for the handbook suggests that USRC was aware of that publication's conclusions.

In a 1943 letter to the War Department the president of USRC, seeking to renegotiate a government contract, likewise demonstrated knowledge of radium and radon hazards. Although he contended that "there is no exact formula by which it can be determined how much injury might be caused by any given amount of non-continuous exposure [to radioactive materials]," he admitted that "a hazard does exist." To support that conclusion, the letter referred to several case studies involving USRC employees. In each case the employee's death was attributed to radium exposure: some had inhaled radon, some had been exposed to gamma radiation, and some had suffered from the effects of both radon inhalation and gamma-ray exposure.

In that same year, 1943, USRC sold the Orange property to Arpin, a plastics manufacturer. Despite its suspicions about the harmful effects of radium, as recited above, USRC did not remove the discarded tailings from the site.

Arpin, unaware of the potential risks associated with the tailings, added to the plant a new section that rested on the discarded tailings. Since then the property has changed hands several times. Plaintiff, T & E, a manufacturer of electronic components, began leasing the premises in 1969 and purchased it in 1974.

B

The Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7901 to § 7942 (1978), calls for the evaluation of inactive mill-tailing sites. In accordance with that Act, Jeanette Eng, a supervisor in the New Jersey Department of Environmental Protection (DEP), visited plaintiff's plant in March 1979. She found elevated gamma-radiation levels inside the building, on the vacant property behind the building, and in the parking lot.

Tests on air and soil samples verified that the levels of radon, radon progeny, and gamma radiation exceeded State regulations. The radon level of the soil samples taken from beneath the building exceeded federal standards as well. The most severe problem existed in the oven room, the portion of the building added by Arpin. DEP instructed plaintiff "to begin immediate remedial action." It also informed plaintiff that such remedial action would serve only as an interim measure. DEP suggested that if funding for a full decontamination of the site could not be found quickly, plaintiff's options would be "limited to undertaking the cost of decontamination or consider[ing] abandoning the site."

In response to DEP's recommendations, plaintiff restricted employee access to the oven room and monitored the use of that room. It also retained a health physicist, Dr. Steidley, as a consultant. After confirming the State's findings, Steidley recommended that plaintiff seal all cracks, expansion joints, and drains in the oven room, and install fans to ventilate the plant. Steidley...