The Anniversary of Ayers v. Jackson Tp.

On this date in 1987, the Supreme Court decided Ayers v. Jackson Tp., 106 N.J. 557 (1987). As Justice Stein said in his opinion for the 6-1majority (Justice Handler dissented in part), “[t]he litigation involves claims for damages sustained because plaintiffs’ well water was contaminated by toxic pollutants leaching into the Cohansey Aquifer from a landfill established and operated by Jackson Township. After an extensive trial, the jury found that the township had created a ‘nuisance’ and a ‘dangerous condition by virtue of its operation of the landfill, that its conduct was ‘palpably unreasonable,’ — a prerequisite to recovery under [the New Jersey Tort Claims Act (“Act”),] N.J.S.A. 59:4-2 — and that it was the proximate cause of the contamination of plaintiffs’ water supply. The jury verdict resulted in an aggregate judgment of $ 15,854,392.78, to be divided among the plaintiffs in varying amounts. The jury returned individual awards for each of the plaintiffs that varied in accordance with such factors as proximity to the landfill, duration and extent of the exposure to contaminants, and the age of the claimant.”

The jury award had three components that were the subject of the appeal: “The verdict provided compensation for three distinct claims of injury: $2,056,480 was awarded for emotional distress caused by the knowledge that they had ingested water contaminated by toxic chemicals for up to six years; $ 5,396,940 was awarded for the deterioration of their quality of life during the twenty months when they were deprived of running water; and $ 8,204,500 was awarded to cover the future cost of annual medical surveillance that plaintiffs’ expert testified would be necessary because of plaintiffs’ increased susceptibility to cancer and other diseases.”

The Appellate Division affirmed the award for impairment of the quality of life, but reversed the other two components. That court also affirmed the trial court’s dismissal of plaintiffs’ damage claim for enhanced risk of disease. Each of those four aspects of the claimed damages was addressed by the Supreme Court. The Court affirmed in part and reversed in part the Appellate Division’s decision.

In opposing the “quality of life” component, the Township asserted that such damages were “pain and suffering” that were precluded by the Act, N.J.S.A. 59:9-2(d). The Appellate Division disagreed, and so did the Supreme Court. “The Tort Claims Act’s ban against recovery of damages for ‘pain and suffering resulting from any injury’ is intended to apply to the intangible, subjective feelings of discomfort that are associated with personal injuries. It was not intended to bar claims for inconvenience associated with the invasion of a property interest. As the trial court’s charge explained, plaintiffs sought damages to compensate them for the multiple inconveniences associated with a lack of running water. Although the disruption of plaintiffs’ water supply is an ‘injury’ under the Act, N.J.S.A. 59:1-3, the interest invaded here, the right to obtain potable running water from plaintiffs’ own wells, is qualitatively different from ‘pain and suffering’ related to a personal injury.”

Justice Stein observed that quality of life damages derive from the law of nuisance, and that plaintiffs had pled amply proven that the Township’s palpably unreasonably operation of the landfill constituted a nuisance. Accordingly, “the quality of life damages represent compensation for losses associated with damage to property, and … they do not constitute pain and suffering under the Tort Claims Act.”

Plaintiffs’ emotional distress claim, in contrast, was precluded by the Act. Justice Stein held that “claims for emotional distress are encompassed by the term ‘injury’ in N.J.S.A. 59:9-2(d).” The Court noted that it had “recognized in other contexts involving damages for emotional distress that the injury sought to be redressed can fairly be described as pain and suffering.” Thus, the Appellate Division was correct in voiding that part of the damage award.

Ayers is perhaps best known for its ruling as to plaintiffs’ claims regarding medical surveillance damages, the largest component of the jury’s damage award, and enhanced risk of future injury. The Appellate Division had rejected both of those claims.

In the lengthiest part of its opinion, the Supreme Court reversed as to medical surveillance but affirmed as to enhanced risk. Justice Stein discussed in detail concepts ranging from the statute of limitations to the single controversy doctrine to the challenges in proving causation. (The case preceded subsequent decisions that relaxed the standards for admission of expert testimony on causation, the first of which was Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991), a relaxation that the Court discussed most recently in In re Accutane Litig., 234 N.J. 340 (2018), discussed here, a case that I argued).

Justice Handler’s partial dissent focused on the enhanced risk claim. He would have permitted it to go forward. But he stood alone.

Last year, in Nieves v. Adolf, 241 N.J. 567 (2020), the Supreme Court rejected an attempt to extend Ayers to a legal malpractice claim. The Court observed that Ayers was based on the nuisance claim involved there. “To the extent the Court discussed quality of life impacts in recognizing a unique damage claim in that matter, the damages explanation must be understood in its narrow context. It has not been expanded upon since, and we decline the invitation to incorporate it here.” But although Ayers has not been expanded, its core rulings remain good law. The case has been cited hundreds of times by courts in New Jersey and elsewhere, though some courts have not accepted its holding regarding medical surveillance damages.