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May 15, 2012

Re:       Supreme Court decision in Seals v. County of Morris

Dear Mayor:

Today the Supreme Court released its decision in the case of Seals v. County of Morris.  In February 2003, the plaintiff was driving along a snowy road at night.  As he approached a curve, he attempted to brake, but instead skidded across the road and struck an electric utility pole owned by Jersey Central Power and Light (JCP&L).  The plaintiff sued both Morris County, which owned and maintained the roadway, and JCP&L, which owned and maintained the light pole.

The Appellate Division granted immunity to JCP&L under a legal doctrine first espoused in Contey v. New Jersey Bell Telephone Company.  In Contey, the Supreme Court examined the statute governing the placement of telephone utility poles, and found that they required the municipality or county to designate the exact location of the pole.  Since the public body chose the location of the pole, the court reasoned that the public body, and not the utility, should be liable if it turns out the location was dangerous.  Since the Supreme Court granted immunity to the utility in Contey, the Appellate Division reasoned that JCP&L in the Seals case should be entitled to the same immunity.

The County disagreed, indicating that they had no control over the placement of this particular pole some 80 years prior to the accident.  Further, the County argued that the Appellate Division improperly relied on a statute, arguing that the statute is only intended to settle property rights and not assign liability, nor does the statute imply that a public body’s silence on the location of a pole is somehow tacit approval.

Since the League viewed the Appellate Division decision as a new source of liability that would affect all public bodies, it intervened as amicus curiae.  The League argued that a plain reading of the statute at question in Contey showed that the utility immunity applied only to telephone or telegraph poles, not electric poles, like the one owned by JCP&L.  In fact, an entirely separate statute governs the placement of electric poles.  The electric pole statute permits only those municipalities incorporated as towns or cities to influence the location of poles, and then only in a very limited way; towns and cities may only indicate the streets where electric poles should be located, not the exact locations.

The Court agreed and reversed the Appellate Division’s grant of immunity to JCP&L, reasoning that the two types of poles are treated in two very different ways under their respective statutes.  According to the Court, the “key difference between the two statutes is that under N.J.S.A. 48:17-11, a municipality or county must select the exact location of a telephone pole and approve a pole-layout plan, but under N.J.S.A. 48:7-1, an incorporated town or city (but not a county) only designates the street on which an electric pole will be placed.”

Based on this, the Court agreed with the County and the League that the utility should not be immune from liability, because public bodies (even cities and towns) have very little power over the placement of electric poles.

The Court also remanded the case for further proceedings as to whether the County itself should be immune from liability under the Tort Claims Act.  You can read the case at: http://www.njslom.org/documents/A8410SealsvCountyofMorris.pdf

We urge you to discuss the impact of this case with your municipal attorney.  If you have any questions or require further information, please contact League Staff Attorney Matthew Weng at mweng@njslom.com or at 609-695-3481 ext 137.

Very truly yours,

 

William G. Dressel, Jr.
Executive Director

 

 

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