Edward McGlynn, Jr. v. State of New Jersey , 434 N.J. Super. 23 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1743-12T3
EDWARD McGLYNN, JR., Individually,
as Administrator, and as
Administrator ad Prosequendum
of the ESTATE OF PAMELA J. McGLYNN,
Deceased, and as Guardian Ad Litem
for MELISSA McGLYNN, a minor, and
EDWARD McGLYNN III, a minor; and
JUSTIN McGLYNN, Individually, APPROVED FOR PUBLICATION
Plaintiffs-Appellants, January 3, 2014
v. APPELLATE DIVISION
STATE OF NEW JERSEY; STATE OF
NEW JERSEY DEPARTMENT OF
TRANSPORTATION; EVELYN BETTS;
THE ESTATE OF ELIZABETH M. KING,
DECEASED; THE ESTATE OF
ETHEL H. HOFFMAN, DECEASED; and
WEICHERT REALTY,
Defendants,
and
JERSEY CENTRAL POWER AND LIGHT
COMPANY and JAFLO, INC.,
Defendants-Respondents.
Argued October 16, 2013 – Decided January 3, 2014
Before Judges Reisner, Alvarez and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County, Docket
No. L-2-06.
Steven J. Greenstein argued the cause
for appellants (Tobin, Reitman, Greenstein,
Caruso, Wiener, Konray & Kessler, P.C., and
Stuart M. Kurtzer, attorneys; Mr.
Greenstein, of counsel and on the briefs;
Mr. Kurtzer, on the briefs).
Thomas C. Hart argued the cause for
respondent Jersey Central Power and Light
Company (Ruprecht Hart Weeks & Ricciardulli,
LLP, attorneys; Mr. Hart and John W.
Gregorek, on the brief).
Thomas M. Mulcahy argued the cause for
respondent JAFLO, Inc. (Purcell, Mulcahy,
Hawkins, Flanagan & Lawless, LLC, attorneys;
Mr. Mulcahy, of counsel and on the brief;
Katherine Lyons, on the brief).
The opinion of the court was delivered by
ALVAREZ, J.A.D.
Plaintiffs Edward McGlynn, Jr., individually and as
Administrator and as Administrator ad Prosequendum of the Estate
of Pamela J. McGlynn, deceased, and as Guardian ad Litem for
Melissa McGlynn, a minor and Edward McGlynn III, a minor, and
Justin McGlynn,1 individually, appeal from the summary judgment
dismissal of the counts of their complaint alleging negligence
by Jersey Central Power and Light Company (JCP&L) and JAFLO,
Inc. (collectively referred to as defendants). We affirm.
1
We refer to the parties by their first names for ease of
reference.
2 A-1743-12T3
On September 19, 2003, Pamela, Edward, Jr., and two of
their three children were traveling eastbound on a rural road in
White Township. A tree fell as their car passed, striking the
vehicle and killing Pamela, inflicting significant and permanent
injury upon Edward, Jr., and less serious injuries on the two
children. As the tree fell, it brought down power lines along
the roadside.
Although the tree's location was disputed, Judge Amy
O'Connor assumed for purposes of summary judgment that the tree,
which stood on privately owned lands, was situated within
JCP&L's right-of-way. The tree was also within the right-of-way
maintained by the New Jersey Department of Transportation
(NJDOT). NJDOT trimmed and removed trees along its right-of-
way. When work needed to be performed near utility poles or
power lines, NJDOT would contact the utility company that owned
the lines, rather than undertaking the work itself.
JCP&L had retained JAFLO to complete "vegetation
maintenance" along ninety miles of roadway on a four-year cycle,
including the area in which the tree was located.2 In order to
maintain consistent flow of electricity to its nearly one
million customers in thirteen counties, JCP&L was obligated to
2
To meet its commitment to the Board of Public Utilities of New
Jersey to reduce vegetation-related outages, JCP&L promulgated
"Vegetation Management Specifications."
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keep its power lines free of encroaching vegetation, such as
trees.
