May 1, 2012
HARBOR PINES LAND, LLC, PLAINTIFF-RESPONDENT,
SOUTH JERSEY GAS COMPANY AND J.F. KIELY CONSTRUCTION COMPANY, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. DC-1907-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 14, 2012 --
Before Judges Cuff and Lihotz.
We are asked to review a decision of the Atlantic County Special Civil Part awarding judgment to plaintiff Harbor Pines Land, LLC, against defendants South Jersey Gas Company (SJ Gas) and J.F. Kiely Construction Company (J.F. Kiely) for damage they admittedly caused during the installation of a gas main. Defendants argue the judgment must be reversed as a matter of law because the trial judge applied an incorrect legal standard and because plaintiff failed to prove J.F. Kiely violated any provisions of the Underground Facilities Protection Act, N.J.S.A. 48:2-73 to --91 (the Act). Following our review, we affirm, although for different reasons than those cited by the trial judge.
During the bench trial, plaintiff presented the testimony of one of its owners, Joseph Gurwicz, who supervised the day-today construction of plaintiff's development project. Defendants presented the testimony of Keith L. Kirsch, a foreman for J.F. Kiely. Each party also introduced documentary evidence in support of their position. These facts are taken from the trial evidence.
Plaintiff was constructing a residential community located in Egg Harbor Township known as the Harbor Pines Golf Club and Estates (the Development). The Development included the creation of a golf course and two residential construction phases; "phase one" consisted of 117 lots, and "phase two" consisted of 122 lots.
On March 14, 2005, plaintiff contracted with and paid defendant SJ Gas $7256 to install a gas main on the subdivided lots to be developed in phase two. SJ Gas subcontracted with defendant J.F. Kiely to perform the actual installation of the gas main and J.F. Kiely agreed to indemnify SJ Gas for claims arising from the work.*fn1
In July 2005, J.F. Kiely installed the gas lines. At that time, all other utilities, including the underground septic lines, were in place even though actual construction of the homes on the lots had not yet commenced.
The main sanitary sewer line, comprised of thirty-six inch pipe, was located in the center of the street with four inch plastic lateral sewer lines running off the main to each of the individual lots. Although predominantly underground, the lateral for each lot had a three or four foot high stanchion or "cleanout stack," protruding above the ground.
Prior to the installation, J.F. Kiely obtained "markouts" of the existing underground utilities, including the sewer lines. "Markouts" are simply symbols or marks spray-painted on the ground that show the location and characteristics of the underground utilities.
Defendants installed the gas main parallel to the sewer main, but perpendicular to the sewer laterals. Kirsch explained the crew, using a trencher, would excavate a trench approximately thirty-six inches deep and six to eight inches wide in which the main would be laid. Areas in close proximity to the markouts would be hand dug to locate the identified utility. Once the gas main was laid, the trench was backfilled.
Plaintiff did not realize problems occurred until early 2007, when an air pressure test of the sewer system failed. After further investigation, plaintiff determined the sewer lines had been intersected during the trenching process. Specifically, plaintiff found three of the plastic laterals had been intersected by the gas line. Photographs depict several broken plastic sewer lateral lines, sections of missing pipe, and the gas line running in the same plane as the areas of missing pipe, perpendicular to where the pipe had been. Consequently, dirt and debris infiltrated the sewer main, clogging the system and causing its failure.
Plaintiff hired R.E. Pierson Construction Company (Pierson) to repair the damaged laterals and clean the resultant infiltration from the sewer main at a cost of $4,560.50. Pierson completed the repairs in July and August 2007. Once the repairs were completed, plaintiff notified SJ Gas. After approximately six to eight months, SJ Gas instructed plaintiff to speak to J.F. Kiely about the damage, which subsequently denied plaintiff's request for reimbursement.
