as the statute requires, the date and circumstances of the accident, a description of the injury, or the amount claimed. Because the notice provided was not presented by the insured or one acting on his behalf and did not conform to the technical requirements of the statute, we hold that it was not in substantial compliance.
Since the Township was never served with notice, the Township's claim form and interrogatories were never sent out, and the Township did not have an opportunity to investigate the accident, evaluate its liability, if any, or assess the claimant's damages. Haeuber Aff. P5. The plaintiff's failure to provide notice would therefore appear, under these circumstances, to have prejudiced the Township by depriving it of the opportunity to conduct an early investigation, which is the primary purpose of the notice requirement. Murray, 259 N.J. Super. at 365.
It is not necessary to engage in a lengthy inquiry concerning the existence of prejudice. The plaintiff argues that there was no prejudice because the Township police had an opportunity to investigate at the scene of the accident. But the purpose of requiring clear notice prior to suing a sovereign would be undermined if notice were deemed to have taken place every time a police officer, fireman, medical technician, school teacher or other municipal agent appeared at the scene of an accident. A municipality is not required to divine when it may be sued. It must be told so clearly and in detail.
While one purpose of any statutory time limit, including, for instance, statutes of limitation, is to avoid prejudice to a potential defendant from a plaintiff's delay in pursuing a claim, another purpose is to create certainty. Any rule which allowed an independent inquiry into actual prejudice would result in a mini-trial in every case to determine the extent of a defendant's independent knowledge and investigation regarding a claim.
The Act states that a plaintiff must provide notice within ninety days of the accrual of a cause of action. N.J.S.A. 59:8-8. If the plaintiff provides notice after ninety days but before one year, under N.J.S.A. 59:8-9 a court may permit the late claim if the public entity has not been substantially prejudiced thereby. N.J.S.A. 59:8-8(b). The accident occurred on March 11, 1993, but the Township did not receive effective notice until it was served with the present complaint on March 16, 1995. Haeuber Aff. P8. This places the notice well outside the one-year window in which a court may inquire as to whether the public entity was substantially prejudiced by the delay. After one year passes with no notice of claim, a court is not required, and indeed not permitted, to ask whether or not the municipality was prejudiced by the delay.
B. PSE&G's Responsibility to Maintain the Street Lamp
PSE&G argues for summary judgment on the grounds that it had no duty to maintain street lighting for the benefit of the plaintiff. Because we find no evidence of a duty arising from any source, nor any evidence of breach if we had found a duty, PSE&G's motion will be granted.
The Township and PSE&G have a long-standing contractual relationship regarding the lighting of the Township's roadways. PSE&G was granted a right-of-way easement by the Township to erect street lights, including the one at issue, in excess of twenty years ago. Haeuber Aff. P10. There is no written agreement between the parties regarding the maintenance of street lights. Neither the Township nor PSE&G inspect the street lights often. When the Township receives a complaint regarding a broken lamp, it notifies PSE&G, which repairs the lamp. Haeuber Aff., Costello Aff. Otherwise, PSE&G replaces the bulbs in the lamps once every four years. PSE&G sends the Township a monthly bill for service, repairs, and "pole charges," which are the rental fees for the use of the equipment. Haeuber Aff. P11.
To support a claim of negligence, New Jersey law requires first that there be a duty to act. Anderson v. Sammy Redd & Assoc., 278 N.J. Super. 50, 56, 650 A.2d 376 (1994). A duty may be imposed by statute, by contract or relationship, or by the common law. There is no statute or regulation which imposes upon PSE&G a duty to provide lighting for the streets of the Township. Nor is there any New Jersey case which imposes a common law duty on electric companies to repair or replace broken light fixtures within any particular time frame. Considering the vast number of street lights and the frequency of motor vehicle accidents, this absence of case law is telling.
The only conceivable source of duty to Sinclair arises from the contractual agreements between the Township and PSE&G. The parties have referred to the Tariff for Electric Service as detailing the understanding between the parties, but in fact the Tariff provides little direct guidance in resolving these questions.
Although PSE&G argues that any duty it may have had ran only to the Township, this court is prepared to accept that the breach of a contractual relationship between a municipality and a public utility might result in the utility's liability to an individual harmed by the breach. The idea that privity is always required in order to establish liability has had little strength since the time of Henningsen v. Bloomfield Motors, 32 N.J. 358, 412, 161 A.2d 69 (1960).
In Ferren v. City of Sea Isle City, 243 N.J. Super. 522, 580 A.2d 737 (1990), the appellate court overturned the trial judge's grant of summary judgment to a public utility on a claim in a personal injury action brought by the parents of a child who was struck by a vehicle while crossing the street. The court found that there was a factual dispute as to whether the power company had a contractual obligation to design the city's street lighting systems. Implicit in the Ferren court's decision to deny summary judgment is the holding that a power company could potentially be liable to a pedestrian for injuries proximately caused by a breach of its contract with a municipality. For the purposes of this opinion, we assume without holding that such liability could be created under New Jersey law.
