D'ANDREA POWELL VS. TOWNSHIP OF NEPTUNE (L-1359-16, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4324-17T1
D'ANDREA POWELL,
Plaintiff-Appellant,
v.
TOWNSHIP OF NEPTUNE, NEW
JERSEY AMERICAN WATER
COMPANY,
Defendants-Respondents,
and
JERSEY SHORE UNIVERSITY
MEDICAL CENTER,
Defendant.
________________________________
Submitted May 2, 2019 – Decided July 5, 2019
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1359-16.
Hanus & Parsons, LLC, attorneys for appellant (Marc
Peter Caswell, on the brief).
Plosia Cohen LLC, attorneys for respondent Township
of Neptune (Jonathan Frederic Cohen, of counsel and
on the brief; David Jonathan Ulric, on the brief).
Marshall Dennehey Warner Coleman & Goggin,
attorneys for respondent New Jersey American Water
Company (Walter F. Kawalec, III and Paul Christoph
Johnson, on the brief).
PER CURIAM
Plaintiff, D'Andrea Powell, appeals from the November 17, 2017 orders
entering summary judgment for defendants. We affirm.
Plaintiff was injured when she tripped and fell after stepping on an open
utility valve access box in a private access road on the property of Jersey Shore
University Medical Center (Jersey Shore) at the intersection of Davis Avenue
and the Jersey Shore access road. The valve access box was located just north
of where Davis Avenue (a public road) ends in a T-intersection with the Jersey
Shore access road (a private road). A valve access box is a small, circular metal
access hole, which permits access to underground utility shut-off valves.
Normally, valve boxes are covered by iron caps, but the caps can become
dislodged. Plaintiff alleges the valve box was uncapped when she tripped over
it.
Plaintiff sued the Township of Neptune (Township), New Jersey
American Water Company (American Water) and Jersey Shore. Jersey Shore
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settled with plaintiff, and the remaining two defendants each denied
responsibility for or ownership of the valve box. Defendants moved for
summary judgment and both argued they only owned and were responsible for
equipment on or underneath public roadways but not the property where plaintiff
was injured. Additionally, even if plaintiff could prove ownership, she could
not show either defendant had actual or constructive notice of the missing valve
box cap.
Plaintiff advanced three unsuccessful theories. First, she argued if the
valve box was a sewer pipe, then the Township bears responsibility because the
Township owns and operates the sewer system on township property. After her
injury, a cap stamped "sewer" was placed on the valve box, which led plaintiff
to believe the Township owned the valve box. However, plaintiff could not
confirm the pipe below the valve box was, in fact, a sewer pipe. The Township
uses two types of sewer pipes: "mains" and "laterals." "Mains" are large sewer
pipes that run beneath public roadways and are accessible by manhole covers
wide enough to fit a person. "Laterals" are smaller pipes that connect the mains
to private property, and the individual property owner is responsible for their
maintenance and repair. Lateral access points are smaller than manhole covers
and are only located on private property. There are no lateral access points on
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public roadways in the Township. Hence, the Township denied ownership of
the valve box where plaintiff tripped.
Plaintiff's second theory is if the valve box was a water pipe, American
Water owns it. American Water owns and operates water mains and services
lines. Water mains are larger pipes, typically under public roadways, that
convey water. Service lines connect the water main to private property. The
point at which a service line connects to private property is called a curb stop.
A curb stop is a fitting device attached to the service line used to shut off water.
Connecting lines begin at the curb stop, provide water to private property and
are owned by the property owner.
American Water produced tariffs, which define the terms and conditions
of water service, for both before and after plaintiff's injury. Both tariffs
explained American Water was responsible for service lines and curb stops,
while the property owner was responsible for connecting lines. Valve boxes,
like the one plaintiff tripped over, are placed along mains, service lines and
connecting lines. The type of line each valve box connects to dictates who is
responsible for the valve box. Jeremiah Hulsart, an American Water
representative, certified American Water did not own any assets or equipment
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beneath the valve box plaintiff tripped on. Jersey Shore admitted plaintiff
tripped on its property but denied ownership of the valve box.
American Water maintains service logs for the valve boxes it owns. Its
representatives are responsible for servicing valve boxes and replacing caps if
necessary. Hulsart certified American Water had no notice or complaints of a
missing cap on Davis Avenue in the year before plaintiff's injury.
Plaintiff posited a third theory: the Township's snowplows damaged the
cap. The Township is responsible for plowing Davis Road but not the access
road. The Township's snowplow drivers are instructed to make a U- or K-turn
when they reach the access road in order to proceed in the opposite direction on
Davis Avenue. Hulsart explained it was possible for a snowplow to dislodge a
cap, but plaintiff produced no direct evidence showing a snowplow, in fact, did
so.
