SEALS v. COUNTY OF MORRIS

The opinion of the court was delivered by

SAPP-PETERSON, J.A.D.

In these appeals, we consider the liability, if any, of defendants, Jersey Central Power and Light and First Energy Corporation (JCP L), for injuries sustained by plaintiff, John Seals, whose vehicle struck a utility pole owned by JCP L, and whether the provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, serve as a bar to any claim against defendant, County of Morris (the County). The motion judge determined that because there was no ordinance, resolution, or regulation in place for JCP L to follow at the time it placed its pole, the immunity granted to utility companies under Contey v. New Jersey Bell Telephone Co., 136 N.J. 582, 643 A.2d 1005 (1994), does not apply; JCP L's liability must therefore be analyzed under ordinary negligence principles; and disputed factual issues precluded the grant of summary judgment. The motion judge also concluded that because the County took no action to regulate the location of the utility pole, the immunity provisions under the TCA do not apply and the question of its negligence must be resolved by applying ordinary principles of negligence. We reverse the denial of summary judgment to JCP L. We vacate the order denying summary judgment to the County and remand for further proceedings. We affirm the denial of summary judgment to plaintiff.

Plaintiff, Julia Seals, has asserted a per quod claim in this action. Reference to "plaintiff" throughout this opinion refers only to John Seals.

During snowy weather in the early morning hours of February 7, 2003, John Seals lost control of his Ford pickup truck while traveling eastbound on Route 513, a county road, in Washington Township (Township). The truck skidded across the opposite lane of traffic and collided with a JCP L utility pole, Pole # 617, which was located next to the road on private property. The County maintains a right-of-way easement over this portion of the property. Although the parties dispute whether JCP L possesses a valid easement to have placed Pole # 617 in its current location, the property owner granted JCP L's predecessor-in-interest an easement to place a pole in 1928. The pole was first installed sometime between 1928 and 1937 as part of a distribution line of poles holding up electrical wires along Route 513.

Specifically, JCP L maintains it has an easement "to place its pole in the area of Pole #617" and provides as proof (1) a grainy copy of a deed transferring an easement to JCP L's predecessor, dated December 3, 1928, and (2) a letter from an attorney, Arnold Gerst, stating that "title information shows that the public utility in the 1920[ ]s had (and still has) an easement with respect to the property where Pole [#]617 is located. . . . [T]he landowner owns the property where the pole is located." Plaintiffs rely on the deposition testimony of John Santucci, in which he testified that he had searched the grantor/grantee index and was unable to find an easement for Pole #617 (but found an easement for another pole in the same vicinity), as proof that JCP L does not have an easement for Pole #617 and "is trespassing on the present owner's property with knowledge of and indifference to that trespass!"

The parties dispute the exact date that the pole was installed.

At the time the utility pole was placed, Route 513 was an existing road that had previously been part of an old stagecoach road that was never designed or engineered by the County. All of the poles placed along Route 513, including Pole # 617, were installed by JCP L without County consultation or involvement. JCP L contends that it was granted an easement "to place its pole in the area of Pole # 617" in 1928. JCP L engineering supervisor, Richard Santoro (Santoro), testified during his deposition that JCP L does not conduct any specific studies to determine whether the poles are in a safe location from a traffic engineering perspective. Rather, JCP L "reacts" to any direction given by the governing body in terms of pole location or relocation. Santoro stated that even if vehicle safety is an issue, unless the governing body requests that a pole be moved, JCP L will "typically leave it alone."

According to the County, it does not have its own police force and does not investigate traffic accidents; however, it is typically notified by the Township police whenever a pattern of accidents occurs on one of its roads. Prior to plaintiffs accident, the Township had never notified the County of a pattern of accidents regarding Pole #617, although discovery revealed that at least three accidents had occurred in the curved area of Route 513 near Pole #617 between 1989 and 2003. All three accidents involved motorists skidding and losing control of their vehicles on a wet road surface. Nor did the County routinely receive reports from JCP L when its poles were involved in accidents. When asked during his deposition whether the County required notification, Santoro responded "[s]ometimes yes and sometimes no." JCP L acknowledged it keeps at least some records of the accidents and confirmed that it does not report the accidents to the County. Additionally, JCP L does not notify the County when it undertakes any work on a pole or installs a pole. Rather, JCP L contacts the property owner directly to seek an easement to install a pole. The parties dispute whether Pole # 617 has remained in substantially the same location since it was first installed or whether JCP L has moved the pole closer to the roadway.

At the heart of this dispute is an expert report by forensic engineer Ira Kuperstein that concluded that the pole had been moved closer to the roadway sometime between 1989 and 2003 and a police report from 1998 indicating that the pole had been moved closer to the road.

On March 30, 2007, JCP L moved for summary judgment, claiming that pursuant to Contey, it owed no duty to plaintiffs. The motion judge entered an order on May 25, 2007, granting partial summary judgment in its favor, but later vacated this order after both the County and plaintiffs prevailed on their respective motions for reconsideration.

In late spring 2008, all three parties moved for summary judgment. The trial court heard arguments on August 12. The County argued that it was immune from liability under the TCA. The motion judge disagreed and denied the motion. She reasoned that because the County took no action to regulate the location of the poles, it was not entitled to sovereign immunity and instead was "subject only to ordinary principles of negligence in determining liability for the case." JCP L's motion was based upon its position that since the pole was not in the roadway or in plaintiffs direction of travel, the accident was not reasonably foreseeable and, thus, beyond the scope of any duty JCP L owed to plaintiff. The motion judge denied the motion, reasoning that the foresee-ability of the accident was a triable fact and that a jury should decide how far JCP L's duty extended to plaintiffs. She also denied plaintiffs' motion without explanation.

Thereafter, the court denied the County's motion for reconsideration and the County then sought leave to file an interlocutory appeal, which we denied. JCP L then moved for reconsideration of the October 16, 2007 order vacating the court's May 25, 2007 order granting summary judgment in its favor pursuant to Contey. After considering JCP L's extensive argument that Contey placed a duty on the County to conduct highway safety studies regarding the locations of utility poles, the motion judge expressed the opinion that she could not "find in Contey or any statute that anybody has brought to my attention that says that a municipality, or a county, or whatever public entity it is that controls the road in question, has a duty to conduct a safety study." She continued:

They say it at least five times through this case that highway planners, and engineers that are employed by public bodies are in a much better position to determine where a . . . pole is going to be safely located. And . . . I agree.

But if this case is the case that signals to municipal entities that they have a duty to conduct this . . . highway safety study, then I . . . just think the message doesn't really get through, and it would be a rather strange place to give that message, when the public entity [in the Contey case] [was] no longer even in the case, probably filed no briefs.

The judge elaborated, "[t]he [C]ourt knows how to hand out duties. And if that's a duty . . . it's really a soft[-]pedaled hand[ ]out." She then concluded:

[W]hen a public utility places a pole in compliance with a plan that has been sent [sic] forth . . . by a public utility, by a public entity, that the public utility is not liable. . . .

. . . .

. . . [I]f there are no standards set forth for a public utility, then the public utility is going to be subject to [a] straight negligence standard.

The judge memorialized her decision by a written order dated May 15, 2009. Thereafter, the court denied plaintiffs' motion for partial summary judgment against JCP L and the County.

On July 6, 2009, we granted JCP L's motion for leave to appeal the trial court's May 15 order and, by order dated September 25, 2009, we granted the County's motion for reconsideration of our March 24, 2009 order denying it leave to appeal. We granted the County leave to appeal and consolidated its appeal with JCP L's pending interlocutory appeal. Also on September 25, we granted Verizon's motion to appear as amicus curiae. On October 30, 2009, we granted plaintiffs' motion for leave to file a cross-appeal. On December 1, 2009, we granted the motion of New Jersey Association for Justice (NJAJ) to appear as amicus curiae.

On appeal, JCP L raises the following points for our consideration:

POINT I

THE LOWER COURT'S DECISION HAS CREATED A DISINCENTIVE FOR PUBLIC BODIES TO FULFILL THEIR PUBLIC SAFETY OBLIGATIONS, AND HAS PLACED A BURDEN ON UTILITY COMPANIES TO GET INTO THE HIGHWAY SAFETY BUSINESS INSTEAD, CONTRARY TO CONTBY[, supra, 136 N.J. 582, 643 A.2d 1005].

