1. 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
2. Grounds for claims:
• Contract
• Common law (developed by
court decisions)
• Statute (passed by legislature)
Potential environmental causes of action
3. 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
4. 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.”
5. • 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
6. Accountants Insurance Brokers
Architects Land Surveyors
Attorneys Nurse Midwives
Chiropractors Nurses
Dentists Pharmacists
Doctors Physical Therapists
Engineers Podiatrists
Health Care Facilities Veterinarians
Licenses subject to Affidavit of Merit statute
7. Professional and occupational licenses
Accountant 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
9. 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
10. 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
