On appeal from the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Justice Albin
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)
John Seals and Julia Seals v. County of Morris (A-84/85-10)
Argued November 9, 2011 -- Decided May 14, 2012
ALBIN, J., writing for a unanimous Court.
The issues in this appeal are whether, pursuant to Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994) or N.J.S.A. 48:3-17.1, an electric utility company is entitled to immunity for any negligence in its placement of a pole along a public roadway; and whether a county is entitled to immunity for any negligence on its part pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
Because this appeal arises from defendants' motions for summary judgment, the facts are viewed in the light most favorable to plaintiff. Early one winter morning, plaintiff John Seals was driving his pickup truck and descended a curved, snow-covered road in Washington Township that is owned and maintained by Morris County. Due to the road conditions and despite applying the brakes, plaintiff could not negotiate the curve and the vehicle struck an electric utility pole located several feet from the roadway. He alleged that the County negligently maintained a dangerous roadway condition and that the electric utility company negligently placed the pole.
The pole, designated #617, is owned by Jersey Central Power & Light (JCP&L) and was located on private property over which the County has a right-of-way. Between 1989 and 2003, three accidents directly involved Pole #617. During the 1990s, four accidents occurred nearby; some of those occurred in a similar manner to the one here in which a motorist skidded on slick pavement and was unable to negotiate the curve. JCP&L maintained Pole #617 and the other electric poles without involving the County, conducting a safety study, or considering accidents that had occurred. Local police notified JCP&L if one of its poles was involved in an accident. Although JCP&L did not "keep accident records per se," it did maintain records on whether a hit pole was damaged and when it was repaired or replaced. According to JCP&L, it would have moved Pole #617 at the County's request; otherwise, it would not move a pole, regardless of the number of accidents. The County asserts that it has no police force and is unaware of accidents on its roadways unless municipal police report them, and that Washington Township did not notify the County of accidents involving or occurring near Pole #617. According to the County, its engineers do not have the time or funding to assess the safety of the 7,000 to 8,000 utility poles located along its roadways.
The trial court denied defendants' motions for summary judgment. The court distinguished Contey, in which the Supreme Court held that a telephone company that placed its pole in compliance with a municipal ordinance owed no duty to a motorist. The trial court reasoned that because the County did not set standards for placing electric poles, and was not statutorily required to do so, the utility is subject to a negligence standard; and although Contey did not impose a duty on the County to conduct a safety study, it was not shielded by the TCA because it took "no action" to regulate placement of electric poles. The Appellate Division reversed the denial of summary judgment for JCP&L and vacated the denial of summary judgment for the County. 417 N.J. Super. 74 (2010). The panel concluded that JCP&L could not be found liable because the County and Township gave implicit approval for the pole's location by their silence, and that whether the County was immune was not sufficiently developed before the trial court. The Court granted leave to appeal. 205 N.J. 269-70 (2011).
HELD: Neither Contey nor N.J.S.A. 48:3-17.1 confers immunity on the utility for its negligence, if any, in placing the electric pole. If a governmental entity directs a utility where to place a pole -- as in Contey -- the utility is immune from liability. When there is no governmental dictate, ordinary negligence standards apply. A utility will be liable if it places or maintains an electric pole where there is an unreasonable and unnecessary danger to travelers upon the highway. Whether the County is entitled to TCA immunity must be remanded for further proceedings.
1. In Contey, the plaintiff's vehicle struck a telephone pole placed near a curb. She sued the telephone company and others, but dismissed or settled claims against the public entities. The Court affirmed the grant of summary judgment in favor of the telephone company. The Court referred to N.J.S.A. 48:17-11, which provides that a telephone utility must comply with local municipal ordinances that designate the location of poles. The essential holding in Contey is that a utility company that is directed by a governmental entity to place poles in a particular location should not be held liable for a decision beyond its control. Contey did not suggest that a utility that places a pole in an unsafe location, without any public entity involvement, is entitled to immunity. Further, the utility pole in this case is an electric pole, not a telephone pole. Under N.J.S.A. 48:17-11, a municipality or county must select the exact location of a telephone pole. Under the statute that is relevant here, N.J.S.A. 48:7-1, a town or city (but not a county) only designates the street on which an electric pole will be placed. That distinction is critical here because Contey construed a telephone-pole statute, not an electric-pole statute. N.J.S.A. 48:7-1 does not authorize the County to designate the exact location of Pole #617 or even the street generally where it could be located; and the County passed no ordinance concerning the location of the pole. Washington Township, which is not a party, also did not pass an ordinance. JCP&L alone chose the location for Pole #617. (pp. 18-24)
2. Viewing the evidence in the light most favorable to plaintiff, JCP&L placed Pole #617 in an unreasonably dangerous location and is accountable for its negligence, if any. A utility company is required to exercise ordinary care to prevent injuries, and is permitted to presume that vehicles ordinarily are expected to remain on the roadway. So long as a utility company that is acting without governmental direction does not place or maintain an electric pole in a spot where there is an "unreasonable and unnecessary danger to travelers upon the highway," no liability will follow. Although a county may direct by ordinance the moving of a utility pole within its right-of-way that poses an immediate hazard to the traveling public, the failure to do so is not an implicit approval that absolves the utility company from its own negligence. (pp. 24-28)
3. N.J.S.A. 48:3-17.1 does not provide a separate basis for granting summary judgment in JCP&L's favor. That statute provides that when a utility has maintained a pole at the same location for ten years, the landowner is presumed to have consented to the placement and there shall be no lawsuit to have the pole removed. The County's easement over the property on which Pole #617 is placed is not equivalent to property ownership. Nothing in the statute suggests that if a public entity remains silent, it has given its tacit approval of the pole's location. (pp. 28-29)
4. The issue of whether, as a matter of law, the County is entitled to immunity under the TCA must be remanded to the trial court. It appears that the only potential basis for the County's liability is that the roadway was a dangerous condition, the County was on notice of it, the condition created a reasonably foreseeable risk of injury and proximately caused plaintiff's injury, and the County's failure to protect against the condition was "palpably unreasonable." N.J.S.A. 59:4-2. If it was not reasonably foreseeable that a vehicle would veer off the roadway, then the pole did not present a danger and N.J.S.A. 59:2-3, which addresses immunity for discretionary activities, would not come into play. On remand, the trial court must address on a complete record the facts and legal issues arising under the TCA, including whether the County is shielded by plan or design immunity under N.J.S.A. 59:4-6. It must also consider whether plaintiff should be held to his apparent abandonment of his claim under N.J.S.A. 59:4-2. (pp. 30-35)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGE WEFING (temporarily assigned) join in JUSTICE ALBIN's opinion. JUSTICE HOENS did not participate.
