iWestover v. Jersey Central Power & Light Company (JCPL) v. Scurator, Third-Party Defendant 2012 WL 1722582 (N.J. Super.A.D.)
This case came on an appeal from the Superior Court of New Jersey, Law Division. Plaintiff’s appeal their case after the Court granted an Order barring their liability experts reports and testimony and granted JCPL’s Motion and Order for Summary Judgment dismissing Plaintiff’s negligence and strict liability claims.
In June 1999, JCPL provided electricity to the Westovers’ property. The Westovers hired a third-party defendant Gregory Scurato for electrical work on their metal-clad barn in preparation for JCPL connection. On August 3, 2005 a fire destroyed the barn and all of its contents. Fire Marshall Weniger testified “power lines actively arcing in the rear of the building” upon his investigation and inspection. He further stated that the “arcing power line ignited the combustibles and vegetative areas” and from what he saw “a fire caused the cables to fall”. On July 9, 2007 the Westovers filed their lawsuit against JCPL and Scurato.
Plaintiff’s allege in their Complaint three theories of liability. The negligence claims were: (1) Supplying electrical services; (2) maintaining and inspecting equipment; (3) allowing the electrical short circuit to occur; and (4) hiring, training, and supervising its employees/independent contractors. The strict liability claims were: “…for selling a product, electricity, in a dangerous and defective condition which caused the…fire and the resulting damages”. JCPL was also accused of breach of contract by allowing their equipment and/or conductors to allow electricity resulting in the cause of fire.
Plaintiff’s submitted two expert reports (authored by Sidney Rubin), which JCPL moved to suppress along with the experts testimony. JCPL stated Rubins asserted information without providing basis, as well as the reports containing critical omissions. The Law Division agreed with JCPL primarily on the fact that the installation was approved in 1999, although the expert did not show any facts of its condition at the time of the fire in 2007. Rubins also failed to set forth any facts or standards or duty of care governing JCPL and how they breached the contract.
JCPL moved for summary judgment to dismiss all claims, which the Court granted. With regard to Plaintiff’s negligence claims, Plaintiffs alleged that the duty of care was set forth in the existence of a tariff. The Court, however, found that the tariff only suggested the “possible existence of some duty, that duty is not defined.”Expert testimony is needed to show the duty of care, as well as to show how an electric company maintains and undertakes its electricity and/or equipment and facilities.
With regard to Plaintiff’s liability claim, the Court found expert testimony was also required in order to aid the fact finder in “understanding the mechanical intricacies of the instrumentality and exclude other possible causes of the accident.” The Court listed two possible sources of liability which were the “overhead electrical service conductor and the electricity itself.” Since the conductor was not manufactured by JCPL, JCPL could not be liable under that claim. As to the electricity itself, no prima facie proof was given to its defectiveness.
JCPL then moved to dismiss the breach of contract claim. Due to the Courts previous conclusion that expert testimony was required to understand the intricacies of electricity, the Court stated plaintiffs “…failed to prove, via expert testimony, that JCPL failed to perform under the contract.” Plaintiffs appealed.
The Appellate Court reviewed the evidentiary ruling using the abuse-of-discretion standard; and the legal conclusions that supported the summary judgment ruling de novo. Since there was absence of an abuse of discretion, the Court granted the evidentiary ruling of the trial judge. No electrical fault from installation to the barn was proven. Due to critically unanswered questions, along with a lack of supporting facts by the expert, the Court deemed the expert having net opinions and speculative testimony, which is inadmissible. “A net opinion can be created by the “failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Buckelew, supra, 87 N.J. at 524.
The Appellate Court agreed with the Law Division in that without an expert opinion, theories of liability could not be sustained. The Appellate Court further agreed that there was no affirmative proof of negligence shown on Plaintiff’s case so the negligence claim fails as a matter of law. Plaintiffs also failed to establish the existence of a defect (both by the electrical product and by the electrical conduct), therefore Plaintiff’s strict liability claim was dismissed. Lastly, Plaintiff’s failed to show an existence of breach of contract. Appellate Court Affirmed.