The relevant count of plaintiffs' complaint alleged that
defendants' negligence in failing "to properly inspect, and/or
maintain the tree, and/or remove the tree" that struck the
McGlynn vehicle, was the proximate cause of the resulting tragic
injuries. Plaintiffs claimed that JCP&L and its contractor
JAFLO were negligent in failing to remove the dead tree, and
that their nonfeasance resulted in the harm that they suffered.
Defendants denied liability, asserting that they owed
plaintiffs no duty of care. After the parties completed
substantial discovery, JCP&L filed a motion for summary
judgment. JAFLO filed a cross-motion on parallel grounds. On
April 28, 2009, the motions were granted, and the order now
under appeal was entered.
In rendering her decision, Judge O'Connor relied upon the
factors enunciated in Alloway v. Bradlees, Inc., 157 N.J. 221,
230 (1999), concluding that JCP&L "did not have a duty of care
to remove vegetation that posed a risk of harm to users of the
highway." After applying the Alloway analysis to the claims
against JAFLO, the judge reached the same result. Judge
O'Connor also weighed in the balance the overall fairness of
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imposing a duty of care upon defendants. See Dunphy v. Gregor,
136 N.J. 99, 108 (1994).
On May 27, 2009, plaintiffs unsuccessfully filed for leave
to appeal the grants of summary judgment. In the interim,
plaintiffs settled their claims against the State and NJDOT, and
plaintiffs' counsel actually requested that the trial court
remove the matter from the trial list. As of September 12,
2011, the case status was therefore changed to "closed" for
administrative purposes. On April 27, 2012, the court entered
an order allocating the wrongful death settlement proceeds among
plaintiffs.
No stipulation of dismissal was filed, however, until
November 15, 2012. The delay was occasioned by the exhaustion
of the State's calendar-year-2011 funds earmarked for payment of
personal injury settlements. Plaintiffs had an understanding
with the State and NJDOT that no stipulation of dismissal would
be filed until plaintiffs were paid the settlement proceeds,
which did not occur until October 9, 2012.
I
As a result of the delay between the settlement and the
filing of the stipulation of dismissal, JAFLO and JCP&L seek
dismissal of plaintiffs' appeal as untimely. Under Rule 2:4-
1(a), "[a]ppeals from final judgments of courts . . . shall be
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taken within 45 days of their entry." On the filing of a
motion, and "on a showing of good cause and the absence of
prejudice," this Court may extend that appeal window by "a
period not exceeding 30 days." R. 2:4-4(a). An appeal "must be
accomplished within the stated time," and "[f]ailure to comply
effectively forever bars an allegedly aggrieved party from
seeking further relief." See Alberti v. Civil Serv. Comm'n, 41
N.J. 147, 154 (1963).
But "[f]or a judgment to be final and therefore appealable
as of right, it must dispose of all claims against all parties."
Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374,
383 (App. Div.) (internal quotation marks omitted), certif.
denied, 209 N.J. 96 (2011). When a trial court enters an order
of summary judgment that dismisses some, but not all, parties,
the order "is interlocutory rather than final, and leave to
appeal [must] be sought." See Yuhas v. Mudge, 129 N.J. Super.
207, 209 (App. Div. 1974). Finally, "[t]he inherent power of
the court to modify its own interlocutory orders prior to the
entry of final judgment has long . . . been recognized in New
Jersey." Johnson v. Cyklop Strapping Corp., 220 N.J. Super.
250, 261 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).
JAFLO contends that the appeal in this case is untimely.
JAFLO argues that the clock for the time to appeal began to run
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on September 12, 2011, after plaintiffs settled with the State
and NJDOT, and the court marked the matter as closed and removed
it from the active list, and not when plaintiff filed the
stipulation of dismissal over a year later on November 15, 2012.
JAFLO further contends that plaintiffs' notification to the
court to cancel the trial date and mark as withdrawn dispositive
motions between those parties supports its position that this
was a conclusive settlement. Not surprisingly, JCP&L concurs,
and adds that the settlement would have been enforceable
regardless of whether the stipulation of dismissal was filed.