JUSTICE ALBIN delivered the opinion of the Court. Plaintiff John Seals
crashed into an electric utility pole owned by defendant Jersey
Central Power & Light (JCP&L) and First Energy Corporation.*fn1
The pole was located on private property a few feet off a
road maintained by defendant Morris County in Washington Township.
Plaintiff claims that JCP&L is liable for negligently placing the pole
in a dangerous location where it was foreseeable that a vehicle would
veer off the road and that the county is liable for its negligence in
not having it removed.
JCP&L contends that Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994) confers immunity on a utility company for any injury resulting from the placement of a utility pole off a roadway. In Contey, this Court held that a telephone company that placed its pole on property in compliance with the dictates of a municipal ordinance owed no duty to a motorist who collided with the pole. Id. at 590-91. Although no public entity was involved in the Contey appeal, the Court further expressed its belief "that responsibility for the safety of motorists should rest with those who own, control, and maintain the thoroughfare." Id. at 590.
Based on its reading of Contey, the trial court denied JCP&L's summary-judgment motion, reasoning that because JCP&L did not place its electric pole in a location at the direction of a municipal or county body, it was not immune for its negligent acts. The court also denied the County summary judgment, concluding that a "public entity that does nothing" in the face of the dangerous placement of a utility pole is not necessarily "off the hook."
The Appellate Division likewise relied on Contey but reversed, pronouncing that JCP&L could not be found liable because the County and Township gave implicit approval for the pole's location by their silence. Seals v. Cnty. of Morris, 417 N.J. Super. 74, 88 (App. Div. 2010). The Appellate Division additionally concluded that whether the County was immune from suit had not been sufficiently developed before the trial court and therefore remanded for further proceedings. Id. at 94-95.
We believe that the Appellate Division has overread the reach of Contey and therefore we reverse and remand. First, the statutes governing the placement of telephone poles, N.J.S.A. 48:17-8 and 17-11, are different from the one governing electric poles, N.J.S.A. 48:7-1. The telephone-pole statute, N.J.S.A. 48:17-11, gives the appropriate municipality or county authority to dictate the precise location of such poles; on the other hand, the electric-pole statute, N.J.S.A. 48:7-1, does not give a similar power to the "incorporated city or town" where the pole is located. Second, in this case, neither the County nor the Township directed JCP&L where to locate the electric pole. Unlike the utility in Contey, JCP&L was solely responsible for the location of its pole. Accordingly, JCP&L is not entitled to immunity under Contey for any negligence in the placement of the pole. We therefore vacate the order of summary judgment entered in favor of JCP&L.
Finally, in this case, the liability of a public entity, such as the County, must be judged against the immunity provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We can discern only one potential theory on which liability against the County can rest -- that the roadway near the location of the JCP&L pole constituted a dangerous condition of property. Plaintiff cannot succeed on this claim unless he satisfies all the elements of N.J.S.A. 59:4-2 and further shows that his action is not barred by the plan or design immunity provision of N.J.S.A. 59:4-6. Although plaintiff pled as a cause of action a dangerous condition of property under N.J.S.A. 59:4-2, before the trial court, he seemingly abandoned this theory due to a plain misreading of the statute. We remand for further development of the record and consideration of these issues.
This case comes before us based on appeals from defendants' motions for summary judgment.*fn2 At this procedural juncture, we must view the evidence of record in the light most favorable to plaintiff, the non-moving party. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (noting that appellate court reviewing summary-judgment motion applies same standard governing trial court -- viewing evidence in light most favorable to non-moving party); see also R. 4:46-2.
On February 7, 2003, at approximately 4:00 a.m., plaintiff John Seals was driving his pickup truck eastbound on County Route 513 in Washington Township, New Jersey. The roadway was covered in several inches of snow. As plaintiff descended a hill at about thirty-five miles per hour, he approached a rightward curve. Due to the slick road conditions and despite applying his brakes, plaintiff could not negotiate the curve and continued on a straight trajectory. Plaintiff's pickup truck skidded straight over the center line and across the westbound lane of traffic, ultimately striking JCP&L's Pole #617 located several feet off the roadway on private property. No guardrail separated the roadway from the pole; no lights illuminated the area; and no sign warned of the impending curve. Plaintiff claims he suffered serious and permanent injuries in the crash.
In 2005, plaintiff filed a complaint in the Law Division, Morris County, alleging that defendant Morris County negligently maintained a dangerous condition of property -- its roadway --and that defendant JCP&L negligently placed and maintained the utility pole at the crash site.*fn3 Plaintiff further alleged ...