PRESENTED BY: STEVE BARNETT

Friday, February 27, 2015

Commerce and Industry Association of New Jersey/Montclair State University Hot Topics Series

Approaches To Resolving Differences In Professional Judgment -Site Remediation

Recent and Pending Court Cases

Grounds for claims:• Contract• Common law (developed by

court decisions)• Statute (passed by legislature)

Potential environmental causes of action

Common law

• Negligence (duty, breach, causation, damages)• Strict liability (abnormally dangerous activity, causation, damages)• Nuisance• Trespass• Unjust enrichment• Common law indemnification• Restitution• Fraud• Conspiracy

Potential environmental causes of action

Negligence - Duty to third persons

Carvalho v.Toll Brothers, 143 N.J. 565, 1996.Family of construction site worker allowed to maintain suit against owner’s engineer.

“An engineer has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has a contractual responsibility for the progress of the work, but not for safety conditions, yet is aware of working conditions on the construction site that create a risk of serious injury to workers.”

• Plaintiff alleging malpractice or negligence must provide affidavit of a licensed person that defendant’s actions fell outside acceptable professional standards

• 120 days• Ferreira conference• weed out frivolous complaints, not create hidden

pitfalls for meritorious ones• Dismissal with prejudice

Affidavit of Merit statute

Accountants Insurance BrokersArchitects Land SurveyorsAttorneys Nurse MidwivesChiropractors NursesDentists PharmacistsDoctors Physical TherapistsEngineers PodiatristsHealth Care Facilities Veterinarians

Licenses subject to Affidavit of Merit statute

Professional and occupational licensesAccountant Electrician Land surveyor Physician assistant

Acupuncturist Electrologist Landscape architect Physical therapist

Alcohol and drug counselor Elevator, escalator , moving walkway mechanic

LSRP Plumber

Architect Engineer Locksmith Podiatrist

Athletic trainer Fire and burglar alarm installer Manicurist Polysomnographic technologist

Attorney Funeral director Marriage and family therapist Professional counselor

Audiologist; speech therapist Hairstylist Massage and body work therapist

Professional planner

Barber Hearing aid dispenser Nurse midwife Psychoanalyst

Beautician HVAC contractor Nurse Psychologist

Cemetery salesperson Health care facility Occupational therapist Real estate appraiser

Chiropractor Home improvement contractor Ophthalmic dispenser and technician

Respiratory therapist

Cosmetologist Home inspector Optometrist Social worker

Court reporter Homemaker-home health aide Orthotist and prosthetist Veterinarian

Dentist Insurance broker Perfusionist

Doctor Interior designer Pharmacist

Statutes•New Jersey Spill Act•CERCLA•RCRA

Potential environmental causes of action

Statutes (cont’d)Site Remediation Reform Act (SRRA)

SRRA, N.J.S.A. 58:10C-16, Protection of public health, safety, environment highest priority

SRRA does not provide a private right of action, i.e., citizen suit provision

“’when [the Legislature] wanted members of the public to have access to the civil courts for violations of remedial statutes,’ the Legislature has expressly conferred a private cause of action.’”

Potential environmental causes of action

Statutes (cont’d)New Jersey Environmental Rights Act (ERA)

“Any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment.”

Government retains primary prosecutorial responsibility.

Private plaintiff may bring ERA action when government has “failed to act in the best interest of the citizenry or has arbitrarily, capriciously or unreasonably acted.”

Potential environmental causes of action

Recent and pending cases

Steve BarnettPartnerConnell Foley LLP85 Livingston AvenueRoseland, NJ 07068Phone: 973.535.0500sbarnett@connellfoley.com

FOR MORE INFORMATION, PLEASE CONTACT