Therefore, JCP&L asserts that, for appeal purposes, the matter
really concluded on September 12, 2011.
Plaintiffs counter that, in this case, until the settlement
funds were available and the case dismissed with prejudice,
further litigation could have ensued. In any event, we agree
with plaintiffs that Straus v. Borough of Chatham, 316 N.J.
Super. 26 (App. Div. 1998), controls. In that case, a plaintiff
sued a municipality, a property owner, and a tenant for injuries
sustained resulting from a fall on a sidewalk. Id. at 28. The
court granted summary judgment in favor of the property owner
and the tenant, but the matter was still open as to the
municipality. Ibid. Plaintiff eventually settled with the
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municipality, signed a personal release, and filed a stipulation
of dismissal seven days later. Id. at 32-33.
Plaintiff appealed the trial court's grant of summary
judgment fifty-two days after the settlement and release and
forty-five days after the filing of the stipulation of
dismissal. We nonetheless found the appeal to be timely. Ibid.
The relevant language reads:
Without any authority, defendants assert
that the time to appeal began to run on the
date the release was signed, and therefore,
the notice of appeal was untimely. . . . In
our view, [the date that the stipulation of
dismissal was filed] was the date of final
judgment. Before that date there was no
final judgment since all issues had not been
resolved as to all parties.
[Id. at 33 (citation omitted).]
In this case, no final judgment was filed until the stipulation
of dismissal was entered. Thus, Straus is controlling.
We think it is also significant that plaintiffs' delay in
filing the stipulation resulted from the exhaustion of State
resources. It was reasonable for plaintiffs to act cautiously,
and delay the filing, until those defendants were able to fund
the promised payment. The delay was occasioned by
considerations related solely to the settlement with the State,
and not from an attempt to manipulate the deadline for filing an
appeal.
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That the case was marked closed for administrative purposes
is simply not dispositive. Cf. In re Mercer Cnty. Prob. Dep't,
109 N.J. Super. 313, 315-16 (App. Div. 1970) (holding that a
judge's administrative directive, even in the form of an order,
did not constitute an appealable final judgment). The
stipulation of dismissal was filed within a reasonable time
after the receipt of the funds. The notice of appeal was
properly filed, calculated from that date. Accordingly, we do
not dismiss the appeal as untimely.
II
On the merits, plaintiffs argue that the motion judge erred
in granting summary judgment by ignoring material facts in
dispute, and by failing to correctly interpret applicable
precedent in defining each defendant's duty to the plaintiffs.
We do not agree.
As a threshold question, we conclude that the motion judge
properly considered the facts in the light most favorable to
plaintiffs, while affording them "all legitimate inferences."
See R. 4:46-2(c). We apply the same standard on appeal. Rowe
v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). As a matter of
law, we agree that defendants did not owe plaintiff a duty of
care.
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To establish a prima facie case of negligence, an injured
plaintiff must demonstrate: (1) a duty of care, (2) breach of
that duty, (3) proximate cause, and (4) damages. D'Alessandro
v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011). Whether
a legal duty exists, as well as the scope of the duty, are
questions of law for the court to decide. Ibid.
In determining whether a duty is owed, the first step in
the analysis, notions of fairness and public policy must be
taken into account. Acuna v. Turkish, 192 N.J. 399, 413-14
(2007), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d
22 (2008). As the court said in Acuna, quoting Prosser & Keeton
on Torts, Lawyer's Edition § 53, at 359 (W. Page Keeton ed., 5th
ed. 1984): "No better general statement can be made than that
the courts will find a duty where, in general, reasonable
persons would recognize it and agree that it exists." Acuna,
supra, 192 N.J. at 414.
An injured party must demonstrate more than the mere
foreseeability of harm. Kelly v. Gwinnell, 96 N.J. 538, 544
(1984). A claimant must also establish grounds for a "value
judgment, based on an analysis of public policy, that the actor
owed the injured party a duty of reasonable care." Ibid.
Plaintiffs have not established such grounds in this case.
