The Supreme Court of New Jersey decided several cases in 1968 that began the expansion of the discovery rule in New Jersey. On this date, the Court decided Diamond v. New Jersey Bell Telephone Co., 51 N.J. 594 (1968). That case involved a claim that the telephone company had negligently broken portions of plaintiffs’ underground sewer line while installing underground conduit on plaintiffs’ property. The damage was not immediately apparent. Sediment gradually accumulated in the sewer line until, eight years or more after the telephone company had installed the conduit, the sewer pipe became clogged, a backup resulted, and plaintiffs’ property was flooded.
Plaintiffs sued five months later. The telephone company invoked the statute of limitations. The Supreme Court held that the “newly evolved discovery rule” should protect the plaintiffs. “A layman could no more be expected to supervise the construction of a pipeline which might cause harm beneath his property than to supervise a medical operation which might leave a foreign object within his body.” That type of “foreign object” case had been the subject of one of the only previous cases in which the Court had applied the discovery rule. Fernandi v. Strully, 35 N.J. 434 (1961).
In Diamond, the Court stated that “to permit the running of the limitations period while a plaintiff’s injury is hidden from observation beneath the ground would be overly harsh and unjust.” The statute would not begin to run “at least until the harm incurred by a plaintiff becomes reasonably apparent or ascertainable.”
Justices Hall and Haneman had dissented in Fernandi. Justice Haneman did not participate in Diamond, but Justice Hall did, joining in the Court’s 5-0 opinion. Justice Haneman wrote the 6-0 opinion of the Court that applied the discovery rule in favor of the plaintiff in another 1968 case, New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419 (1968), with Justice Hall not participating. It was thus clear that, by 1968, the entire Court was willing to apply and expand the discovery rule. The rule was on its way to its present form.