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Anderson v. Davoren

January 28, 2010

RICHARD S. ANDERSON, ROSEMARIE ANDERSON, INDIVIDUALLY, AND ANGELICA ANDERSON, A MINOR, BY HER GUARDIAN AD LITEM, ROSEMARIE ANDERSON, PLAINTIFFS-APPELLANTS,
v.
JOHN F. DAVOREN, BOROUGH OF POINT PLEASANT BEACH AND POINT PLEASANT POLICE DEPARTMENT, AND THE COUNTY OF OCEAN, DEFENDANTS, AND JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANT-RESPONDENT,
BOROUGH OF POINT PLEASANT BEACH AND POINT PLEASANT POLICE DEPARTMENT, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
THE COUNTY OF OCEAN, DEFENDANT/THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3108-04.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

In this personal injury action, plaintiffs appeal an order entered February 2, 2007, that granted the summary judgment motion of Jersey Central Power and Light (JCP&L).*fn1 Plaintiffs claim that a street light at or near a crosswalk was malfunctioning or inoperable and contributed to the causation of the accident in which plaintiff Richard Anderson was struck by a motor vehicle. JCP&L, which owns and maintains the street light, responded that JCP&L owed no duty to pedestrians to provide uninterrupted street lighting, and the motion judge so held as a matter of law. While we do not recognize a duty to provide uninterrupted street lighting, we do recognize that a duty of care existed under the circumstances of this case that a reasonable jury could have found was breached; if so, the breach may have contributed to the causation of the accident. Accordingly, we reverse and remand for further proceedings.

The record discloses that at approximately 10:00 p.m., on August 4, 2004, Richard S. Anderson, his wife, Rose, and their daughter, Angelica, were crossing Ocean Avenue where it intersects with Washington Avenue in the Borough of Point Pleasant Beach (the Borough). The family was walking from east to west in the crosswalk where an approaching vehicle failed to yield. The vehicle struck Richard, causing severe and permanent injuries.

The driver of the vehicle, defendant John Davoren, asserted that it was dark and that he did not see anyone in the crosswalk before the impact. Davoren was not speeding or otherwise driving in an unsafe manner, however, the ensuing investigation revealed that he had been drinking on the day of the accident, and he tested positive for marijuana and Valium use.

With regard to the illumination at the crosswalk, the record discloses that the allegedly malfunctioning street light was installed at the intersection in 1984. The light is owned and operated by JCP&L as part of a Tariff for Service with the Borough (the Tariff). There are no documents reflecting its service history. The Tariff states that JCP&L assumes "lamp replacement and cleaning . . . on a scheduled basis as well as non-scheduled fixture maintenance or replacements as may be necessary." In the event non-scheduled service is required, the Tariff provides "Fixture Service, where practicable, shall be made within seventy-two hours of notification." JCP&L's "Street Lighting Practice" Manual states, somewhat inconsistently, that "Spot Relamping," which is defined as a replacement that is necessary "where a lamp has failed, has been broken, damaged, or where there is a customer complaint," will take place "within five (5) working days."

The condition of the light at the time of the accident and before was a subject of dispute. The owner of the nearby Carousel Inn, Kelly Hoffman, stated during her deposition that the light was malfunctioning before the accident and that she had reported it sometime between May 2004 and the evening of the accident, August 4, 2004. JCP&L contends, however, that Hoffman did not report it to JCP&L. Rather, JCP&L contends it first received a complaint of a "flickering" light at this intersection on August 5, one day after the accident occurred, and that it promptly replaced the light. Detective James Pissott, an investigator at the accident scene, testified that he observed the light turning on and off over a thirty-minute time span. Sergeant Matthew Duffy similarly noted in his incident report that when he arrived at the scene, "the street light was off." In addition, a patron of the Carousel Inn described the lighting condition on Ocean Avenue as "really dark." On the other hand, a desk clerk who worked at a resort located near the intersection stated that when she went outside following the accident the street light was on. Experts relied upon by the parties had differing opinions as to whether and how much the allegedly malfunctioning street light may have contributed to the accident.

Following oral arguments on JCP&L's motion for summary judgment, the Law Division judge acknowledged that "the statement by Miss Hoffman is sufficient to, for the court to find that there is at least a dispute of material fact as between her and JCP&L as to whether or not she had actually reported that light being out within an appropriate period of time." In spite of that acknowledgement and the additional circumstantial evidence that the light was either flickering or was intermittently out and may have contributed to the accident, the court granted JCP&L's motion, reasoning as follows:

But I am still satisfied that a fair reading of New Jersey law at this posture and the Sinclair case, [Sinclair v. Dunagan, 905 F. Supp. 208 (D.N.J. 1995),] which is still good law, I am satisfied that even reading the Administrative Code and the language of the tariff that it does not create a duty insofar as the plaintiff is concerned that the breach of which would give rise to a cause of action.

I think under Sinclair no Appellate Division or Supreme Court yet has extended the law to find that a breach of a tariff, if so found, gives rise to a private cause of action between a pedestrian or driver against the electric company, and I think that does -- would create new law in this state.

And I don't believe that there is, even assuming you could prove a breach, that, nonetheless, that gives rise to a cause of action, and that's the difficulty the

[c]court ultimately has had with this case is defining that a duty actually existed here to which the client was a third-party beneficiary, and therein lies the ...


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