Opinion
DOCKET NO. A-6156-12T4
01-20-2015
JERSEY CENTRAL POWER & LIGHT COMPANY, Plaintiff-Appellant, v. NINA C. MITTER, Defendant-Respondent.
Mark B. Watson argued the cause for appellant (Daniel F. Sahin, P.C., attorneys; Mr. Watson and Mr. Sahin, on the brief). Kimberly A. Frankiewicz argued the cause for respondent (Cooper Maren Nitsberg & Voss, attorneys; Ms. Frankiewicz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, DC-002802-12. Mark B. Watson argued the cause for appellant (Daniel F. Sahin, P.C., attorneys; Mr. Watson and Mr. Sahin, on the brief). Kimberly A. Frankiewicz argued the cause for respondent (Cooper Maren Nitsberg & Voss, attorneys; Ms. Frankiewicz, on the brief). PER CURIAM
Plaintiff Jersey Central Power & Light Company (JCP&L) appeals from the July 16, 2013 order of the Law Division, which granted the motion of defendant Nina C. Mitter for reconsideration of the court's August 6, 2012 decision, and dismissed plaintiff's complaint with prejudice. For the reasons that follow, we affirm.
It is not clear from the record before us whether an order was ever entered after the court's August 6, 2012 decision.
I.
On January 28, 2009, at approximately 10:00 p.m., Mitter was driving along Texas Road in Morganville with her then sixteen-year-old daughter Shiasia. Mitter had just picked Shiasia up from a friend's house and they were driving home. The road was snow-covered and icy. Because of the road conditions, Mitter was traveling well below the forty mile-per-hour speed limit.
Suddenly, a bright flash accompanied by a loud bang came from a transformer atop a nearby utility pole. The flash temporarily blinded Mitter, and she stepped on the brake. Her car slid off the icy road and struck the pole that held the transformer. The car continued into the front yard of a home, coming to rest by a fence.
The owner of the home, Jeff Stewart, heard a bang and saw the flash even though his shades were drawn. He immediately realized that the transformer atop of a pole in front of his neighbor's home had again exploded. He had experienced similar flashes from the same transformer once or twice a year. Stewart's son then told him there was a car in their front yard. Stewart ran out and brought Mitter and her daughter into his home.
JCP&L filed a complaint against Mitter seeking damages of $13,321.95, claiming she "carelessly, recklessly, and negligently" damaged the pole.
The case was tried before Judge James J. McGann who heard the testimony of Nina and Shiasia Mitter, Jeff Stewart and his daughter Martina, and two employees of JCP&L, Glen Ford, a line supervisor, and Simone Whittaker, a claims representative. At the conclusion of the trial, Judge McGann determined that both parties were negligent and awarded JCP&L $6,660.98, representing half the damages it sought.
Mitter moved for reconsideration. On July 16, 2013, Judge McGann granted her motion and dismissed JCP&L's complaint. He found that Mitter, as a driver, owed a duty of care to plaintiff as a property owner, but plaintiff had not presented sufficient proof that defendant acted negligently. Relying on our opinion in Mockler v. Russman, 102 N.J. Super. 582, 587-88 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969), where we held that the loss of control over a motor vehicle does not definitively establish negligence, nor does it justify an inference of negligence on the part of an operator of a motor vehicle, Judge McGann conceded that in his August 6, 2012 decision, he mistakenly gave plaintiff the benefit of an inference that defendant acted negligently.
On appeal, JCP&L raises the following points:
I.
THE TRIAL COURT ERRED IN ITS RULINGS.
A. THE TRIAL COURT ERRED IN ASSESSING CONTRIBUTORY NEGLIGENCE AGAINST JCP&L - EVEN ASSUMING THE FLASH OF LIGHT DESCRIBED BY THE DEFENSE WITNESSES WAS AN EXPLODING TRANSFORMER, AS THERE WAS NO EVIDENCE THAT JCP&L WAS NEGLIGENT IN CONNECTION WITH THE PURPORTED EXPLOSION.
B. THE TRIAL COURT ERRED IN ITS JULY 16, 2013 DECISION BY FINDING THAT DEFENDANT MITTER WAS NOT NEGLIGENT.
II.
THE TRIAL COURT MISAPPLIED THE LAW OF [SUPERSEDING] AND/OR INTERVENING ACTS.
III.
THE TRIAL COURT ERRED IN REVERSING ITS AUGUST 6, 2012 DECISION AS IT FAILED TO ARTICULATE MATTERS OR CONTROLLING DECISIONS WHICH THE COURT OVERLOOKED.
IV.
THE TRIAL COURT ERRED IN FAILING TO CONSIDER AND/OR ADMIT RELEVANT EVIDENCE CONTAINED IN PROPERTY SURVEYS.
V.
THE TRIAL COURT'S JULY [16], 2013 DECISION CONSTITUTES A MANIFEST DENIAL OF JUSTICE.
II.
We begin by noting that a trial court "has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment." Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quotation marks omitted). As previously mentioned, plaintiff has not provided any proof that the court's August 6, 2012 oral decision was ever reduced to a formal order. We therefore regard that decision as interlocutory and, as such, there are no restrictions on the court's power to revise it. Id. at 534-35 (citing R. 4:42-2).
"A ruling on summary judgment is reviewed de novo." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). In determining whether summary judgment is proper, we "apply the same standard governing the trial court," Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012), and do not defer to the trial court's interpretation of "the meaning of a statute or the common law." Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Summary judgment is proper if, after drawing all inferences in favor of the non-moving party, "no genuine issue as to any material fact" exists. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.
"Negligence is a fact which must be shown and which will not be presumed. . . . An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961).
In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected.
[Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 399 (2005) (quoting Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141 (1951)).]
We agree with Judge McGann's ultimate analysis that plaintiff provided no evidence that Mitter was operating her car in a negligent manner. Defendant's testimony that she was driving approximately twenty miles-per-hour, well under the forty mile-per-hour speed limit, was unrefuted. Defendant's testimony that a bright flash of light came from one of plaintiff's poles was corroborated by her daughter and by two disinterested witnesses, Jeff Stewart and his daughter Martina. The court found defendant and these three witnesses credible. Plaintiff provided no expert testimony to support its theory that defendant must have been traveling at an excessive speed to have caused damage to its pole.
As we are affirming Judge McGann's decision that plaintiff failed to establish defendant's negligence, we need not address the judge's alternative theory that the bright flash was a superseding or intervening act that would relieve defendant of liability if negligence had been established. We also need not address plaintiff's claim that the court erred regarding the property surveys, which in no way could have supplied the missing evidence of negligence. Finally, any error in finding plaintiff to be contributorily negligent is irrelevant, because it would not change the outcome given plaintiff's failure to show defendant was negligent.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION