                                                    SYLLABUS

(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
interest of brevity, portions of any opinion may not have been summarized.)

                         Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079)(A-11-16)

Argued April 24, 2017 – Decided July 26, 2017

LaVECCHIA, J., writing for the Court.

         In this appeal involving the notice provision of the Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, the
Court considers whether accrual of plaintiffs’ claim against the public-entity defendant should have been tolled in
accordance the discovery rule. Specifically, the Court considers how discovery-rule principles apply to establish the
accrual date of a claim, where circumstances did not appear to implicate a third-party public-entity defendant.

         Swan Custom Cleaners was a dry cleaning establishment in the Township of Cranford (Township). In
February 1946, the Township’s inspector of buildings authorized the dry cleaner to install three underground fuel oil
and solvent storage tanks on the Township-owned property behind the cleaners. In 1985, Macrietta Realty
purchased Swan and, with related parties (collectively, Macrietta), operated the business for more than twenty years.

         In 1988, plaintiffs Edan and Edna Ben Elazar opened an electronics repair business next door to the dry
cleaner. Plaintiffs noticed that a chemical odor emanated from the dry cleaning business but did not question it.
Since the 1990s, both plaintiffs have experienced medical problems.

         In 1998, Macrietta’s underground storage tanks were removed, and soil tests revealed contamination.
Macrietta notified the New Jersey Department of Environmental Protection (NJDEP), which notified the Township
of the contamination. Since then, environmental remediation at the site has been an ongoing effort. On January 14,
2011, Macrietta’s environmental consultant sent a letter to the Township’s health department, advising that there
was an immediate environmental concern at plaintiffs’ property. Plaintiffs received a copy of this letter.

          On March 11, 2011, the consultant wrote a letter to plaintiffs, explaining that high levels of contaminants
discovered on plaintiffs’ property created a health risk, and detailing some of the remedial efforts that Macrietta had
undertaken since discovering the contamination. Attached to the letter was a map, which indicated the parameters of
property that would need to be excavated to remediate environmental damage from the contamination. The
excavated property included Macrietta’s property and part of the Township’s property. The map did not indicate the
original location of the removed tanks, but rather depicted the extent of the affected soil to be removed.

          On January 12, 2012, Edan Ben Elazar’s treating pulmonologist concluded that his illness may be a result
of exposure to environmental contaminants. Plaintiffs retained counsel in March 2012, and counsel promptly
requested documents from the NJDEP under the Open Public Records Act. The documents that the NJDEP
provided on July 3, 2012 showed that the tanks had been located on the Township’s property. Plaintiffs’ counsel
filed a notice of claim with the Township on September 11, 2012.

         Plaintiffs commenced this action on September 18, 2012, and amended the complaint in September 2013 to
add the Township as a defendant. The trial court granted the Township’s motion for summary judgment. The court
found that plaintiffs’ cause of action accrued, at the latest, by March 11, 2011, and that plaintiffs’ notice of claim
was untimely under the TCA because it was served beyond the ninety-day period prescribed by N.J.S.A. 59:8-8.
The Appellate Division affirmed, and the Court granted plaintiffs’ motion for leave to appeal. 228 N.J. 88 (2016).

HELD: When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a
public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim
requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on
the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim
against the public entity was diligently pursued and notice of claim was timely filed.
1. Under the TCA, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of
the cause of action. Failure to do so bars the tort claim against the public entity, absent extraordinary circumstances.
Before determining whether a claimant has timely filed within the ninety-day period, a court must determine the
date on which the claim accrued. (pp. 11-12)

2. In general, a claim accrues on the date on which the underlying tortious act occurred. Whether the discovery rule
applies depends on whether the facts presented would alert a reasonable person, exercising ordinary diligence, that
he or she was injured due to the fault of another. When a plaintiff knows he has suffered an injury but does not
know that it is attributable to the fault of another, the discovery rule tolls the date of accrual as to that unknown
responsible party. And, when a plaintiff knows her injury is the fault of another, but is reasonably unaware that a
third party may also be responsible, the accrual clock does not begin ticking against the third party until the plaintiff
has evidence that reveals his or her possible complicity. In the setting of the Tort Claims Act, the discovery rule
applies to the notice requirement as well: when the discovery rule tolls the accrual date, the ninety-day period
within which the injured party must file a notice of claim against a public entity is likewise delayed until the injured
party learns of the injury or of the third party’s responsibility for that injury. (pp. 12-14)

3. In this case, the trial and appellate courts relied on the two letters the environmental consultant sent in early 2011
to conclude that plaintiffs should have been on notice to seek other responsible parties, and should have found the
Township’s involvement in time to file a notice of claim. The Court disagrees that the record compels that
conclusion. Nothing about those communications would have alerted an objectively reasonable person to believe
that the contaminants were coming from any source other than Macrietta’s establishment. The map that
accompanied the March letter and that showed the planned remediation does not reveal where the underground tanks
were stored. An objectively reasonable person could believe that the Township was simply another victim of the
leaking contaminants. It was Macrietta that notified plaintiffs and others—including the Township and the
NJDEP—of the leak, and Macrietta that took steps to address its responsibility for the contaminated soil and other
properties affected by the vapors of the leaked materials. The evidence demonstrating that the Township authorized
the dry cleaner to place tanks on public property came later through discovery when the Township located and
turned over the 1946 memorandum to file stating same. Before the NJDEP released documents in July 2012, this
record contained nothing to suggest that a public actor was responsible. (pp. 15-17)

4. Although two decisions of the Court previously dealt with the discovery rule in the context of the accrual of a
claim against a public entity, neither addressed circumstances in which plaintiffs learned that they had been injured
by another—a private party that had taken steps to assume responsibility for the problem caused by its negligence—
but nothing indicated involvement of a public entity. Other cases stand for the proposition that when a plaintiff
knows of an injury, and that it is the fault of another, but is reasonably unaware that a third party may also be
responsible, the time period for accrual of a claim against the third party is tolled until the plaintiff has evidence that
reveals his or her possible complicity. That is the case here. The notice-of-tort-claim requirement does not
eliminate normal application of the discovery rule. (pp. 17-22)

5. Plaintiffs have presented facts demonstrating that Edan did not connect his health issues to Macrietta’s
environmental contaminants until his doctor made that connection for him. That assertion is accepted as true for
purposes of summary judgment. Further, plaintiffs’ counsel set out communications with the NJDEP, which show
diligent pursuit of evidence that finally revealed that the tanks were on Township property. The notice of claim was
timely filed after that point in time, and the amendment to the complaint was timely. (pp. 22-24).

6. In the absence of a hearing under Lopez v. Swyer, 62 N.J. 267 (1973), the Court declines to make findings on the
issues presented and remands for a hearing. The significance formerly placed on the letters from defendants’
environmental consultant should be re-examined based on the information that these documents conveyed. (p. 24)

          The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for further proceedings consistent with the Court’s opinion.

      CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and SOLOMON, join in
JUSTICE LaVECCHIA’s opinion. JUSTICES PATTERSON and SOLOMON did not participate.



                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                       A-11 September Term 2016
                                                078079

EDAN BEN ELAZAR and
EDNA BEN ELAZAR,

    Plaintiffs-Appellants,

         v.

MACRIETTA CLEANERS, INC.,
d/b/a SWAN CUSTOM CLEANERS
and d/b/a COIT SERVICES,
MACRIETTA REALTY, CO., COIT
SERVICES OF CENTRAL NEW
JERSEY INC., ESTATE OF MAX
STAUBER, HENRIETTA STAUBER,
ALAN W. STAUBER, NORMAN A.
SOBIN, STEVEN D. LASKER,
ESTATE OF WILLIAM B. ROCKER,
LYNN SCHONBRAUN and CAROL
RUBIN as personal
representatives of the ESTATE
OF JOAN ROCKER NEWMAN, SWAN
CLEANERS AND DYERS, INC.,
CAROLYNN LAUNDRY, INC.,
TOWNSHIP OF CRANFORD, a New
Jersey municipal corporation,
and John and Jane Does 1-100.

    Defendants-Respondents.


         Argued April 24, 2017 – Decided July 26, 2017

         On appeal from the Superior Court, Appellate
         Division.

         Stuart J. Lieberman argued the cause for
         appellants (Lieberman & Blecher, attorneys;
         Stuart J. Lieberman of counsel and on the
         brief, and Michael G. Sinkevich, on the
         brief).



                                1
         Elizabeth A. Kenny argued the cause for
         respondent Township of Cranford (McElroy
         Deutsch Mulvaney & Carpenter, attorneys;
         Robert P. Donovan, of counsel and on the
         brief, and Elizabeth A. Kenny on the brief).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    This case involves a tort claim against a municipality that

was dismissed for failure to comply with the Tort Claims Act

requirement that a public-entity defendant be served with a

notice of claim “not later than the 90th day after accrual of

the cause of action.”   N.J.S.A. 59:8-8.   At issue is whether

accrual of plaintiffs’ claim against the public-entity defendant

should have been tolled in accordance with the discovery rule.

    In determining when a cause of action accrues for purposes

of that notice requirement, common law principles governing

accrual of a tort claim apply.   Under traditional equitable

principles of our discovery rule, the date of the accrual of a

claim -- ordinarily, the date of the injury -- may be tolled

when plaintiffs lack knowledge of fault of a third party.      The

accrual date of a claim may also be tolled when plaintiffs,

knowing that one third party is liable, do not know that their

injury is also the responsibility of an additional party.      In

this instance, we consider how discovery-rule principles apply

to establish the accrual date of a claim, where circumstances




                                 2
did not appear to implicate a third-party public-entity

defendant.

      Plaintiffs maintain that this matter was prematurely

dismissed without proper accounting for the fact that a private

party had taken responsibility for the tort and without proper

consideration of how, in these circumstances, that action

affects the accrual of plaintiffs’ claims against the public

entity.   We agree with plaintiffs that it was error for summary

judgment to have been granted to the public-entity defendant

based on the record presented, because plaintiffs put forward a

reasonable basis to support a determination that the claim

against the public entity was diligently pursued and notice of

claim was timely filed.   However, because a Lopez1 hearing was

never held, we decline to make findings and instead remand to

permit the trial court to conduct a Lopez proceeding as directed

in this opinion.

                                I.

                                A.

      On September 18, 2012, plaintiffs Edan and Edna Ben Elazar

commenced an action in tort for personal injuries as well as

property damages.   The action was filed against private parties.

The bodily injury claims filed by both husband and wife were




1   Lopez v. Swyer, 62 N.J. 267 (1973).
                                 3
premised on a theory that they were exposed to airborne

contamination while working indoors at their electronics repair

business on property adjacent to a dry cleaner.

    Importantly, for purposes of this appeal, on September 11,

2012, plaintiffs’ counsel served the Township of Cranford

(Township) with a notice of claim under the Tort Claims Act,

dated September 4, 2012; and, one year later, on September 4,

2013, plaintiffs amended their complaint to add the Township as

a defendant on their claims for personal injuries.

    The Township filed a motion for summary judgment to dismiss

on the basis of failure to submit a timely notice of claim under

N.J.S.A. 59:8-8.   We glean the following facts from the summary

judgment record, which includes depositions and documentary

evidence produced in discovery conducted thus far.   The facts

are presented in the light most favorable to plaintiffs, who

opposed entry of summary judgment.

                                     B.

    The events that give rise to plaintiffs’ claims relate to

activities associated with the dry cleaner that operated next

door to plaintiffs’ business.

    Swan Custom Cleaners was a dry cleaning establishment

located in the Township.   The dry cleaner fronts on a street,

and there is Township-owned property behind it.   In February

1946, the Township’s inspector of buildings authorized the dry

                                 4
cleaner to install three underground fuel oil and solvent

storage tanks on the Township’s property.       The authorization is

not a recorded document.    A copy of the inspector’s memorandum

to file was produced in discovery.      Importantly, the underground

tanks stored tetrachloroethylene (also known as

percholoroethylene or PCE), a chemical used in the dry cleaning

process.    In 1985, Macrietta Realty (Macrietta)2 purchased Swan

Custom Cleaners and operated the dry cleaning business for more

than twenty years.

     In 1988, plaintiffs opened their electronics repair

business on property next door to the dry cleaner.       Plaintiffs

noticed that a chemical odor emanated from the dry cleaning

business but did not question it.      Since the 1990s, both

plaintiffs have experienced medical problems:       Edan and Edna

have chronic asthma and bronchitis, and Edna has a chronic blood

disorder.

     In 1998, Macrietta’s underground storage tanks were

removed, and soil tests at the time revealed contamination in

the area surrounding the tanks.       Macrietta notified the New

Jersey Department of Environmental Protection (NJDEP), and the

NJDEP notified the Township of the contamination.      Since then,




2  We will refer to Macrietta Realty and its related defendants,
both individual and corporate, collectively as Macrietta.
                                  5
environmental remediation at the site has been an ongoing

effort.   The dry cleaner ceased operations in 2008.

    In 2010, as part of the environmental-remediation process,

Macrietta retained Viridian Environmental Consultants

(Viridian).    Viridian sampled the air quality in properties

surrounding the dry cleaner, including plaintiffs’ electronics

store.    When the samples revealed high levels of

tetrachloroethene, air sampling continued into 2011.

    On January 13, 2011, Viridian installed at the electronics

store an ultraviolet unit designed to eliminate contaminants.

