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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...