The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Presently before the Court are Plaintiff's and Defendant's respective motions for partial summary judgment. For the reasons set forth below, Plaintiff's motion is granted on the issue of negligence and is denied on the issue of trespass. Plaintiff's motion for partial summary judgment on the issue of loss of use damages is denied. Defendant's motion for partial summary judgment on the issue of punitive damages is denied.
Plaintiff in this action, MCI WorldCom Network Services, Inc. ("MCI"), is a large telecommunications corporation. MCI owns and operates a system of underground fiber optic cables that enable it to transmit various pieces of voice, video and data telecommunications. (Torcicollo Certification Ex. A at 28; Ex. B at 35.) One of MCI's underground fiber optic cables is located in the Moorestown, New Jersey area and is the subject of this action.
MCI is the successor-in-interest to an easement granted on February 25, 1985 to Lightnet by Tak Moriuchi, Inc., then the owner of the property through which the easement runs. (Torcicollo Certification Ex. B at 45.) At the time the easement was granted the property was used as a farm. The easement gave MCI the right to install and operate its fiber optic telecommunications cable system through the portion of land designated for the easement. (Torcicollo Certification Ex. F.)
Late in 1999 Glendale Excavation Corporation ("Glendale") contracted with Tamboro Brothers Construction to perform all "earth moving operations" at a construction site for a new school. (Drummond Certification Ex. 1 at 15.) The property where the excavation was to occur included the land through which MCI's easement ran. In December 1999, representatives of MCI and Glendale met to discuss the excavation work and MCI's underground cable. According to Glendale, MCI's representative at the meeting informed Glendale that the cable was buried approximately six feet below the surface and would not interfere with Glendale's excavation plans. (Drummond Certification Ex. 1 at 32-35.) MCI disputes this account and instead claims that no indication was given at that meeting of the depth of the cable and that it was not communicated to Glendale that it would be safe to excavate above the buried cable. (Torcicollo Opposition Certification Ex. A at 21,34.) What is not disputed is that following this meeting MCI temporarily marked the location and depth of its cable for a distance of approximately 600 feet along Salem Road, as this was the area where Glendale had indicated it would be excavating. (Drummond Certification Ex. 1 at 37; Torcicollo Opposition Certification Ex. A at 36-38.)
On March 20, 2000, pursuant to New Jersey's One-Call Damage Prevention Act ("One-Call Act"), Glendale contacted Garden State Underground (the designated entity for notification purposes under the One-Call Act) to provide notice of the location and details of its intended excavation activities. Glendale stated that it would be excavating north from the intersection of Salem and Westfield Roads, along Salem Road, for a distance of 1,000 feet. (Drummond Certification Ex. 1 at 29.) Glendale claims that MCI did not respond to this notification and failed to mark out the remaining 400 feet that had not been previously marked out based on the initial meeting between MCI and Glendale. (Opp'n Br. at 8.) MCI does not directly assert that it did mark out the cable continuously from the 600 foot mark up to the 1,000 foot mark in any of its submissions to this Court. However, MCI does claim that there was one marker placed approximately at the 1,000 foot mark. (MCI Response Statement of Undisputed Facts ¶ 14.)
On March 27, 2000 Glendale commenced excavation at a location approximately 1,800 feet north of the Westfield and Salem Roads intersection (800 feet away from the location Glendale had specified to Garden State Underground) and promptly severed MCI's underground fiber optic cable while performing the excavation. (Glendale Undisputed Facts ¶ 11.) Glendale states that it did not intend to provide Garden State Underground with the incorrect location of its excavation activities but that it simply misjudged the exact location at which it would be working. (Drummond Certification Ex. 1 at 30.) Glendale claims that when it did not receive a response from MCI following its notification pursuant to the One-Call Act it proceeded with its excavation work because there existed two permanent markers which indicated that Glendale would not be excavating at a location close to the cable. (Drummond Certification Ex. 1 at 50-55.)
On or about June 4, 2001 Plaintiff filed this action seeking recovery under theories of negligence and trespass against Glendale. Plaintiff and Defendant filed the instant motions for summary judgment on August 2, 2002.
"[S]ummary 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 (1986) (quoting Fed. R. Civ. P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or ...