On February 22, 2011, plaintiff filed its single count Special Civil Part complaint, alleging it suffered damage resulting from defendants' non-compliance with the Act, and negligence. Principally, the complaint alleged defendants violated their obligations set forth by the Act, suggesting they failed to "call into the damage prevention system prior to engaging in any excavation[,]" failed to "report any observed damage to the underground facilities" while performing excavation and installation of the gas line, and acted negligently.
The trial judge rendered an oral opinion finding in favor of plaintiff and awarding $4560 in damages, noting Kirsch conceded J.F. Kiely caused the damage to the sewer laterals as it was the last utility to be installed, and apparently rejecting defendants' assertions that they had fully complied with all obligations under the Act. Defendants appealed.
A trial court's factual findings made following a non-jury trial are not disturbed when they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Credibility determinations receive "particular deference," RAB Performance Recoveries, L.L.C. v. George, 419 N.J. Super. 81, 86 (App. Div. 2011), because of the position of the trial judge to observe witnesses and hear them testify, Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Even if there was trial error, an appellate court will not intervene unless the error was harmful. R. 2:10-2; State v. Lenin, 406 N.J. Super. 361, 381 (App. Div.), certif. denied, 200 N.J. 477 (2009). Finally, "an order or judgment will be affirmed on appeal if it is correct, even though the [trial] judge gave the wrong reasons for it." Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993).
To properly review defendants' assertions on appeal, we must examine provisions of the Act and regulations promulgated by the Board of Public Utilities (BPU), N.J.A.C. 14:2-1.1 to -6.10, to implement the Act. To assure public safety, the Act's provisions are designed to mitigate "damage to underground facilities caused by excavation" through "the implementation of a comprehensive One-Call Damage Prevention System" (One-Call System), "requir[ing] all excavators to notify the [One-Call System] prior to excavation or demolition." N.J.S.A. 48:2-74. The BPU was charged with the establishment and adoption of the One-Call System. N.J.S.A. 48:2-76.
The Act requires an excavator, before performing an excavation, to "notify the [One-Call System] . . . of his intent to engage in excavation or demolition not less than three business days and not more than [ten] business days prior to the beginning of the excavation or demolition." N.J.S.A. 48:2-82a. The regulations define an excavator as "any person performing excavation or demolition," N.J.A.C. 14:2-1.2, but include limited exceptions for homeowners installing sprinkler systems or landscaping lighting, N.J.A.C. 14:2-1.1(d). No one disputes defendants' obligations to comply with the provisions of the Act.
Once an excavator notifies the One-Call System, the One-Call center notifies all existing underground facility operators of the pending excavation. See N.J.A.C. 14:2-4.2. Within three business days of receiving notice, "[i]f the underground facility operator owns, operates or controls any underground facilities on the site, the underground facility operator shall mark out the site[.]" N.J.A.C. 14:2-4.2(b)1. The markout must designate with paint, stakes, and flags of a specified color, the type of facility installed underground. N.J.A.C. 14:2-5.2(a), (i). The regulations specifically denote sewer line markouts are to be in "Safety Green." N.J.A.C. 14:2-5.2(j).
In the event of a problem during an excavation, the excavator "shall immediately report to the operator of an underground facility any damage to the underground facility caused by or discovered by the excavator in the course of an excavation or demolition." N.J.S.A. 48:2-82e. The existence of "[e]vidence that an excavation . . . that results in any damage to an underground facility was performed without providing the notice required pursuant to [N.J.S.A. 48:2-82] shall be prima facie evidence . . . that the damage was caused by the negligence of the person engaged in the excavation[.]" N.J.S.A. 48:2-89.
Defendants assert they fully complied with the Act's requirements, contrary to the allegations in plaintiff's complaint. Specifically, defendants showed they notified the One-Call System, waited for the completion of the markouts, and excavated thereafter. Defendants argue plaintiff's complaint must be dismissed because the claim based on statutory noncompliance was not sustainable.
