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Ball v. New Jersey Bell Telephone Co.

Decided: January 9, 1986.

GEORGE E. BALL, ADMINISTRATOR, AND ADMINISTRATOR AD PROSEQUENDUM OF ESTATE OF MARK BALL, PLAINTIFF-APPELLANT,
v.
NEW JERSEY BELL TELEPHONE COMPANY, TOWNSHIP OF BERKELEY, COUNTY OF OCEAN AND STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DEFENDANTS-RESPONDENTS, AND REID CONSTRUCTION COMPANY AND A.B.C. CORPORATION (A FICTITIOUS NAME, ACTUAL NAME BEING UNKNOWN), DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Brody, Gaynor and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

[207 NJSuper Page 103] Plaintiff, as general administrator and administrator ad prosequendum, instituted this action to recover damages arising out of the death of his son in a tragic automobile accident. Named as defendants were the State of New Jersey, Berkeley Township, Ocean County and New Jersey Bell Telephone Co. (Bell). In his complaint, plaintiff alleged that the decedent was killed when his automobile struck a telephone pole which was located along the border of the Route 37 eastbound exit ramp. Plaintiff claimed that the decedent died as a result of the negligence of defendants in placing and maintaining a telephone pole on the traffic side of a guardrail. The principal thrust of the allegations contained in the complaint was that Bell's placement of the telephone pole on the wrong side of the guardrail created a dangerous condition which the State, Ocean County and Berkeley Township failed to remedy.

Prior to trial, all defendants filed motions for summary judgment. Both Ocean County and Berkeley Township predicated their motions upon the ground that the accident occurred on property owned and controlled by the State. The State argued that the telephone pole had been placed along the shoulder of the roadway in accordance with a permit it had granted to Bell pursuant to N.J.S.A. 48:17-8 and that it was, thus, protected by the immunity accorded public entities with respect to their licensing activities under N.J.S.A. 59:2-5. Bell contended that it was under no obligation to guard motorists against extraordinary exigencies created when a vehicle leaves the travelled portion of a highway out of control and that the accident was not proximately caused by its negligence. Following argument, the trial judge granted summary judgment in favor of the State, Ocean County and Berkeley Township. Bell's motion was denied. After a lengthy trial, the jury returned a verdict of no cause for action in favor of Bell. In this appeal, plaintiff contends that summary judgment was improperly granted to the public entities and that the judge committed reversible error at trial.

The salient facts can be briefly stated. In the early morning hours of January 11, 1981 the decedent was killed in a one-vehicle accident on the Route 37 exit ramp. There were no witnesses. Decedent's dark green Karman Ghia was found off the left side of the roadway. The front of the vehicle was adjacent to a telephone pole which it had apparently struck. Most of the damage to the automobile was sustained by the left front and side portions. The left front tire was flat.

The telephone pole was located approximately three feet behind the edge of a nine-inch white cement curbline. A metal guardrail was located approximately three feet behind the telephone pole. Although the ground was frozen, the grassy area between the curb and the guardrail disclosed markings which could have been made by the decedent's vehicle. Fresh "tire scuff marks" were found on the cement curbing approximately

40 to 60 feet north of the resting position of the automobile.

Although it was extremely cold on the morning of the accident, there was no snow or ice on the road. The investigating police officers did not find any skid marks or debris on the roadway. Conflicting evidence was presented with respect to whether the decedent's vehicle had struck the guardrail before striking the telephone pole. One officer could not recall finding any evidence of such contact, while another testified that the guardrail appeared "scraped and bent." Plaintiff stated that he examined the guardrail shortly after the accident and discovered traces of green paint. This testimony was corroborated by a close personal friend of plaintiff, a former member of the State Police, who visited the scene later in the morning. He testified that he observed green paint scrapings along the guardrail.

At trial, plaintiff presented Dr. Kenneth Heathington as an expert witness. According to his testimony, the purpose of a metal guardrail is to "prevent rapid deceleration" of a vehicle striking it by softening the impact and guiding it along an unobstructed path. For this reason, it is a cardinal rule of safety that no immovable object be placed or permitted "on the traffic side of a guardrail." Although this safety principle was said to be self-evident, Dr. Heathington noted that it was expressly set forth in standards promulgated by the American Association of State Highway Officials. The witness testified that placement of the telephone pole in front of the guardrail constituted the "grossest" form of negligence and that it was "inconceivable" that the State would have approved that practice. He concluded that the effect of Bell's dereliction in this case was to guide the decedent's vehicle directly into the telephone pole. Had the pole been placed behind the guardrail, there would have been minimal injury to the decedent and minimal damage to the decedent's automobile.

Dr. Heathington examined the 1956 design and construction plans for the Route 37 exit ramp. "[C]onspicuously absent" was any reference to the telephone pole. Specifically, the plans did not call for any telephone pole along the side of the roadway. The witness characterized this omission as "very unusual." On cross-examination the witness speculated that either Bell had never requested a permit for placement of the telephone pole in that location or the State had denied its application.

William Stopple, a retired Bell employee, testified that the pole was originally placed in 1958. Although N.J.S.A. 48:17-8 requires that a permit for placement of a utility pole be obtained from the State, the witness was unable to find one in this case. Stopple could not determine whether Bell had ever applied for a permit and, if it did, whether its application was granted. He observed, however, that all telephone poles are placed by Bell only after permits have been issued by the State. The witness noted that while the State had the final authority in determining the exact location of telephone poles along its highways, substantial deference was generally accorded to the utility's requests.

Stopple further testified that Bell inspects all telephone poles once every six years. Although he acknowledged that placement of telephone poles on the traffic side of a guardrail is not "preferable," the witness was unaware of any directive from either the State or Bell ordering relocation. He stated that Bell's inspectors are not instructed to report instances where poles are found located in front of the guardrails. Apparently, such inspections are generally limited to determining the condition of the pole. In any event, Bell's records disclosed that telephone poles on the side of the Route 37 exit ramp had last been inspected in 1977.

I

We first consider plaintiff's argument that the trial judge erroneously granted summary ...


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