N.J., Glouco town off the hook in toxic day-care case
A New Jersey appellate court ruled Thursday that a state agency and Franklin Township are not liable for damages or claims due to their failure to prevent a children's day-care center from opening in a contaminated mercury thermometer factory a decade ago.
A New Jersey appellate court ruled Thursday that a state agency and Franklin Township are not liable for damages or claims due to their failure to prevent a children's day-care center from opening in a contaminated mercury thermometer factory a decade ago.
About 100 infants and children were exposed to toxic vapors linked to brain and kidney ailments after they were enrolled in the Kiddie Kollege day-care and nursery in Gloucester County between 2004 and 2006.
The appeals panel reversed a 2010 lower-court ruling that the government entities were negligent partly because they had issued permits to allow the center to open without a cleanup.
The lower court had ordered the state Department of Environmental Protection and the township to pay $675,000 into a $1.5 million medical monitoring fund for the Kiddie Kollege children after their parents filed a class-action lawsuit. The town also was ordered to pay $1.6 million in legal fees to the parents' five attorneys.
As a result of the decision, those costs will not be paid.
In its 61-page opinion, the appellate court said the state DEP and the township are protected by a state law that grants government agencies immunity from such claims. The three-judge panel cited a state Supreme Court ruling that upheld that law in 1978 and that said "there are literally millions of licenses, certificates, permits and like applied for, issued, renewed or denied. It is inevitable that with such a staggering volume of activity, mistakes, both judgmental and ministerial, will be made."
After a high-profile six-week bench trial, state Superior Court Judge James E. Rafferty in 2010 decided that the DEP, the county, and the town were negligent because they had on numerous occasions discussed the contamination, inspected the property, issued permits, and regulated the facility. He also ruled that the building's owners, Jim Sullivan Inc., and its principals were liable after the company acquired the factory in a tax sale and leased it to the day-care center. The appeals panel had upheld the Sullivans' liability in a previous ruling.
M. James Maley Jr., the attorney who represented Franklin Township, said Thursday's ruling "makes it clear that when a township is aware of contaminated property owned by someone else, they do not have an absolute responsibility to act like the property owner and protect people . . . A town can do everything they feel is appropriate, but they are not going to be able to do everything that's possible," he said.
Thomas T. Booth, one of the attorneys for the class-action plaintiffs, said they were "obviously disappointed in the ruling and are discussing our options," including an appeal to the state Supreme Court. "Obviously we feel very strongly about the case and we will of course discuss it with our clients."
Tina DeSilvio, one of the parents involved in the class-action suit, said the ruling shocked her. The state and township "should absolutely be held accountable. . . . They let this happen," she said.
DeSilvio, a Franklin resident whose two children were enrolled in Kiddie Kollege before it was shut in 2006, said the law should not protect government entities whose job is to protect the public. She said the township had sold the tainted building to the Sullivan family after the factory owner abandoned it and the township granted permission to turn it into a day-care center. "How could they allow these tiny innocent children to step foot in that building?" she asked.
The day-care building was demolished in 2010.
Alan C. Milstein, the Sullivans' attorney, did not return calls for comment.
The appeals panel said the zoning officer who issued the permit was negligent but the panel could not "conclude that his actions were so egregious as to shock the conscience . . . The permit merely indicated that the proposed use was allowed."
The panel also said the state DEP cannot be held legally responsible despite its oversight over the contaminated Accutherm plant. There is "no evidence that the DEP created the danger presented by the contamination of the property." The ruling said "the property at issue was never owned or controlled by the DEP."
"We're pleased with the decision," DEP spokesman Larry Hajna said. "It's been a very difficult case which has really changed the way New Jersey approaches contaminated site cleanups." He said that reforms had been put in place partly as a result of Kiddie Kollege and that "we are doing a much better job than we were doing 10 years ago."
In its wide-ranging Thursday opinion, the appeals panel upheld one of the lower court's rulings. The panel agreed with the judge that the fraud and negligence claim that the Sullivan family filed against the township and the DEP was filed too late. The Sullivan family contended they were not warned of the contamination in the building when they acquired the abandoned factory next to their real estate office.
During the trial in 2010, the Sullivan family and the day-care center operators had reached a $1 million settlement with the plaintiffs. The county settled for $950,000.
Rafferty later established the $1.5 million fund for the medical monitoring of the children, some of whom initially had high levels of mercury in their bodies. The levels dropped weeks later and the state Health Department said it did not expect the children would suffer any long-term affects.
After the settlement was reached, Rafferty found the state and town were also negligent and ordered the town to contribute $525,000 to the medical monitoring fund and the state to pay $150,000. Those moneys were not paid, pending the appeal.
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