|||New Jersey Superior Court, Appellate Division
|||578 A.2d 1248, 243 N.J.Super. 170, 1990.NJ.
|||Decided: August 8, 1990.
|||IRONBOUND HEALTH RIGHTS ADVISORY COMMISSION, ET AL., PLAINTIFFS-APPELLANTS,
DIAMOND SHAMROCK CHEMICALS COMPANY, ET AL., DEFENDANTS-RESPONDENTS. JOHN BRENNAN, ET AL., PLAINTIFFS-APPELLANTS, V. DIAMOND SHAMROCK CHEMICALS COMPANY, ET AL., DEFENDANTS-RESPONDENTS
|||On appeal from the Superior Court of New Jersey, Law Division, Essex
|||Michael Gordon argued the cause for appellants (Gordon, Gordon &
Haley, P.C., attorneys; Timothy S. Haley, Michael Gordon and Stefanie A.
Brand on the brief; Michael Gordon on the reply letter brief).
|||George W.C. McCarter argued the cause for respondents (McCarter &
English, attorneys; George W.C. McCarter, of counsel and on the brief;
J. Forrest Jones and Kevin J. Connell on the brief).
|||Bilder, Ashbey and A.m. Stein. The opinion of the court was delivered
by A.m. Stein, J.A.D.
|[243 NJSuper Page
|||We granted leave to appeal from the Law Division's order granting defendant
Diamond Shamrock Chemicals Company partial summary judgment on the claims
for emotional distress set forth in paragraph No. 192 and Counts Eight
and Nine of plaintiffs' amended complaint. We affirm.
|||In Mauro v. Raymark Industries, Inc., 116 N.J. 126,
137, 561 A.2d 257 (1989) the New Jersey Supreme
Court specifically left undecided the question of whether exposure to toxic
chemicals without physical injury gives rise to a claim for emotional distress
damages. This case is not a suitable vehicle for resolution of all dimensions
of that issue.
|||Plaintiffs are ninety-seven individuals, and estates of individuals,
who lived, worked and conducted business in the vicinity of the Diamond
Shamrock plant in the Ironbound section of Newark.*fn1
They claim to suffer mental distress from the knowledge or belief that
they were exposed to dioxin, a highly toxic by-product of the agricultural
chemicals manufactured by Diamond Shamrock at this plant from 1957 to 1970.
The underlying facts describing the basis of the claimed exposure are set
forth in Judge Long's opinion in our earlier decision in I.H.R.A.C. v.
Diamond Shamrock Chem., 216 N.J. Super. 166,
168-169, 523 A.2d 250 (App.Div.1987).
|||Paragraph No. 192 of the amended complaint alleges that
|[243 NJSuper Page
|As a direct . . . result of defendant Diamond's
activities, the individual plaintiffs have suffered extreme emotional distress
proximately caused by the . . . inhalation and absorption of [dioxin] and
other toxics, . . .
|||Count Eight states:
|||Defendant Diamond knew of the dangers of [dioxin] and other toxics
that Diamond placed into the environment in the area surrounding 80 Lister
Avenue and defendant Diamond failed to warn of the danger or take action
to prevent the danger to plaintiffs.
|||Individual plaintiffs have suffered and will continue to suffer emotional
and mental distress, including fear and anxiety.
|||Count Nine states:
|||Defendant Diamond negligently created dangers by its manufacture of
[dioxin] and other toxics and its negligent placement of these materials
in the environment surrounding 80 Lister Avenue.
|||Individually, plaintiffs have suffered and will continue to suffer
emotional distress including fear and anxiety.
|||Plaintiffs claim exposure to toxic substances in a variety of ways:
that it was brought to some homes on the clothing and shoes of plant workers,
contact being made when plaintiff spouse would wash her husband's clothes;
from consumption of fruits and vegetables purchased at a local farmers'
market or grown in neighborhood yards; from playing as a child at and around
the factory site; in one instance, by a son who ministered to the chloracne
sores on the body of his father, a plant worker (chloracne results from
exposure to toxic chemicals, in this case dioxin, and manifests itself
in acne-like skin eruptions); and one plaintiff who believed that the Department
of Environmental Protection found evidence of dioxin in his home.
|||Plaintiffs concede that they sustained no physical injuries from their
claimed exposure to dioxin. There are no present symptoms of severe emotional
disturbance or a recognized mental illness. None of them have had physical
examinations. One plaintiff, asked at deposition if he had ever been or
wanted to be tested to determine if he had any toxic substance in his body,
replied, "I don't know. I don't know if I want to know."
|||Giving plaintiffs the best inferences from the record before us, their
claimed emotional distress is the fear that they might some day become
seriously ill from the previous inhalation and
|[243 NJSuper Page
|absorption of dioxin. They are apprehensive. Their
concerns may be understandable but they are not compensable.
|||A person who sustains physical injury because of exposure to toxic
chemicals may recover damages for emotional distress based on a reasonable
concern that he or she has an enhanced risk of future disease. Mauro, supra, 116
N.J. at 137,561 A.2d 257 (1989) (pleural
thickening following asbestos exposure); Devlin v. Johns-Manville Corp., 202
N.J. Super. 556, 560-563, 495 A.2d 495
(Law Div. 1985) (asbestosis resulting from asbestos exposure). In the absence
of physical injury, damages are allowed where the resultant emotional distress
is severe and substantial. Frame v. Kothari, 115 N.J. 638,
642, 560 A.2d 675 (1989) (actual witnessing by
family members of physician's malpractice and observing injurious effects
thereof on patient can give rise to damages for emotional distress; no
recovery, however, because parents did not witness malpractice and effects
thereof); Buckley v. Trenton Savings Fund Soc., 111 N.J.
355, 367-368, 544 A.2d 857 (1988)
(even where infliction of emotional distress is intentional, recovery not
allowed unless emotional distress is severe; no tort damages allowed for
bank's wrongful dishonor of plaintiff's check resulting in aggravation,
embarrassment, unspecified number of headaches and sleep loss); Strachan
v. John F. Kennedy Memorial Hosp., 109 N.J. 523,
534, 538 A.2d 346 (1988) (delay in removing brain-dead
person from life support system resulted in "compelling evidence of distress"
to next-of-kin); Portee v. Jaffee, 84 N.J. 88,
101, 417 A.2d 521 (1980) (plaintiff mother, a
helpless observer, saw her son die while trapped in elevator; following
son's death plaintiff became severely depressed and suicidal); 2 Restatements,
Torts 2d, § 436A, Comment c at 462 (1965) (negligent infliction of
emotional disturbance without resultant bodily harm not actionable unless
emotional claims of such severity and duration as to be tantamount to bodily
harm); Prosser and Keeton on Torts, § 54 at 362 (5th ed. 1984) (mental
disturbance without physical injury actionable where there is a likelihood
of genuine and serious mental distress
|[243 NJSuper Page
|arising from special circumstances; this serves
as guarantee that claim is not spurious).
|||As Justice Pollock pointed out in Frame v. Kothari, evaluation of a
claim for emotional distress involves drawing lines. 115
N.J. at 649,560 A.2d 675. This case, involving
no evidence of serious mental illness, belongs on the non-liability side
of the line.
There are actually 128 plaintiffs making various claims against Diamond
Shamrock, some of whom were defendant's former employees. These claims
are by nonworker plaintiffs.