On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1119-05.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
In these appeals, we consider the liability, if any, of defendants, Jersey Central Power and Light and First Energy Corporation (JCP&L), for injuries sustained by plaintiff,*fn1 John Seals, whose vehicle struck a utility pole owned by JCP&L, and whether the provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, serve as a bar to any claim against defendant, County of Morris (the County). The motion judge determined that because there was no ordinance, resolution, or regulation in place for JCP&L to follow at the time it placed its pole, the immunity granted to utility companies under Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994), does not apply; JCP&L's liability must therefore be analyzed under ordinary negligence principles; and disputed factual issues precluded the grant of summary judgment. The motion judge also concluded that because the County took no action to regulate the location of the utility pole, the immunity provisions under the TCA do not apply and the question of its negligence must be resolved by applying ordinary principles of negligence. We reverse the denial of summary judgment to JCP&L. We vacate the order denying summary judgment to the County and remand for further proceedings. We affirm the denial of summary judgment to plaintiff.
During snowy weather in the early morning hours of February 7, 2003, John Seals lost control of his Ford pickup truck while traveling eastbound on Route 513, a county road, in Washington Township (Township). The truck skidded across the opposite lane of traffic and collided with a JCP&L utility pole, Pole #617, which was located next to the road on private property. The County maintains a right-of-way easement over this portion of the property. Although the parties dispute whether JCP&L possesses a valid easement to have placed Pole #617 in its current location,*fn2 the property owner granted JCP&L's predecessor-in-interest an easement to place a pole in 1928. The pole was first installed sometime between 1928 and 1937*fn3 as part of a distribution line of poles holding up electrical wires along Route 513.
At the time the utility pole was placed, Route 513 was an existing road that had previously been part of an old stagecoach road that was never designed or engineered by the County. All of the poles placed along Route 513, including Pole #617, were installed by JCP&L without County consultation or involvement. JCP&L contends that it was granted an easement "to place its pole in the area of Pole #617" in 1928. JCP&L engineering supervisor, Richard Santoro (Santoro), testified during his deposition that JCP&L does not conduct any specific studies to determine whether the poles are in a safe location from a traffic engineering perspective. Rather, JCP&L "reacts" to any direction given by the governing body in terms of pole location or relocation. Santoro stated that even if vehicle safety is an issue, unless the governing body requests that a pole be moved, JCP&L will "typically leave it alone."
According to the County, it does not have its own police force and does not investigate traffic accidents; however, it is typically notified by the Township police whenever a pattern of accidents occurs on one of its roads. Prior to plaintiff's accident, the Township had never notified the County of a pattern of accidents regarding Pole #617, although discovery revealed that at least three accidents had occurred in the curved area of Route 513 near Pole #617 between 1989 and 2003. All three accidents involved motorists skidding and losing control of their vehicles on a wet road surface. Nor did the County routinely receive reports from JCP&L when its poles were involved in accidents. When asked during his deposition whether the County required notification, Santoro responded "[s]ometimes yes and sometimes no." JCP&L acknowledged it keeps at least some records of the accidents and confirmed that it does not report the accidents to the County. Additionally, JCP&L does not notify the County when it undertakes any work on a pole or installs a pole. Rather, JCP&L contacts the property owner directly to seek an easement to install a pole. The parties dispute whether Pole #617 has remained in substantially the same location since it was first installed or whether JCP&L has moved the pole closer to the roadway.*fn4
On March 30, 2007, JCP&L moved for summary judgment, claiming that pursuant to Contey, it owed no duty to plaintiffs. The motion judge entered an order on May 25, 2007, granting partial summary judgment in its favor, but later vacated this order after both the County and plaintiffs prevailed on their respective motions for reconsideration.