A. UTILITY COMPANIES HAVE NOT HAD A DUTY TO DRIVERS LEAVING THE ROADWAY SINCE LONG BEFORE CONTBY WAS DECIDED.

B. CONTEY REJECTED THE ARGUMENT THAT AN ORDINARY NEGLIGENCE STANDARD APPLIES TO JCP L'S POLE.

C. THE CONTEY DISSENT RECOGNIZES THAT UTILITIES HAVE BEEN GRANTED IMMUNITY FOR ANY RESPONSIBILITY FOR POLE PLACEMENT.

D. THE DUTY TO FORESEE.

E. THE TRIAL COURT MISCONSTRUES CONTEY BY LIMITING THE PUBLIC BODY'S DUTY AND BY IMPOSING A DUTY ON JCP L TO ENGAGE IN HIGHWAY ENGINEERING, DESIGN AND SAFETY.

POINT II

IF THE LOWER COURT IS AFFIRMED, THE HOLDING MUST BE PROSPECTIVELY APPLIED.

POINT III

UNDER ANY CIRCUMSTANCE, JCP L CANNOT BE HELD LIABLE SINCE ITS POLE WAS LOCATED IN THE SAME, OR SUBSTANTIALLY THE SAME, LOCATION FOR OVER TEN YEARS SUCH THAT IT HAD APPROVAL IN WRITING FOR THE PLACEMENT OF ITS POLE AS A MATTER OF LAW.

In its cross-appeal, the County raises the following points:

POINT [I]

THIS CASE IS DISTINGUISHABLE FROM CONTEY v. NEW JERSEY BELL TELEPHONE CO., 136 N.J. 582 [ 643 A.2d 1005] (1994).

POIourt to make its own credibility determinations, and recommends to future judges that interviews such as these on both sides be required to be videotaped.

Hardy was Van Buren's first boyfriend, and while she had a long term relationship with him, and they had three children together, Van Buren is still apparently bitter about his rampant infidelity. In the 16 years since his incarceration, she has had only minimal conversation with him when he calls to speak to his children. This largely offsets any favoritism towards him she might have otherwise been suspected of having. Nevertheless, she clearly has love for him as the father of their children and this potential bias has been considered by this Court. All in all, the Court found Van Buren to be remarkably forthcoming with Dr. Hayes and credible.

Govt. Exh. 1, att. A at 11.

Id. at 25.

Id. at 17, 25.

For example, she candidly described Hardy as "very whore-ish." Id. at 23.

Dr. Hayes included in her report a narrative of arrests of Toni Van Buren, presumably to cast doubt on her credibility. Govt. Exh. 1 at 62. Van Buren testified at the Atkins hearing to a criminal conviction for possession of heroin. Rec. Doc. 2125 at 474. Regardless, the Court has viewed the lengthy interview and found that Van Buren was candid with regard to Paul Hardy, any criminal history notwithstanding. Her testimony at the Atkins hearing was likewise consistent with her interview with Dr. Hayes.

While Van Buren did not know Hardy well prior to the age of 18, she did know him very well in the immediate years that followed. They dated for three years prior to the birth of their first child, Paula, in 1989, and lived together through the birth of two more children over the next five years until his arrest.

Govt. Exh. 1, att. A at 13.

Id. at 4; see also Rec. Doc. 2125 at 454-55, 458-59, 462.

She described how, from when she first met him, Hardy had a difficult time getting his point across and how he would get frustrated when people did not understand him. Even now, when she tries to talk to him, "he just really just don't understand" and the more she explains, the more he does not understand, and "then he gets frustrated and then he get me frustrated." She pointed out in particular that Hardy's interpretation of Bible passages, which he conveys to their children, is contrary to what she believes the passages mean.

Govt. Exh. 1, att. A at 41, 78-79.

Id. at 62.

Id. at 79-80; Rec. Doc. 2125 at 468-69.

Van Buren related how in every facet of his life, Hardy relied on others to do things for him. Hardy's mother, Marie, did all the cooking, cleaning and washing of clothes in the Hardy household as Paul was growing up. When she first began dating Hardy, he "always had someone to drive him over." Once they were involved, Hardy would ask her to buy his clothes. She never knew him to do any shopping by himself. He gave her money to buy things for their children. He would join the children in parties, but did not do any of the planning. He never went to the store for her, nor helped around the house with cooking or washing clothes or dishes or mopping the floor. He could make a sandwich or fix cereal, but nothing more elaborate. She recalled one time when he attempted to change their daughter's diaper, he spread newspaper over the floor, "had wipes everywhere" and a shirt tied around his face, before he abandoned the effort.

Govt. Exh. 1, att. A at 14.

Id. at 9.

Id. at 28, 41.

Id. at 72. Rec. Doc. 2125 at 462.

Govt. Exh. 1, att. A at 33.

Id. at 34, 89-90.

Id. at 28-29, 85.

Id. at 29, 63.

Id. at 30; Rec. Doc. 2125 at 467.

Hardy would give Van Buren the money to pay their bills. She never knew him to make any payments himself. If something broke in the house, he would call someone to fix it, "[h]e is not a handy guy at all." He had no concept of time and as a result was chronically late. They sometimes took the bus together but she did not recall him ever taking a bus on his own. When they were first dating, he encouraged her to stay in school but he would not try to help her with any of her studies, nor did she ask him to. He did not know how to use a thermometer. When they eventually decided to get an apartment of their own, Hardy asked his sister, Linda, to find a place for them, which she did. After that, Hardy's brother, Terry, bought a house and Hardy and Van Buren stayed there.

Govt. Exh. 1, att. A at 54.

Id. at 63.

Id. at 55.

Id. at 72; Rec. Doc. 2125 at 457.

Id. at 75.

Id. at 83.

Id. at 16.

Id. at 18.

Hardy learned to drive after he and Van Buren had dated awhile, and would drive very very slowly at first and did not improve for a long time. He never fixed his own car. He also would not drive anywhere he was not familiar with and if he traveled outside the state, someone else would always go with him. At one point, he learned of a job with Meals on Wheels, delivering meals. Van Buren went with him for the interview and filled out the paperwork for him. When he got the job, she rode with him to tell him which streets to go to. In terms of leisure activities, she described his only hobby as "females" and that he did not like fishing, playing sports, reading the newspaper or magazines, nor games, nor did they talk about current events.

Id. at 35-36. Even though Van Buren was three and a half years younger than Hardy, she learned to drive before he did. Rec. Doc. 2125 at 457.

Govt. Exh. 1, att. A at 35.

Id. at 42, 66.

Id. at 43-44.

Id. at 38. She stated later that she had never seen him fill out an application for anything. Id. at 39.

Id. at 37.

Id. at 26, 57, 70-71, 92.

Van Buren also described Hardy as too kindhearted, always trying to please the next person, and that many people "used him, took a lot of his kindness and . . . just walked over him." When asked if Hardy's brother, Wayne, was "slower" than Paul, she said "Paul was slower because Wayne knew a lot of ways to manipulate Paul. He knew what to say to Paul to get Paul moving and doing whatever it was he wanted Paul to do." She also described how a friend of Hardy's told him he could get a credit card to rent cars if he opened a bank account, so he did. As she put it, "a lot of stuff Paul did, it was because people told him to." He sought advice from people he thought knew more than him. Hardy was generous with money, and "a lot of people clung to him a lot because they could get him to give and to do whatever they asked him to do." She felt he was taken advantage of by people he considered to be friends and that he was too trusting.

Id. at 21.

Id. at 49-50.

Id. at 39.

Id. at 79.

Id. at 64-65.

Id. at 65.

In retrospect, Van Buren thinks Hardy might have been slow. "[A] lot of things . . . he just didn't do on his own. Always had somebody to do things for him . . . He just didn't do . . . things on his own." C. Dr. Swanson's Other Interviews

Id. at 61.

Deft. Exh. 1 at 10-12.

This portrait was corroborated by others who knew Hardy at a much younger age, such as Theresa Minor. She recalled that Hardy was slow academically and a quiet child who had a speech impediment when he was younger. Despite the fact that her son, Tony, and Hardy were about the same age, she thought that Hardy performed at a much lower level. At ages four or five, Hardy's inability to express himself was so frustrating to him that he would give up or cry. She recalled that Hardy was often teased by other children for being the slowest among them, and she thought that Hardy was the slowest of all his siblings.

See id. at 10.

Tony Minor reported many of the same observations as his mother, based on his longstanding friendship with Hardy during childhood. Hardy struggled in school, to the point that reading was difficult for him well into middle school, and he functioned at a much lower level than his siblings, relying on them to cover for his deficits. Vance Ceaser, another childhood friend of Hardy's, corroborated the reports from the Minors. For example, when Hardy and Ceaser were in high school, Ceaser attempted to tutor Hardy to help him pass. He reported that it was impossible to do so. That was hardly the first of Hardy's academic troubles however. Ceaser recalled that, when they were in the 9^th grade together, Hardy's reading, writing, and math skills were at an elementary school level.

