Seals v. County of Morris, 210 N.J. 157 (2012). While driving on a snow-covered road, plaintiffs could not negotiate a curve in the road and struck a JCP&L electrical pole located near the side of that road. The County of Morris did not own, but did have an easement over, the property on which the pole was located. Plaintiffs sued JCP&L for negligently placing the pole and the County for negligently allowing the placement. Defendants sought summary judgment, which the Law Division denied. The Appellate Division reversed, holding that JCP&L could not be liable because the County had implicitly approved the siting of the pole by not objecting to it. As to the County, the Appellate Division remanded for more factual development.
The Supreme Court granted leave to appeal and reversed as to JCP&L in a unanimous opinion by Justice Albin. The Court also remanded to the Law Division for further proceedings as to whether the Tort Claims Act protected the County.
In essence, the case turned on the Court’s view of Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994). There, the Court had found the phone company immune for the placement of a telephone pole where a governmental entity directed it to be placed. But here no governmental entity dictated the placement of the pole. Moreover, telephone poles are governed by a different statutory regime than are electrical poles, a fact that Justice Albin observed in a footnote was not for the Court to comment on. Under the statute governing electrical poles, a county has no role at all in designating the placment of poles. Even a town or city may designate only the street where electrical poles are to be placed, not the precise location as with telephone poles. For those reasons, Contey did not control. Instead, if plaintiffs proved negligence by JCP&L, they could recover.
JCP&L also relied on N.J.S.A. 48:3-17.1 as a basis for immunity. That statute says that if a utility company maintains an electrical or telephone pole at the same spot for ten years, “the owner of the soil” is presumed to have consented to the pole’s placement there. Justice Albin rejected JCP&L’s reliance on that statute here, where the County was not the “owner” of the property, but had only an easement over it. There was no basis to say that the statute, which was designed to give a utility company “a permanent easement in property through an analogue to adverse possession,” authorized the County to order removal of the pole, and that by remaining silent the County had authorized the pole.