(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
RUSSO FARMS, INC., ET AL. V. VINELAND BOARD OF EDUCATION, ET AL. (A-75/76/77/78)
Argued January 17, 1996 -- Decided May 7, 1996
GARIBALDI, J., writing for a unanimous Court.
Russo Farms, Inc. and others (collectively, the Russos) assert that the Vineland Board of Education
(the Board) the City of Vineland (the City), architect Glen A. Kahley (Kahley), and general contractor Art
Anderson, Inc. (Anderson) are liable to them for damages to their crops and farmland from flooding that
resulted from the improper siting and construction of a public school located across the street from their
property and by an inadequate drainage system on a bordering street. The school was constructed in 1979
but the Russos did not file suit until 1990. The Russos were aware of general water erosion as early as 1980
and 1981. The Russos claim that by 1987, the flood waters had caused significant damage to the farmland,
including soil erosion, soil-nutrient depletion, decreased crop production, and a diminution in property value.
On August 24, 1987, Thomas Russo sent a letter to the Mayor of Vineland asking him to remedy the
flooding problem. The Russos contend that this letter served as a notice of claim, a prerequisite to any suit
against governmental entities under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, (the Act).
On June 11, 1990, the Russos filed an official notice of claim with the City and the Board. On July
18, 1990, the Russos filed a complaint against the City, the Board, Kahley, Anderson, Daniel Jacobs and
Lippincott Engineering. The Russos asserted both tort claims and inverse condemnation claims against the
City and the Board. They sought a preliminary injunction against the City and the Board to correct the
drainage problem, as well as damages against Kahley. The Russos alleged negligent design and negligent
construction of the school property. The Russos asserted negligence claims against Lippincott and Jacobs for
their design and construction of the drainage system and asserted negligence claims against Anderson in
respect of the construction of the school building.
On August 3, 1990, the trial court ordered the City to construct a detention basin on Grant Avenue
between the Russos' property and the Board's property. The City complied, ending the water problem on
Grant Avenue. In March 1991, the City sought an order compelling the Russos to remove the berm they
had built along Southeast Avenue to prevent runoff from the road. The Russos counterclaimed, alleging that
Southeast Avenue constituted a dangerous condition that caused additional flooding on the Russos' property.
All claims have been consolidated.
In May 1991, Lippincott and Jacobs moved for, and were granted, summary judgment on the basis of
the statute of repose, N.J.S.A. 2A:14-1.1, which bars actions against architects and engineers that are filed ten
years from the date of completion of the contract. The trial court denied Kahley's motion on the same basis,
computing the date for final completion to be February 20, 1981, the date of the issuance of the final
certificate for payment.
In April 1993, the trial court granted summary judgment as to all remaining defendants, including
Kahley. Because the court deemed each claim to have arisen in 1980 or 1981 when the first injury to the
Russos became apparent, the claims were barred by N.J.S.A. 2A:14-1, the six-year statute of limitations for
tortious injury to property. In addition, the claims against the City and the Board were also barred by the
notice provisions of the Act. The trial court also held that Anderson was protected by the statute of repose,
concluding that substantial completion occurred in September 1979 when the Certificate of Occupancy was
issued. The trial court also held that the City owed no duty to the Russos to maintain or provide an
adequate drainage system.
On appeal, the Appellate Division reversed, holding that a separate cause of action accrued with
each incursion of flood water, and that the Russos could pursue claims against the City and the Board for
each flood occurring within the limitations period, or at least those for which satisfy the notice provisions of
the Act. The Appellate Division also held that the Russos' inverse condemnation claims continued to accrue
as long as the Board's conduct caused the Russos' property to be subject to continual flooding. Therefore,
the Russos were entitled to recover for injuries amounting to takings that their property sustained after July
18, 1984, six years prior to the date on which they filed their complaint. The Appellate Division declined to
decide whether the alleged flooding amounted to a taking by either the Board or the City.
The court also concluded the continuing tort theory applied to claims against Kahley and Anderson.
The court also held that the statute of repose did not begin to run until the date of full completion of all
construction, which occurred in February 1981, less than ten years before suit was filed. Thus, the Russos
could continue to assert claims against Kahley and Anderson for damage for floods within the statutory
period of six years.
The Supreme Court granted certification to address whether the Act and the six-year statute of
limitations governing actions for tortious injury to real property bar the Russos' claims against the Board and
the City and whether that six-year statute of limitations and the ten-year statute of repose bar the Russos'
action against Kahley and Anderson.
HELD: The dangerous condition claims against the City of Vineland the Vineland Board of Education may
be pursued to the extent that injury was suffered within the relevant limitations period. The
nuisance claim against the City will similarly be allowed for each injury suffered within the
limitations period. The trial court should, on a more complete record, determine whether the
nuisance claim against the Board also involves a continuing nuisance. The Russos, on the
development of a more complete record, may also pursue their claim of inverse condemnation. The
claims against Kahley and Anderson are time barred under both the six-year statute of limitations
and the statute of repose.
1. The Russos' dangerous condition and nuisance claims against the Board and the City are governed by the
Act, which bars a lawsuit that has not been filed within two years after accrual of the cause of action, or if
notice of claim is not given to the public entity within ninety days. Although the Russos were initially aware
of flood damage as early as 1980 or 1981, they invoke the "continuing tort" doctrine. Under that doctrine,
when a court finds that a continuing nuisance has been committed, it implicitly holds that the defendant is
committing a new tort, including a new breach of duty, each day, triggering a new statute of limitations.