The next day, January 14, Viridian sent a letter to the

Township’s health department, advising the Township that there

was an immediate environmental concern at plaintiffs’ property

because of the detected levels of contaminants.      Plaintiffs

received a copy of this letter.

    On March 11, 2011, Viridian wrote a letter addressed to

plaintiffs, explaining that high levels of contaminants

discovered on plaintiffs’ property created a health risk.         The

letter also detailed some of the remedial efforts that Macrietta

had undertaken since discovering the contamination.      Attached to

the letter was a map, which indicated the parameters of property

that would need to be excavated to remediate environmental

damage from the contamination.    The excavated property included

Macrietta’s property and part of the Township’s property.         The

                                  6
map did not indicate the original location of the removed tanks,

but rather depicted the extent of the affected soil to be

removed.    Plaintiffs, who are immigrants from Iran and Israel,

do not read English; their son, who is proficient in English,

read the letters to them.

    On January 12, 2012, Edan visited his pulmonologist

complaining of a worsening cough.    He told his doctor that

chemical odors had permeated his shop for years.    And, he

explained that Viridian had recently conducted tests that

reported high levels of air contamination inside his business’s

building.   The doctor told Edan that he believed there was a

connection between Edan’s asthma and the contaminants that

Viridian reported.    When deposed, Edan stated that, before his

consultation with his doctor, he did not know that the chemical

odors he smelled were connected to his health problems.       Edan

sought a second opinion and, after that doctor agreed that a

connection could exist between the chemical contamination and

plaintiffs’ medical conditions, in March 2012, plaintiffs

retained counsel.

    Plaintiffs’ lawyer promptly filed a request under the Open

Public Records Act, N.J.S.A. 47:1A-1 to -13, with the NJDEP

seeking “[a]ny and all documents relating to the PCE

contamination at the [Swan Cleaner’s] site,” including

information about “testing, notices of violation, remediation,

                                 7
[cleanup], third party impact, correspondence between

governmental entities and property owners, correspondence

between governmental entities and third parties regarding said

cleanup, and any other reports detailing the cleanup of this

site.”   On July 3, 2012, the NJDEP responded to the request by

releasing documents that revealed that the dry cleaner’s leaking

underground storage tanks containing PCE had been located on the

Township’s property.   Contaminated soil was identified on both

the Township’s and the dry cleaner’s property.

     As noted, on September 4, 2012, plaintiffs executed a

notice of claim that was served on the Township on September 11,

2012.

     On September 18, 2012, plaintiffs filed their complaint

against Macrietta, alleging, among other claims, personal

injuries as a result of exposure to airborne environmental

contamination from chemicals used by the dry cleaner that

entered plaintiffs’ business quarters.   Plaintiffs alleged that

Macrietta was negligent; that the dry cleaner was a private

nuisance; and that the chemical contamination constituted

trespass.   They sought damages for their bodily injuries and

property damages.   Within a year of filing their notice of tort

claim, on September 4, 2013, plaintiffs amended the complaint to

add the Township as a defendant.



                                   8
                                C.

    In seeking dismissal of the claim on the ground that the

notice of claim was untimely, the Township asserted that

plaintiffs should have been aware by January 14, 2011 -- when

they received the first Viridian letter -- that they had a

potential claim against the Township.   Alternatively, the

Township argued, plaintiffs knew by the second Viridian letter,

dated March 11, 2011, that they had a potential claim against

the Township.   Because plaintiffs failed to file a notice of

claim within ninety days of March 11, 2011, the Township

asserted that plaintiffs’ claim against it was time-barred by

the Tort Claims Act’s ninety-day notice requirement contained in

N.J.S.A. 59:8-8.

    In opposition to the motion, plaintiffs argued that their

notice of claim was timely because it was filed within ninety

days of July 3, 2012 -- when the NJDEP released documents to

plaintiffs that revealed that the dry cleaner’s tanks were

located on Township property.   Plaintiffs argued that no

reasonable person would expect the dry cleaner’s storage tanks

to be housed on government property, and that plaintiffs

therefore could not reasonably have known that the Tort Claims

Act’s notice requirement would apply until they learned that the

Township bore some responsibility for the contamination that

injured plaintiffs.

                                 9
    The trial court determined that plaintiffs’ claim accrued,

at the latest, in January 2011 when plaintiffs received the

first Viridian letter.    The court emphasized that, even if a

layman would not have expected that the tanks were located on

government property, the law imposes a duty to investigate the

matter.    The court identified January 2011 as the time when

plaintiffs should have known that there was a contamination

problem on their property; at that point, the court continued,

plaintiffs were responsible for investigating the matter to

determine the source of the contamination and the responsible

parties.    The court concluded that, “[h]aving failed to do that

in a timely manner and to file their tort claims notice even

within that year, their claim is dismissed as it relates to [the

Township].”

