TRENTON, N.J. (Legal Newsline) – The Supreme Court of New Jersey has reversed an appellate court's decision and reinstated a couple's personal injury claim against a public entity.
Edan and Edna Ben Elazar filed a claim against Macrietta Cleaners, Swan Custom Cleaners and the Township of Cranford, N.J., among others, for personal injury and damages in September 2012. The initial claim against Cranford was dismissed because of statute of limitations issues, according to the July 26 Supreme Court opinion.
The facts of the case date back as far as 1946 when a township inspector approved the installment of underground fuel and solvent tanks on the property for a dry cleaner to operate. In the mid-1980s, Macrietta Realty purchased Swan Cleaners and continued operating in that location for approximately 20 years.
The plaintiffs later opened their electronic repair business next door to the cleaners three years after the accrual in 1988.
The plaintiffs report having smelled chemicals emanating from the dry cleaning business next door to theirs but never thought anything of it. The plaintiffs allege that they later experienced various medical ailments including asthma, bronchitis and a chronic blood disorder. The plaintiffs have come to believe that the dry cleaning chemicals are responsible for their ailments
The opinion states that in 1998, the underground storage tanks were removed and soil tests confirmed contamination. Macrietta notified the New Jersey Department of Environmental Protection, who notified the township.
In 2010, a third-party company was hired by Marcrietta to conduct air testing on the property, revealed a high level of tetrachloroethene, the opinion states.
In September 2012, the plaintiffs filed their claim against Macrietta and later amended the claim in 2013 to add the township as a dependent.
The court's opinion states that the township sought to dismiss the claim on the grounds that it was untimely and it was granted. However, as a rebuttal, the plaintiffs claimed that they had filed within 90 days of discovering that the offending tanks were stored on government property.
"The court identified January 2011 as the time when plaintiffs should have known that there was a contamination problem on their property; at that point, the court continued, plaintiffs were responsible for investigating the matter to determine the source of the contamination and the responsible parties. The court concluded that, '[h]aving failed to do that in a timely manner and to file their tort claims notice even within that year, their claim is dismissed as it relates to [the Township],'" the opinion states.
The plaintiffs appealed and the Appellate Division affirmed.
The Supreme Court remanded the issue to a trial court to conduct a Lopez hearing, where a judge will determine if the matter is within the statute of limitations.