Because the defendant has a duty to remove the nuisance, and because the defendant's failure to remove the
nuisance is a breach of that duty, each injury is a new tort. Therefore, claimants are able to collect damages
for each injury suffered within the limitations period. (pp. 11-19)
2. In nuisance actions, it is important for statute of limitations purposes to ascertain whether the invasion or
interference is "permanent" or "continuous." A nuisance is continuing when it is the result of a condition that
can be physically removed or legally abated. In such a case, it is realistic to impute a continuing duty to the
defendant to remove the nuisance, and to conclude that each new injury includes all elements of a nuisance,
including a new breach of duty. However, when the nuisance is permanent and cannot be physically
removed, it is unfair to impose a continuing duty to remove the nuisance, especially when a court has not
and will not order the defendant to abate the nuisance. Because the nuisance was not permanent and a
court ordered the City to abate it, the City had a continuing duty to abate the nuisance. As a result, each
new injury suffered by the Russos was a new tort. The record is less clear about the nuisance claim against
the Board. Therefore on remand the trial court should determine whether the nuisance claim attributable to
the Board is physically and legally permanent or whether it could have been abated by installing a new or
modified drainage system. If it could have been abated, then the nuisance claim against the Board should be
reinstated. (pp. 19-21)
3. The continuing tort theory also applies to the Russos' dangerous condition claims against the Board and
the City. Therefore, the statute of limitations for each injury runs from the date of that injury and the
Russos may maintain a dangerous condition suit for each injury suffered within the time limits imposed by
the Act. If it is assumed that the August 24, 1987 letter constituted sufficient notice under the Act, any claim
accruing against the City prior to July 18, 1988 would be barred. Consequently, the tort claims against the
City that are not barred by the two-year period of limitations are claims for damages sustained between July
18, 1988 and May 1990 when the flooding ceased. The Russos' counterclaim alleging that the City was liable
for the dangerous condition on Southeast Avenue will be barred by the Act unless the Russos filed a notice
of claim. Because no notice of claim was filed with the Board until June 11, 1990, the Act bars all claims
against the Board except for those that accrued within ninety days prior to that date. (pp. 21-25)
4. Under the Act, if the City can establish plan or design immunity, it will not be held liable for a failure to
improve the inadequate drainage system on Grant Avenue. Because the City has not presented any evidence
about its initial decision establishing the drainage system, it has not met the burden of establishing such
immunity. Therefore, summary judgment for the City is inappropriate, unless on remand, the City can meet
the burden of proof required by the immunity provisions of the Act. (pp. 26-30)
5. Kahley and Anderson only face the negligence claims. There is no continuing tort relating to the
negligent construction of the building; Kahley and Anderson breached their duty in 1980 and had no control
over the school property after 1981. Further, the claims against Kahley and Anderson are barred by the
statute of repose. The purpose of that statute was to limit the expanding liability of contractors, builders,
planners and designers. The Appellate Division's analysis is inconsistent with that statutory purpose. The
statute of repose commences with substantial completion, which occurred on September 5, 1979 when the
certificate of occupancy was issued. Because suit was not filed until July 1990, more than ten years later, the
claims against Kahley and Anderson are barred. (pp. 30-40)
Judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART. The
claims against Kahley and Art Anderson are dismissed and the claims against the City and the Board are
hereby remanded to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-75/76/77/
78 September Term l995
RUSSO FARMS, INC., a New
Jersey Corporation; RFC
CONTAINER CO., INC., a New
Jersey Corporation; THOMAS RUSSO;
EVA RUSSO, his wife; PASQUALE
RUSSO; MARIO RUSSO; ESTATE OF
PASQUALE RUSSO,
Plaintiffs-Respondents,
v.
VINELAND BOARD OF EDUCATION;
CITY OF VINELAND; GLENN A KAHLEY;
ART ANDERSON, INC., a New Jersey
Corporation,
Defendants-Appellants
and
LIPPINCOTT ENGINEERING
ASSOCIATION; DANIEL W. JACOBS,
P.E.; JOHN DOE; JANE DOE and
MARY DOE (Fictitious),
Defendants.
Argued January l7, l996 -- Decided May 7, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
280 N.J. Super. 320 (l995).
Eric M. Wood argued the cause for appellant
City of Vineland (Horn, Goldberg, Gorny,
Daniels, Plackter & Weiss, attorneys).
Robert A. De Santo argued the cause for appellant Vineland Board of Education
(Gruccio, Pepper, Giovinazzi, De Santo &
Farnoly, attorneys).
Sarannah L. McMurtry argued the cause for
appellant Art Anderson, Inc. (LaBrum and
Doak, attorneys; Ms. McMurtry and Michael G.
Brennan, on the briefs).
Christine M. Cote argued the cause for
appellant Glenn A. Kahley (Cooper Perskie
April Niedelman Wagenheim & Levenson,
attorneys; Ms. Cote and Michael R. Litke, on
the briefs).
Walter T. Wolf argued the cause for
respondents (Wolf Professional Association,
attorneys; Matthew S. Wolf, on the brief).
The opinion of the Court was delivered by
GARIBALDI, J.
Plaintiffs assert that the Vineland Board of Education (the
Board), the City of Vineland (the City), the architect, Glenn A.
Kahley (Kahley), and the general contractor, Art Anderson, Inc.
(Art Anderson), are liable to them for damage to their crops and
farmland from flooding that was caused by the improper siting and
construction of a public school across the street from their
property and by an inadequate drainage system on a bordering
street. The school was constructed in l979, but plaintiffs did
not file suit until l990.
At issue in this appeal is whether the Tort Claims Act,
N.J.S.A. 59:l-l to -l2-3, and the six-year statute of limitations
governing actions for tortious injury to real property, N.J.S.A.
2A:l4-l, bar plaintiffs' claims against the Board and the City,
and whether that six-year statute of limitations and the ten-year
statute of repose set forth in N.J.S.A. 2A:l4-l.l bar plaintiffs'
action against the architect and the general contractor.
Specifically, we must determine whether each incursion of
floodwater constitutes a continuing tort, and whether the statute
of repose begins to run from the date of substantial or full
completion of construction.
Plaintiffs, individually and through various corporations (collectively, Russo), own or lease several connected parcels of land in Vineland, New Jersey that have been used as a single unit for farming. Plaintiffs have owned three of the lots since 1970 and purchased seven other lots after 1985.
Those parcels of land are bordered on the south by Grant Avenue, and on one side by South East Avenue, a road that is perpendicular to and intersects with Grant Avenue. While Grant Avenue apparently has had a drainage system, the street historically has been the site of flooding due to inadequate drainage.
In 1977, the Board decided to construct the Dr. William Mennies School on the southern side of Grant Avenue, across from plaintiffs' property. The site chosen was on a portion of land with a higher elevation than both Grant Avenue and the Russo farmland across the street. The Board hired Kahley, an architect, to design the building, advise the Board, and supervise construction. He also was to review and approve requests for payment by the contractors.
The Board also hired Daniel W. Jacobs, P.E. and Lippincott Engineering Associates as structural engineers to perform tests
and recommend a design to ensure a proper drainage system.
Lippincott recommended to Kahley that the construction plans
include one or two drainage basins to handle runoff of rainwater.
