January 28, 2010
SHIRLEY J. PRESS, PLAINTIFF-APPELLANT,
BOROUGH OF POINT PLEASANT BEACH, AND JERSEY CENTRAL POWER AND LIGHT CO., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2536-05.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2008
Before Judges R. B. Coleman, Sabatino and Simonelli.
Plaintiff Shirley Press, who tripped over a misaligned curb stop in a municipal parking lot that she alleges was poorly illuminated, appeals from three orders of the Law Division. One of the orders, dated January 18, 2008, granted reconsideration of a November 2, 2007 order, but denied plaintiff's request to vacate that order, which granted summary judgment in favor of defendant Point Pleasant Beach; the second order, the November 2, 2007 order, granted summary judgment in favor of Point Pleasant Beach; and the third order, dated March 2, 2007, granted summary judgment in favor of defendant Jersey Central Power and Light Company (JCP&L), which owned and maintained the lights installed at the municipal parking lot. Viewing the facts in the light most favorable to plaintiff, and considering the legal arguments raised by plaintiff, we nevertheless affirm each of the orders entered by the Law Division.
The relevant facts established by the record are the following: on August 28, 2003, at approximately 9:00 p.m., Charlotte Kroeger drove herself and plaintiff Shirley Press to see the Point Pleasant Beach public fireworks. That evening, Kroeger parked her car in the same municipal parking lot on Inlet Drive that the two women used each time they attended the fireworks on numerous occasions during the past two years. Plaintiff exited the car's passenger door holding a leash attached to her dog. As she proceeded toward the nearby boardwalk area, plaintiff tripped over a concrete curb stop and, as a result of her fall, plaintiff sustained injuries to her shoulder, arm and foot. She and Kroeger went to the emergency room after taking the dog home, but plaintiff did not report the incident to the Point Pleasant Police Department until September 22, 2003.*fn1
Plaintiff described the curb stop she tripped over as "crooked" and "misplaced." Kroeger also certified that the curb stop was misplaced. Plaintiff's expert, William Poznak, in a report dated November 9, 2007, opined that it is evident from oil drippings depicted in photographs of the parking stall where the "misaligned bumper had been previously located, that the bumper had been in this location for a least a few weeks or more." During such period of time, plaintiff suggests the municipality should have become aware of the danger the misplaced curb stop posed.
Point Pleasant Beach, however, denied having actual or constructive notice of the misplaced curb stop that caused Press's fall. Robert Meany, the Director of Point Pleasant Beach Department of Public Works (Public Works), testified that the concrete curb stops in the parking lot are "each secured by two pieces of rebar" that are driven into the pavement. Public Works does not perform scheduled inspections of the parking lot; however, trash collectors and patrolling police are instructed to inform Public Works if they notice anything that is out of place. According to Meany, in the event there was a report that a curb stop is out of place, one of the supervisors in Public Works would assign an employee to do whatever was needed to remediate the problem.
The lights within the municipal parking lot are owned, controlled and maintained by JCP&L, which asserts that its agreement with the municipality does not guarantee or warrant continuous and uninterrupted illumination of the subject areas. The agreement between Point Pleasant Beach and JCP&L and the Tariff filed with the Board of Public Utilities (BPU) provide, however, that JCP&L will provide service to fixtures and luminaire cleaning on a scheduled basis as well as non-scheduled fixture maintenance and will repair as necessary.
In her answers to interrogatories, plaintiff indicated that she "fell over a cement parking barrier that was mislocated, on an angle of thirty-five to forty degrees, not lined up right that was in the dark as the lot was dork [sic] because [a] street light was not on, not lighted." She further stated in response to supplemental interrogatories that:
JCP&L did not maintain the lights the way they should have. The lights were off when I fell. The bulb had been going out [sic] and then would go on for a short time and then off again, leaving the area dark. While it was out, the area was dark and, as a result, I could not see the mislocated concrete car-bumper curbing in the parking lot.
Plaintiff faults JCP&L for its failure to inspect and its failure to replace failed bulbs that were dark for periods of time during the night.
