On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3086-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Holston, Jr.
Plaintiff, Gwendolyn Baker, was injured when she fell in the grassy strip between the sidewalk and curb in front of the home of defendants, Joshua and Nina Yorker. Plaintiff's foot became lodged in the uncovered shaft, about three inches in diameter, of the pipe housing a water shut-off valve. The cover to this shaft was missing. The incident occurred as plaintiff was approaching her intended destination, the home of defendant, Viola P. Stallings, which was located next door to the Yorkers. The water shut-off valve, although located in front of the Yorkers' property, controlled the flow of water into Stallings' home. The parties stipulated that the grassy strip in which the valve was located was owned by Mount Laurel Township. The water system was operated by the Mount Laurel Municipal Utilities Authority (MUA).
Plaintiff sued the Yorkers, Stallings, and the MUA, for her injuries.*fn1 After discovery was conducted, all defendants moved for summary judgment. The motion judge granted summary judgment in favor of the Yorkers and the MUA. The judge denied Stallings' motion, concluding that there was "a sufficient basis to impose a duty upon the user of the water services and that duty [was not] obviated by the fact that [Stallings] didn't know that it was her responsibility" or "did not own the real property where the valve was located."
The case went to trial against Stallings. The jury found that Stallings was not negligent, and an order was entered memorializing the jury's verdict of no cause for action.
Plaintiff appeals from the order granting summary judgment in favor of the Yorkers and from the no cause verdict in favor of Stallings. She does not appeal from the summary judgment in favor of the MUA. Stallings cross-appeals from the order denying her summary judgment motion. We affirm on the appeal. We therefore find it unnecessary to address Stallings' cross-appeal.
The incident occurred on January 26, 2002. Plaintiff was invited to Stallings' home for social purposes. Stallings' home is located in a town home community, and is one of six attached homes in a building. Each home is serviced by a driveway that opens to the street. Plaintiff parked in the street. As she walked towards Stallings' home, she stepped up onto the curb and the grassy area between the curb and sidewalk in front of the Yorkers' home. That is where she fell, when her foot became lodged in the open water shutoff valve pipe.
The MUA's rules and regulations required the MUA to exercise control and be responsible for various portions of its water system, including water mains located in public right-of-ways and MUA easements. The regulations further provided that "[a]ll other service lines, laterals, valves, equipment, facilities and appurtenances are the responsibility of the customer or owner. The customer or owner is responsible for compliance with all applicable laws, ordinances, codes, rules and regulations for the construction, installation and maintenance of the same." An MUA official testified at trial that the MUA "periodically through newsletters, notifies the homeowners of those responsibilities and . . . phone numbers to call for problems."
The unrefuted evidence in this case is that Stallings was unaware that the water valve located in the grassy strip in front of the Yorkers' home regulated the flow of water into her home or had anything to do with her.
Years before plaintiff's fall, Nina Yorker noticed that the lid was missing. She called the MUA and was informed that there would be a charge of about $50 for its employees to come out and replace the lid. The MUA representative suggested that she go to Home Depot, purchase a lid for a few dollars, and install it herself. She followed that advice. Over the ensuing years, according to Nina Yorker, neighborhood children would remove the lid from time to time and use it as a hockey puck. Sometimes they replaced it; sometimes they did not. She purchased about three of these lids over the years for this shaft.
After plaintiff's fall, Nina Yorker purchased and installed another lid. In the course of its investigation of this incident, MUA officials noted that the type of lid Nina Yorker was purchasing and installing was a dome type lid meant for a sewer line, rather than a flat lid with a protruding pentagonal or hexagonal nut designed for a water valve pipe.
In entering summary judgment in favor of the Yorkers, the motion judge found that no material facts were in dispute and they could not be liable because "plaintiff injured herself on a condition that was neither caused by [the Yorkers] nor created by [the Yorkers]. Indeed, the condition -- the defective property condition was in the same condition as it had been prior to the [Yorkers] ever having made any attempts whatsoever." The judge also observed, "I'm not sure that [the Yorkers] ever ...