We agree defendants' compliance with the defined markout duties under the Act obviate the application of the prima facie evidence of negligence provision contained in N.J.S.A. 48:2-89. However, we reject defendants' suggestion that notifying the One-Call System operator to secure the markouts ends their statutory obligations. Further, minimal compliance does not automatically render defendants immune from liability for damage resulting from their conduct. See, e.g., Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 142 (App. Div. 1994) ("Compliance with an OSHA regulation does not in and of itself preclude a finding of negligence."), aff'd, 143 N.J. 141 (1996).
Here, not only were defendants charged with complying with the One-Call System to obtain markouts for each location where the gas line would be installed, they also were charged with compliance of the provisions of N.J.S.A. 48:2-82d once markouts were completed. Subsection (1) of that section provides "[m]echanized equipment shall be used with proper care and under adequate supervision to avoid damage to the underground facility[,]" and explicitly prohibits the use of mechanized equipment "within two feet horizontally of the outside wall of any underground facility marked . . . unless the underground facility has first been located by hand digging." N.J.S.A. 48:2-82d(1) (emphasis added). Also, N.J.S.A. 48:2-82d(3) provides the excavator must "[u]se reasonable care during excavation or demolition to avoid damage to or interference with underground facilities[.]"
In this regard, Kirsch testified on cross-examination, as follows:
[PLAINTIFF'S COUNSEL]: Then my question is when your company is out there and you're not finding the laterals by hand digging did you walk around to try and find any evidence of where the lateral may be because you haven't found it in hand digging? And it may be 6 inches off, it may be 5 feet off. Did you walk around to try and locate where the lateral may be through other evidence such as a broken stack? [KIRSCH]: No. I mean you just, you look and you dig. I mean we, I can't, what I'm saying you can't sit there an hour trying to hand dig to find something.
Q: And on those situations where you didn't find it and you just kept burning through with the trencher did you then a little bit more carefully look in the trench to see if you guys damaged it? Because you know a lateral is running in there.
A: Well, right. Then you just -- unless you see the stuff up on the dirt pile, no.
We just say, all right, the lateral is deeper and you go over the top.
It was clear to the crew that the sewer laterals were installed in the area where J.F. Kiely desired to trench.
Nevertheless, when digging in a marked area for a sewer lateral did not successfully locate the sewer lateral, the crew kept on going with the trencher. As Kirsch explained, if "[y]ou don't hit it [two, three] f[ee]t away from that mark then, you know, you just keep on going. . . . You can't sit there, dig all day and look for something."
Proof of negligence requires "'(1) [a] duty of care, (2)
[a] breach of [that] duty, (3) proximate cause, and (4) actual damages[.]'" Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009) (alterations in original) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). See Cockerline v. Menendez, 411 N.J. Super. 596, 611 (App. Div.) (explaining plaintiff has the burden of proving negligence, which is never presumed), certif. denied, 201 N.J. 499 (2010).
Following our review, we conclude the trial evidence sufficiently establishes each of these elements supporting a conclusion that J.F. Kiely was negligent. The J.F. Kiely crew knew the sewer laterals were installed perpendicular to the proposed path of the gas main, admittedly the sewer stanchions were visible, and the underground facilities were marked. Kirsch agreed the sewer lateral damage was caused by the gas main mechanized trenching equipment and understood the statute imposes a duty of care when using mechanized equipment within two feet of markouts. More important, a lack of due care can be found in Kirsch's description of the crew's hand digging procedure, that is, when the sewer lateral was not immediately found in the marked location, they "just keep going" because they "can't just sit there and dig all day[.]" The entirety of the evidence satisfactorily supports the trial judge's finding of negligence.
Defendants further argue the court erred by applying the res ipsa loquitur standard in order to find negligence.*fn2 The trial court's mention of the res ipsa doctrine, while an unnecessarily confusing comment, was merely mentioned as illustrative. The trial judge's opinion explicitly stated the doctrine was not applicable. Consequently, the court's unnecessary reference was harmless. R. 2:10-2.