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SINCLAIR v. DUNAGAN

October 25, 1995

ROBERT and REGINA SINCLAIR, h/w, Plaintiffs
v.
GUY S. DUNAGAN, MAPLE SHADE TOWNSHIP, PUBLIC SERVICE ELECTRIC & GAS CO., et al., Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This diversity jurisdiction case involves injuries to a pedestrian struck by a car while he was crossing an intersection. The victim has sued the driver of the car as well as Maple Shade Township ("Township"), the municipality in which the accident occurred, and Public Service Electric & Gas Co. ("PSE&G"), the owner of a nearby street lamp that was not functioning on the night of the accident. The plaintiff claims that one or both corporate defendants were negligent in failing to maintain the street lamp in proper working order and that their negligence caused his injuries by reducing visibility.

 Both defendants move for summary judgment under Fed. R. Civ. P. 56(c), although for different reasons. Defendant Township moves to dismiss the complaint on the grounds that it was not given proper notice of the claim against it in violation of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. PSE&G argues for summary judgment on the basis that it had no duty to maintain lighting for the benefit of the plaintiff.

 Because the Township was not properly notified of the claim against it under the New Jersey Tort Claims Act, the plaintiff's claim against it will be dismissed. Defendant PSE&G's motion for summary judgment will also be granted, since PSE&G did not have or breach any duty to pedestrians using the Township's roadways.

 I. BACKGROUND

 On the night of March 11, 1993, at about 8:45 p.m., defendant Guy S. Dunagan was driving an automobile which struck plaintiff Robert Sinclair, a pedestrian. The plaintiff was crossing Mill Road, heading south. Dunagan was driving north on Fellowship Road. He was turning left onto westbound Mill Road when he struck and injured Sinclair. PSE&G Brief, Exhibit A.

 According to the report of the police officers who arrived on the scene, a street lamp on the southwest corner of Mill and Fellowship was not working on the night of the accident. The police also reported that the victim was "dressed in all dark clothing (dark jacket, dark jeans, etc.)." Township brief, Exhibit A. PSE&G owns the street lights in the municipality and, according to the affidavit of Edward Costello, PSE&G Supervising Engineer, PSE&G changes the bulbs "on a four year basis" *fn1" and responds to customer requests to repair or replace non-functioning bulbs. Costello Aff. P2.

 According to the affidavit of George D. Haeuber, Township Manager, the Township granted a right-of-way easement to PSE&G to erect street lights roughly twenty years ago. Haeuber Aff. P10. Haeuber says there is no written service agreement between the Township and PSE&G, but that PSE&G billed the Township each month for service, repairs, and rental fees for the use of the equipment. Haeuber Aff. P11. Haeuber says that PSE&G had "always" been responsible for maintenance, that the Township did not regularly inspect the street lamps, and that the Township's only role in maintaining them was to pass along public complaints about broken lights to PSE&G. Haeuber says that the Township had received no such complaints concerning the lamp in question prior to the accident. Haeuber Aff. PP12-14.

 Prior to filing suit against a government entity such as the Township, the plaintiff is required by the New Jersey Tort Claims Act to provide notice of claim within 90 days of the accident. Plaintiffs Robert and Regina Sinclair did not themselves provide the Township with such notice. However, the Township did receive two letters from third parties which referred to the accident. The first one, dated April 2, 1993, and sent by Prudential Insurance (Dunagan's Automobile Insurer), said that, "I am putting you on notice that you may be involved in this matter and should refer it to your insurance company or your insurance department." Township Exhibit D. The second letter, dated April 7, 1993, and sent by National General Insurance (Sinclair's Underinsured Motorist Insurer), said that, "This letter will serve to place you on notice of this potential liability claim against you." Township Exhibit E.

 II. STANDARD OF REVIEW

 Under Fed. R. Civ. P. 56(c), "summary judgment is proper 'if 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 and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A non-moving party may not rest upon mere allegations, general denials, or vague statements in opposition to a summary judgment motion. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Bixler v. Central Penna. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus. Inc. v. Local 825, Int'l Union of Operating Engineers, 982 F.2d 884, 890-91 (3d Cir. 1992).

 It is not the role of the judge at the summary judgment stage to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must draw all inferences in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's version as true. Pastore v. Bell Tel. Co. of Penna., 24 F.3d 508, 512 (3d Cir. 1994).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue of material fact for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding ...


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