In March 1978, the State Department of Education approved
the building plans, and construction began. In May 1978, the
Board signed an American Institute of Architects (AIA) standard
form contract with Art Anderson, under which that company would
act as general contractor, responsible for all construction work.
Under the contract, Anderson was to be paid, every month, 90" of
the amount earned in the prior month; on "Substantial
Completion," 100" of the money was to be paid, less retainage
"for all incomplete Work and unsettled claims." The entire
unpaid balance was to be paid when the work was completed and a
final certificate of payment was filed.
On September 5, 1979, the State Department of Education
issued an Occupancy Permit because its "inspection of the project
indicates that the building is substantially completed." Several
days later, a Certificate of Substantial Completion, an AIA
standard form, was issued by Kahley to the Board because
"construction is sufficiently complete . . . so the owner can
occupy or utilize" the building "for the use for which it is
intended." Since September l979, regular elementary school
classes have been held in the building. On April ll, l980, a
request for final payment was submitted to the Board with a
certification by Kahley that the project was l00" complete. Also
on that date, an invoice was filed by Art Anderson seeking,
pursuant to the contract, 100" of payment less retainage. In
accordance with the contract, the surety consented to the release
of final payment, less retainage.
Although the building was substantially completed in
September 1979, a "punch list" of items that required completion
was compiled, including replacement of damaged ceiling tiles,
cleaning carpets, caulking doors, and installing toilet
partitions. By November 7, 1980, most of these items were
completed, and the punch list was fully completed by February 19,
1981.
The construction of the new school, however, allegedly
caused damage to the plaintiffs' property. Their expert, Alan
Cohen, stated that the contractor and architect negligently
ignored the design specifications and constructed the drainage
basins improperly. Instead of flowing into the basins, rainwater
would run down the driveway, onto Grant Avenue, combine with the
other water that Grant Avenue's inadequate drainage could not
handle, and flood the Russo fields.
Thomas Russo testified at his deposition that
I started seeing water in the fields that
. . . I had not seen before not too long
after the School was built. . . . I do not
remember if it was the first year or the
first growing season or the . . . beginning
of the next growing season. . . . A short
time frame after the school was built.
Mario Russo described the early damage in l980 and l98l as "general water erosion. It was very evident that we had gullies through the . . . property. We also had standing water and as a result, very poor crops. Bare areas without crops wherever the water laid." Plaintiffs explained, however, that Vineland was
suffering through a three-year dry spell that started around the
time that the school was completed, and that therefore the
flooding and damages were minimal in those early years. In the
mid-1980s, the rains returned and the flooding worsened. By
1987, the floodwaters washed off the topsoil and left the
farmland with an inferior layer of soil. Eventually, the Russo
crops suffered from water rot and were severely damaged.
Specifically, plaintiffs claim that the flood waters resulted in
soil erosion, soil-nutrient depletion, decreased crop production
and a diminution in value of their property.
At one point, plaintiffs had constructed a dike to protect
the farmlands, but that resulted in worse floods on Grant Avenue,
so it was removed. Later, plaintiffs constructed a berm on its
property alongside South East Avenue to prevent the runoff from
that road from flooding its property.
Thomas Russo spoke to several city officials in an attempt
to remedy the problem. On August 24, 1987, he sent the following
letter to the Mayor of Vineland:
Enclosed please find two copies of letters
sent from our farming operation. After many
phone calls to your office, I am confused
about your casual attitude towards the
problem.
We can no longer allow this situation to
continue. We are again asking for you to
come to the office as soon as possible.
Your immediate attention to this situation
will be appreciated.
The record does not include the letters enclosed with the letter of August 24, l987. Plaintiffs contend that their letter served
as a notice of claims, a prerequisite to any suit against
governmental entities under the Tort Claims Act.
On June 11, 1990, as the flood damage intensified,
plaintiffs filed an official notice of claim with the City and
the Board. On July 18, 1990, plaintiffs filed a twelve-count
complaint against the City, the Board, Lippincott, Daniel Jacobs,
Kahley and several "John Doe" defendants including the
contractor. (The complaint ultimately was amended to replace one
John Doe with Art Anderson).
Plaintiffs asserted both tort claims and claims for inverse
condemnation against the City and Board. They also sought a
preliminary injunction against both to correct the drainage
problem, as well as damages. Plaintiffs asserted two claims
against Kahley: negligent design and negligent construction of
the school property. Plaintiffs also alleged negligence against
Lippincott and Jacobs for their design and construction of the
drainage. Finally, the plaintiffs sought damages from Art
Anderson for negligent construction of the school.
On August 3, 1990, the trial court ordered the City to
construct a detention basin on Grant Avenue between plaintiffs'
property and the property of the Board. The City complied and
the water problem on Grant Avenue ceased.
In March 1991, the City commenced a separate suit, seeking
an order compelling Russo to remove the berm that Russo had built
along South East Avenue. Russo counterclaimed, arguing that
South East Avenue constituted a dangerous condition that caused
additional flooding on its lands. Those claims have been
consolidated with this case.
In May 1991, Lippincott and Daniel W. Jacobs moved for
summary judgment on the basis of the statute of repose, N.J.S.A.
2A:14-1.1, which the trial court granted, and they were therefore
dismissed from the suit. The trial court, however, denied
Kahley's motion for summary judgment on the basis of the statute
of repose. While conceding that other courts had looked to
"substantial completion" as the date from which to calculate the
bar imposed by statutes of repose, the court was persuaded that,
"as to the work of a supervising architect, that his work is not
completed until in fact he has issued a final Certificate for
Payment." Thus, the court computed the date of final completion
from February 20, 1981, and found that the ten-year statute of
repose did not bar plaintiffs' claims.
In April 1993, the trial court granted summary judgment to
all of the remaining defendants, including Kahley. Deeming each
claim to have arisen when the first injury to plaintiffs became
apparent, the court reasoned that every claim accrued in 1980 or
1981, nearly ten years before suit was filed, and therefore each
was barred by N.J.S.A. 2A:l4-l, the six-year statute of
limitations and, with respect to the claims against the City and
Board, each was also barred by the notice provisions of the Tort
Claims Act. The trial court additionally held that Art Anderson,
unlike Kahley, would be protected by the statute of repose since
that statute began to run, as against Art Anderson, from the date
of substantial completion, more than ten years before suit was
filed. The court decided that substantial completion occurred in
September l979, when the Commissioner of Education certified that
the building was ready for occupancy. The court found that the
"punch list" did not affect substantial completion.
