Appellate Division Affirms Ruling that Plaintiffs' Claims Are Not Time Barred in Applying "The Discovery Rule"

By: Paul W. Lanza, Esq.

In Kuczynski v. Pomponi, No. A-0316-15T3, 2016 N.J. Super. Unpub. LEXIS 1225 (App. Div. May 27, 2016), the Appellate Division affirmed the lower court’s denial of defendant-appellant Town of Kearny’s motion to dismiss, holding that plaintiffs’ Notice of Claim was timely under the Tort Claims Act (TCA) and the “discovery rule.”
 
In 2013, there were three separate instances in which the toilet in the basement of plaintiffs’ home overflowed and expelled sewage.  After each occurrence, the plaintiffs consulted with defendant Pomponi, a plumber, who advised plaintiffs that the sewer line was broken and needed to be replaced from the house to the curb, and, later, that there was a blockage in plaintiffs’ sewer pipe somewhere between the house and the point where the pipe connected to the town’s sewer system. Importantly, Pomponi told plaintiffs that they were responsible for the entirety of that pipe to the point where it connects to the Town’s system.
 
On March 25, 2014, after consulting with a second plumber who concluded that there was a blockage in the pipe between the sidewalk and the middle of the street, the area was excavated for repairs, at which time it was discovered that boulders used to fill a sink hole in the street had crushed and disconnected one of the plaintiffs’ pipes near the area where it connected with the Town’s sewer main. The Town’s plumbing inspector, who was overseeing the excavation, stated “this is our fault.” Having realized that the Town was at fault for their plumbing problems, plaintiffs served a Notice of Claim upon the Town on May 20, 2014 (56 days after first learning that the boulders used to fill sink holes had caused the plumbing issues).
 
The Town moved to dismiss arguing that plaintiffs’ cause of action accrued in December 2013, when Pomponi indicated to plaintiffs that there was a blockage in plaintiffs’ sewer pipes somewhere between their house and the Town’s sewer main. Accordingly, the Town argued that the May 20, 2014 Notice of Claim was untimely, having not been brought within 90 days of the accrual date.
 
The Appellate Division, however, was not persuaded by the Town’s arguments, instead holding that the first time plaintiffs knew or should have known the Town might be at fault for their plumbing issues was on March 25, 2014, when plaintiffs discovered that boulders the Town had used to fill a sink hole had crushed one of the plaintiffs’ pipes. Before that date, none of the experts (i.e. the plumbers retained by plaintiffs to fix the plumbing) had suggested that the Town was at fault, and there were no other facts that should have alerted plaintiffs that the Town was at fault. 
 
Under New Jersey law, “the date of accrual will be the date of the incident on which the negligent act or omission took place.” Beauchamp v. Amedio, 164 N.J. 111 (2000).  However, it is well-settled that the “discovery rule” applies to claims brought under TCA.  See McDade v. Siazon, 208 N.J. 463 (2011). Under the “discovery rule”, a cause of action does not accrue until “the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.” Caravaggio v. D’Agostini, 166 N.J. 237 (2001). Significantly, because the cause of an injury or damages is not ascertainable by a lay person, a party may not know a third party is at fault for damages until informed by an expert. See Guichardo v. Rubinfeld, 177 N.J. 45 (2003). 
 
Here, the Appellate Division emphasized the plaintiffs’ reliance on the opinions of the expert plumbers that advised plaintiffs they were responsible for the pipes up to the point where they connect to the Town’s main sewer lines.  This decision serves as a key reminder of the judiciary’s recognition not all injuries are immediately discoverable, and that plaintiffs should not be barred from making claims where an expert is necessary to ascertain the cause of injury.