Wreden v. Township of Lafayette, 436 N.J. Super. 117 (App. Div. 2014). As Judge Haas described it in this opinion, the “continuing tort doctrine, also known as the ‘continuing violation doctrine,’ provides that when an individual is subjected to a ‘continual, cumulative pattern of tortious conduct,’ the statute of limitations period begins only when the wrongful action ceases” (quoting Wilson v. Wal-Mart Stores, Inc., 158 N.J. 263, 272 (1999)). In this case, the Law Division granted a motion to dismiss for failure to state a claim. That court declined to address the issue of continuing tort. Applying the “generous and hospitable” standard of review of the complaint in this case, the Appellate Division reversed that decision and found that plaintiffs had stated a claim against the defendant Township.
Plaintiffs’ grievance centered on a retaining wall that the Township had paid other defendants to construct along a road that adjoins plaintiffs’ property. Plaintiffs alleged that the wall was designed so as to direct water onto plaintiffs’ property, causing flooding, damaging the property, and inhibiting plaintiffs’ use of that land. Plaintiffs served a notice of tort claim that expressly asserted a “continuing trespass … by the unlawful diversion of stormwater runoff.” After that notice of claim was filed, the wall collapsed, allegedly causing further damage to plaintiffs’ property. More than two years later, plaintiffs sued the Township and others.
The Township moved to dismiss. Declining to address the issue of continuing tort, the Law Division granted dismissal on the ground that more than two years had passed since the claim had accrued, as evidenced by the fact that plaintiffs’ notice of claim was filed more than three years before they sued. The wall collapse had occurred within the two year period, but the Law Division held that plaintiffs had to file a new notice of claim as to that within 90 days of the collapse. Plaintiffs did not do that, so the Law Division dismissed that aspect of the claim too. Finally, the court held that the Township had design immunity under the Tort Claims Act, N.J.S.A. 59:4-6.
Discovery proceeded against the other defendants. During that discovery, plaintiffs learned facts about the construction of the wall that led them to seek to assert an inverse condemnation claim against the Township. The Law Division denied plaintiffs’ motion to amend their pleadings to allege such a claim. The court stated that the application was barred by the entire controversy doctrine, since the prior ruling granting dismissal to the Township was a “final judgment,” and the inverse condemnation claim arose out of the same set of facts that underlay the original complaint.
Judge Haas found that the Law Division had erred in every one of its rulings. The continuing tort doctrine defeated the Township’s position on the statute of limitations. “[T]he date on which a notice of claim was filed does not mark the accrual date for a cause of action in a continuing tort case.” There was no need for a new notice of claim about the wall collapse, since the notice of claim that was filed sought damages caused by “the construction of a retaining wall and drainage structures” adjacent to their property. The collapse of the wall “was merely a continuation of the tort plaintiffs had already described, rather than a ‘new tort’ that needed to be raised independently” in a new notice of claim.
The Law Division’s design immunity ruling was reversed on a different ground. That ruling relied on a certification submitted by the Township. As Judge Haas observed, this was a motion to dismiss, not a motion for summary judgment, and on a motion to dismiss, “a judge is not permitted to look outside of the parties’ pleadings.” The Law Division could have converted the proceedings to a summary judgment motion, but that did not occur. Thus, the design immunity decision was error.
Finally, the subsequent entire controversy decision was wrong. The Law Division’s original ruling dismissing the Township was not a final judgment, since it was not final as to all issues and all parties. Far from barring an amended pleading, the entire controversy doctrine required plaintiffs to seek to amend their pleading to assert inverse condemnation. “If plaintiffs had not done so, the doctrine would have barred them from raising it in a subsequent proceeding.”
Most appellate decisions find no error by the trial level court. This one found four separate errors, a rare “superfecta,” to use the horse-racing term.