See id. at 10-11.

See id. at 12.

Greg Williams, who met Hardy when he was about 20 years old, provided additional support for Dr. Swanson's conclusion that Hardy did not develop the usual adaptive behaviors. For example, Hardy relied on Williams to drive him when he needed to leave town. Williams noted that Hardy relied on him during these trips, and at other times, for basic skills such as interpreting his bank and credit card statements. Hardy was unable to care for possessions such as his car and made irrational choices, like continuing to make expensive repairs to his car long after it was economically sensible to do so.

See id. at 11-12.

The Court has had the benefit of reviewing videotaped interviews conducted by Dr. Hayes with Toni Van Buren, Theresa Minor, Vance Ceaser, and Greg Williams. The Court finds that, based on its review of these videotapes, each informant is credible and the information they provided is consistent with that in Dr. Swanson's report. A full review of each tape appears in Appendix D, along with the Court's review of several other video and audiotapes submitted by the government as evidence about Hardy's level of adaptive functioning.

Govt. Exh. 1, atts. CDs 2-5; Deft. Exhs. 13-16.

D. Dr. Swanson's Interviews and Testing of Hardy

In addition to the descriptive and narrative evidence discussed above, which supports the conclusion Dr. Swanson reached after applying the VABS-II, she also reviewed Hardy's medical and school records. They were inconclusive on the issues of mental retardation but tended to demonstrate that Hardy had limited functional academic skills. So, Dr. Swanson conducted academic and adaptive probes on Hardy. She discovered that his reading fluency, assessed at 88 easy words ("sight" and "Dolch words") per minute, and accuracy, determined to be 97%, were average for a third-grader, but significantly below that of an average adult. His reading comprehension was only 50%. While his comprehension score increased to 60% when Hardy was asked to read slightly more complicated materials such as a newspaper, his fluency and accuracy scores declined.

Deft. Exh. 1 at 12-13.

Id. at 21-23.

Hardy's math skills were slightly better than his reading skills, but still limited. His measurement and time-telling skills were limited in word problems, although he was able to use a calendar better. He exhibited significant deficits in domestic skills, such as reading oven and stove-top dials and using a washing machine, dryer, measuring cups, and a thermometer. His money skills were basic. For example, he could count money and make change with some effort, but he could not budget or manage money.

In a number of other areas, such as phone skills, health and safety matters, transportation, the use of reference materials and the like, Hardy performed at only a basic level, if that. He acknowledged that he has difficulty learning new tasks, including vocational ones, which likely accounts for his being employed only once (and briefly). The assessments of his level of academic attainment, discussed above in the IQ section, put him between the 6^th and 7^th grade in reading skills, in the 6^th grade in math skills, and the 3^rd grade in writing skills.

Id. at 14, 23. As it turns out, Hardy held two legitimate jobs, one with Meals on Wheels for some months and then as a porter/bus boy at Ernst Café. Govt. Exh. 1 at 157.

Based on this substantial additional corroboration of Hardy's scores on the VABS-II found during her interviews, observations, and direct assessments of Hardy, Dr. Swanson concluded that he should be diagnosed with mild mental retardation.

ii. Dr. Hayes' Assessment

Dr. Hayes has considerably less experience with the assessment of mental retardation as compared to Dr. Swanson. In her entire career, she has done about 80 supervised and unsupervised assessments relating to mental retardation. Of those, she has performed approximately 20 mental retardation assessments and only ten VABS-II assessments since receiving her license in 1998 as compared to Dr. Swanson's over 10,000. She also has had no training in administering the VABS-II since receiving her license. Unlike Dr. Swanson, Dr. Hayes did not attempt to obtain any formal training or advice from the authors of the latest manual, which was used in connection with this case. She testified that she felt it was unnecessary, given her experience in administering ten VABS-II in the past. A. Dr. Hayes' VABS-II Assessment of Hardy Based on Javetta Cooper

Rec. Doc. 2126 at 955.

Rec. Doc. 2129 at 1208-09, 1223, 1226-27.

Id. at 1223.

Id. at 1224-1226.

Id. at 1225-26. Dr. Hayes also stated that she met one time with a group of colleagues to informally talk over the changes, but does not recall who was present. Id. at 1231-32.

Dr. Hayes used the results of an interview with Javetta Cooper to complete a VABS-II assessment of Hardy's level of adaptive functioning, using Cooper's cumulative knowledge of Hardy. Based on that interview, Dr. Hayes calculated Hardy's VABS-II scores for his level of adaptive functioning as follows: Domains/ Standardized Percentile Age-Equivalent Subdomains Score Rank Score *Communication — — Receptive 15 50th 18 Language Expressive 11 10th 8:7 Language Written Language — — — **Daily Living — — Personal 12 16th 17:3 Domestic 11 10th 13:9 Community — — — *Socialization — — Interpersonal 14 36th 16:0 Relations Play Leisure 12 16th 14:0 Time Coping Skills — — — Motor Skills N/A N/A Gross Motor Skills N/A N/A N/A Fine Motor Skills N/A N/A N/A ABC — — —

Govt. Exh. 1 at 86 n. 64 ("[T]he age ranges used to compare Mr. Hardy's adaptive functioning were either 17:6 to 17:11 or 22:0 to 29:11 since this reflects Ms. Cooper's cumulative knowledge of the defendant.").

* 17:6 to 17:11 age norms used; ** 22:0 to 29:11 age norms used.

As can be see from the above, Dr. Hayes did not score Hardy on any of the three general domains of adaptive functioning, she did not administer the motor skills domain portion of the test, and she did not compute an overall score. She explained that she was unable to tabulate the scores marked in the table as "—" because Cooper was unable to provide sufficient information. In fact, she indicated that one of the scores she did report, that listed for the "Personal" sub-domain under "Daily Living," could not be relied on as "Ms. Cooper did not have enough information to rate Mr. Hardy on three items," so the score could be used only "for informational purposes."

Id. at 86-87 n. 66.

Dr. Hayes nevertheless conducted a comparison of the scores she obtained for Hardy against the scores Dr. Swanson obtained through her application of the VABS-II to her interview with Van Buren. Her comparison reveals that, for questions that both Cooper and Van Buren answered, Cooper scored Hardy higher than Van Buren 38 times, lower than Van Buren twice, and gave the same score 6 times. No comparison was possible for the remaining 28 questions that Dr. Hayes selected for comparison. Of note, many of the discrepancies were of only one response level, such as between a score from Van Buren that Hardy was "sometimes" able to perform the task without help or reminders and a score from Cooper indicating that he "usually" did.

Id. at 88-105.

The remainder of this portion of Dr. Hayes' report on adaptive behavior briefly discusses the shortcomings of the VABS-II. It does not reflect that Dr. Hayes reached a definitive conclusion concerning Hardy's level of adaptive functioning based on the VABS-II or any other test. Instead, the rest of her report indicates that she turned to other sources of information, some of which Dr. Swanson used as well.

Id. at 105-06.

After consulting these other sources, Dr. Hayes concluded that "[t]here is little evidence to suggest that Mr. Hardy had any substantial limitations or problems performing the activities of daily living required for personal and social sufficiency." She also noted several ways in which she believes Dr. Swanson erred, making the point that, in her opinion, Dr. Swanson did not have "comprehensive information about Mr. Hardy's adaptive strengths and weaknesses during the developmental period" and therefore she should have "rule[d] out a diagnosis of mental retardation." Put another way, Dr. Hayes was of the opinion that Dr. Swanson lacked sufficient evidence for her conclusion and, in any event, her conclusion was wrong after considering the proper evidence. The Court will summarize Dr. Hayes' reasons on each point.

Id. at 176.

Id. at 175.

B. Criticisms of Dr. Swanson's Evaluation

Dr. Hayes' chief criticism of Dr. Swanson was for her reliance on Van Buren as a VABS-II informant. She first noted that, based on the record evidence available, it was doubtful that Van Buren knew Hardy prior to age 18 as she reported to Dr. Swanson and, moreover, Van Buren's knowledge of Hardy around the developmental period was limited. Dr. Hayes also indicated that Van Buren's recollections were "inherently unreliable" because she was interviewed at age 37 concerning her impressions of Hardy that she formed in early teens. She noted that better informants, such as Hardy's siblings, should have been used. And she considered many of Van Buren's answers to the questions on the VABS-II inconsistent with the "collateral interviews and/or that of other informants or records," principally highlighting her conflict with Cooper's account.