In late spring 2008, all three parties moved for summary judgment. The trial court heard arguments on August 12. The County argued that it was immune from liability under the TCA. The motion judge disagreed and denied the motion. She reasoned that because the County took no action to regulate the location of the poles, it was not entitled to sovereign immunity and instead was "subject only to ordinary principles of negligence in determining liability for the case." JCP&L's motion was based upon its position that since the pole was not in the roadway or in plaintiff's direction of travel, the accident was not reasonably foreseeable and, thus, beyond the scope of any duty JCP&L owed to plaintiff. The motion judge denied the motion, reasoning that the foreseeability of the accident was a triable fact and that a jury should decide how far JCP&L's duty extended to plaintiffs. She also denied plaintiffs' motion without explanation.
Thereafter, the court denied the County's motion for reconsideration and the County then sought leave to file an interlocutory appeal, which we denied. JCP&L then moved for reconsideration of the October 16, 2007 order vacating the court's May 25, 2007 order granting summary judgment in its favor pursuant to Contey. After considering JCP&L's extensive argument that Contey placed a duty on the County to conduct highway safety studies regarding the locations of utility poles, the motion judge expressed the opinion that she could not "find in Contey or any statute that anybody has brought to my attention that says that a municipality, or a county, or whatever public entity it is that controls the road in question, has a duty to conduct a safety study." She continued:
They say it at least five times through this case that highway planners, and engineers that are employed by public bodies are in a much better position to determine where a . . . pole is going to be safely located. And . . . I agree.
But if this case is the case that signals to municipal entities that they have a duty to conduct this . . . highway safety study, then I . . . just think the message doesn't really get through, and it would be a rather strange place to give that message, when the public entity [in the Contey case] [was] no longer even in the case, probably filed no briefs.
The judge elaborated, "[t]he [C]court knows how to hand out duties. And if that's a duty . . . it's really a soft[-] pedaled handout." She then concluded:
[W]hen a public utility places a pole in compliance with a plan that has been sent [sic] forth . . . by a public utility, by a public entity, that the public utility is not liable. . . .
. . . [I]f there are no standards set forth for a public utility, then the public utility is going to be subject to [a] straight negligence standard.
The judge memorialized her decision by a written order dated May 15, 2009. Thereafter, the court denied plaintiffs' motion for partial summary judgment against JCP&L and the County.
On July 6, 2009, we granted JCP&L's motion for leave to appeal the trial court's May 15 order and, by order dated September 25, 2009, we granted the County's motion for reconsideration of our March 24, 2009 order denying it leave to appeal. We granted the County leave to appeal and consolidated its appeal with JCP&L's pending interlocutory appeal. Also on September 25, we granted Verizon's motion to appear as amicus curiae. On October 30, 2009, we granted plaintiffs' motion for leave to file a cross-appeal. On December 1, 2009, we granted the motion of New Jersey Association for Justice (NJAJ) to appear as amicus curiae.
On appeal, JCP&L raises the following points for our consideration:
THE LOWER COURT'S DECISION HAS CREATED A DISINCENTIVE FOR PUBLIC BODIES TO FULFILL THEIR PUBLIC SAFETY OBLIGATIONS, AND HAS PLACED A BURDEN ON UTILITY COMPANIES TO GET INTO THE HIGHWAY SAFETY BUSINESS INSTEAD, CONTRARY TO CONTEY[, supra, 136 N.J. 582].
A. UTILITY COMPANIES HAVE NOT HAD A DUTY TO DRIVERS LEAVING THE ROADWAY SINCE LONG BEFORE CONTEY WAS DECIDED.
B. CONTEY REJECTED THE ARGUMENT THAT AN ORDINARY NEGLIGENCE STANDARD APPLIES TO JCP&L'S POLE.
C. THE CONTEY DISSENT RECOGNIZES THAT UTILITIES HAVE BEEN GRANTED IMMUNITY FOR ANY RESPONSIBILITY FOR POLE PLACEMENT.
E. THE TRIAL COURT MISCONSTRUES CONTEY BY LIMITING THE PUBLIC BODY'S DUTY AND BY IMPOSING A DUTY ON JCP&L TO ENGAGE IN ...