Additionally, the trial court held that the City owed no duty to
plaintiffs to maintain or provide an adequate drainage system.
Plaintiffs appealed from the grant of summary judgment in
favor of the City, the Board, Kahley and Art Anderson. The
Appellate Division reversed, holding that "a separate cause of
action accrued with each incursion of floodwater," Russo Farms,
Inc. v. Vineland Bd. of Educ.,
280 N.J. Super. 320, 326 (l995),
and that plaintiffs could pursue claims against the City and the
Board for each flood occurring within the limitations period, or
at least those for which plaintiffs satisfied the notice
provisions of the Tort Claims Act.
Concerning plaintiffs' claims of inverse condemnation
against the Board and the City, the Appellate Division observed
that N.J.S.A. 2A:l4-l required plaintiffs to bring their actions
within six years after the accrual of their claims. Id. at 327.
The court held that plaintiffs' claims continued to accrue as
long as the Board's conduct caused the plaintiffs' property to be
subject to continual flooding. Ibid. The court ruled that
plaintiffs were entitled to recover for injuries amounting to
takings which their property sustained after July l8, l984, six
years prior to the date on which they filed their complaint.
Ibid. The Appellate Division, however, declined to decide
whether the alleged flooding amounted to a taking by either the
Board or the City. Ibid. n.3.
The Appellate Division determined that this theory of
separate causes of action for each flood also applied to claims
against Kahley and Art Anderson. Russo Farms, supra, 280 N.J.
Super. at 328. The Appellate Division further held that the
statute of repose, N.J.S.A. 2A:14-1.1, did not begin to run until
the "date of full completion" of all construction when the
contractor "has fully performed all of its contractual
obligations, completely furnished all of its agreed services, and
entirely completed the construction project." Id. at 330-31.
The court held that full completion did not occur until February
1981, less than ten years before suit was filed. Id. at 330.
Thus, the statute of repose was no bar, and plaintiffs could
continue to assert their claims against Kahley and Anderson for
damage from floods within the statutory period of six years.
Defendants all sought certification, challenging the
"continuing tort" theory accepted by the Appellate Division.
Both private defendants also challenged the Appellate Division's
interpretation that the statute of repose commenced to run on
final completion of construction. We granted certification to
consider each of those claims.
142 N.J. 457 (1995).
We consider first plaintiffs' claims against the public entities. Plaintiffs have made three claims against both the Board and the City. They asserted that each was liable for
maintaining a dangerous condition on their property, (the Board's
school and the City's Grant Avenue drainage system), each was
liable for maintaining a nuisance, and each was liable for taking
property by inverse condemnation. The first two claims,
dangerous condition and nuisance, are governed by the Tort Claims
Act. N.J.S.A. 59:4-2 provides that a public entity may, subject
to the conditions of the Act be liable for "dangerous conditions
of property." While the statute does not refer to nuisance
liability, this Court has held that "public entity liability for
nuisance is recognized [as a dangerous condition of property]
under the Tort Claims Act." Birchwood Lakes Colony Club, Inc. v.
Borough of Medford Lakes,
90 N.J. 582, 593 (1982). Under
N.J.S.A. 59:8-8 of the Tort Claims Act, the claims will be barred
if suit is not filed within two years after accrual, or if notice
of claim is not given within ninety days. "It is intended that
the term accrual of cause of action shall be defined in
accordance with existing law in the private sector." N.J.S.A.
59:8-1 cmt.
The central question is when the respective claims accrued.
"The Legislature has not specified when the cause of action shall
be deemed to have accrued and the matter has therefore been left
entirely to judicial interpretation and administration." Rosenau
v. City of New Brunswick,
51 N.J. 130, 137 (1968) (citing
Fernandi v. Strully,
35 N.J. 434, 449 (1961)). The traditional
rule is that a cause of action accrues on the date when "'the
right to institute and maintain a suit'" first arises. Rosenau,
supra, 51 N.J. at 137 (quoting Fredericks v. Town of Dover,
125 N.J.L. 288, 291 (E. & A. 1940)). That phrase refers to the
"combination of facts or events which permits maintenance of a
lawsuit; the time of occurrence of the last of these requisite
facts is thereby made the critical point of initial inquiry."
Note, Developments in the Law -- Statutes of Limitations,
63
Harv. L. Rev. 1177, 1200 (1950) (hereinafter "Note"). A claim
for negligence accrues "when [plaintiff] suffers actual
consequential damage or loss from the defendant's negligence."
Rosenau, supra, 51 N.J. at 138; see also Diamond v. New Jersey
Bell Tel. Co.,
51 N.J. 594, 596 (1968)(same); W. Page Keeton et
al., Prosser & Keeton on Torts, §30, at 165 (5th ed. l984); Note,
supra,
63 Harv. L. Rev. at 1201 ("[S]ince harm is an element
essential to a negligence action, the statutory period should not
commence before the incidence of the harm.")
By l980 or l98l, plaintiffs were aware of the flooding, of
damage to their crops and property, and the causal connection
between the flooding, the damage and the siting of the school.
Hence, defendants assert that even under the six-year statute of
limitations, plaintiffs' claims are time-barred. Plaintiffs,
however, invoke the "continuing tort" doctrine. Under that
doctrine, they claim that they suffered a new injury from a new
tort each time a flood occurred, and that they may maintain a
suit for the damages that resulted from each flood.
The continuing tort doctrine is an established doctrine in New Jersey and other states. The doctrine frequently is cited in cases in which the plaintiff alleges trespass or nuisance claims
against the defendant. The applicability of the doctrine to this
case, therefore, is best understood in the context of plaintiffs'
nuisance claims against the City and the Board.
Plaintiffs claim that the Board and City are liable under a
nuisance theory because the Board and City's use of their
property has invaded plaintiffs' use and enjoyment of their land.
The invasion was a physical invasion, which ordinarily sounds in
trespass, but "the flooding of the plaintiff's land, which is a
trespass, is also a nuisance if it is repeated or of long
duration." Restatement (Second) of Torts (2d) §821D, cmt. e
(1977); cf. Hennessy v. Carmony,
50 N.J. Eq. 616, 618 (Ch.
1892)(throwing water on another's property once constitutes a
trespass, "to continue to do so constitutes a nuisance").
Plaintiffs could have pled either claim, but chose to plead
nuisance.
