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Curtis Westover and Joyce Westover v. Jersey Central Power & Light Company

May 17, 2012

CURTIS WESTOVER AND JOYCE WESTOVER, PLAINTIFFS-APPELLANTS,
v.
JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
GREGORY SCURATO, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1096-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2012 -

Before Judges J. N. Harris and Koblitz.

Plaintiffs Curtis Westover and Joyce Westover appeal from the Law Division's August 16, 2010 order barring their liability expert reports and testimony; the January 20, 2011 order granting defendant Jersey Central Power & Light Company's (JCPL) motion for summary judgment dismissing plaintiffs' negligence and strict liability claims; and the May 3, 2011 order similarly dismissing plaintiffs' breach of contract claim. We affirm.

I.

JCPL provided electricity to the Westovers' property in Hillsborough Township. In June 1999, the Westovers hired third-party defendant Gregory Scurato to perform electrical work on their large metal-clad barn to prepare for JCPL-provided overhead electrical service. Among other things, Scurato installed an electrical meter pan, anchor bolt, conduit, weatherhead, and copper service conductor on the barn. He left approximately three feet of copper service conductor hanging from the weatherhead to allow JCPL to connect its aluminum overhead electrical service conductors to the copper conductors Scurato installed.

On August 3, 2005, a fire broke out on the Westovers' property destroying their barn and all of its contents. Hillsborough Fire Marshall Christopher Weniger was dispatched to the scene to investigate the fire. At his deposition, Weniger testified that although he had an opinion as to how the fire started, he could not point to an "exact scientific cause."

Weniger noted that when he arrived at the scene he observed "power lines actively arcing in the rear of the building." He recalled hearing "loud popping, hissing sounds of . . . high voltage electricity grounding." Weniger further noted that he saw the arcing utility line still connected at one end to a utility pole on the Westover property.

Weniger opined that the electrical supply "wires failed prior to the fire starting," and that the "arcing power line ignited the combustibles and vegetative areas." He noted that it appeared from what he saw that "a fire caused the cables to fall," but conceded that he did not know "what caused that break in the wire."

Weniger's written Fire Inspection Report commented that an "[a]bove ground, pole-mounted electrical supply line failed causing arcing and sparks." The Report concluded: "The cause of this fire has been determined to be: Arcing electrical equipment."

On July 9, 2007, the Westovers filed their complaint alleging that the electrical service conductors owned and maintained by JCPL caused the fire. The Westovers advanced three different theories of liability. First, their negligence claim asserted that JCPL failed to use due care in (1) supplying electrical services; (2) maintaining and inspecting its equipment; (3) allowing an electrical short circuit to occur in its electrical service; and (4) hiring, training, and supervising its employees and independent contractors. The pleading further alleged that JCPL failed to warn the Westovers of a dangerous condition that JCPL knew or should have known existed.

Second, the Westovers contended that JCPL was "strictly liable . . . for selling a product, electricity, in a dangerous and defective condition which caused the . . . fire and the resulting damages." Finally, the Westovers claimed that JCPL had a contract with them to provide electricity, which included either an express or an implied agreement that JCPL had "an obligation to inspect and maintain its equipment and provide electricity in a safe manner." Moreover, JCPL was accused of breaching the contract by "permitting its electrical conductors and/or other equipment to sever and/or arc and cause [the] fire that resulted in damage to [the Westovers'] [p]roperty."

In support of these claims, the Westovers proffered two expert reports authored by professional engineer Sidney Rubin of Plick and Associates, Forensic Engineers. JCPL moved to suppress Rubin's reports and preclude Rubin's testimony at trial because his conclusions amounted to net opinions. Specifically, JCPL urged that Rubin's reports contained critical omissions because he simply asserted -- without providing a basis for each conclusion -- that (1) a short circuit occurred in JCPL's electrical service conductor causing the wire to sever, (2) JCPL should have prevented this from occurring, and (3) the Westovers' electrical installation had no role in causing the fire.

The Law Division agreed with JCPL and barred Rubin's testimony because his reports contained inadmissible net opinions. The court noted that Rubin's reports asserted three conclusions, none of which were adequately supported. Specifically, the court found that Rubin's conclusion ...


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