The only issue, then, is whether such a contractual duty existed and was breached in the present case. Even absent a written agreement, there is evidence in the record to support a finding that PSE&G contractually undertook to: (1) replace bulbs upon notification of their failure, and (2) replace them routinely once every four years. This, in any event, was the practice that had developed over the years. Haeuber Aff. P11, Costello Aff. There is nothing in the record to support a finding that PSE&G contractually obligated itself to repair every broken light fixture in any specific time period without regard to notice of failure.
There is no allegation or evidence that PSE&G failed to meet either of the two obligations it may have contractually assumed. The plaintiff has not alleged that PSE&G failed to replace the bulb on its four-year schedule, nor is there proof offered that it had any notice that the light at the intersection of Mill and Fellowship roads was not working. An affidavit by Mrs. Stephen L. Kakas states that she notified the Township -- but not PSE&G -- of the broken light about a week before the accident. However, there is no allegation or evidence that this warning was passed along to PSE&G, and, indeed, the Township asserts that it never even received Mrs. Kakas' notice. Haeuber Aff. P14.
The conclusion that PSE&G has no liability to the plaintiff is further supported by the majority of cases that address the subject. See, e.g. Cochran v. PSE&G, 97 N.J.L. 480 (E&A 1922); Messier v. City of Clifton, 24 N.J. Super. 133, 93 A.2d 600 (App. Div. 1952); Tollison v. Georgia Power Co., 53 Ga. App. 795, 187 S.E. 181 (Ga. App. 1936). Although most of the older cases rely on the lack of privity, an approach that is somewhat dated, more modern cases have reached similar conclusions.
In White v. Southern California Edison, a California court faced a situation very similar to the one before us now. 25 Cal. App. 4th 442, 30 Cal. Rptr. 2d 431 (Cal. App. 1994). A moped driver was injured one night when a van turned left in front of him. A street light on the corner was inoperative. The moped driver sued the utility company, which had a contractual relationship with the municipality somewhat similar to the one between PSE&G and the Township. The court held that (1) a public utility generally owes no duty to the public for inoperable street lights, and (2) the injured party is not a third party beneficiary of the utility's contract with the municipality. Id. at 437. In holding that "the burden on the public utility in terms of costs and disruption of the existing rate schedules far exceeds the slight benefit to the motoring public from the imposition of liability," the court further noted that:
We must take into consideration not only the foreseeability of harm to the plaintiff but also the burdens to be imposed against a defendant. In determining whether a public utility should be liable to motorists for inoperable street lights, we must consider the cost of imposing this liability on public utilities, the current public utility rate structures, the large numbers of street lights, the likelihood that street lights will become periodically inoperable, the fact that motor vehicles operate at night with headlights, the slight chance that a single inoperative streetlight will be the cause of a motor vehicle collision, and the availability of automobile insurance to pay for damages.
Id. The New Jersey Appellate Division of the Superior Court has reached a similar conclusion relatively recently, albeit in shorter unpublished opinions that do not set forth the factual underpinnings in great detail. Ippoliti v. Ely, (Docket No. A-842-82Ts, 1984); Marinus v. John Doe, Jersey Central Power & Light Co., et. al., (Docket No. 1312-82T3, 1984).
C. Federal Expansion of State Causes of Action
In the case at bar, the plaintiff asks a federal district court to stretch the limits of New Jersey law. With respect to the Township, Sinclair asks this court to ignore the plain language of the Torts Claims Act and to enlarge the limited scope of "substantial compliance" by applying it to a not-particularly-diligent claimant who has hardly complied at all. With respect to PSE&G, Sinclair asks this court to find a duty running from PSE&G to pedestrians and a breach thereof.
The New Jersey legislature has set a firm statutory time frame for the filing of torts claims against sovereign entities, and the courts have, by and large, adhered to the statutory scheme. And almost a century has passed since the advent of street lights (the product of New Jersey's Thomas Edison) and automobiles without a single New Jersey case imposing the duty of repair urged by plaintiff.
Regardless of the wisdom of the parties' arguments, it is simply not the place of a federal court to make an expansive reading of state law in a diversity case. As the Third Circuit noted in City of Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112 (3d Cir. 1993),
[a] federal court may act as a judicial pioneer when interpreting the United States Constitution and federal law. . . . in a diversity case, however, federal courts may not engage in judicial activism. Federalism concerns require that we permit state courts to decide whether and to what extent they will expand state common law. . . . Our role is to apply the current law of the jurisdiction, and leave it undisturbed.