When a court finds that a continuing nuisance has been
committed, it implicitly holds that the defendant is committing a
new tort, including a new breach of duty, each day, triggering a
new statute of limitations. That new tort is an "alleged present
failure" to remove the nuisance, and "[s]ince this failure occurs
each day that [defendant] does not act, the [defendant's] alleged
tortious inaction constitutes a continuous nuisance for which a
cause of action accrues anew each day." Rapf v. Suffolk County,
755 F.2d 282, 292 (2d Cir. 1985). Essentially, courts in those
cases impose a duty on the defendant to remove the nuisance.
Accord Gowing v. McCandless,
547 P.2d 338, 343 (Kan. 1976)
("[T]he principle upon which one is charged as a continuing
wrongdoer is that he has a legal right, and is under a legal
duty, to terminate the cause of the injury."); Prosser and Keeton
on Torts, supra, §13, at 83 ("In such a case, there is a
continuing wrong so long as the offending object remains.").
Because the defendant has a duty to remove the nuisance, and
because the defendant's failure to remove the nuisance is a
breach of that duty, each injury is a new tort. The plaintiff is
therefore able to collect damages for each injury suffered within
the limitations period. Stanley Dev. Co. v. Township of
Millburn,
26 N.J. Super. 328, 331-32 (App. Div. 1953) (citing
Morey v. Essex County,
94 N.J.L. 427 (E. & A. 1920)).
Plaintiffs contend that the inadequate drainage on the
school property and Grant Avenue constituted a "continuing
nuisance," thereby allowing them to maintain suit against the
City and Board for all injuries suffered within the appropriate
limitations period. Plaintiffs rely on several early cases in
which the courts determined that, for the purposes of the statute
of limitations, the nuisance was a continuing tort. In Delaware
& Raritan Canal Co. v. Lee,
22 N.J.L. 243 (Sup. Ct. 1849), the
defendant constructed a culvert on its land (in 1833) that would
carry away water from plaintiff's land. Id. at 244. However,
the culvert was defective and caused periodic flooding on the
plaintiff's land because it was unable to carry all of the water.
In 1848, fifteen years later, the plaintiff filed suit for
nuisance, alleging that the defendant's use of its property was
infringing on the use and enjoyment of his property. The court
held that the action was not barred, because "[i]t is a
continuing nuisance, for which it is well settled that a
plaintiff may receive damages for a period not exceeding six
years, though the obstruction which occasioned the injury is of
much longer continuance." Id. at 251; accord Delaware & Raritan
Canal Co. v. Wright,
21 N.J.L. 469, 470 (Sup. Ct. 1848); see also
Morey, supra,
94 N.J.L. 427, 430 (E. & A. 1920) (holding that
where county appropriated strip of land from plaintiff in 1912 to
use as part of road and plaintiff did not sue until after
limitations period, that "the constant repetition of the
defendant's unlawful acts, its persistence in its wrongful
occupation of plaintiff's land, constituted a continuous
trespass, and the plaintiffs were entitled to recover from the
defendant the damages sustained by them for all of the six years
preceding the institution of the suit."); Church of the Holy
Communion v. Paterson Extension R.R.,
66 N.J.L. 2l8 (E. & A.
l90l) (holding that damage sustained as result of defective
construction of church wall constituted continuing tort).
Although defendants assert that the continuing tort doctrine
is an archaic, out-of-date doctrine, the doctrine continues to be
applied. See Sheppard v. Township of Frankford, 26l N.J. Super.
5, 8-9 (App. Div. l992) (noting that disposal of water runoff
onto plaintiff's property created continuing nuisance); Biglioli
v. Durotest Corp.,
44 N.J. Super. 93, l04 (App. Div.
l957)(holding that negligent exposure of employee to occupational
toxin over long period of time is continuing tort), aff'd,
26 N.J. 33 (l958); Barberi v. Bochinsky,
43 N.J. Super. 186, 189
(App. Div. 1956)(finding that wall on plaintiff's land
constituted continuous trespass and was actionable although six
years had passed since wall's construction).
The facts of this case are remarkably similar to Wright,
supra, and Lee, supra, -- all involve periodic flooding due to
defective construction of a drainage system. Many other courts
have agreed that intermittent flooding of that nature constitutes
a continuing tort. See, e.g., Rapf, supra, 755 F.
2d at 292
(holding that county's failure to maintain beach groins, leading
to flooding and erosion was continuing nuisance); Kulpinski v.
City of Tarpon Springs,
473 So.2d 813 (Fla. Dist. Ct. App.
1985)(finding that flood was continuing nuisance); Gleaton v.
City of Atlanta,
206 S.E.2d 46 (Ga. Ct. App. 1974)(same); Meyers
v. Kissner,
594 N.E.2d 336 (Ill. 1992) (holding that erosion due
to defendant's maintenance of levies was continuing nuisance);
Gowing, supra,
547 P.2d 338 (holding that flooding of fields was
continuing nuisance); Hodgeson v. Ragnone,
217 N.W.2d 395 (Mich.
Ct. App. 1974) (finding that sewer overflow causing flood was
continuing nuisance); Meruk v. City of New York,
119 N.E. 571
(N.Y. 1918) (holding that flooding from sewer was continuing
nuisance); Wilson v. McLeod Oil Co.,
398 S.E.2d 586 (N.C. 1990)
(holding that polluted water seeping into well was continuing
nuisance); Graybill v. Providence Township,
593 A.2d 1314 (Pa.
Commw. Ct. 1991)(holding that flooding of plaintiff's fields was
continuing nuisance), aff'd,
618 A.2d 392 (Pa. 1992).
"In nuisance actions it is important, for statute of
limitations purposes, to ascertain whether the invasion or
interference is 'permanent' or 'continuous.'" Beatty v.
Washington Metro. Area Transit Auth.,
860 F.2d 1117, 1122 (D.C.
Cir. 1988). Professor Dobbs explains the distinction between
those two types of nuisances:
In theory, if a nuisance is deemed permanent,
there is only one unceasing invasion of the
plaintiff's interests and only one cause of
action. This necessarily arises when the
invasion first began or was first manifest.
The statute of limitations on the one cause
of action must, then, begin running from the
time the invasion began, or from the time it
became manifest. In contrast, if the
nuisance or trespass is "temporary" or
"continuous," a new cause of action arises
day by day or injury by injury, with the
result that the plaintiff in such a case can
always recover for such damages as have
accrued within the statutory period
immediately prior to suit.