Id. at 62-63.

Retrospective diagnosis will always interpose this challenge to some degree or another. The Court notes that Van Buren was no more remote from experience with Hardy's adaptive behavior than any of the other potential VABS-II candidates, such as the one selected by Dr. Hayes. Informants with more recent experience lack knowledge of Hardy during or close to the developmental period and none of them knew him as well as Van Buren.

Id. at 66.

The remainder of Dr. Hayes' concerns about the quality of the data on which Dr. Swanson based her conclusion concern minor discrepancies between what sources told her and what they told Dr. Swanson. For example, she noted that there were apparent discrepancies between the account of Greg Williams concerning "[w]hat documents [he] read to Mr. Hardy and Mr. Hardy's understanding of documents" and the specific type of encouragement Theresa Minor gave Hardy's mother concerning his poor performance in school. C. Other Evidence of Hardy's Level of Adaptive Functioning

Id. at 70-71, 76.

The evidence Dr. Hayes used to support her conclusion that Hardy in fact does not have significant limitations in his adaptive functioning came from a number of interviews as well as her direct observations of Hardy and a review of records.

a. Additional Interviews

Dr. Hayes lists one of Hardy's siblings, his older brother Terry Hardy, as an additional source of information at the beginning of her report. Id. at 4. However, her discussion of her interview with him makes clear that they did not discuss Hardy's adaptive functioning. Id. at 65-66. Her interviews with the informants Dr. Swanson spoke to — Theresa Minor, Vance Ceaser, and Toni Van Buren — support the conclusion that Hardy has deficits in adaptive behavior, as discussed above in the section on Dr. Swanson's report. Dr. Hayes challenges the accuracy of only Van Buren's account, and simply discounts that of Ceaser and the Minors as based on limited experience. Id. at 66.

Dr. Hayes' interviews with various prison officials, such as Lieutenant Desroche and Corporal Laylle, indicated that they found Hardy "manipulative, calculating, and methodical." He did not strike them as gullible, was pleasant in his interactions with them, exercised authority over other prisoners, had good penmanship and spelling, completed sick-call requests, helped other inmates with "legal stuff," was diligent about his prison commissary accounts, and otherwise seemed to function normally. Another prison official, Deputy Gary Adams, reported that Hardy offered him a bribe to "turn his head for a few minutes." The last law enforcement officer Dr. Hayes interviewed was Len Davis' ex-partner Sammie Williams, who has been convicted of a drug felony. He met Hardy on only a few occasions and did not seem to have much experience with Hardy's performance of the relevant behaviors, but "[h]e did not perceive [Hardy] as slow or mentally retarded."

Id. at 77.

Id. at 77-80.

Id. at 80.

Id. at 107.

In addition to Javetta Cooper, whose narrative account accords with her ratings of Hardy as somewhat slow, but not significantly limited in his adaptive functioning, Dr. Hayes also interviewed Faith Price, the mother of one of Hardy's children. Price had not had any substantive communication with Hardy in years and "could not recall many details of their relationship and/or many specific facts," which precluded Dr. Hayes from administering an adaptive functioning questionnaire to her. She corroborated the accounts from others that Hardy was "a sweet person" and that they mostly "watched movies and hung around with each other." She also corroborated the fact that Hardy's mother was "not the smartest person," although she noted that she was "a good mom." She did not report that Hardy's adaptive behavior seemed limited, at least in the behaviors she observed. However, she was not familiar with his work history, did not have experience living with him or doing schoolwork with him, and otherwise appeared to lack experience with Hardy in a number of the activities assessed as part of an adaptive behavior evaluation. b. Direct Observation

For reasons that will shortly become apparent, the Court finds no need to summarize her account in greater detail and directs the interested reader to pages 83-86 of Dr. Hayes' report. Govt. Exh. 1 at 83-86.

Id. at 81-82.

Id. at 81.

Id.

Id. at 82.

Id. at 81-82.

Dr. Hayes observed Hardy at his prison and also inspected his cell. She noted that he was able to play basketball well and that he had several books, such as The Bible, a dictionary, and Soul Harvest: The World Takes Sides, written by Tim LaHaye and Jerry B. Jenkins. Underneath his bed, she found multiple letters and cards, including notes Hardy had written. She observed that he appeared to be well-integrated with the other prisoners and played cards with them, even dealing.

Id. at 107-08.

Id. at 109-10.

Dr. Hayes' clinical interview with Hardy, which lasted approximately seven hours and is videotaped and part of the record, revealed to her no abnormalities other than poor enunciation and concrete answers to questions, with particular trouble answering those in a "what if" style. While the Court is aware that caution is called for when assessing someone's own self report, the Court did find segments of Hardy's interview to be helpful to the overall decision to be made. As Dr. Hayes herself noted, Hardy "appeared to try to answer all questions honestly and openly" and the Court agrees.

Id. at 110-11; Govt. Exh. 1, att. CD-1; Deft. Exh. 17. An inability to think abstractly is consistent with mild mental retardation and Dr. Hayes repeatedly had difficulty in eliciting other than concrete answers from Hardy to abstract hypotheticals. See, e.g., Govt. Exh. 1, att. E at 74-75, 167-68, 279-80, 351-52.

Govt. Exh. 1 at 110.

Hardy acknowledged repeatedly with Dr. Hayes his inability to "catch on" in school to what was being taught. He described his attempt to go to adult education classes, where the teachers "just throw the book right there" and he could not "catch on." He even tried to go to school on Death Row but condemned inmates were not permitted. He told her that he watches TV with other inmates, who tell him what a word means and he also looks words up.

Govt. Exh. 1, att. E at 101, 106, 107, 108, 111, 112.

Id. at 111. See also id. at 127, 390, 391.

Id. at 111.

Id. at 112.

Hardy's observations about his drug trafficking are also worth noting. He acknowledged he was unable to learn to convert powder cocaine to crack, so he hired someone to do that for him. When asked if he ever got drugs from out of state, he immediately answered, "No indeed no . . . I ain't getting on no highway. No indeed." He explained that he had about three people selling drugs for him from the project, who would come up to him to offer to sell. Within the project, different blocks were known for which drug was being sold — coke, weed, heroin. When Dr. Hayes asked him what he told his sellers to do, Hardy seemed puzzled and answered, "Just sell the drugs." She then asked if he ever told them to locate at a certain place, and he answered, "No. It would just be on the corner. They ain't had to go nowhere. The people will come to them."

Id. at 199-200.

Id. at 201-202.

Id. at 203.

Id. at 305-306.

While the Court is aware of the possibility that Hardy was deliberately downplaying his drug involvement, his answers appear on the video to be spontaneous and candid.

c. Records and Other Sources

The bulk of Dr. Hayes' report on adaptive behavior consists of her categorization of the above facts and the rest of the evidence that she assembled on the topic of adaptive behavior, which she presented under headings that correspond to the domains of adaptive behavior listed in the DSM-IV-TR. The evidence from this part of her report that is even arguably relevant and is not covered elsewhere in this opinion is summarized in Appendix F, using the same order as appears in Dr. Hayes' report. Controverted and uncontroverted statements are included.

Id. at 111-75.

iii. The Court's Findings of Fact

As should be clear at this point, the Court is confronted with diametrically opposed narratives on the issue of Hardy's adaptive functioning. In deciding which to credit, the Court has the benefit of the reports prepared by Drs. Swanson and Hayes in addition to their testimony at the hearing and a more limited report from Dr. Cunningham on this issue. It has also had the benefit of being able to view the videotapes of Dr. Hayes' interviews, along with a number of other records. Finally, the Court heard testimony at the hearing from Lionel Hardy, Theresa Minor, Toni Van Buren, Javetta Cooper, Lieutenant Desroche, Corporal Laylle, and Deputy Adams. Each class of sources informed the Court's approach to this issue, and each led to the following findings on which the Court bases its ultimate conclusion.

The Court finds that Dr. Swanson's assessment of Hardy's level of adaptive functioning is the far more persuasive one that was presented, and it credits her conclusion that Hardy has significant impairments in adaptive functioning sufficient to diagnose him as mildly mentally retarded. While there may be room for clinicians to debate particular items and how they were scored, Dr. Hayes' criticisms and alternative conclusions are simply not persuasive enough to overcome the compelling showing made by Dr. Swanson.