In ruling on JCP&L's motion for summary judgment, the Law Division judge concluded that "from a public policy point of view, . . . it would be inappropriate to impose this duty on the utility" to be responsible for every failure in the system. The judge observed that power companies are "almost ubiquitous." Hence, it could be overwhelming if they were to be held responsible for every failure in the system. The judge continued, noting that such a duty "would not be minimal; it would [be] massive and would clearly in a negative way impact the public interest." Under the circumstances, the court granted summary judgment in favor of JCP&L.
As for Point Pleasant Beach's separate motion for summary judgment, the judge determined that he was "not satisfied . . . that there's sufficient evidence here from which a jury could reasonably conclude that the [m]unicipality . . . had constructive notice of the alleged dangerous condition here." According to the judge, the opinion of plaintiff's expert, in conjunction with the expert's review of the photographs that had never been adequately authenticated, did not constitute sufficient evidence from which a jury could conclude that the municipality had constructive notice of an alleged dangerous condition within the meaning of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. In addition, the judge was of the opinion that the municipality's conduct was not palpably unreasonable within the meaning of the Tort Claims Act.
Lastly, at the motion for reconsideration, which challenged only the grant of summary judgment in favor of the Borough, the court concluded that it did not "see anything here that would cause me to revisit my earlier determination." The judge reiterated that there was no evidence "from which a jury could reasonably conclude . . . that the Borough had sufficient notice of this condition."
We agree with each of the motion judge's rulings, and affirm the dismissal of plaintiff's complaint against the municipality and the disposition of the motion for reconsideration substantially for the reasons articulated by the motion judge in his ruling from the bench on November 2, 2007 and as reiterated in addressing the motion for reconsideration on January 18, 2008. See also N.J.S.A. 59:4-2 and N.J.S.A. 59:4-3. We base our affirmance of the grant of summary judgment in favor of JCP&L on our agreement with the motion judge that there was no competent evidence from which a jury could conclude that JCP&L had actual or constructive notice of any problem with the light sufficiently in advance of the accident that it could have taken steps to remedy the condition. The motion judge also relied upon the rationale of Sinclair v. Dunagan, 905 F. Supp. 208 (D.N.J. 1995), that the electric company owes no duty of care to pedestrians or the general public. We do not embrace that rationale.
In Anderson v. Davoren, Docket No. A-6430-06T3, an appeal heard back-to-back with this appeal, we reversed an order granting summary judgment in favor of JCP&L because the testimony of witnesses in that case, if accepted, could establish that notice of the malfunctioning light at or near a crosswalk where the plaintiff was struck by a car had been given to JCP&L, and because, unlike in this case, a reasonable jury could have concluded on the evidence in that case, viewed favorably to plaintiff, that the lighting malfunction contributing to the causation of the accident was previously reported to the utility company. That is not true of this case. Here, plaintiff offered no witnesses who claimed they had reported the malfunctioning light. In addition, plaintiff's evidence concerning how long the bumper had been out of place amounted to sheer conjecture.
JCP&L has repeatedly asserted that it owes no duty to plaintiff to provide continuous and uninterrupted street lighting or maintenance of street lights for plaintiff's or the general public's benefit. We agree no such duty exists unless it is assumed voluntarily, however, we do hold, under general negligence principles, that a public entity such as JCP&L owe a duty of reasonable care under the totality of the circumstances. Weinberg v. Dinger, 106 N.J. 469, 483-84 (1997). In Weinberg, our Supreme Court held, in accordance with modern principles of tort liability, that a utility has a duty to act with reasonable care in the provision of service to foreseeable users, rejecting a line of cases that was based on the then-current tort law motion that a defendant owed no duty of care to a third party with whom no privity of contract existed. [Franklin Mut. Ins. Co. v. Jersey Cent. Power & Light Co., 188 N.J. 43, 44 (2006).]
The Weinberg Court noted that "[t]o act non-negligently is to take reasonable precautions to prevent the occurrence of foreseeable harm to others. What precautions are 'reasonable' depends upon the risk of harm involved and the practicability of preventing it." Weinberg, supra, 106 N.J. at 484.
"The question of whether a duty exists is a matter of law properly decided by the court, not the jury, and is largely a question of fairness or policy." Wang v. Allstate, 125 N.J. 2, 15 (1991). See also Clohesy v. Food Circus Supermarket, 149 N.J. 496, 502 (1997); Weinberg, supra, 106 N.J. at 485. The determination "involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Carter Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 194 (1994) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). "A major consideration in the determination of the existence of a duty under 'general negligence principles' is the foreseeability of the risk of injury." Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999).
