PUBLIC SERVICE ELECTRIC & GAS COMPANY v. EAST ORANGE WATER COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2893-04T32893-04T3

PUBLIC SERVICE ELECTRIC & GAS

COMPANY,

Plaintiff-Respondent/

Cross-Appellant,

v.

EAST ORANGE WATER COMMISSION,

Defendant-Appellant/

Cross-Respondent,

and

TOWNSHIP OF SOUTH ORANGE,

Defendant.

_________________________________________________________

 

Argued September 12, 2006 - Decided October 2, 2006

Before Judges Coburn, Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-11743-00.

James N. Barletti argued the cause for appellant/cross-respondent East Orange Water Commission (Gold, Albanese, Barletti & Velazquez, attorneys; Josephine A. Marchitto, on the brief).

Richard J. Guss argued the cause for respondent/cross-appellant Public Service Electric and Gas Company (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys; Mr. Guss and Marissa A. Becker, on the brief.)

PER CURIAM

Plaintiff Public Service Electric and Gas Company (PSE&G) sued East Orange Water Commission (EOWC) and the Township of East Orange to recover $261,696.02 in repair costs it incurred as a result of EOWC's leaking water service line located underneath and perpendicular to a PSE&G gas main in the area of Ravine Drive and Forrest Road. The matter proceeded to trial and the jury found PSE&G and EOWC were both negligent, and it assessed PSE&G's comparative fault at forty-eight percent. Hence, the court entered a molded verdict of $136,081.92 in favor of PSE&G. The judge also awarded counsel fees to PSE&G in the amount of $34,070.96. PSE&G had sought $72,000 in counsel fees.

EOWC appealed, challenging the jury verdict as against the weight of the evidence; contending the court erred in awarding counsel fees; and arguing the court erred as a matter of law when it denied EOWC's pre-trial motion for summary judgment under the immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. PSE&G cross-appealed from the post-judgment order, to the extent the order denied the full amount of counsel fees it requested.

At the oral argument on this appeal, the issues for our consideration were narrowed significantly. Counsel for EOWC withdrew the challenge to the jury verdict, which, in any event, had not been the subject of a motion for a new trial. See R. 2:10-1, which provides that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." In addition, both counsel withdrew their respective appeals from the award of counsel fees to PSE&G. See N.J.S.A. 59:9-5 which permits the trial court to award a successful claimant reasonable attorney's fees in cases other than those in which the damages are awarded for pain and suffering.

Thus, the sole issue remaining for our review on this appeal is whether the trial court erred when it denied EOWC's pre-trial motion to dismiss PSE&G's complaint.

Under N.J.S.A. 59:4-2b, a public entity is not immunized from liability for injury caused by the dangerous condition of its property if plaintiff proves (1) the existence of a dangerous condition on the property at the time of the injury, (2) proximate cause, (3) foreseeability of the kind of injury that occurred, (4) actual or constructive notice by the public entity of the dangerous condition for a sufficient time prior to the injury to have taken measures to protect against the dangerous condition, and (5) the action or inaction of the public entity was palpably unreasonable.

Viewing the summary judgment record in the light most favorable to PSE&G, the opponent of the motion, as required by R. 4:46-2(c), around 1:30 p.m. on March 3, 1999, Joe DeCicco, a water repairman from EOWC was sent to 367 Ravine Drive in response to a claim of water leaking near a manhole cover. He performed a perfunctory inspection in front of the house and observed a trickle of water running out of the street and the street was slightly damp. He did not observe any obvious damage caused by the water and did not walk downhill. He determined there was an underground water leak between the curb and the street but decided it was not necessary to turn off the water and advised his supervisor that repairs could await the following day.

Shortly after DeCicco left, PSE&G received a call from residents in the area that there was water flowing from a gas street lamp at the bottom of the street and a lot of water leaking out of the street in front of 367 Ravine Drive. The PSE&G crew observed water flowing out of gas lamps and gushing from the street, began excavating and confirmed that a water line had leaked into the gas main at the point where they crossed. The leak had caused significant damage to the gas line.

PSE&G presented an engineering report of Dr. Roch Shipley, who opined that the lead water line had leaked over a period of time and caused the iron gas main to corrode and undermining the soil under the pipes. This created a risk of corrosion, gas leaks, explosions and fire. He opined that the leaking water line constituted a dangerous condition; that EOWC knew or should have known that its line was deteriorating; and that had EOWC properly maintained its pipes, responded in a timely fashion to repair the leak, or at least if DeCicco had turned off the water, the damage to the gas line would have been mitigated or avoided. PSE&G also presented evidence of gas disruption in the area several days before the leak was discovered and that there was water in the gas line at that time.

The judge found PSE&G had proffered sufficient evidence, in the form of Shipley's expert testimony, to satisfy the first four elements of N.J.S.A. 59:4-2, as a matter of law. The judge concluded that there was a jury issue as to whether the EOWC acted palpably unreasonable. While EOWC maintained that DeCicco's decision to forgo repair of the water leak until the next day was reasonable, PSE&G's expert maintained that DeCicco's failure to take the minimal step of turning off the water pending repair of the leak was palpably unreasonable.

 
In reviewing the grant or denial of a summary judgment application, the Appellate Division applies the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997). Here, we agree with the trial judge's determination that, as a matter of law, the four requirements for public entity liability, based on the existence of a dangerous condition of property owned or controlled by the public utility, had been established. We also agree that the effect of DeCicco's conduct in response to the discovery of the leak in the water line was not so apparent or so one-sided that the EOWC was entitled to prevail as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The reasonableness or unreasonableness of the response was an issue properly reserved for the jury. For substantially the reasons stated by the trial judge in ruling from the bench on October 23, 2003, we affirm the denial of EOWC's motion for summary judgment.

Affirmed.

The motion of the Township for summary judgment was granted and that ruling is not the subject of appeal.

(continued)

(continued)

6

A-2893-04T3

 

October 2, 2006