First, Dr. Hayes' main criticism of Dr. Swanson's assessment — that Van Buren was an inappropriate informant on which to administer the VABS-II — is not entitled to great weight. On the question of the age at which Van Buren met Hardy, Dr. Swanson acknowledged at the hearing that it is possible she first met him after age 18. The matter is not entirely clear, but even if the Court assumes that Van Buren first met Hardy at age 18:6, as contended by the government, rather than at 17:6, as Dr. Swanson initially believed, the VABS-II scores Dr. Swanson reported are then inflated and in fact overestimate Hardy's level of adaptive functioning. Dr. Swanson explained that comparing Hardy against age-normed scores of those younger than he in fact was would make him appear to be higher functioning: "[I]f you run [a score] it — it goes down at 18:6, not up." That is because the normative group "should have learned something in a year," yet Hardy would not have been held accountable for that growth because he would have been compared to those without that additional year of maturation. As Hardy was already two standard deviations below the mean of those aged 17:6, there is no question that, if he were scored against 18:6 norms, he would still satisfy the AAMR/AAIDD's cutoff on each of the seven sub-domains where Dr. Swanson found him deficient.

Rec. Doc. 2126 at 739-40.

Id. at 743.

Id.

At the same time, Dr. Hayes is correct in that Van Buren did not know Hardy very well during the developmental period. But, as Dr. Swanson explained, Van Buren was the best informant available, even though she might not have been the ideal one. The ideal informant would be one who had Van Buren's extensive experience with Hardy in all relevant domains, and knew him prior to the age of 18. Unfortunately, neither party has been able to identify such a person, although Van Buren knew him the most intimately in the years immediately after he turned 18.

Second, while Dr. Hayes suggested that Hardy's siblings would have made more appropriate informants, neither she nor Dr. Swanson was able to perform the kind of interview the VABS-II requires with any of them. That said, after Dr. Hayes highlighted this issue in her report, Dr. Swanson responded by redoubling her efforts to interview Hardy's siblings and was ultimately able to speak with Linda, Terry, and Lionel Hardy, the last of whom also testified at the hearing. So, Dr. Swanson's final opinion — which was rendered at the hearing — did benefit from interviews with Hardy's siblings. The recollections of each only offered more evidence that Hardy had limited adaptive functioning.

Rec. Doc. 2125 at 609.

E.g., Rec. Doc. 2124 at 372-91 (Lionel Hardy); Rec. Doc. 2125 at 640 (Linda Hardy, Terry Hardy, Lionel Hardy); Id. at 649 (Terry Hardy).

Dr. Swanson's interviews of Hardy's siblings revealed that, contrary to what might have been expected, they would not have been the best informants after all. Linda Hardy was six years older than Hardy and their mother kept her inside most of the time because their area of the projects was so dangerous. Linda Hardy responded by keeping to herself and mostly staying in her bedroom. Based on her interview, Dr. Swanson concluded "she didn't know very much about what was going on with Paul." At the hearing, Lionel Hardy confirmed Dr. Swanson's impression, testifying that Linda Hardy was not close to Hardy while they were growing up. Even were that not the case, Linda Hardy left home when Hardy was 12 years old and rarely visited after moving out.

Id. 609.

Id. at 608-10.

Id.

Id. at 610.

Rec. Doc. 2124 at 365; see also, id. at 365-66 ("Q: Do you feel like Linda and Paul really knew each other very well? A: No."); id. at 366 ("Q: And was that because Linda pretty much kept to herself? A: Yes.").

Id. at 367.

Terry Hardy left home when Hardy was 14 and also rarely visited. Even before that, he was not close to Hardy. Some evidence of that must be inferred from the fact that, despite trying several times before she prepared her report, Dr. Swanson — the defense expert for his brother facing the death penalty — was unable to arrange a meeting with Terry Hardy. She attributed this to the fact that, like Linda Hardy and all of the Hardy children, the experience of growing up in the projects was extremely negative and so Terry Hardy had tried to put it behind him. However, once Dr. Swanson was able to establish a rapport with Terry Hardy, he was able to provide useful information about Hardy's poor academic performance as Terry Hardy was only three years older.

Id.

Id. at 366.

Rec. Doc. 2125 at 608.

Id. at 608-09. Dr. Swanson also noted that this distance from one another is not unusual in large families and that it has been her experience in Atkins cases that siblings do not necessarily make the best informants. Id. at 605-607.

Id. at 610.

With Hardy's siblings unable to take Van Buren's place, the only other potential informant with experience approaching Van Buren's familiarity with Hardy is Javetta Franklin, nee Cooper. Cooper knew Hardy well for only a brief period of time — four months — and has a limited recollection of that time, as evidenced by the number of questions on the VABS-II she was unable to answer (totaling over one third of the set of questions Dr. Hayes selected for comparison). Based on this, as well as her two interviews with Cooper, Dr. Swanson concluded that she was an inappropriate informant for the VABS-II. That kind of dispute would not ordinarily be enough to discredit another expert's decision to rely on a source, but the problems with relying on Cooper go deeper. After speaking with Dr. Hayes and providing the best, if still weak, evidence against Hardy on the adaptive behavior issue, Cooper substantially revised her testimony. In fact, she revised it to such a degree that she ended up testifying for the defense. This led Dr. Hayes to back away from reliance on Cooper, calling her "an unreliable informant."

Price's recollection is too limited, while Theresa and Tony Minor did not have substantial experience with Hardy post-childhood. Vance Ceaser did not have experience with Hardy in multiple contexts, just as Greg Williams and the other persons interviewed did not have sufficient experience with Hardy either (to say nothing of experience with him close to the developmental period).

Rec. Doc. 2126 at 734.

In addition, Cooper was interviewed by Dr. Hayes under highly stressful circumstances. Dr. Hayes made no prior attempt to contact her but showed up at her door, with an FBI agent, who announced to Cooper that Dr. Hayes wanted to speak to her. Even Dr. Hayes reported that Cooper was initially crying she was so upset over the encounter and refused to allow Dr. Hayes into the house for the interview. Rec. Doc. 2128 at 1101-04.

Rec. Doc. 2125 at 600.

Rec. Doc. 2126 at 810. Dr. Swanson also noted that, based on Cooper's account of how she was questioned, Dr. Hayes did not properly administer the VABS-II to her. Id. at 756, 760-61. The Court observes, but need not pass on the appropriateness of, the disputed method by which Dr. Hayes interpreted the test scores against multiple age groups. Id. at 865.

Rec. Doc. 2125 at 514-73.

Rec. Doc. 2129 at 1198.

The Court agrees with Dr. Hayes that Cooper proved herself to be unreliable, and it therefore has difficulty crediting anything based on Cooper's word. This applies equally to her hearing testimony in Hardy's favor as well as the account that she initially gave Dr. Hayes. In fact, even without her flip-flop, the Court would have had difficulty crediting Cooper's account. Except for the opinions of the prison officials discussed below, she provided the outlier testimony in this case. That she ended up doing so in both directions renders her opinion worthless.

The foregoing explains why the Court is unable to credit Dr. Hayes' criticisms of Dr. Swanson's assessment. Van Buren was the best informant available. If, despite being the best available, she truly lacked sufficient knowledge of Hardy's level of adaptive behavior during the relevant time, perhaps "best" would not be good enough. But that can hardly be argued here. Unlike, for example, Sammie Williams, who had only occasional contact with Hardy, in a narrow category of circumstances, and long after he turned 18, Van Buren is the mother of three of Hardy's children, she lived with Hardy for six or seven years, and she met him at least very close to the developmental period.

Rec. Doc. 2125 at 453.

Id. at 462.

Id. at 482; Rec. Doc. 2126 at 739-40.

The Court finds that, based on Van Buren's interview and hearing testimony, as well as Dr. Swanson's opinion, Van Buren had sufficient experience with Hardy's level of adaptive functioning during the relevant period to permit a finding whether or not Hardy satisfies the APA and AAMR/AAIDD's criteria for this prong. Her testimony establishes that he does. Dr. Swanson paired Van Buren's account with multiple independent sources of information pointing to the same conclusion, and she conducted her evaluation in a manner consistent with the assessment guidelines developed by the AAMR/AAIDD, including those for retrospective determinations of mental retardation. The Court finds Dr. Swanson's account to be credible. The Court finds that Hardy satisfies the adaptive behavior prong of the test for mental retardation as set out by both the AAMR/AAIDD and the APA.

