On appeal from Superior Court, Law Division, Bergen County, L-8597-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern, Rodríguez and Waugh.
Defendant Borough of Bogota appeals from a judgment awarding damages to plaintiff Norman Jones. The damages compensate Jones for property damage caused when a blocked municipal sewer backed up into his basement. Bogota argues that, because Jones's proofs failed to meet the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:4-2, the trial judge should have granted its motion to dismiss at the close of the evidence and should not have sent the case to the jury. Jones cross-appeals from the trial court's refusal to permit him to testify to the value of certain collectables damaged by the sewer backup in support of his claims for damages. We agree that the claim is barred by the Tort Claims Act and reverse the judgment in favor of Jones, which decision renders the cross-appeal moot.
The following facts were adduced at trial. In December 2003, Jones owned a two-family residential property located at 326 Larch Avenue in Bogota. Tenants occupied the first and second floors of the house. Jones stored personal belongings in the attic and in the finished basement, which he also used as an office.
On the morning of December 11, 2003, Jones's first-floor tenant contacted him regarding a terrible smell coming from the basement. Jones went to the house and, on entering the basement, saw raw sewage bubbling out of a vent in the main waste pipe. The floor was covered with water, feces, urine, grease, and food debris.
Jones immediately telephoned the municipal building and spoke to the borough clerk, who informed him that a signed expert opinion as to the cause of the problem would be required before someone would be dispatched to investigate. Jones also telephoned Bogota's Department of Public Works (DPW), but was unable to reach anyone. He left a message on the answering system.
Jones then attempted to contact private plumbing services, but had difficulty reaching one. Around 4:00 p.m., he made contact with a service known as Able Tex Emergency Service and Drain Cleaning, and was told that someone would come to the house as soon as possible. Jones also contacted the Bogota police and was informed that DPW crews were working on the problem.
James Sheridan, an Able Tex technician, arrived at approximately 7:00 p.m. He observed about a foot of sewage in the basement. Sheridan snaked out the sewer lateral from Jones's building for a distance of seventy-two feet. He ran the cable out into the Bogota sewer line, but was unable to clear the blockage. Sheridan concluded that the problem was in the main sewer line and not in the lateral running from Jones's house to the main sewer. Sheridan recalled that there was "stuff" stored in the basement and that some of the "stuff" was floating in the sewage water.
Robert Stauffer, Bogota's DPW Superintendent, came to the house around 12:30 a.m. on December 12, 2003. He told Jones that his crews were doing their best to correct the situation. Stauffer went downstairs and observed about two to three feet of raw sewage in the basement.
Around 2:00 a.m., another DPW employee informed Jones that the main sewer line had been cleared and that the water in the basement would begin to recede. Later that day, DPW crew members removed most of the standing sewer water in the basement, leaving a residue of sewage sludge. A private company, retained by Bogota, eventually performed a final cleanup.
This incident was the first time that the municipal sewer had backed up into Jones's house since his family bought it in 1963. However, there had been prior problems with sewer backups in the vicinity. The Cosmic Wheel Bicycle Shop, which was on Main Street around the corner from Jones's house, experienced at least five backups of sewage materials, similar to that experienced by Jones, in the period from 1990 to approximately 1995. A Chinese restaurant, located next to the Cosmic Wheel on Main Street, was closed at least twice in the 1990s due to sewer backups. The sewer backups on Main Street in the 1990s were caused by a build up of grease.
Stauffer, who started working for Bogato in 1989 and served as DPW Superintendent from 1997 to 2005, concluded that the backup on December 11, 2003, was caused by a build up of grease and soap in the main sewer line on Main Street. The blockage was so severe that the Bogota service truck was not capable of breaking it up, so it was necessary to have a larger sewer truck from a neighboring municipality clean out the main sewer line. The Larch Avenue sewer line, to ...