    Plaintiffs appealed, and the Appellate Division affirmed in

an unpublished opinion.    The panel stated that the record

contained “no genuine issue that upon receiving Viridian’s March

2011 letter -- if not upon receiving the January 2011 letter --

plaintiffs were aware that the indoor air pollution from the

cleaners posed a health risk to them.”    The panel continued,

stating that once plaintiffs received the letters reporting

contamination, “it was reasonable for them to conclude not only

that they had suffered an injury, but that a third party was at

fault.”    The court noted that “accrual does not depend on

                                 10
identifying the third party at fault,” and so plaintiffs’ lack

of knowledge that the Township might be liable had no impact on

the accrual date.   Because plaintiffs failed to file within

ninety days of the March 2011 Viridian letter, the panel held

that their claim against the Township was barred by the Tort

Claims Act.

    Plaintiffs filed a motion for leave to appeal with this

Court, which we granted.   228 N.J. 88 (2016).

    Before this Court, plaintiffs’ and the Township’s arguments

are embellishments on their positions before the trial and

appellate courts.

                               II.

    The Tort Claims Act, N.J.S.A. 59:8-1 to -11, establishes

that public entities are generally immune from tort liability,

except in certain limited circumstances.   Beauchamp v. Amedio,

164 N.J. 111, 115 (2000) (“The overall purpose of the Act was to

reestablish the immunity of public entities while coherently

ameliorating the harsh results of the doctrine.”).     As a

prerequisite to proceeding with a tort claim against a public

entity, a plaintiff must file a notice of claim within ninety

days of the accrual of the cause of action.      N.J.S.A. 59:8-8.

Under extraordinary circumstances, and accompanied by a showing

that the public entity has not been substantially prejudiced, a

plaintiff may file a late notice of claim within one year of the

                                11
accrual of the claim.      N.J.S.A. 59:8-9.    However, failure to

file within ninety days under normal conditions, or within one

year under extraordinary circumstances, bars the claimant from

bringing the tort claim against the public entity.       N.J.S.A.

59:8-8(a).

    Before determining whether a claimant has timely filed

within the ninety-day time period, a court must determine the

date on which the claim accrued.        McDade v. Siazon, 208 N.J.

463, 475 (2011) (“The first task is always to determine when the

claim accrued.” (quoting Beauchamp, supra, 164 N.J. at 118)).

N.J.S.A. 59:8-1 of the Tort Claims Act governs accrual.        The

provision “does not define the date of accrual in any

significant way, [but] the comment to that section states that

‘[i]t is intended that the term accrual of a cause of action

shall be defined in accordance with existing law in the private

sector.’”    Beauchamp, supra, 164 N.J. at 116 (second alteration

in original) (footnote omitted) (quoting Harry A. Margolis &

Robert Novack, Claims Against Public Entities, 1972 Task Force

Comment to N.J.S.A. 59:8-1 (Gann 2000)).

    In general, our law in the private sector holds that a

claim accrues on the date on which the underlying tortious act

occurred.    Id. at 117.   However, that same common law allows for

delay of the legally cognizable date of accrual when the victim

is unaware of his injury or does not know that a third party is

                                   12
liable for the injury.    Ibid.   By operation of the discovery

rule, the accrual date is tolled from the date of the tortious

act or injury when the injured party either does not know of his

injury or does not know that a third party is responsible for

the injury.    McDade, supra, 208 N.J. at 475; see also Ayers v.

Jackson, 106 N.J. 557, 582 (1987) (“Few states follow New

Jersey’s discovery rule that tolls the statute [of limitations

for personal-injury claims] until the victim discovers both the

injury and the facts suggesting that a third party may be

responsible.”).

    Whether the discovery rule applies depends on “whether 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, 246

(2001).   “The standard is basically an objective one -- whether

plaintiff ‘knew or should have known’ of sufficient facts to

start the statute of limitations running.”     Ibid. (quoting Baird

v. Am. Med. Optics, 155 N.J. 54, 72 (1998)).     When a plaintiff

knows he has “suffered an injury but [does] not know that it is

attributable to the fault of another,” the discovery rule tolls

the date of accrual as to that unknown responsible party.     Ibid.

And, when a plaintiff knows her injury “is the fault of another,

but is reasonably unaware that a third party may also be

responsible, the accrual clock does not begin ticking against

                                  13
the third party until the plaintiff has evidence that reveals

his or her possible complicity.”     Id. at 250.