The Court finds Dr. Hayes' alternative theory — that Hardy has no deficits in any domain of adaptive behavior — to be completely unpersuasive. Even ignoring the problems with Cooper's testimony, who was the only informant to provide much support for the conclusion that Hardy functioned normally, Dr. Hayes' ultimate opinion was tainted by the use of evidence that the AAMR/AAIDD has cautioned against allowing into the assessment of adaptive behavior. For example, many of the facts Dr. Hayes cites concern Hardy's level of functioning while in prison — a highly structured environment and one in which Hardy lives long after exiting the developmental period. Yet one of the AAIDD's "key factors" in the assessment of adaptive behavior requires that "the person's strengths and limitations in adaptive skills should be documented within the context of community and cultural environmental typical of the person's age peers." AAIDD 11^TH EDITION at 45. An institutional environment of any kind necessarily provides "hidden supports" whereby the inmates or residents are told when to get up, when to eat, when to bathe, and their movements are highly restricted. As Dr. Swanson noted, "When you live in the community, it suddenly becomes your responsibility to make these decisions for yourself, to put them in the appropriate order, to make sure they are done in a timely way." Moreover, the AAMR notes that specialized instruments, appropriately normed, are available for at best limited use if behavior is not to be evaluated relative to age peers, but to others similarly situated in an institution. AAMR 10^TH EDITION at 83; AAIDD 11^TH EDITION at 51; USER'S GUIDE at 23. Dr. Hayes did not mention or make use of such instruments or assessment approaches.

Rec. Doc. 2125 at 635.

Id.

Neither are the prison officials Dr. Hayes interviewed likely to be particularly good informants. For example, in this case they painted a portrait of Hardy as among the most sophisticated inmates they have ever met. The Court finds this difficult to believe given that, whatever dispute there may be about whether Hardy has an IQ low enough to qualify as mentally retarded, it is clear he is at best in the range of borderline intellectual functioning. In addition, prison officers' observations are limited to an extremely unusual set of circumstances, and are likely to be filtered through their experience with other prisoners, many of whom may also suffer from intellectual limitations. Their intuitive "control group" is therefore not representative of the general population, while the diagnosis of mental retardation must be made with reference to average levels of functioning in the general population.

E.g., Olley Cox Study, supra n. 4 at 386.

Additionally, prison custodians are law enforcement officers responsible for the criminals they oversee, and the potential for friction is ever present. For instance, in this case, Lt. Shannon Desroche, the medical supervisor at the St. Bernard Parish jail, was called as a government witness. She had told Dr. Hayes that of all the inmates she had encountered, Hardy was "the most dangerous and manipulative." She testified at the hearing that Hardy was intelligent, communicated well, was not gullible, was a leader on the cellblock and in control. But when asked if she had "anything against Hardy" or "any beef with him or anything," she answered, "Not at all, not at all." However, the records from the St. Bernard Parish jail indicate a dispute several years in duration between then Sergeant Desroche and Hardy over his complaints of a toe injury. Desroche recorded in the jail records that Hardy and his attorney complained about the jail's handling of the alleged injury, which Desroche consistently maintained was not serious. Desroche even went so far as to then regularly document Hardy's physical activities at the jail because she "felt it necessary . . . as detainee Hardy has made threatening statements to Sgt. Desroche about what he will do if he doesn't get the treatment he wants." For Lt. Desroche to assert she had no dispute with Hardy was disingenuous.

Govt. Exh. 1 at 77.

Rec. Doc. 2131 at 1536, 1539, 1542.

Id. at 1538.

Govt. Exh. 1, att. 7.

Dr. Hayes did not note in her lengthy report or her testimony this potential bias on the part of Lt. Desroche, although she listed the St. Bernard Parish Jail records as among the documents she reviewed. Govt. Exh. 1 at 9.

Furthermore, Dr. Hayes in her comparative charts indiscriminately mixed Hardy's capabilities in much later years, with other witness' assessments when he was much younger, apparently seeking to discredit the earlier accounts. This ignored the significant issue of when a skill is learned. As Dr. Swanson pointed out, "Not seeing a deficit at 26 doesn't mean maybe there wasn't a deficit earlier developmentally." For example, that Hardy was able to master the basic game of basketball in his 30's or 40's in jail does not mean he had that skill level in his 20's or younger. Hardy tries to learn and when he does not know or is not sure of the answer to a question, he seeks it out from the examiner, if not later. That Dr. Hayes saw a dictionary in Hardy's cell at the St. Bernard Parish jail is not surprising.

Rec. Doc. 2125 at 623-24.

Govt. Exh. 1 at 107-08.

Rec. Doc. 2126 at 839-40. Dr. Hayes noted in her report that Hardy made good effort when she interviewed and tested him. Govt. Exh. 1 at 110-11NT [II]

PUBLIC POLICY PRECLUDES THE IMPOSITION OF RESPONSIBILITY FOR THE SAFETY OF THE LOCATION OF ALL ELECTRICAL UTILITY POLES WITHIN THE COUNTY ON THE COUNTY OF MORRIS.

POINT [III]

MORRIS COUNTY IS ENTITLED TO SUMMARY JUDGMENT [PURSUANT] TO THE PROVISIONS OF THE NEW JERSEY TORT CLAIMS ACT [ N.J.S.A. 59:1-1 TO 12-3].

POINT [IV]

MULTIPLE IMMUNITIES WARRANT A SUMMARY JUDGMENT IN FAVOR OF THE COUNTY OF MORRIS.

Plaintiffs, in their cross-appeal, raise the following points:

POINT XII

IN LIGHT OF THE TRIAL COURT'S PROPER INTERPRETATION OF CONTEY, JCP L, BY ITS OWN ADMISSIONS, IS NEGLIGENT AS A MATTER OF LAW.

POINT XIII

ONCE A PARTY'S EXPERT OPINES CONTRARY TO THE POSITION OF THE PARTY, THE EXPERT'S OPINION IS BINDING ON THAT PARTY.

POINT XIV

JCP L HAS SIMPLY BREACHED ITS DUTY WITH RESPECT TO PLACEMENT OF POLES.

I.

The standard governing the scope of our review of a trial court's grant or denial of a motion for summary judgment is de novo, using the same standard as that employed by a trial court. Turner v. Wong, 363 N.J.Super. 186, 198-99, 832 A.2d 340 (App.Div. 2003). We must determine whether, when the facts are viewed most favorably to the non-moving party, a genuinely disputed issue of fact exists sufficient to have defeated the summary judgment motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995). Summary judgment is only appropriate if, in view of all pleadings, depositions, answers to interrogatories and admissions to file, together with any affidavits, there exists no genuine issue as to any material fact. R. 4:46-2(c). If, after viewing the competent evidence, "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a `genuine' issue of material fact for purposes of summary judgment. Brill supra, 142 N.J. at 540, 666 A.2d 146.

II.

The liability of public utilities arising out of the placement of their utility poles was traditionally analyzed by applying principles of ordinary negligence, with the question of foreseeability being key to the imposition of liability. See Robbins v. Thies, 117 N.J.L. 389, 393, 189 A 67 (E.A1937) ("The test of [electric company's] liability to a particular person [who has come in contact with wire charged with deadly current] is whether injury to [such person] ought reasonably to have been anticipated." (citing McGinnis v. Del, Lackawanna W. R.R. Co., 98 N.J.L. 160, 163, 119 A. 163 (E.A. 1922); Guinn v. Del. Ail. Tel. Co., 72 N.J.L. 276, 277-78, 62 A 412 (E.A. 1905))). In Oram v. New Jersey Bell Telephone Co., 132 N.J.Super. 491, 494-95, 334 A.2d 343 (App.Div. 1975) (citing Monaco v. Comfort Bus Line, Inc., 134 N.J.L. 553, 557, 49 A.2d 146 (E.A. 1946)), we held that utility companies "need only anticipate ordinary travel which `contemplates an automobile being driven and kept on the roadway.'" Id.at 494, 334 A.2d 343 (quoting Monaco, supra, 134 N.J.L. at 557, 49 A.2d 146).

More than fifty years after Robbins, and nearly twenty years after we decided Oram, our Supreme Court, in Contey, had occasion to once again consider the extent to which a legal duty may be imposed upon a utility company arising out of injuries to motorists. Contey, supra, 136 N.J. at 583-84, 643 A.2d 1005. In Contey, a motorist was injured when her vehicle struck a utility pole after she missed an unmarked turn in the roadway. She commenced a personal injury action against the State of New Jersey, the County of Bergen, and the Borough of Franklin Lakes. Additionally, she named as defendants New Jersey Bell Telephone Company (N.J. Bell), which owned the utility pole, and Rockland Electric Company, to whom N.J. Bell had granted permission to locate its wires on the utility pole. Id. at 583-84, 643 A.2d 1005. She settled or voluntarily dismissed the claims she brought against the public entities and continued her claims against the utility companies. Id. at 584, 643 A.2d 1005. The trial court granted summary judgment to the utility companies, and in an unpublished opinion, we affirmed on appeal based upon our decision in Oram. Because of a dissenting opinion, plaintiff appealed as of right. Ibid.; see also R. 2:2-1(a)(2).