[Dan B. Dobbs, Law of Remedies, §5.4, at 343
(1973).]
Accord Provident Mut. Life Ins. Co. v. City of Atlanta,
864 F.
Supp. 1274, 1284-85 (N.D. Ga. 1994); Baker v. Burbank-Glendale-Pasadena Airport Auth.,
218 Cal.Rptr. 293, 296-97 (Cal. 1985),
cert. denied,
475 U.S. 1017,
106 S.Ct. 1200,
89 L.Ed.2d 314
(1986); City of Sioux Falls v. Miller,
492 N.W.2d 116, 118-19
(S.D. 1992); 58 Am. Jur. 2d Nuisances §307 (1989).
Professor Dobbs has identified three factors that courts
consider in distinguishing between continuing and permanent
nuisances:
(1) Is the source of the invasion physically
permanent, i.e., is it likely, in the nature
of things, to remain indefinitely?
(2) Is the source of the invasion the kind of
thing an equity court would refuse to abate
by injunction because of its value to the
community or because of relations between the
parties?
(3) Which party seeks the permanent or
prospective measure of damages?
Several jurisdictions use this test, including South Dakota,
City of Sioux Falls, supra,
492 N.W 2d at ll9; the District of
Columbia, L'Enfant Plaza East, Inc. v. John McShain, Inc.,
359 A.2d 5 (D.C. 1976); and the D.C. Circuit, Beatty, supra, 860 F.2d
at ll22-23. Kansas follows a similar rule, classifying nuisances
as recurring and not barred by the statute of limitations if the
nuisance is either abatable or "remedied at reasonable expense."
Gowing, supra, 547 P.
2d at 343. Other jurisdictions have adopted
analogous standards. California, for example, focuses on
permanency: "if a nuisance is a use which may be discontinued at
any time, it is considered continuing in character." Baker,
supra, 218 Cal. Rptr. at 297; Wilshire Westwood Assoc. v.
Atlantic Richfield Co.,
24 Cal. Rptr.2d 562, 569 (Ct. App.
1993)("The crucial test of a continuing nuisance is whether the
offensive condition can be discontinued or abated at any time.").
Missouri focuses on whether the condition is abatable. Frank v.
Environmental Sanitation Mgmt., Inc.,
687 S.W.2d 876, 883 (Mo.
1985) (holding nuisance is permanent "if abatement is
impracticable or impossible.").
We agree with Professor Dobbs and the jurisdictions that
hold a nuisance is continuing when it is the result of a
condition that can be physically removed or legally abated. In
such a case, it is realistic to impute a continuing duty to the
defendant to remove the nuisance, and to conclude that each new
injury includes all elements of a nuisance, including a new
breach of duty. On the other hand, when the nuisance cannot
physically be removed, it is unfair to impose a continuing,
impossible to fulfill duty to remove the nuisance; when a court
will not order defendant to abate the nuisance, it is
inconsistent to recognize a duty to do so.
While our prior cases do not explicitly adopt this test, at
least some have based their holdings on whether the nuisance is
permanent or abatable, and hence whether the defendant has a
continuing duty to abate it. Thus, in Barberi, supra, the
Appellate Division determined that a wall constituted a
continuing trespass because defendant "remained under the
obligation of removing or abating it." 43 N.J. Super. at 191.
Accord Rowland v. New York Stable Manure Co.,
88 N.J. Eq. 168,
175 (Ch. 1917) (finding that abatable odor persists "as long as
the defendant sees fit to impose upon them. Each day's
continuance is a new or fresh nuisance."); State v. Sommers
Rendering Co.,
66 N.J. Super. 334, 342 (App. Div. 1961) (same).
The nuisance claim against the City was a continuing one.
Once suit was filed, the nuisance "was removed without undue
difficulty. Therefore, 'in the nature of things' it was not
likely to remain indefinitely." L'Enfant Plaza East, supra, 359
A.
2d at 6. Additionally, the nuisance was not legally permanent
because the trial court granted an injunction to abate it.
Because the nuisance was not permanent and a court could (and
did) order the City to abate it, we find that the City had a
continuing duty to abate the nuisance. As a result, each new
injury suffered by plaintiffs was a new tort because each
contained every element of a tort, including a new breach of
duty.
The record is less clear about the nuisance claim against
the Board, because the trial court never decided whether to order
the Board to abate the nuisance, and because there is no evidence
about the physical permanence of the flood-causing construction.
On remand, the trial court should determine whether the nuisance
claim attributable to the Board is physically and legally
permanent or whether it could have been abated by installing a
new or modified drainage system. If it could have been abated,
then plaintiffs' nuisance claim against the Board should be
reinstated. Cf. City of Sioux Falls, supra, 492 N.W.
2d at 119
(holding that sewer overflow is not continuous because physically
permanent and because it is "doubtful" that court would order
nuisance abated).
Defendants contend that the continuing-tort doctrine is a
legal fiction crafted to protect plaintiffs from the unfairness
of statutes of limitation, and that it is no longer needed
because the discovery rule accomplishes the same result.
However, the doctrine that we apply today is not an exception
that permits evasion of the statute of limitations, but rather an
"accrual" test that allows claims to the extent that they have
accrued within the limitations period.
Plaintiffs also claim that the City and Board are liable under N.J.S.A. 59:4-2 for creating a "dangerous condition."
Plaintiffs assert that the Board and City both had actual or
constructive notice of the dangerous condition of their property,
the poorly designed school drainage and the poorly designed
storm-drain system, respectively. Plaintiffs claim that this
dangerous condition caused injury. Cf. Saldana v. DiMedio,
275 N.J. Super. 488 (App. Div. 1994)(allowing suit against Camden
alleging dangerous condition liability when buildings were deemed
to be in dangerous condition causing fire to begin and spread
onto surrounding neighbor's property and cause damage).
Plaintiffs' "continuing tort" theory also applies to those
claims. Plaintiffs assert that the City's and the Board's
liability accrues at the time of injury, provided that the land
is then in a dangerous condition. The focus is not on a breach
of duty, but on the conditions at the time of the injury.
Because of that focus, each injury allegedly constitutes a new
tort, because each injury contains all of the elements of a tort,
without any need to refer to prior actions to establish
liability.
