VERIZON NEW JERSEY INC v. J.F. KIELY CONSTRUCTION CO

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1078-16T3

VERIZON NEW JERSEY,
INC.,

        Plaintiff-Respondent,

v.

J.F. KIELY CONSTRUCTION CO.,

     Defendant-Appellant.
—————————————————————————————————

              Submitted November 28, 2017 – Decided December 28, 2017

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No. L-
              0069-15.

              Law Offices of Gerard M. Green, attorneys for
              appellant (Kaitlin E. Ryan, on the briefs).

              Andrew L. Salvatore, attorney for respondent.

PER CURIAM

        Defendant J.F. Kiely Construction Co. appeals from a May 31,

2016 Law Division order granting summary judgment to plaintiff,

Verizon New Jersey, Inc., finding defendant liable for negligence
and resulting damages.     Defendant also argues the trial court

erred in denying its cross-motion for summary judgment.

     At the outset, we note this appeal is interlocutory because

the trial court failed to make findings on damages.      Nevertheless,

the record demonstrates a genuine issue of material fact as to

whether   defendant's   negligence   caused   damages   to   plaintiff.

Therefore, we sua sponte grant leave to appeal nunc pro tunc the

issue of defendant's liability under 
N.J.S.A. 48:2-82 only.            R.

2:4-4(b)(2); see also Medcor, Inc. v. Finley, 
179 N.J. Super. 142,

144-45 (App. Div. 1981) (holding this court has discretion on

whether to grant leave to appeal an interlocutory order.).             We

vacate and remand for further proceedings.

                                 I

     To prevail on its negligence claim, a plaintiff must satisfy

a three-part test: "(1) the existence of a duty; (2) the breach

of that duty; and (3) proximate causation of damages."         LaBracio

Family P'ship v. 1239 Roosevelt Ave., Inc., 
340 N.J. Super. 155,

161 (App. Div. 2001).

     The trial court may grant summary judgment only where legally

competent evidence establishes that "there is no genuine issue as

to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law."          R. 4:46-

2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

                                 2                              A-1078-16T3
520, 540 (1995).      The trial court cannot decide disputed factual

issues, but must decide whether there are any factual disputes.

Agurto v. Guhr, 
381 N.J. Super. 519, 525 (App. Div. 2005).                We

review the trial court's decision de novo, employing the same

standard.    Ibid.

     Significantly, in reviewing an appeal from a summary judgment

motion, "we are obliged to view the facts in the light most

favorable to the non-moving party."        Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 
202 N.J. 369, 374 (2010).             Moreover, on

occasion, a case will not be ripe for summary disposition even if

both sides move for summary judgment.           See Driscoll Constr. Co.

v. State, Dep't of Transp., 
371 N.J. Super. 304, 317-18 (App. Div.

2004).      We have independently reviewed the record with these

principles in mind.

                                     II

     To properly review defendant's assertions on appeal, we must

examine provisions of the Underground Facility Protection Act

(UFPA), 
N.J.S.A. 48:2-73 to -91, and regulations the Board of

Public   Utilities    promulgated,   N.J.A.C.    14:2-1.1   to   -6.10,   to

implement UFPA.      In 1994, the Legislature enacted UFPA "to protect

both the public from the risk of harm and the utility companies

from unnecessary losses." Jersey Cent. Power & Light Co. v. Melcar

Util. Co., 
212 N.J. 576, 582 (2013).      UFPA established a "One-Call

                                     3                             A-1078-16T3
Damage      Prevention       System"     to    protect     underground      facilities

(commonly referred to as pipes, mains, or lines) because these

facilities        are   frequently       "subject    to    accidental      damage     from

excavating equipment and explosives."                     James Constr. Co. v. Bd.

of Pub. Utils., 
298 N.J. Super. 355, 360 (App. Div. 1997).

      UFPA    requires       that    before       performing    an    excavation,       an

excavator1     must      "notify     the      [One-Call    system] . . . of         [its]

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. 48:2-82(a).

When an excavator notifies the One-Call system, the One-Call center

informs     the     applicable      underground      facility       operators    of   the

pending excavation.          See N.J.A.C. 14:2-4.2.          Within three business

days, operators are then required to mark out the facility, and

must mark "the site within [eighteen] inches horizontally from the

outside      wall       of   the    facility . . . ."           N.J.S.A.        48:2-80.

Generally, these mark outs are symbols spray-painted on the ground

to   show    the    location       and   characteristics       of    the   underground

utilities.





1 N.J.A.C. 14:2-1.2 defines an excavator as "any person performing
excavation or demolition."    Neither party disputes defendant's
obligation to comply with UFPA provisions.