The Court framed the question of the utility companies' liability as" *whether the asserted negligence in the placement of the pole is to be considered as the proximate cause, or whether the operation or movement of the colliding vehicle may be said to be the real cause, the collision with the pole being merely incidental.'" Id. at 584, 643 A.2d 1005 (citing Padgett v. W. Fla. Elec. Coop., Inc., 417 So.2d 764, 766 (Fla.Dist.Ct.App. 1982) (quoting T.C. Williams, Annotation, Injury to Traveler From Collision With Privately Owned Pole Standing Within Boundaries of Highway, 3 A.L.R.2d 6, 56 (1949))). The Court approached the resolution of the question by engaging in a value determination based upon an analysis of public policy and fairness. See Acuna v. Turkish, 192 N.J. 399, 414, 930 A.2d 416 (2007), cert. denied, — U.S. ___, 129 S.Ct. 44, 172 L.Ed.2d 22 (2008).

The public policy and fairness considerations that determine whether a duty is to be imposed were addressed by the Court in its decision in Hopkins v. Fox Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), decided in the term that preceded the Court's decision in Contey. Those considerations require weighing: (1) "the relationship of the parties"; (2) "the nature of the attendant risk"; (3) "the opportunity and ability to exercise care"; and (4) "the public interest in the proposed solution." Id. at 439, 625 A.2d 1110.

Applying these factors, the Contey Court noted that statistics disclosed that "[approximately 65,000 injuries occur annually because of vehicle-utility-pole accidents." Contey, supra, 136 N.J. at 587, 643 A.2d 1005 (citing Ronald D. Hughes, U.S. Dep't of Transp., Breakaway Timber Utility Pole Installations in Kentucky 2 (1991)). From those statistics, the Court determined that the risk of harm to the public was "great." Id. at 588, 643 A.2d 1005. Next, the Court reasoned that "because the risk is great, the public interest in the solution is very great." Ibid. Further, referring to N.J.S.A. 48:17-8, the Court noted that a utility company has no right to unilaterally determine the location of a pole, requiring in the first instance, permission from the property owner to place a pole on the owner's property. Ibid. The Court also referenced N.J.S.A. 48:17-11, which requires utility companies to erect poles in accordance with ordinances and resolutions adopted by the local municipality or board of freeholders. Ibid. Finally, the Court observed the increased role of governmental bodies in paving highways and installing curbs. Id. at 586, 643 A.2d 1005.

After weighing all of these factors, the Court expressed its belief that

responsibility for the safety of motorists should rest with those who own, control, and maintain the thoroughfare. Although utility companies have a duty to foresee that motorists will leave the traveled portion of the highway, the governmental bodies and highway planners are best suited to determine how the utilities should fulfill that duty. Those public bodies are in the best position to provide and to enforce standards and regulations governing utilities. Utilities do not have the right to locate poles wherever they deem expedient. Public bodies may by their ordinances and regulations require the relocation, removal, shielding, or redesign of poles that do not meet safety standards.

[ Id. at 590, 643 A.2d 1005 (emphasis added).]

To the extent there is any doubt that this language reflects the Court's intent to impose upon governmental entities the duty to establish standards for the initial placement and continued existence of utility poles along the roadways in this State, later in the opinion the Court discussed the fact that the pole the plaintiffs vehicle struck had been struck on two occasions prior to the plaintiffs collision. Ibid. The Court observed that a warning sign was subsequently installed in the area, but expressed the view that the public entity or utility company should have taken corrective action before the plaintiffs accident and that under such circumstances, it "might be inclined to hold the utility company liable." Ibid. In declining to do so, however, the Court stated that "highway planners, not utility managers, are best equipped to determine the location and design of fixtures in or near a right-of-way." Ibid.

In our view, the fact that no governmental entity undertook the approval of JCP L's placement of Pole # 617, in advance of its placement, does not automatically impose a legal duty upon JCP L to the motoring public, as plaintiff and the County would urge. To reach such a conclusion could result in governmental entities, who the Court has determined are best equipped to safeguard the motoring public, avoiding that duty by simply doing nothing.

Although Pole #617 was originally placed without prior governmental approval because no ordinance, resolution, or regulation was in effect, it was placed with permission from the property owner. Hence, JCP L did not act unilaterally in placing its pole. Moreover, after its placement, there was nothing, by virtue of any ordinance, resolution or regulation adopted, or other governmental action, that required the "relocation, removal, shielding, or redesign of Pole # 617 because a determination had been made that the pole posed a safety hazard to the motoring public. Ibid.

Pole #617 was allowed to remain in substantially the same location without any "countermanding directions," id. at 591, 643 A.2d 1005, from any governmental entities. Under these circumstances, the public entities, "who own, control and maintain the thoroughfare," id. at 590, 643 A.2d 1005, in the absence of an ordinance, resolution, regulation, or other governmental action, implicitly placed their imprimatur on Pole # 617's location. We are therefore satisfied that under these particular facts, even in the absence of formal approval of Pole # 617's location, JCP L owed no further duty to the motoring public arising out of the location of its utility pole.

Finally, we also agree that N.J.S.A. 48:3-17.1 provided yet another basis upon which summary judgment should have been granted to JCP L. It provides that whenever a utility company has placed a pole along a public highway in this State and the use and occupancy "has continued at substantially the same location . . . for a period of ten years, then and in that case, such occupancy shall be presumed to be with the consent in writing of the owner of the soil upon which such pole or poles have been placed[.]" N.J.S.A 48:3-17.1. While the property on which Pole # 617 is placed is not owned by the County, the County possesses an easement over that portion of the property where the pole is located. Its silence as well as the Township's silence on the pole's location can only be deemed another example of the governmental entities' implicit approval of the pole's location.

We reach this conclusion assuming that the pole may have been moved, although we question whether the police report containing the hearsay statement that the pole has been moved is competent evidence for summary judgment purposes. Rule 4:46-2. Nonetheless, N.J.S.A. 48:3-17.1 only requires that a pole continue to exist for at least a ten-year period in "substantially the same" rather than the exact location.

We therefore reverse the motion judge's order denying summary judgment to JCP L both pursuant to Contey as well as pursuant to N.J.S.A. 48:3-17.1.

III.

The County, in its cross-appeal, urges that Contey be limited to "only those situations where a public entity has elected to enact ordinances for the placement of utility poles and the utility company adheres to the directives of the public entity" and distinguishes Contey in several respects. First, it contends that the existence of the Franklin Borough ordinance in Contey was an essential factual predicate to the Court's decision and thus the decision is not analogous to the present case. Next, it argues that while Contey involved a telephone pole, this case involves an electric pole and "[different utilities get different treatment on many aspects of their business — pole location is one such aspect." Specifically, the County maintains that the governing statute for electric poles, N.J.S.A. 48:7-1, "actually places the responsibility for safety on the electric company, and not the municipality." Additionally, the County asserts that it "did not disregard its duty to design a safe roadway" because it did not design Route 513. The County also argues that public policy precludes the imposition of liability on the County because "[t]he impact across 567 municipalities, the State of New Jersey itself, and its 21 [c]ounties is almost unimaginable as to its magnitude and ramifications." Finally, the County notes that the public entities were not parties to the Contey case as presented before the Supreme Court and the Court did not provide "any real Tort Claims analysis." As such, the County urges that "the Supreme Court did not intend to impose a broad duty of liability for pole placement on governmental entities."

The starting point in any determination of whether liability may be imposed against a public entity is the TCA and the guiding principle that undergirds its enactment, "`immunity from tort liability is the general rule and liability is the exception.'" Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488, 867 A.2d 1159 (2005) (quoting Garrison v. Twp. Of Middktown, 154 N.J. 282, 286, 712 A.2d 1101 (1998)); see also Alston v. City of Camden, 168 N.J. 170, 176, 773 A.2d 693 (2001). In this regard, "any immunity provisions in the [TCA] or by common law will prevail over the liability provisions." Malloy v. State, 76 N.J. 515, 520-21, 388 A.2d 622 (1978) (quoting N.J.S.A. 59:2-1(b)); see also Weiss v. N.J. Transit, 128 N.J. 376, 383, 608 A.2d 254 (1992) (finding "because an immunity applies, liability does not attach"). The analysis requires courts to first determine whether immunity applies and then, if not, whether liability should attach. Alston, supra, 168 N.J. at 176 n. 1, 773 A.2d 693; Pico v. State, 116 N.J. 55, 59, 560 A.2d 1193 (1989); Malloy, supra, 76 N.J. at 519, 388 A. 2d 622. The burden is on the public entity to both plead and prove immunities and defenses provided by the TCA. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539, 750 A.2d 751 (2000).