The Court has cautioned that the "[a]bility to foresee injury to a potential plaintiff does not in itself establish the existence of a duty, . . . but it is a critical element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, supra, 135 N.J. at 194. The Court has also instructed that in addressing the imposition of a duty based on principles of forseeability, it is more significant that a plaintiff may be found in the "'range of harm' emanating from a tortfeasor's activities," than "whether the parties stand in a direct contractual relationship." Id. at 195. "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Kelly v. Gwinnell, 96 N.J. 538, 543 (1984) (quoting Rappaport v. Nichols, 31 N.J. 188, 201 (1959)).
In Sinclair, supra, the plaintiffs were a husband and wife who filed a claim against an electric company following the husband's injury when he was hit by a motor vehicle while he was in a crosswalk that was dimly lit due to a malfunctioning street light. 905 F. Supp. at 210. The United States District Court, applying New Jersey law, held that no duty existed on the part of the utility company, and that even if a duty had existed, the utility would not have breached that duty because it complied with its contractually-obligated duties. Id. at 215.
As noted in Anderson, we are not bound by a determination of a federal court as to what is the law of New Jersey. Shaw v. City of Jersey City, 346 N.J. Super. 219, 229 (App. Div.), rev'd on other grounds, 174 N.J. 567 (2002); Kavky v. Herbalife Int'l of Am., 359 N.J. Super. 497, 500-01 (App. Div. 2003). Moreover, the determination of no duty in Sinclair was dictum, inasmuch as the court expressly concluded that the utility company had complied with its contractually-obligated duties to the municipality to replace bulbs upon notification and to replace them routinely once every four years.
In addition, the policy considerations that influenced the scope of the duty owed by a utility company have evolved, and the utilization of a more fluid tort analysis is now warranted. For example, in Reimann v. Monmouth Consol. Water Co., 9 N.J. 134 (1952), overruled by, Weinberg, supra, 106 N.J. at 495, our Supreme Court held that there was no contractual, statutory, or common law duty imposed upon a water company to supply water sufficient to extinguish a fire. Specifically, and of relevance to the present appeal, the Court noted:
Even where a water company makes a contract with a municipality to deliver a supply of water to the city for fire hydrants at a specified pressure the company is not liable to an inhabitant of the city on that contract for a loss which he sustains through the company's failure to perform. [Id. at 138.]
For roughly thirty years, Reimann was undisturbed insofar as the general duty of water companies to the public was concerned. However, in Weinberg, supra, 106 N.J. at 469, the Court was asked to reconsider the judicially-created immunity afforded to water companies. Framing the issue for the court, Justice Stein wrote:
In this appeal we reconsider the longstanding New Jersey rule immunizing private water companies from liability for their negligence in failing to provide to fire hydrants water pressure of sufficient force to extinguish a fire. We now hold that private water companies are no longer immune from such liability . . . . [Id. at 472.]
Like the Reimann case, Weinberg involved a claim that a water company's negligent failure to maintain adequate water pressure had led to a significant loss of private property. Although the Weinberg Court found the existence of a duty based upon contractual principles, because the plaintiffs in that case in fact maintained a contract with the water company for the provision of service to the affected property, the Court also addressed the common law tort duty. It announced that "we impose on private water companies the duty to act with reasonable care in providing water for extinguishing fires, and overrule Reimann v. Monmouth Consol. Water Co., and cases decided in reliance on it." Id. at 495.
The Court thus abrogated the immunity previously enjoyed by the companies, but it carved out an exception in that it continued to bar insurance companies' subrogation claims against water utility companies. The Court reasoned that it would be contrary to public policy to allow subrogation claims because the risk of loss would thus be shifted from the insurance company of the injured property owner to the water company and, ultimately, to the consuming public in the form of increased water rates.
