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Washington v. City of Elizabeth

August 31, 1990

NANCY JOAN WASHINGTON AND, HARVEY ORDELL WASHINGTON, HER HUSBAND, PLAINTIFFS,
v.
THE CITY OF ELIZABETH, NEW JERSEY BELL TELEPHONE CO., THE ELIZABETHTOWN GAS CO., A FICTITIOUS NAME, ACTUAL IDENTITY PRESENTLY UNKNOWN, ET ALS., DEFENDANTS



Menza, J.s.c.

Menza

Defendant, New Jersey Bell Telephone Company, moves for summary judgment. The issue in this case is whether the installation or repair of an underground telephone line constitutes an improvement to real property, and thus entitled to the protection of the ten-year statute of limitations afforded by N.J.S.A. 2A:14-1.1.

Plaintiff was injured when she fell in a depressed roadway. She contends that defendants, including New Jersey Bell Telephone Company (Bell), are liable to her because they created

the depression in the road when they installed and/or maintained the underground utility lines.

Defendant Bell responds that it neither installed nor maintained underground conduits in the area in the ten-year period preceding the date of the accident. Therefore, Bell contends that plaintiff's claim against it is barred by virtue of N.J.S.A. 2A:14-1.1, which provides in pertinent part:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.

There are no New Jersey cases which have addressed this precise issue. In fact, there is a sparsity of cases in New Jersey which deal generally with the question of what constitutes an improvement. See Wayne Tp. Bd. v. Strand Century, Inc., 172 N.J. Super. 296, 411 A.2d 1161 (App.Div.1980), (dimmer panel an improvement); Hall v. Luby Corp., 232 N.J. Super. 337, 556 A.2d 1317 (Law Div.1989), (elevator an improvement); Kozikowski v. Delaware River Port Authority, D.C., 397 F. Supp. 1115 (D.N.J.1975) (bridge is an improvement). There are, however, numerous cases in other jurisdictions, and although none of them deal with the precise issue presented in this case, they are nevertheless helpful in the analysis of this matter.

In the case of Montaup Elec. Co. v. Ohio Brass Corp., 561 F. Supp. 740 (D.R.I.1983), the court held that an improvement to real property includes a change in the topography of the land because the construction of electrical transmission lines changed the topography of the land. The court held that the change constituted an improvement to real property. In Mora-San Miguel Elec. Coop. v. Hicks & Ragland, Etc., 93 N.M. 175, 598 P. 2d 218 (N.M.App.1970), the court held that the installation

of power lines was an improvement to real property because: ". . . a given parcel of land which has electrical service available is more valuable than a comparable parcel without such service. The installation of the power line was a physical improvement which came within the intent and design of [the statute]." Id. 598 P. 2d at 220.

In Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504 (8 Cir.1983), the court held that an underground gas pipe was an improvement because it involved the expenditure of labor and was permanent in nature. In Allentown v. Suburban Propane Gas Corp., 43 Md.App. 337, 405 A.2d 326 (Md.Sup.Ct.1979), the Maryland Supreme Court held that gas meters and their couplings did not constitute an improvement because among other reasons, they were installed only to measure the tenants use and did not, therefore, enhance the value of the property. Similarly, in Atlanta Gas & Light Co. v. City of Atlanta, 160 Ga.App. 396, 287 S.E. 2d 229 (Ga.App.1982), the court held that an underground gas line was not an improvement. The court said that a gas line was ". . . more appropriately considered an extension of the utility's distribution system than an improvement to property owned by the plaintiff." Id. 287 S.E. 2d at 233. See also Calumet Country Club v. Roberts Env. Control, 136 Ill.App. 3d 610, 91 Ill.Dec. 267, 483 N.E. 2d 613 (Ill.App. 1 Dist.1985) (pipe connection from water main to building not an improvement); Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 233 S.E. 2d 773 (Ga.1977) (power pole an improvement); Mullis v. Southern Co. Services, Inc., 250 Ga. 90, 296 S.E. 2d 579 (Ga.1982) (circuit breaker component of a power plant an improvement); Continental Ins. Co. v. Walsh Const. Co., 171 ...


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