      In the setting of the Tort Claims Act, the discovery rule

applies to the notice requirement as well:     when the discovery

rule tolls the accrual date, the ninety-day period within which

the injured party must file a notice of claim against a public

entity is likewise delayed until the injured party learns of the

injury or of the third party’s responsibility for that injury.

See McDade, supra, 208 N.J. at 475; see also Beauchamp, supra,

164 N.J. at 122 (explaining that discovery rule tolls ninety-day

notice period “[u]ntil the existence of an injury (or, knowledge

of the fact that a third party has caused it) is ascertained”).

Once the accrual date is established, our case law acknowledges

the public-policy reasons for which the Tort Claims Act allows

only a short period for service of a notice of claim on the

responsible public entity.   See McDade, supra, 208 N.J. at 475-

76.

                               III.

      We are reviewing the grant of summary judgment to the

Township.   Summary judgment is appropriate when, viewed in the

light most favorable to the non-moving party, “the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the

                                14
moving party is entitled to a judgment or order as a matter of

law.”   R. 4:46-2; see Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 528-29 (1995).   Our review in this matter is

plenary.   Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (“An

appellate court reviews an order granting summary judgment in

accordance with the same standard as the motion judge.”).

    This appeal involves application of established principles

of the discovery rule.   Agreeing with the Township’s argument,

the trial and appellate courts relied on the two letters from

Viridian in early 2011 -- notifying plaintiffs of environmental

contamination that affected them and their property -- to

conclude that plaintiffs should have been on notice to look for

other responsible parties and should have found the Township’s

involvement in time to file a notice of claim.    We disagree that

the record compels that conclusion and find that summary

judgment was not appropriately entered in favor of the Township.

    First, nothing about those communications would have

alerted an objectively reasonable person to believe that the

contaminants were coming from any source other than Macrietta’s

establishment.   The map that accompanied the March letter to

plaintiffs and that showed the planned remediation does not

reveal where the underground tanks were stored.   The map

revealed only that leaked contaminants required excavation of

polluted soil on properties owned by the dry cleaner and the

                                15
Township.   That a leak occurred on one property and affected

that property’s neighbors does not necessarily mean that any

neighbor -- here, the Township -- is at fault.     An objectively

reasonable person could believe that the Township was simply

another victim of the leaking contaminants.   It was Macrietta

that notified plaintiffs and others -- including the Township

and the NJDEP -- of the leak, and Macrietta that took steps to

address its responsibility for the contaminated soil and other

properties affected by the vapors of the leaked materials.      We

are not impressed by the map, which lacks the evidentiary value

to compel the conclusion that it provided proof or raised

suspicion that another entity was responsible.

    Indeed, we note that, had plaintiffs searched recorded land

documents seeking to learn whether the tanks were on Township

property, their search would have come up empty.    The evidence

demonstrating that the Township authorized the dry cleaner to

place tanks on public property came later through discovery when

the Township located and turned over the 1946 memorandum to file

stating same.

    The point is that plaintiffs were faulted for not being

diligent enough in 2011 to think to look for another potentially

liable third party and, specifically, for failing to know to do

so within the abbreviated timeframe of the Tort Claims Act.

Before the NJDEP released documents in July 2012, this record

                                16
contained nothing to suggest that a public actor was

responsible.   The responsibility to look for other third parties

liable for Macrietta’s polluting was overblown in application

here.

    Two cases of this Court previously dealt with the discovery

rule in the context of accrual of a claim against a public

entity.   Both involved situations in which the plaintiffs knew

immediately that one or more public entities were involved.

    In Beauchamp, supra, the plaintiff was rear-ended by a New

Jersey Transit bus, and she suffered neck, shoulder, and back

pain, as well as headaches, as a result.    164 N.J. at 114.   The

plaintiff did not file a notice of claim within the time limits

of the Tort Claims Act because, at first, her injuries did not

appear serious enough to support the claim.    Ibid.   Later --

past the ninety-day period provided in the Tort Claims Act -- it

became clear that the plaintiff had suffered permanent injuries.

Id. at 115.

    Nine months after the accident, and less than two months

after discovering that her injuries were permanent, the

plaintiff filed a notice of claim with several government

entities and also filed a motion to file a late notice of claim

under N.J.S.A. 59:8-9.   Ibid.   The case thus involved the

extraordinary-circumstances requirement for allowing a late

filing of a notice of claim.

                                 17
    The trial court denied the motion, and the Appellate

Division affirmed.   Ibid.   This Court reversed, but we did not

hold that the discovery rule applied to toll the accrual date.