Twenty years later, in Franklin Mut. Ins. Co., supra, the judicially-created tort immunity afforded to utility companies was once again the focus of the Supreme Court's attention.*fn2 A store owner had suffered economic losses when food spoiled as a result of the loss of power due to Hurricane Floyd. 188 N.J. at 46 n. 2. Franklin Mutual Insurance Company, the insurer of the store, paid the store's claim under its policy and instituted an unsuccessful subrogation action against the defendant, JCP&L. On certification, the Supreme Court agreed with the Law Division and the Appellate Division that the Weinberg carve-out for subrogation applied not just to water companies, but to all regulated utilities in service interruption cases. Ibid. Implicit in that ruling is the Court's continued recognition of the right of uninsured or underinsured victims of negligence by a regulated utility to bring suits against the utility based on general negligence principles.
In summary, the historical evolution from Reimann to Weinberg and to Franklin Mutual confirms that policy considerations aimed at the ultimate protection of rate-payers do not preclude the recognition of a duty on the part of regulated utilities to act with reasonable care to avoid harm to those who foreseeably may be harmed by their actions, after the utility has been notified of the need to act. To such effect, see our decision in E & M Liquors, Inc. v. Pub. Serv. Elec. & Gas Co., 388 N.J. Super. 566 (App. Div. 2006), certif. denied, 189 N.J. 646 (2007), where a PSE&G primary high voltage electric wire fell from a PSE&G pole to the sidewalk near the wall of a large commercial building and transmitted large amounts of electricity that ignited a fire that destroyed the building. The appellate panel in that case commented, "[w]e see no basis to extend the limited immunity for subrogation claims against public utilities to claims for damages for negligent actions precipitating property damage claims." Id. at 570. Nor do we see in this case any reason not to recognize a duty of reasonable care to provide adequate lighting to promote the safety of foreseeable pedestrians who might otherwise be exposed to increased danger within crosswalks. On the other hand, as we stated above, we agree with the trial judge the plaintiff presented no competent evidence from which a jury could conclude that JCP&L had actual or constructive notice of any problem with the light sufficiently in advance of the accident to have taken steps to remedy the condition.
Similarly, summary judgment was plainly warranted in favor of the municipality under the New Jersey Tort Claims Act (the Act). Under the Act, "immunity from tort liability is the general rule [for a public entity] and liability is the exception." Polzo v. County of Essex, 196 N.J. 569, 578 (2008) (citations omitted). The Act declares that: "it is . . . the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2. The Act further states at N.J.S.A. 59:4-2 that a public entity may be held liable under the following circumstances:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
See also Brown v. Brown, 86 N.J. 565, 575 (1981); Fox v. Twp. of Parsippany-Troy Hills, 199 N.J. Super. 82, 88 (App. Div.), certif. denied, 101 N.J. 287 (1985).
Actual and constructive notice are defined in N.J.S.A. 59:4-3 as follows:
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.
In addition to the requirement that a plaintiff show the public entity had notice of the dangerous condition, he or she must establish that the public entity's action or failure to take action was palpably unreasonable. Although "palpably unreasonable" is not defined by the Act, the Supreme Court has instructed that "for a public entity to have acted or failed to act in a manner that is palpably unreasonable, 'it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977)), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)).
In the present case, the issues raised by the motion for summary judgment were whether Point Pleasant Beach had notice of the misaligned curb stop and whether it acted in a palpably unreasonable fashion in failing to correct the misalignment before plaintiff tripped. Neither of these issues presented a triable dispute as to a material fact.
In Norris v. Borough of Leonia, 160 N.J. 427 (1999), the Court decided whether a municipality may be liable for the negligent maintenance of a curb. There, the plaintiff sustained injuries when the curb in front of her house collapsed as she stepped on it. Id. at 429. The plaintiff stated that she had noticed cracks in the curb; however, she had not notified the Borough. Id. at 447. Instead, the plaintiff relied on the affidavit of a neighbor across her street to establish that the Borough had notice. Ibid. The affidavit provided that the plaintiff's neighbor had complained about the condition of the curb in front of his house. Ibid. The Court found that the affidavit may have served to establish actual or constructive notice of the defective condition in front of the neighbor's house; however, it did not "serve as notice of a defective curb at a different location[,]" such as the plaintiff's house. Id. at 447-48. Thus, the plaintiff did not establish notice and summary judgment was appropriate. Id. at 448.