That analysis is similar to the analysis applied to other
torts. Battery, for example, is established by "proof of an
unauthorized invasion of the plaintiff's person, even if
harmless. . . . Any non-consensual touching is a battery." Perna
v. Pirozzi,
92 N.J. 446, 460-61 (1983). If an individual
assaults another person on a continuing basis extending over
several years, each new assault is a battery, because the attack
itself includes every element of a new tort. If the first attack
is barred by the statute of limitations, more recent claims may
not be barred because each asserts a new tort. Trespass has a
similar rule. Each new trespass contains all of the requisite
elements of the tort, an invasion of property with intent: "[A]
defendant, taking a short cut, drives across a corner of the
plaintiff's property and does so not once but every day of the
week. Each new day brings a new trespass on which the statute of
limitations runs separately." Dobbs, supra, §5.4, at 335 (1973).
Plaintiffs' claim of dangerous condition liability is
similar to trespass and battery: each new injury resulting from
a dangerous condition includes every element of a new tort -
injury and the current existence of a dangerous condition.
Therefore, the statute of limitations for each injury runs from
the date of that injury. Thus, plaintiffs may maintain a
dangerous condition suit for each injury suffered within the time
limits imposed by the Tort Claims Act. On remand, plaintiffs, in
order to prove that the public entities are liable for
maintaining a "dangerous condition," will have to establish not
only the substantive elements set forth in N.J.S.A. 59:4-2, but
will also have the heavy burden of establishing that defendants'
conduct was palpably unreasonable.
N.J.S.A. 59:8-8 of the Tort Claims Act provides:
The claimant shall be forever barred from recovery against a public entity if:
a. He failed to file his claim
with the public entity within 90
days of accrual. . . .
b. Two years have elapsed since
the accrual of the claim. . . .
Plaintiffs sent a letter to the Mayor of Vineland on August
24, 1987, filed an official notice of claim with the City on June
11, l990, and filed their complaint on July l8, l990. With
respect to claims against the City, the critical issue is whether
the letter sent to the mayor on August 24, 1987 was a valid
notice, satisfying N.J.S.A. 59:8-8a. If so, then all claims
accruing since July 1988 would be allowed under N.J.S.A. 59:8-8a.
If not, then the first notice of claim was not until June 1990
and all claims accruing before March 1990 are barred under
N.J.S.A. 59:8-8a. Because the attachments to that letter were
not included in the record we will assume without deciding, as
did the lower courts, that the August 24, l987 letter constituted
a notice that was sufficient. Because plaintiffs filed suit on
July l8, l990, any claim accruing against the City prior to July
l8, l988 would be barred under N.J.S.A. 59:8-8b. Consequently,
plaintiffs' nuisance and other tort claims against the City that
are not barred by the two-year period of limitations, N.J.S.A.
59:8-8, are claims for damage, if any, sustained between July l8,
l988 and May l990, when the flooding ceased.
Finally, plaintiffs' counterclaim alleging that the City was
liable for a dangerous condition on South East Avenue will be
barred by the Tort Claims Act unless they filed a notice of claim
before filing the counterclaim. See Department of Transp. v. PSC
Resources, Inc.,
159 N.J. Super. 154, 159-61 (Law Div.
1978)(holding that Tort Claims Act notice provisions apply to
counterclaims). If plaintiffs' did file a notice of claim before
asserting the counterclaim, then the claim will be allowed to the
extent that it accrued within ninety days of the notice and
within two years of the filing of the action. See Atlantic City
Hospital v. Finkle,
110 N.J. Super. 435 (Law Div. 1970)(holding
that counterclaim will be deemed timely if complaint was filed
within limitations period).
Because no notice of claim was filed with the Board until
June ll, 1990, N.J.S.A. 59:8-8a bars all of plaintiffs' claims
against the Board except for those claims that accrued within
ninety days prior to that date.
The City and Board advance two arguments in support of a dismissal of the tort claims asserted against them. First, the City and Board both contend that the doctrine of "avoidable consequences" should bar certain of plaintiffs' claims. Additionally, the City contends that, even if the statute of limitations or the Tort Claims Act do not bar plaintiffs' claims, it should nonetheless be granted summary judgment because it owed no duty to the plaintiffs to update its drainage system.
The City and Board both argue that the doctrine of "avoidable consequences" should bar certain of plaintiffs' claims and limit any damage award. Plaintiffs purchased seven of the affected lots between 1985 and 1989, after plaintiffs were aware of the flooding and its increased intensity. Defendants argue that as a matter of law plaintiffs should be precluded from collecting damages for injury suffered to these lots.
The doctrine of "avoidable consequences," otherwise known as
the duty to mitigate damages, is based on the premise that "a
plaintiff may not recover damages for injuries which he may have
avoided." Barry v. Coca Cola Co.,
99 N.J. Super. 270, 275 (Law
Div. 1967). Under that doctrine, recovery for harm is diminished
due to the injured person's actions and failure to exercise
reasonable care to avoid the consequences of a wrongful action.
Restatement (Second) of Torts, § 9l8, cmt. a (1977).
Defendants allege that plaintiffs' purchase of new lands
after the onset of serious flooding establishes that plaintiffs
failed to exercise reasonable diligence and ordinary care,
because they purchased those farmlands with knowledge of the
flooding condition and resultant damage that occurred since l980.
Indeed, most of the lands were purchased after l985 when there is
no question but that plaintiffs knew of the dangerous flooding
condition. Based on those purchases, defendants assert that
plaintiffs unfairly seek to increase their damages because the
new lands also became flooded.
As opposed to contributory negligence, the doctrine of
avoidable consequences "normally comes into action when the
injured party's carelessness occurs after the defendant's legal
wrong has been committed." Ostrowski v. Azzara,
111 N.J. 429,
438 (1988). Although every tort had not yet occurred by early
l985, plaintiffs knew that their lands and crops were being
damaged by the water flowing from Grant Avenue onto their land.
On remand, the trial court should determine whether the doctrine
of avoidable consequences affects plaintiffs' damage claims.
Further, the City claims that it is entitled, as a matter of law, to a dismissal of plaintiffs' tort claims because it owed no duty to update its drainage systems. The City cites this Court's decision in Barney's Furniture Warehouse of Newark, Inc. v. City of Newark, 62 N.J. 456, 469-70 (l973) in support of this contention. As a preliminary matter, we observe that plaintiffs' claim for inverse condemnation does not depend on any independent duty owed by the City to update its storm-sewer system. Thus, our discussion of this question is relevant only to plaintiffs' dangerous condition and nuisance claims.