Id. at 123.   Our holding turned on a conclusion that the

plaintiff had established extraordinary circumstances to justify

a late notice-of-claim filing.   Ibid.   The Court explained that

the plaintiff’s accrual date was uncontested because she knew at

the time of the car accident that she was injured; in fact, she

consulted a doctor and a lawyer shortly after the accident.       Id.

at 119.   The Court rejected the argument that the discovery rule

should toll the accrual date of the plaintiff’s claim until she

knew her injuries were permanent, adhering instead to essential

considerations in stating that “[t]he date of accrual of her

cause of action was the date of the accident in which she knew

she was injured and that a public entity was responsible.”

Ibid. (emphasis added).

    McDade, supra, also involved a tort claim against a public

entity in which the plaintiff failed to comply with the notice-

of-claim provision of the Tort Claims Act.   208 N.J. at 468.

But again, as in Beauchamp, the plaintiff in McDade was on

notice that public entities were involved.

    In McDade, the plaintiff tripped on a pipe that was

protruding from a public sidewalk.    Egg Harbor Township owned

the sidewalk where the plaintiff slipped and fell, and a

                                 18
different entity, the Egg Harbor Township Municipal Utility

Authority (MUA), owned the pipe.      Id. at 469.   The problem in

McDade was that the plaintiff served a notice of claim within

ninety days of the accident upon Egg Harbor Township, Atlantic

County, and the State of New Jersey, but not the MUA.       Id. at

469-70.

    The MUA’s motion for summary judgment, claiming that the

plaintiff’s notice of claim was untimely, was denied by the

trial court.   Id. at 469.   The Appellate Division reversed, and

this Court affirmed the Appellate Division.     Id. at 481.   We

explained that the discovery rule did not apply to the claims

because the plaintiff, having experienced the accident, was

immediately aware of the injury when it occurred.      Id. at 478.

Although “not immediately aware of the true identity of the

pipe’s owner,” the plaintiff was responsible under the discovery

rule to exercise reasonable diligence to determine the correct

public entity to sue.   Id. at 478-79.     The plaintiff in McDade,

like the plaintiff in Beauchamp, knew immediately that public

entities were involved, but did not look diligently enough to

identify all public entities.   The McDade opinion notes that the

plaintiff had failed to conduct an inspection of the pipe,

investigate its owner, or search the public record.      Id. at 479.

    Thus, both Beauchamp and McDade addressed whether

discovery-rule applications should result in tolling the accrual

                                 19
date for a claim against a public entity.   However, neither

application addressed circumstances in which plaintiffs learned

that they had been injured by another -- a private party that

had taken steps to assume responsibility for the problem caused

by its negligence -- but nothing indicated involvement of a

public entity.

       Our Court discussed a related problem in Caravaggio, supra,

when considering the differences between two classes of

plaintiffs:   “those who do not know that they have been injured

and those who know they have suffered an injury but do not know

that it is attributable to the fault of another.”   166 N.J. at

246.    The Court determined that “‘[a] sub-category of the

“knowledge of fault” cases is that in which a plaintiff knows

she has been injured and knows the injury was the fault of

another, but does not know that an additional party was also

responsible for her plight.’”    Id. at 248 (quoting Martinez v.

Cooper Hosp. Univ. Med. Ctr., 163 N.J. 45, 54 (2000)); see also

Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43-44

(2000) (tolling accrual of cause of action where plaintiff

belatedly discovered that after-care physicians, in addition to

other defendants, were at fault for plaintiffs’ injuries);

Mancuso v. Neckles, 163 N.J. 26, 36-37 (2000) (holding that

where plaintiff brought claim against surgeon but was reasonably

unaware of responsibility of radiologist, discovery rule could

                                 20
toll malpractice claim against radiologist); Savage v. Old

Bridge-Sayreville Med. Group, P.A., 134 N.J. 241, 250 (1993)

(remanding for Lopez hearing where plaintiff knew of injury and

of one likely cause, but not that her physician was also

liable).

    Thus, in Caravaggio, supra, we reiterated:

            Martinez,   Savage,  Gallagher   and Mancuso
            reaffirm the basic principle that where a
            plaintiff knows of an injury and that the
            injury is due to the fault of another, he or
            she has a duty to act. However, those cases
            also stand for the proposition that when a
            plaintiff knows of an injury, and knows that
            it is the fault of another, but is reasonably
            unaware that a third party may also be
            responsible, the accrual clock does not begin
            ticking against the third party until the
            plaintiff has evidence that reveals his or her
            possible complicity.

