On appeal from Superior Court, Law Division, Cape May County.
Long, Gruccio and Landau.
Plaintiffs Edwin T. Ferren and Loretta S. Ferren, individually and as guardians ad litem of Ann Marie Ferren, a minor, appeal from a judgment of the Superior Court, Law Division, Cape May County, which granted summary judgment in favor of defendants City of Sea Isle City (Sea Isle) and Atlantic City Electric Company (Atlantic Electric). On appeal plaintiffs claim that summary judgment was improper because genuine issues of material fact were in issue. They also contend that the trial judge should have recused himself as his former law partner has represented Sea Isle from 1973 to 1977.
Briefly stated, plaintiffs' alleged cause of action arises from an accident which occurred on August 25, 1984, when the minor plaintiff, age 13, was crossing Landis Avenue midway between 37th and 38th Streets in Sea Isle and was struck by an oncoming vehicle. She was critically injured and remains severely brain damaged.
Following discovery, Atlantic Electric, Sea Isle and Cape May County moved for summary judgment. The trial judge, in a
written opinion, concluded that no factual basis existed in the record to demonstrate a duty or breach thereof inculpating Atlantic Electric.*fn1
The judge also concluded that neither Sea Isle nor Atlantic Electric was in any manner negligent in the preparation and implementation of a survey conducted in February 1981 by Atlantic Electric for the upgrade of its lighting on Landis Avenue to mercury-vapor lamps. He held that Sea Isle had no obligation to upgrade its lighting system and that it did not engage in any "palpably unreasonable" conduct, N.J.S.A. 59:4-2, in its determinations regarding street lighting. In sum, he found Sea Isle without liability in its discretionary decisions. N.J.S.A. 59:2-3. We agree with Judge Callinan's decision as to Sea Isle and affirm substantially for the reasons expressed by him in his letter opinion of August 18, 1988.
We find the issue as to Atlantic Electric a much closer one. We are constrained to reverse because we find a factual dispute respecting Atlantic Electric's liability. There was a conflict in testimony as to what Sea Isle sought from Atlantic Electric in order to adequately fulfill its street-lighting needs. Did Atlantic Electric merely do what Sea Isle instructed, under which no liability would attach to it? Did it merely take an order and fill it? Or, as former Mayor Raffa's testimony indicates, did it respond to Sea Isle in the city's attempt to find the proper course of conduct in upgrading its lighting to provide adequate illumination? If it did, and failed to fulfill such responsibility, a jury could conclude that Atlantic Electric was negligent and that liability could attach. Mayor Raffa clearly and firmly indicated in his testimony that as Mayor he relied totally upon the consultation and advice of Atlantic Electric regarding matters of street lighting, even to the exclusion
of the city engineers. It is thus upon this narrow basis that we find it necessary to remand for trial.
The recusal issue has not been directly addressed by us in a published opinion in a civil action. We agree with the motion judge's determination not to recuse himself.
We first point out that N.J.S.A. 2A:15-49, upon which counsel bases his recusal argument, must be considered in light of the Supreme Court's constitutional authority to administer the courts of our State. Article VI, § 2, ...