In Barney's, supra, plaintiffs sued the City of Newark for damages suffered from periodic flooding. Id. at 457. The city did have a sewer system, but increased industrial and airport development had rendered the sewers inadequate and caused flooding. Id. at 458-59. The Court found that, as in this case, the floodwaters "consist[] of either precipitation or back-flow of surface water from the meadows which is unable to enter the sewers or ditches because they are already full." Id. at 462. The Court concluded, in accordance with a majority of jurisdictions, that the city could not be held liable in damages for floods resulting from "a gradually increasing functional incapacity of the sewer system." Id. at 469. The Court observed that its decision was based on the law as it existed prior to the effective date of the Tort Claims Act. Id. at 470 n. 4.
Although the City of Vineland relies on Barney's, plaintiffs contend that the case involved pre-Tort Claims Act law, that
Barney's no longer applies after the enactment of that
legislation, and that the City's conduct in designing the sewer
system must be tested under the rules of the Tort Claims Act that
govern "Plan or design immunity," N.J.S.A. 59:4-6.
We have briefly discussed that issue in two of our cases.
In Birchwood Lakes, supra, an organization representing lake-area
residents brought an action against a borough for operating a
sewage plant that was polluting the lake with effluent. We held
that the borough was not immune from liability for injuries it
caused due to negligent operation of the plant; we remarked that
that holding "is consistent with Barneys," where the Court held
that "although a municipality is not liable for the gradually
increasing functional incapacity of its sewer system, it remains
liable for negligent operation or repairs and would be liable if
in actual operation the system expels artificially collected
sewage." Birchwood Lakes, supra, 90 N.J. at 602.
However, in Levin v. County of Salem,
133 N.J. 35, 47 n.1
(1993), we discussed liability for defectively designed storm
drains and noted that "the New Jersey [Tort Claims] Act would
immunize the defective design of a storm drain under N.J.S.A.
59:4-6," implying that plan or design immunity under the statute,
rather than Barney's, was the relevant test.
Generally, "[t]he purpose of the Tort Claims Act was to
establish immunities for municipalities; it was not designed to
create liability." Woodsum v. Township of Pemberton,
172 N.J.
Super. 489, 517 (Law Div. 1980), aff'd,
177 N.J. Super. 639 (App.
Div. 1981). "Consequently, if an immunity was in existence prior
to the Tort Claims Act, it remains available to a municipality"
under the Tort Claims Act. Ibid. (citing N.J.S.A. 59:2-1(b)
cmt.) Therefore, the holding of Barney's is still a correct
principle of law.
However, in Barney's, the Court granted immunity to the City
for its failure to update the sewer system because the decision
to construct the system was "grounded in governmental judgment
and discretion." Barney's, supra, 62 N.J. at 469. Similarly,
the Tort Claims Act's plan or design immunity is granted because
such decisions are "an example of the type of highly
discretionary governmental activity which the courts have
recognized should not be subject to the threat of tort
liability." N.J.S.A. 59:4-6 cmt. Indeed, we noted in Barney's
that the new Tort Claims Act "seems intended to codify existing
case law." Barney's, supra, 62 N.J. at 470, n.4.
Under Barney's, as well as under the Tort Claims Act, the
City may establish plan or design immunity for its original
construction of the drainage system. Once it does, "no
subsequent event or change of condition shall render a public
entity liable on the theory that the existing plan or design of
public property constitutes a dangerous condition." N.J.S.A.
59:4-6 cmt.
In this case, therefore, the City will not be liable for a
failure to improve the inadequate drainage system on Grant Avenue
provided that it can establish that its original design deserves
immunity under the standards of N.J.S.A. 59:4-6. While the City
pled this defense in its answer and claimed adherence to
government plans and specifications, it has not presented any
evidence about its initial decision establishing the drainage
system. Accordingly, the City has not met its burden of
establishing immunity. Birchwood Lakes, supra, 90 N.J. at 599
(citing Ellison v. Housing Auth.,
162 N.J. Super. 347, 351 (App.
Div. 1978)). Summary judgment for the City is therefore
inappropriate unless, on remand, the City can meet the burden of
proof required by the immunity provisions of the Tort Claims Act.
As an alternative to their tort claims against the City and the Board, plaintiffs also assert claims of inverse condemnation against the public entities. Because the City's construction of a new drainage system in 1990 eliminated the flooding problem, plaintiffs are not claiming that their fields were permanently flooded, but rather that, for several years, the flooding occurred "each and every time a cloud burst occur[red]." The parties have primarily addressed plaintiffs' tort claims. Neither side has addressed the inverse condemnation claims in any detail or presented any specific evidence about them. The public entities have not addressed the inverse condemnation claims in their petitions for certification nor have plaintiffs discussed the claims in their brief in opposition to the public entities' petitions. Based on the record before it, the Appellate Division did not "attempt to decide whether the flooding which plaintiffs allege amounts to a taking by either the Board of Education or the City or both." Russo Farms, supra, 280 N.J. Super. at 327 n.3. Neither do we.
The Appellate Division, however, did find that the Tort
Claims Act did not apply to plaintiffs' inverse condemnation
claim; rather, it held that the six-year statute of limitations
in N.J.S.A. 2A:14-1 applied and that it began to run anew after
each flood. Russo Farms, supra, 280 N.J. Super. at 325. The
Appellate Division relied on Estate of McGrath v. New Jersey
Dist. Water Supply Comm'n,
224 N.J. Super. 563, 570 (Law Div.
1986), where that court briefly noted, without any citation, that
"the Tort Claims Act does not apply to several causes of action,
such as inverse condemnation and violation of civil rights."
Courts in other jurisdictions are split on whether statutory
tort claims laws govern inverse condemnation claims. Some states
have upheld the application of those laws, including notice of
claim limitations, so long as the tort claims rule is reasonable.
See Wyoming State Highway Dep't v. Napolitano,
578 P.2d 1342,
1348 (Wyo.)(citing other jurisidictions upholding such rules),
appeal dismissed
439 U.S. 948,
99 S.Ct. 343,
58 L.Ed.2d 340
(1978); see also City of San Jose v. Superior Ct.,
115 Cal. Rptr. 797, 802 (Cal. 1974), superseded by Cal. Gov't Code §905.1;
Brownlow v. City of Calhoun,
402 S.E.2d 788 (Ga. Ct. App. 1991).
Other states have determined that tort claims rules do not apply
to in