The TCA unequivocally states that "public entities shall only be liable for their negligence within the limitations of this act " N.J.S.A. 59:1-2; see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457, 963 A.2d 828 (2009) ("The [TCA] re-establishes sovereign immunity and provides that `public entities shall only be liable for their negligence within the limitations of [the TCA] and in accordance with the fair and uniform principles established' in the [TCA]." (quoting N.J.S.A. 59:1-2)); Garrison, supra, 154 N.J. at 294, 712 A.2d 1101 ("When construing the [TCA], courts seek to follow the legislative mandate favoring the immunity of public entities."); Pico, supra, 116 N.J. at 59, 560 A.2d 1193 (recognizing "the public policy of this State is that public entities shall be liable for their negligence only as set forth in the [TCA]"). The Attorney General's Task Force Comment advised courts to "exercise restraint in the acceptance of novel causes of action against public entities." Report of the Attorney General's Task Force on Sovereign Immunity (1972), cmt. to N.J.S.A. 59:2-1.

In view of these precedents, courts have generally declined to recognize novel causes of action against public entities. See, e.g., Ayers v. Twp. of Jackson, 106 N.J. 557, 598, 525 A.2d 287 (1987); Blunt v. Klapproth, 309 N.J.Super. 493, 507, 707 A.2d 1021 (App.Div.), certif. denied sub nam. Blunt v. Wirtz, 156 N.J. 387, 718 A.2d 1216 (1998). As noted by the motion judge, it is highly unlikely that the Supreme Court would recognize a novel cause of action outside of the TCA in a case where the public entity was not a participant in the Court's proceedings. The Contey Court's reference to the TCA was fleeting and raised only in the context of potential plan and design immunity under N.J.S.A. 59:4-2, Contey, supra, 136 N.J. at 589-91, 643 A.2d 1005, and without benefit of briefing or argument from any public entity. In our view, this is evidence the Court did not intend to recognize a novel source of liability against public entities outside of the TCA. See Contey, supra, 136 N.J. at 590-91, 643 A.2d 1005. Therefore, we conclude Contey does not impose a new source of liability upon the County. Any liability imposed upon the County must be based upon the provisions of the TCA.

Before the motion judge, plaintiff's counsel conceded that liability could not be imposed upon the County under Chapter Four of the TCA for a condition of public property since the pole is not property of the County. N.J.S.A. 59:4-1 and 4-2. Likewise, plaintiffs counsel also conceded that the County was immune from liability for its failure to inspect or failure to adopt an ordinance regulating the placement of utility poles under Chapter Two. N.J.S.A. 59:2-6 and 2-4. Therefore, we need not revisit the applicability of these provisions in this appeal.

Moreover, we reject plaintiff's contention that vicarious liability may be imposed against the County. Any such liability is premised upon an "injury proximately caused by an act or omission of a public employee[.]" N.J.S.A. 59:2-2(a). Plaintiff, however, voluntarily dismissed the claims originally asserted against individual County employees arising out of their snowplowing activities earlier on the day of plaintiff's accident. "A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable." N.J.S.A. 59:2-2(b).

We therefore turn our attention to the County's contention that its decision to defer responsibility for deciding where to place utility poles to utility companies was an exercise of its discretion entitled to immunity under the TCA. To support this position, the County submitted evidence that the County "owns and maintains over 250 miles of roads" and that along those roads are located "[b]etween 7,000 and 8,000 utility poles." A certification from Stephen W. Hammond (Hammond), Director of Public Works and a county engineer, revealed that the County had limited resources in terms of personnel. Specifically, the County employed a total of nine full-time engineers, all of whom were working on "current assignments," and they could not incur the additional responsibility to study or analyze the placement of "utility poles and that the utility pole placement/location has been the province of the utility company, and not the County of Morris."

In addition, Hammond indicated that "[s]hifting the burden of selecting pole location to the County of Morris" was "unworkable" because, among other factors, the County's engineers lacked the requisite expertise "to do an effective layout of pole location" and "do not have any time in their current job requirements or work time commitments to obtain the training." He also expressed the belief that there were "no funds available in the engineering budget, or time available to engineering personnel, to get involved and/or tied up with BPU (Board of Public Utilities) proceedings related to pole relocation disputes or cost allocation disputes."

Christopher Vitz (Vitz), a supervising engineer in the County's Department of Public Works, stated in his certification that "[n]o one involved with county government ever contemplated that a pole placed somewhere between 40-70 years ago by a public utility . . . would bring liability on a county (or local or state) government that had no input into the pole's location." Vitz asserted that it "has always been accepted in relations" between the County and utilities that "since the utility was the entity that made the decision as to location, the utility, and not the County, would be responsible for any mistakes Morris County and utilities that locate poles along its roads have always operated on that basis."

Vitz was also deposed and testified that the only items the County maintains, outside the roadway surface, are "sight distance and guardrails and [traffic] signs." He indicated that outside the roadway surface, the County did not have "jurisdiction on the location of the utility poles" because "Pit's left to utility companies." Vitz stated that a utility need not get approval from the County before placing a pole within the County right-of-way next to a County road. He testified that he did not recall the County "ever giving a utility company a written approval or permit to install a utility pole at any location." He also confirmed the County never received a complaint about a JCP L pole along the area of Route 513 where Pole # 617 was located at the time of plaintiff's accident.

N.J.S.A. 59:2-3 provides, in pertinent part:

c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

Subsection (c) immunizes a public entity when it exercises discretion in the context of decisions "made at a relatively high level of government[al service.]" Lopez v. City of Elizabeth, 245 N.J.Super. 153, 158, 584 A.2d 825 (App.Div. 1991). Subsection (d) accords immunity for certain operational decisions made with respect to the utilization or allocation of resources, provided the exercise of this discretion has not been palpably unreasonable. Ibid.

Immunity sought under either subsection (c) or (d) requires competent evidence to support the claimed immunity. See ibid. (finding the unsupported statement that "`you only have funds for one'" inspection was insufficient for the jury to have concluded that the public entity was entitled to immunity based upon discretionary decisions under subsection (c) or (d)); see also Daniel v. State, Dep't of Transp., 239 N.J.Super. 563, 598-600, 571 A.2d 1329 (App.Div.), certif. denied, 122 N.J. 325, 585 A.2d 343 (1990) (noting the paucity of evidence before the jury to support the State's contention that changes to Route 30 resulting in a redirection of the median's height involved the exercise of discretion).

Here, the certifications submitted from the County's engineers are conclusory and lack a factual foundation. For example, it cannot be gleaned from the certifications that the County's decision to defer responsibility for determining where and how to place utility poles to utility companies, was a decision reached only after the County's "`exercise of personal deliberations and judgment[.]'" Kolitch v. Lindedahl, 100 N.J. 485, 495-96, 497 A.2d 183 (1985) (quoting Miree v. United States, 490 F.Supp. 768, 774 (N.D.Ga. 1980)). Nor were the assertions in the certifications that funding and personnel constraints prevented the County from undertaking responsibility for pole placements, supported with specific factual evidence. In short, on this record, it cannot be said that the facts, when viewed most favorably to plaintiffs under Brill, can lead one to the inescapable conclusion that the decision to defer responsibility for placing utility poles along county road-ways to utility companies was the exercise of discretion subject to immunity under either subsection (c) or (d).

The remaining arguments advanced by the parties, including those advanced by plaintiffs in their cross-appeal, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

IV.

To summarize, pursuant to Contey and N.J.S.A. 48:3-17.1, JCP L owed no legal duty to plaintiff. Further, we conclude Contey does not impose a novel source of liability upon the County. Because we are convinced from our review of the briefs and record on appeal that the arguments that the County may be liable for or immune from plaintiff's claim have not been sufficiently developed, we remand for further proceedings.

The denial of summary judgment in favor of plaintiffs is affirmed. The denial of summary judgment in favor of JCP L is reversed and the claims against JCP L are dismissed with prejudice. The order denying summary judgment in favor of the County is vacated and the matter remanded for further proceedings. We do not retain jurisdiction.