The basis for plaintiffs' claim is that they are the third party
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beneficiaries of defendants' contractual undertakings to keep
power lines free from encroaching vegetation, in furtherance of
the uninterrupted provision of power to JCP&L customers, and
that defendants' failure to remove a dead tree that was not
affecting the flow of electricity nonetheless warrants the
imposition of such a duty.
It is not disputed that JCP&L had a clear and defined
commitment to keep vegetation controlled in order to prevent
interruptions in service. To expand that commitment to include
maintenance of vegetation for the benefit of passing motorists,
where power lines are unaffected, would create an onerous burden
without a corresponding benefit where the responsibility already
exists, to a greater or lesser extent, on individual property
owners and NJDOT.
This is not an instance where, for example, defendants were
in the process of negligently removing a dead tree or a tree
limb, and a passerby was injured. Nor is it an instance where a
power line was damaged, fell onto the roadway, and, thus,
created a hazard.
Nor is this a factual scenario such as the one in Carvalho,
supra, 132 N.J. at 571-72, 577-78, where a duty was imposed on a
construction site engineer for the death of a construction
worker employed by a subcontractor. The engineer in Carvalho
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oversaw the installation of in-ground utility pipes, was on the
work site daily, and directly supervised the "existing
conditions and the actual performance of the work undertaken by
the workers at the site." Id. at 569-70. In that situation,
"there was an overlap of work-progress considerations and work-
safety concerns." Id. at 575.
The engineer controlled the work site, a significant factor
missing here. Id. at 576. The engineer had the authority to
halt the job for safety reasons. Ibid. He had been informed
about the instability of the trenches used by workers in
installing pipes, as trench walls had collapsed on the site the
week prior to the collapse of a trench that led to Carvalho's
death. Id. at 576.
The Court found that the engineer's role involved, of
necessity, responsibility for the safety and control of the work
area, and that he had actual knowledge of site conditions. Id.
at 575-76. Therefore, the Court found that a duty of care was
owed to the employee of a subcontractor even though the engineer
never expressly assumed responsibility for his safety. Id. at
569, 577-78. Considerations of fairness and public policy
required the imposition of a duty of care. Id. at 577. The
conditions that resulted in the death were known, foreseeable
risks. Id. at 573-74. And most importantly, the engineer "had
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the opportunity and was in a position to foresee and discover
the risk of harm and to exercise reasonable care to avert any
harm." Id. at 578. Those factors are missing here.
The private land owner bears the principal responsibility
to exercise due care over trees that might pose a hazard to
travelers on an adjoining highway. See Narsh v. Zirbser Bros.,
Inc., 111 N.J. Super. 203, 208 (App. Div. 1970). NJDOT in this
case had a right-of-way over the same wooded strip over which
JCP&L had its right-of-way, and NJDOT managed the vegetation in
that area in order to prevent hazards such as the one in this
case.
There was no contractual obligation on JCP&L to do more
than to maintain the lines within its designated right-of-way so
as to provide uninterrupted service. Moreover, the obligation
to monitor trees over hundreds of miles of roadway for a broad
purpose such as the safety of passing motorists would be an
overwhelming burden on a private entity. And here, the property
owner had that responsibility, as did NJDOT, a government
entity.
JCP&L is a private utility company. That JCP&L did not
remove a dead tree from a stretch of woods, and that the fall
had such tragic consequences, was neither foreseeable nor within
the scope of its day-to-day activities.
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If JCP&L did not have a duty of care, it follows as night
the day that JAFLO did not have that responsibility either. We
reiterate that this was not an instance where JAFLO, JCP&L's
contractor, was negligent while removing a dead tree or tree
limbs, or otherwise in the act of maintaining vegetation.
Thus we conclude that no societal goal is advanced by the
imposition of a duty to act in this case. See City Check
Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 59
(2001). Neither defendant assumed a general responsibility to
tend to the trees so as to promote highway safety. See Acuna,
supra, 192 N.J. at 414. Here, the responsibility fell on the
private landowner and NJDOT.
Affirmed.
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