January 28, 2010
RICHARD S. ANDERSON, ROSEMARIE ANDERSON, INDIVIDUALLY, AND ANGELICA ANDERSON, A MINOR, BY HER GUARDIAN AD LITEM, ROSEMARIE ANDERSON, PLAINTIFFS-APPELLANTS,
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,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 problem and the weakness of plaintiff's argument.
But all of your other arguments are quite strong, and I think those issues could or would have gone to the jury . . . .
And, therefore, the motion for summary judgment on behalf of JCP&L is hereby granted insofar as the [c]court finds that Sinclair applies in this case and, in fact, does not find that there is a cause of action that can be made against [JCP&L] under these sets of circumstances.
On appeal, plaintiffs argue that the court read Sinclair too narrowly, and that case expressly provides for the imposition of liability upon a utility to a third party harmed as a result of a breach of the contractual relationship between the utility and the municipality. JCP&L's response is that the Law Division judge did not err in finding that Sinclair does not give rise to a private cause of action between a pedestrian and the electric company. JCP&L argues that it does not owe any duty to plaintiffs under common law or contract law, and that public policy dictates that the Law Division appropriately granted summary judgment.
We review a grant of summary judgment de novo. N.J. Div. of Taxation v. Selective Ins. Co., 399 N.J. Super. 315, 322 (App. Div. 2008). A motion for summary judgment should not be granted where "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Here, the motion judge recognized that genuine issues of material fact existed as to when notice of the malfunctioning light had been given and as to the effect of reduced illumination in and around the crosswalk. Yet, the court granted JCP&L's motion for summary judgment based upon its determination that the electric utility company owed no duty of reasonable care to a pedestrian such as plaintiff.
In its ruling, the court alluded to the lack of a contractual relationship between pedestrians and the electric company, and it also held that pedestrians are not third-party beneficiaries of the contract between the municipality and the utility company. We do not rely on a contractual analysis. Instead, we are convinced that, under general negligence principles, a duty of reasonable care existed. 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)).
Considering these precepts and viewing the evidence in the light most favorable to plaintiff, it is plain that pedestrians crossing the street at night in a crosswalk, the illumination of which is reduced by a malfunctioning street light, are in the range of harm that should be recognized and protected. To our minds, no unfairness would appear to inhere where the utility company is required to satisfy the seventy-two hour replacement mandate of the applicable Tariff it voluntarily agreed to fulfill. Nor does this impose any undue burden.
As the motion judge said during the rendition of his decision on the motion, circumstantial evidence has been presented to support plaintiff's claim:
Plaintiff can legally argue that the circumstantial evidence is strong enough to suggest that a finder of fact may find that the light was inoperable at the time of the accident and that it flickered days before and that it flickered days after. And he can reasonably argue by strong circumstantial evidence that it contributed to the accident because a couple of the witnesses indicate that it was dark at the time of the accident.
I will concede that for purposes of this argument.
In granting summary judgment for JCP&L, however, the Law Division relied mainly on Sinclair, supra, a decision of the United States District Court for the District of New Jersey. 905 F. Supp. 208. Indeed, both parties rely heavily on that case to support their respective positions in this appeal.
The facts of Sinclair, supra, were similar to those in this case. 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. Id. at 210. In Sinclair, 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.
We note first that 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. By contrast, the trial court in this case "conceded" that a sufficient factual dispute existed as to JCP&L's noncompliance with the Tariff and with JCP&L's own Street Lighting Practice Manual for submission of that issue to a jury.
In their reply brief on appeal, plaintiffs rely further on Weinberg, supra, 106 N.J. at 469, and Franklin, supra, 188 N.J. at 43. Plaintiffs cite to these cases and argue (i) that the motion judge's reliance on Sinclair, supra, is misplaced and (ii) that the decision in Reimann v. Monmouth Consol. Water Co., 9 N.J. 134 (1952), overruled by, Weinberg, supra, 106 N.J. at 495, which created judicially an immunity to water utility companies, has been overruled. In short, the policy considerations that influenced the scope of the duty owed by a utility company have changed and the utilization of a more fluid tort analysis is now warranted.
In Reimann, supra, 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.
[9 N.J. 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 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 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.
In terms of assessing the fairness of recognizing such a duty, the New Jersey Administrative Code provides guidance. Specifically, N.J.A.C. 14:5-2.9*fn3 currently provides for timely inspection and maintenance:
(a) Each [electric utility company] shall inspect lamps and street lighting accessories and maintain such service in accordance with N.J.A.C. 14:3-2.7(a) and established industry practice. Whenever any transformers, high tension insulators, and equipment are removed from the system for any reason they shall be inspected as to safety and serviceability before being reinstalled in the same or other location.
(b) All routine street light repairs are to be made within three business days after notice that a repair is necessary. Routine repairs include bulbs, fixtures, globes, mantles or photocells. Other more extensive repairs including, but not limited to, those requiring excavation, shall be handled on a best efforts basis in order to ensure the restoration of safe, adequate and proper service as quickly as reasonably possible. [(Emphasis added.)]
This provision was proposed in 1996 as N.J.A.C. 14:5-1.9 and at the time "require[d] electric utilities to inspect and maintain street lighting lamps and accessories pursuant to established practice and to perform safety and service inspections before reinstalling equipment in its system." See 28 N.J.R. 4080(a). The Social Impact Statement accompanying the proposed rule stated that "[t]he rules proposed for readoption relate directly to the provision of safe, adequate and proper service by New Jersey electric utilities." Ibid. The rule was adopted in March 1997. See 29 N.J.R. 786(b).
Subsection (b) was added in 2007, after the accident that is the subject of this appeal, and it became effective in 2008. See 39 N.J.R. 3716(a). During the rule adoption process, the Board of Public Utilities heard comments with respect to N.J.A.C. 14:5-2.9(b). Notably, one commentator complained about the brief period of time for completion of repairs, saying:
[t]he requirement that all routine street light repairs are to be made within three business days after notice that a repair is necessary is too short. There is also no allowance for inclement weather or storms resulting in major events, nor is there an allowance for vandalism. In addition, repairs to fixtures and mantles are not "routine repairs" and take longer than three days to repair.
[40 N.J.R. 1684(a) (comment 13).]
In response, the Board stated, "[s]treet lighting is important to public safety, and Board staff has received complaints regarding the neglect of street light maintenance. The rule deadline for repairs is intended to address this problem." Ibid.
Under the facts of this case, the Law Division's reliance on Sinclair was misplaced. Moreover, the United States District Court's reasoning for finding no duty to maintain street lighting has been undercut by the Supreme Court's supervening opinion in Weinberg and by the BPU's adoption of 29 N.J.R. 786(b). As a result, and particularly in light of the conceded factual disputes, summary judgment should not have been granted. We, of course, express no opinion as to whether the duty of reasonable care and maintenance was actually breached. That issue is for the jury to decide.
Reversed and remanded.