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Gary Smith and Eileen Smith v. Jersey Central Power & Light Company

August 10, 2011

GARY SMITH AND EILEEN SMITH, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND FIRST ENERGY CORP., DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3236-03.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 14, 2010

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D.

(retired and temporarily assigned on recall).

This is an unusual case involving a nuisance claim based on "neutral-to-earth voltage" (NEV), also called "stray voltage" or "stray current," passing along the ground of a residential property. Plaintiffs, Gary and Eileen Smith, husband and wife, sued defendant, Jersey Central Power & Light Company, because high NEV levels from its electrical distribution system gave them shocks in their backyard. The jury found defendant liable for nuisance and awarded plaintiffs $145,000 for property damage and $50,000 for interference with the use of their property. Plaintiffs appeal, challenging the trial court's dismissal of their inverse condemnation claim and the denial of their claim for certain taxed costs. Defendant cross-appeals, asserting various trial errors. We reject the arguments presented in both the appeal and cross-appeal, and affirm.

I.

Plaintiffs and their three young boys lived in a single family house in Brick. The backyard contained a cement patio, a swing set, a sandbox, an above-ground pool with metal ladders, and a hot tub.

After returning home from a family vacation in July 2002, Gary walked barefooted to the hot tub, put his arm into the water to feel the temperature, and felt an electric shock, like "a tingling, hurting sensation," travel up his arm to his chest. The next day, he put his arm in the hot tub again and received an electric shock so strong it felt as though someone had punched him in the chest. He asked Eileen to feel the water. She felt nothing while wearing her shoes, but when she took them off and touched the water, she felt a "tingling sensation, a buzzing sensation," as if she had inserted a fork into a toaster.

An electrician plaintiffs called to investigate the problem found very high levels of electricity in the ground surrounding the hot tub and swing set. The electrician also determined that the source of the problem was not within plaintiffs' house and suggested they call defendant.

Defendant sent investigators to plaintiffs' house, who concluded after extensive testing that the source of the electric shock problem in their backyard was defendant's electrical distribution system, specifically NEV. It is not necessary to describe NEV in detail to understand the issues presented by this appeal. Suffice it to say that although electricity is distributed to users through electrical wires, all electricity leaving an electrical substation must return to the substation to complete the circuit, and although returning electricity passes mostly through wires, it sometimes goes through the ground when the wires become overloaded. Because electricity seeks the path of least resistance, when the return is through the ground, the electricity will tend to ground to such things as pools, hot tubs, outdoor irrigation systems, faucets, and swing sets.*fn1

Although NEV does not ordinarily pose a problem to homeowners, the high level of NEV in the backyards of plaintiffs and some of their neighbors created a significant problem, which was corroborated by defendant's testing. One of defendant's investigators advised plaintiffs to always wear shoes when going outside and not to touch anything metal or wear wet clothing outside their house.

Following the receipt of this advice and fearing for their family's safety, plaintiffs filled in the sandbox, dismantled the swing set and pool in their backyard, and started wearing shoes both inside and outside. They also planned family activities away from the house, and stopped using their backyard. They spent $29,400 to install a second-story fiberglass deck onto their house, so their sons would have a place to play outside without touching the ground.

The Board of Public Utilities retained a consultant to investigate the NEV problem in plaintiffs' neighborhood, who concluded that "the stray current problems in the neighborhood" were "very complex and [could] be solved [only] by applying a system wide solution." The BPU subsequently ordered defendant to implement the consultant's recommendations "to mitigate the potential for future occurrences of stray voltage."

Defendant undertook extensive efforts over a period of several years to correct the problem. The extent to which those efforts succeeded was a contested issue at the trial of this case.

Plaintiffs brought this action against defendant and its parent corporation, First Energy Corp., which was dismissed from the case before trial. Plaintiffs' complaint asserted various theories of liability, including negligence, nuisance, trespass, inverse condemnation, and negligent infliction of emotional distress.

The case was tried over the course of twelve days. Plaintiffs presented testimony by a real estate valuation expert, who expressed the opinion that the presence of NEV on plaintiffs' property had reduced its market value to zero and that even if the NEV was fully remediated, the "stigma" from that problem would reduce the property's value from $460,000 to $345,000. Plaintiffs also presented testimony by their treating psychiatrist and an expert psychologist, who expressed the opinion that plaintiffs' fear of the NEV had caused them to suffer from anxiety, which was being treated by medication.

At the close of plaintiffs' case, the trial court granted defendant's motion to dismiss plaintiffs' inverse condemnation claim. At the conclusion of the case, the jury determined that plaintiffs had no cause of action against defendant for negligence, trespass, or negligent infliction of emotional distress. However, the jury returned a verdict in plaintiffs' favor for nuisance, awarding them $145,000 for property damage and $50,000 for interference with the use of their property. The jury also determined that there was no basis for an award of damages for pain and suffering or emotional distress.

Based on the jury verdict, the trial court entered judgment in plaintiffs' favor for $195,000, plus prejudgment interest of $34,512.21. In addition, the court determined that plaintiffs were entitled to taxed costs.

Plaintiffs applied for taxed costs in the amount of $49,717.11. The trial court denied most of the taxed costs sought by plaintiffs and awarded them only $883.44.

Following the entry of judgment, defendant moved to set aside the jury verdict based on plaintiffs' installation of a swimming pool in their backyard a few months after the verdict. The trial court denied this motion.

Plaintiffs appeal from the dismissal of their inverse condemnation claim and denial of the full amount of their application for $49,717.11 in taxed costs. Defendant cross-appeals from the trial court's denial of its motion to set aside the nuisance verdict in plaintiffs' favor and from the award of prejudgment interest on the $145,000 verdict for property damage. We reject all of the arguments presented on both the appeal and cross-appeal and affirm.

II.

Defendant moved to dismiss plaintiffs' appeal from the dismissal of their inverse condemnation claim on the ground that it was not filed within the forty-five day period allowed by Rule 2:4-1. We initially ...


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