Does the New Jersey Tort Claims Act permit residents whose well water was contaminated by a township's palpably unreasonable landfill operation to recover damages for emotional distress, an unquantified enhanced risk of future disease, and the cost of future medical surveillance, as well as quality-of-life damages for loss of running water?

Jackson Township operated the Legler landfill beginning in 1972 under a conditional Department of Environmental Protection permit that excluded liquid or soluble industrial wastes and limited the depth of deposits above the groundwater. The township failed to monitor the liquid wastes dumped, disregarded the permit conditions, and allowed toxic chemicals to leach into the Cohansey Aquifer. Twelve identified chemicals, four of them known carcinogens, infiltrated the wells of 339 residents who relied on well water. In November 1978, the local Board of Health warned residents not to drink the water and to limit washing and bathing. For roughly twenty months the township supplied water in tanks and then in 40-gallon barrels, weighing over 100 pounds, dropped at residents' properties. Residents hauled water by hand for drinking, cooking, and bathing, and the barrels sometimes froze or contained debris. Plaintiffs presented expert testimony from a geohydrologist, a toxicologist, a physician specializing in toxic-substance disease, and a clinical psychologist. Plaintiffs did not claim any presently manifested illness. They claimed damages for emotional distress, loss of quality of life, enhanced risk of future disease, and future medical surveillance costs.

Plaintiffs sued the township and its engineer, John Ernst, in the trial court. The trial court granted summary judgment dismissing the enhanced-risk claim and the federal Civil Rights Act (42 U.S.C. § 1983) claim, but denied summary judgment on the medical surveillance claim. After an extensive trial, the jury found that the township had created a nuisance and a dangerous condition by palpably unreasonable conduct that proximately caused the contamination. It returned an aggregate verdict of $15,854,392.78: $2,056,480 for emotional distress, $5,396,940 for loss of quality of life, $8,204,500 for future medical surveillance, and about $196,500 in miscellaneous expenses. The trial court reduced the judgment by $850,000 for plaintiffs' pretrial settlement with Ernst (and by a further $450,000 for other settlements, not contested on appeal). The Appellate Division affirmed the quality-of-life award, reversed the emotional distress award as barred pain and suffering under N.J.S.A. 59:9-2(d), set aside the medical surveillance award as too speculative, affirmed dismissal of the enhanced-risk and § 1983 claims, and upheld the $850,000 setoff. The Supreme Court of New Jersey granted plaintiffs' petition for certification and defendant's cross-petition.

(Stein, J.)

Yes, in part. The Tort Claims Act permits recovery of quality-of-life damages and medical surveillance costs, but bars recovery for emotional distress and for unquantified enhanced risk of disease.

Quality of life: Damages for inconvenience, annoyance, and discomfort from loss of running water derive from the law of nuisance and compensate for the invasion of a property interest. They are not subjective "pain and suffering resulting from any injury" under N.J.S.A. 59:9-2(d). The Restatement (Second) of Torts § 929 recognizes discomfort and annoyance to the occupant as a distinct ground of recovery. That award is reinstated.

Emotional distress: The Act defines "injury" broadly, N.J.S.A. 59:1-3, and emotional distress is an injury. The subjective symptoms of depression, fear, stress, and anxiety are "pain and suffering" barred by N.J.S.A. 59:9-2(d), which reflects a legislative policy against reimbursing non-objective damages against public entities. The reversal of the emotional distress award is affirmed.

Enhanced risk: A significantly enhanced risk of disease from toxic exposure is an injury, but an unquantified enhanced-risk claim is too speculative and difficult to adjudicate. The Act directs courts to exercise restraint in accepting novel causes of action against public entities, so the claim is not recognized. The Court expressly leaves open whether a claim supported by proof that disease is reasonably probable could be maintained. Neither the statute of limitations nor the single controversy doctrine bars future timely suits for disease later discovered, because under the discovery rule the cause of action does not accrue until the disease is manifest.

Medical surveillance: This claim seeks specific costs of medically necessary examinations and does not depend on proof that disease is probable. Medical surveillance costs are compensable when reliable expert testimony establishes that surveillance is reasonable and necessary, based on the significance and extent of exposure, the toxicity of the chemicals, the seriousness of the diseases at risk, the relative increase in the chance of disease, and the value of early diagnosis. The proofs here met that standard, so the verdict is reinstated. In future public-entity mass-exposure cases, a court-supervised fund should generally administer surveillance payments. That mechanism was not imposed here because the case was tried conventionally.

Other rulings: The § 1983 dismissal is affirmed under Daniels v. Williams, since negligent acts do not deprive property under the Due Process Clause. The $850,000 setoff is affirmed under N.J.S.A. 59:9-2(e).

Concurring in part and dissenting in part (Handler, J.) Plaintiffs suffered real physical injury, including genetic damage, from a municipality's palpably unreasonable conduct, and the majority wrongly denies compensation for the enhanced risk of disease because it cannot be quantified. Courts routinely compensate unquantifiable harms such as trespass, assault, emotional distress, privacy invasion, and reputational injury. The majority answered that those damages rest on events that have already occurred and can be proved at trial, while an enhanced-risk claim depends on an event that may never occur. He argues that Evers v. Dollinger allowed recovery for enhanced risk where the disease later recurred, so denying it here is inconsistent. The majority answered that Evers declined to decide whether enhanced risk is compensable in the abstract and held only that the plaintiff could prove increased risk was a substantial factor in the recurrence. Awarding compensation also deters misconduct and serves justice, and fear of a flood of claims is speculative and no basis for leaving the injured uncompensated. The majority's fund requirement for medical surveillance damages unfairly restricts the only item of recovery it allows and departs from lump-sum awards given in Procanik v. Cillo and Schroeder v. Perkel. The decision should be read narrowly as applying only to public-entity defendants.