            [166 N.J. at 249-50.]

    That is the case here.     This case involves the application

of the discovery rule in a context where nothing suggested that

a public entity bore any responsibility for plaintiffs’

injuries.    The notice-of-tort-claim requirement does not

eliminate normal application of the discovery rule.    When a

plaintiff is injured by a third party and has no reason to

believe that another party, specifically a public entity, is

responsible for the injury, then the discovery rule applies to

toll the accrual date for triggering the notice-of-claim

requirement.    The discovery rule should be applied with

                                    21
reasonableness as to whether a diligent plaintiff would have or

should have realized that a public entity was involved at all.3

     Turning more specifically to the facts as they appear in

this summary judgment record, plaintiffs have asserted that not

until their receipt of documents from the NJDEP on July 3, 2012

did they learn that the tanks that leaked and caused the

contamination were actually located on Township property.   The

Township does not point to any earlier document revealing that

information.

     Plaintiffs have presented facts demonstrating that Edan did

not connect his health issues to the inhalation of odors from

Macrietta’s environmental contaminants until his doctor made

that connection for him.   We accept that assertion as true for

purposes of summary judgment.   Further, plaintiffs’ counsel has

painstakingly set out the back-and-forth communications with the

NJDEP, which reflect the exact course of events from plaintiffs’




3  To similar effect, our Court applied the extraordinary-
circumstances extension for filing a notice of claim in Lowe v.
Zarghami, 158 N.J. 606 (1999). We found that the plaintiff
faced extraordinary circumstances because there was no evidence
that she knew or should have suspected that her doctor was
associated with a public entity. Id. at 629-30. Although we
determined that the plaintiff’s claim accrued in 1995 when she
discovered that her medical problems could be associated with
the metal clip inside her body and sought to pursue all medical
personnel involved, we concluded that her motion to file a late
notice of claim within one year of the injury’s accrual should
allow her claim against the public entity to proceed. Id. at
613, 625.
                                22
OPRA request to the NJDEP’s release of the documents to counsel

on July 3, 2012.4   Those communications show diligent pursuit of

evidence that finally revealed that the tanks were on Township

property.   The notice of claim was timely filed after that point

in time, and the amendment to the complaint was timely,

following from the notice of claim that was filed with the

Township.

     In sum, we are convinced on this record, as it exists thus

far, that the Viridian letters from 2011 do not demonstrate that

plaintiffs either knew or should have known that a public

defendant might have been responsible for their injuries,

triggering the exceedingly short time granted for presentation


4  The record reveals the following sequence of events. On March
16, 2012, plaintiffs filed an OPRA request with the NJDEP,
seeking “[a]ny and all documents relating to the PCE
contamination at the [Swan Cleaner’s] site.” On March 22, 2012,
the NJDEP responded that it had located responsive documents and
indicated that retrieving the documents would require a service
fee for extraordinary effort and time. Plaintiffs paid the fee.
On April 17, 2012, the NJDEP notified plaintiffs that copying
the documents would take fifteen to twenty business days. On
May 7, 2012, plaintiffs received an invoice for the cost of
copying the requested documents, which plaintiffs paid.
Thereafter, plaintiffs received “Community Right to Know” forms
identifying substances maintained at the dry cleaner. On June
8, 2012, plaintiffs followed up with the NJDEP, asking why no
documents were released relating to the active environmental
remediation at the site. On June 22, 2012, the NJDEP indicated
that it found additional responsive documents. Again,
plaintiffs received an invoice for copying fees, which
plaintiffs paid on July 3, 2012. Plaintiffs then received
documents that revealed that the Township had “allowed the
installation of underground storage tanks on Township property
contiguous to the dry cleaner property.”
                                23
of the notice of claim required by the Tort Claims Act.      We

glean no evident lack of diligence here in failing to earlier

detect the Township’s responsibility for its role in allowing

the tanks that leaked to be on its property.

    That said, there has not been a Lopez hearing in this

matter and, therefore, we hesitate to make findings that ought

to be made in the first instance by the trial court after the

opportunity for a hearing on the subject as opposed to a mere

summary judgment record.    A remand for such a hearing is

required.   However, in that hearing, the significance formerly

placed on the Viridian letters should be reexamined in light of

our observations of the quality and quantity of information

those documents conveyed.

                                IV.

    The judgment of the Appellate Division is reversed, and the

matter is remanded to the trial court for further proceedings

consistent with this opinion.



     CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA,
and SOLOMON, join in JUSTICE LaVECCHIA’s opinion. JUSTICES
PATTERSON and SOLOMON did not participate.




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