                                              4                                  A-1078-16T3
       In the event of a problem during 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. 48:2-82(e).        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 negligence of the

person engaged in the excavation . . . ."              
N.J.S.A. 48:2-89.

                                       III

       Plaintiff owns and operates underground cables, one of which

is located in Egg Harbor Township, and is the subject of the

instant action. On September 8, 2011, defendant struck plaintiff's

underground cable as it "was digging to place a gas pipe."

       Previously, on August 17, 2011, defendant notified the One-

Call system of its intent to excavate, pursuant to 
N.J.S.A. 48:2-

82.     As provided in its One-Call ticket, defendant's start date

was August 23, 2011, and its "Start[-]By" date was August 31,

2011.     Accordingly, to comply with UFPA, the latest defendant

could begin excavating was August 31, 2011.

       Plaintiff    asserts   defendant       began   excavating       after    the

ticket's Start-By date, thereby establishing prima facie evidence

                                        5                                 A-1078-16T3
of defendant's negligence.         See 
N.J.S.A. 48:2-82(a) and 48:2-89.

Defendant     presents       no   evidence        contradicting         plaintiff's

assertion,    but   merely    argues     plaintiff    fails   to    definitively

establish its excavation start date.

     We agree the record establishes defendant began excavating

outside of the One-Call ticket's Start-By date, in violation of


N.J.S.A. 48:2-82(a).          At his deposition, defendant's foreman,

Michael Soriano, testified defendant began excavating on September

7, 2011 — one week after the One Call ticket's Start-By date.

Soriano based his testimony upon his review and interpretation of

defendant's     own   records.           Therefore,     Soriano's         testimony

constitutes an adoptive admission to which defendant failed to

produce credible evidence to the contrary. See N.J.R.E. 803(b)(2);

see also Triffin v. Am. Int'l Grp., Inc., 
372 N.J. Super. 517,

523-24 (App. Div. 2004) (holding to defeat a motion for summary

judgment, the adverse party "must do more than simply show that

there is some metaphysical doubt as to the material facts.").

However, based on defendant's failure to begin excavating on or

before its One Call ticket's Start-By date, the court should have

only decided that plaintiff established a technical violation of

UFPA constituting prima facie evidence of defendant's negligence.

     While a finding that defendant violated 
N.J.S.A. 48:2-89

creates     prima   facie     evidence       of   negligence,      it    does    not

                                         6                                  A-1078-16T3
conclusively establish negligence in and of itself.                      See, e.g.,

Eaton v. Eaton, 
119 N.J. 628, 637, 642-43 (1990) (citing Waterson

v. Gen. Motors, 
111 N.J. 238, 263 (1988)) (differentiating between

"evidence    of    negligence      and   negligence      itself,"    and    holding

"[o]rdinarily, the determination that a party has violated 'a

statutory    duty    of   care     is    not    conclusive    on   the    issue    of

negligence, it is a circumstance [that] the jury should consider

in assessing liability.").

     Here,    as    the    trial    judge       noted    in   correctly     denying

defendant's cross-motion for summary judgment, the record reflects

contradicting      evidence   as    to    plaintiff's     mark     out   locations.

Specifically, plaintiff's damage report indicates the mark outs

were at twelve inches, defendant's damage report indicates the

mark outs were at thirty inches, and plaintiff's underground

facility locator, ECSM, reports the mark outs were at twenty-four

inches.     To wit: there remains a material question as to whether

defendant negligently caused plaintiff's injury, notwithstanding

defendant's failure to comply with the One-Call system's Start-By

date.

     Notably, if plaintiff or its underground facility locator

provided inaccurate mark outs, a fact-finder could conclude that

defendant     likely      would    have        damaged   plaintiff's       facility

regardless of defendant's failure to comply with the One-Call

                                          7                                 A-1078-16T3
system's Start-By date.   Therefore, by granting plaintiff summary

judgment based solely on defendant's untimely excavation, the

trial court erroneously imposed strict liability.   The trial court

erred in failing to determine whether plaintiff or its underground

facility locator provided accurate mark outs — an issue that goes

to the heart of proximate cause.     A genuine factual dispute on

that point would defeat summary judgment.

     Finally, the trial court erred by failing to make findings

on plaintiff's actual damages.   Here, plaintiff claims its damages

were $15,428.74.   However, plaintiff failed to present evidence

demonstrating how it arrived at that figure.      As a result, the

record lacks evidence sufficient to support a decision on this

issue.

     Accordingly, we vacate and remand for a determination whether

defendant's conduct proximately caused plaintiff's damages, and

if so, to make findings on the actual damages sustained.

     Vacated and remanded.   We do not retain jurisdiction.




                                 8                            A-1078-16T3