On November 17, 2017, after hearing oral argument, the judge found
plaintiff did not prove either the Township or American Water owned the valve
box and dismissed her claims. The judge found plaintiff's claims against the
Township were speculative at best. The only proof plaintiff presented tending
to show the Township owed the valve box was that it was stamped "sewer."
However, plaintiff presented no proof this was anything but a lateral pipe, which
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meant it was Jersey Shore's property. Moreover, plaintiff failed to even raise an
inference that the Township's snowplows were responsible for dislodging the
cap.
Plaintiff argued the valve box was connected to a water pipe, and the
judge, affording plaintiff that inference, concluded Jersey Shore owned the
valve box. Still, plaintiff offered no facts capable of disputing American Water's
argument that all water delivery equipment past the curb stop belonged to Jersey
Shore. Even if American Water owned the valve box, plaintiff failed to
demonstrate it had constructive notice a cap was missing. This appeal followed.
On appeal, plaintiff argues the jury should have decided whether the valve
box connected to a sewer or water pipe, and considering the trial judge found
the valve box connected to a water pipe, the judge erred in concluding American
Water did not have constructive notice of a dangerous condition. Plaintiff also
contends a jury could find a Township snowplow dislodged the cap because the
director of public works, who testified the Township does not plow the access
road, did not actually plow Davis Avenue that winter. Finally, plaintiff argues
the judge erred by not considering the facts in a light most favorable to her. We
disagree.
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We "review the trial court's grant of summary judgment de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for summary
judgment should be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
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). The evidence must be viewed in "the light most favorable to the non-
moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524
(2012).
Determining whether there is a genuine issue for trial "does not require
the court to turn a blind eye to the weight of the evidence; the 'opponent must
do more than simply show that there is some metaphysical doubt as to the
material facts.'" Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523-24
(App. Div. 2004) (quoting Big Apple BMW, Inc v. BMW of N. Am., Inc., 974
F.2d 1358, 1363 (3d Cir. 1992)). Opposition to a motion for summary judgment
requires "competent evidential material" beyond mere "speculation" and
"fanciful arguments." Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374
N.J. Super. 556, 563 (App. Div. 2005). To survive summary judgment, the
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opposing party must, with the benefit of all favorable inferences, show a rational
factfinder could determine the plaintiff met her burden of proof. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 481 (2016).
A property owner owes a duty of care to prevent harm arising from a
defect in property the owner had actual or constructive knowledge of and the
opportunity to remedy. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
(2003); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).
However, proof of a fall and existence of a dangerous condition "does not, in
and of itself, establish actual or constructive notice." Prioleau v. Ky. Fried
Chicken, Inc., 434 N.J. Super. 558, 571 (App. Div. 2014), aff'd in part and
modified in part, 223 N.J. 245 (2015); Arroyo v. Durling Realty, LLC, 433 N.J.
Super. 238, 243 (App. Div. 2013). Rather, the plaintiff must prove, at the least,
the dangerous condition's nature and duration was such that the property owner
should have reasonably discovered it. Brown, 95 N.J. at 291; Bozza v. Vornado,
Inc., 42 N.J. 355, 360 (1964).
Here, the trial judge properly found no genuine issue of material fact.
Even affording plaintiff all favorable inferences, she presented no evidence to
demonstrate either the Township or American Water was responsible for the
valve box. Assuming plaintiff tripped over a sewer pipe, it was a lateral and
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belonged to Jersey Shore. If it was a water pipe, it was past the curb stop and
Jersey Shore's responsibility. Whether a snowplow dislodged the cap is pure
speculation. If a trial was held, plaintiff would have the jury speculate as to who
owned the valve box. However, "[a]n inference [of negligence] can be drawn
only from proved facts and cannot be based upon a foundation of pure
conjecture, speculation, surmise or guess." Prioleau, 434 N.J. Super. at 570-71
(second alteration in original) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)).
Even if we were to assume the valve box connected to a water pipe,
plaintiff presented no facts to indicate American Water should have been aware
the cap was missing. Hulsart certified American Water received no service
requests to repair or replace the cap on the particular valve box plaintiff tripped
over. Plaintiff put forward no evidence capable of rebutting this. A Jersey Shore
representative testified that he thought American Water owned the valve box,
but this tends to show, at best, ownership, not constructive knowledge. As a
result, a rational factfinder could not determine either defendant breached a duty
of care.
Affirmed.
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