In Maslo v. City of Jersey City, 346 N.J. Super. 346 (App. Div. 2002), the plaintiff alleged that she suffered injuries as a result of a fall on a Jersey City sidewalk. The plaintiff contended that there was a genuine issue of fact concerning notice because her expert opined that the difference in height between two sections of sidewalk would have been noticeable for at least one year. Id. at 349. The record demonstrated that Jersey City had no notice of the alleged defect. Ibid. The court made the following observation:
While [the plaintiff's] expert measured the difference in elevation between two portions of the sidewalk at slightly over an inch, and concluded that the condition must have been in existence for at least a year, this does not equate with actual or constructive notice. It has been observed that, in applying the test such as that required for consideration of a summary judgment motion in a Tort Claims Act case, a judge should consider the declared legislative policy which shaped the application and interpretation of the Act and the Commission's Comment to N.J.S.A. 59:4-2 that "'recognize[d] the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property.'" [Id. at 350 (internal citations omitted).]
In the present case, plaintiff failed to establish that Point Pleasant Beach had either actual or constructive notice of the alleged defect. Indeed, there is no allegation that Point Pleasant Beach had actual knowledge of the misalignment of the curb stop. "In the absence of actual notice, a public entity will be liable for a dangerous condition 'only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.'" Polzo v. County of Essex, supra, 196 N.J. at 581. Here, plaintiff sought to establish that the municipality had constructive notice by presenting observations made by her expert witness based on his review of photographs taken some time after the accident. We are satisfied that plaintiff did not set forth sufficient evidence of constructive notice to defeat the motion for summary judgment. Id. at 583-84 (recognizing that "a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird [an expert's] opinion" is "insufficient to sustain plaintiff's burden of establishing that the public entity was on constructive notice of a dangerous condition.").
The reports of plaintiff's expert do not adequately demonstrate that Point Pleasant Beach should have been aware of the condition at issue. As the trial court correctly noted, "there's no way of knowing when the car bumper here in question was displaced." Plaintiff's expert's report lacks any basis in fact. Indeed, the unfounded assertion that oil drippings depicted in photographs must have been on the pavement where the bumper should have been "for quite some time" amounts to nothing more than a net opinion. The statement, made by the expert, furnishes no basis for a jury to conclude that Point Pleasant Beach should have been aware of the problem.
As to the cause of the misaligned curb stop, the expert offered: "Evidently, the concrete bumper had been struck by vehicles and thus, it moved out of position." Regarding the timing of the misalignment, he stated:
The photographs revealed, that these drippings [of oil] had been on the pavement for quite some time. This is evidenced by a great deal of same having dried and been absorbed by the asphalt. There were additional drippings that were newer. However, based on said photos, even these were on pavement for at least a few weeks. Thus, it is evident, that the misaligned bumper was in this location for at least a few weeks or more.
Unsupported conclusions, lacking in any scientific, technical or other specialized knowledge, do not establish notice. N.J.R.E. 702. Since plaintiff has not provided sufficient evidence of Point Pleasant Beach's actual or constructive notice, the entry of summary judgment should be affirmed.
Further, "the burden of proof with regard to the palpable unreasonableness of the [public entity's] action or inaction is on the plaintiff . . . ." Kolitch, supra, 100 N.J. at 493. "'Palpably unreasonable' implies 'behavior that is patently unacceptable under any circumstance' and that 'it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04 (1991) (quoting Kolitch, supra, 100 N.J. at 493). This standard is more onerous on the plaintiff than an ordinary negligence standard. Williams v. Town of Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979). Typically, the question of whether a public entity's conduct was palpably unreasonable is for the jury; however, "[that] finding, like any other fact question before a jury, is subject to the court's assessment of whether it can reasonably be made under the evidence presented." Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993).
Plaintiff contends that Point Pleasant Beach's inspection system is palpably unreasonable because it does not keep records of complaints or maintenance. Such action or inaction cannot be said to be palpably unreasonable conduct, absent evidence that problems were actually discovered and ignored or concealed by the failure to record same. See, e.g., Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003) ("It was not palpably unreasonable for [the public entity] to expect that [a private contractor] would inform its employees of the dangers inherent to the project.").
Finally, we note that the motion judge was indulgent in his review of plaintiff's motion for reconsideration, after noting that there was no new evidence that could not have been presented on the original motion. The request to vacate the prior order was therefore properly denied. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).