NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1743-12T3

EDWARD McGLYNN, JR., Individually, as Administrator, and as Administrator ad Prosequendum of the ESTATE OF PAMELA J. McGLYNN, Deceased, and as Guardian Ad Litem for MELISSA McGLYNN, a minor, and EDWARD McGLYNN III, a minor; and JUSTIN McGLYNN, Individually, APPROVED FOR PUBLICATION

Plaintiffs-Appellants, January 3, 2014

v. APPELLATE DIVISION

STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; EVELYN BETTS; THE ESTATE OF ELIZABETH M. KING, DECEASED; THE ESTATE OF ETHEL H. HOFFMAN, DECEASED; and WEICHERT REALTY,

Defendants,

and

JERSEY CENTRAL POWER AND LIGHT COMPANY and JAFLO, INC.,

Defendants-Respondents.

Argued October 16, 2013 – Decided January 3, 2014

Before Judges Reisner, Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-2-06. Steven J. Greenstein argued the cause for appellants (Tobin, Reitman, Greenstein, Caruso, Wiener, Konray & Kessler, P.C., and Stuart M. Kurtzer, attorneys; Mr. Greenstein, of counsel and on the briefs; Mr. Kurtzer, on the briefs).

Thomas C. Hart argued the cause for respondent Jersey Central Power and Light Company (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Mr. Hart and John W. Gregorek, on the brief).

Thomas M. Mulcahy argued the cause for respondent JAFLO, Inc. (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Mr. Mulcahy, of counsel and on the brief; Katherine Lyons, on the brief).

The opinion of the court was delivered by

ALVAREZ, J.A.D.

Plaintiffs Edward McGlynn, Jr., individually and as

Administrator and as Administrator ad Prosequendum of the Estate

of Pamela J. McGlynn, deceased, and as Guardian ad Litem for

Melissa McGlynn, a minor and Edward McGlynn III, a minor, and

Justin McGlynn,1 individually, appeal from the summary judgment

dismissal of the counts of their complaint alleging negligence

by Jersey Central Power and Light Company (JCP&L) and JAFLO,

Inc. (collectively referred to as defendants). We affirm.

1 We refer to the parties by their first names for ease of reference.

2 A-1743-12T3 On September 19, 2003, Pamela, Edward, Jr., and two of

their three children were traveling eastbound on a rural road in

White Township. A tree fell as their car passed, striking the

vehicle and killing Pamela, inflicting significant and permanent

injury upon Edward, Jr., and less serious injuries on the two

children. As the tree fell, it brought down power lines along

the roadside.

Although the tree's location was disputed, Judge Amy

O'Connor assumed for purposes of summary judgment that the tree,

which stood on privately owned lands, was situated within

JCP&L's right-of-way. The tree was also within the right-of-way

maintained by the New Jersey Department of Transportation

(NJDOT). NJDOT trimmed and removed trees along its right-of-

way. When work needed to be performed near utility poles or

power lines, NJDOT would contact the utility company that owned

the lines, rather than undertaking the work itself.

JCP&L had retained JAFLO to complete "vegetation

maintenance" along ninety miles of roadway on a four-year cycle,

including the area in which the tree was located.2 In order to

maintain consistent flow of electricity to its nearly one

million customers in thirteen counties, JCP&L was obligated to

2 To meet its commitment to the Board of Public Utilities of New Jersey to reduce vegetation-related outages, JCP&L promulgated "Vegetation Management Specifications."

3 A-1743-12T3 keep its power lines free of encroaching vegetation, such as

trees.

The relevant count of plaintiffs' complaint alleged that

defendants' negligence in failing "to properly inspect, and/or

maintain the tree, and/or remove the tree" that struck the

McGlynn vehicle, was the proximate cause of the resulting tragic

injuries. Plaintiffs claimed that JCP&L and its contractor

JAFLO were negligent in failing to remove the dead tree, and

that their nonfeasance resulted in the harm that they suffered.

Defendants denied liability, asserting that they owed

plaintiffs no duty of care. After the parties completed

substantial discovery, JCP&L filed a motion for summary

judgment. JAFLO filed a cross-motion on parallel grounds. On

April 28, 2009, the motions were granted, and the order now

under appeal was entered.

In rendering her decision, Judge O'Connor relied upon the

factors enunciated in Alloway v. Bradlees, Inc.,

(1999), concluding that JCP&L "did not have a duty of care

to remove vegetation that posed a risk of harm to users of the

highway." After applying the Alloway analysis to the claims

against JAFLO, the judge reached the same result. Judge

O'Connor also weighed in the balance the overall fairness of

4 A-1743-12T3 imposing a duty of care upon defendants. See Dunphy v. Gregor,

(1994).

On May 27, 2009, plaintiffs unsuccessfully filed for leave

to appeal the grants of summary judgment. In the interim,

plaintiffs settled their claims against the State and NJDOT, and

plaintiffs' counsel actually requested that the trial court

remove the matter from the trial list. As of September 12,

2011, the case status was therefore changed to "closed" for

administrative purposes. On April 27, 2012, the court entered

an order allocating the wrongful death settlement proceeds among

plaintiffs.

No stipulation of dismissal was filed, however, until

November 15, 2012. The delay was occasioned by the exhaustion

of the State's calendar-year-2011 funds earmarked for payment of

personal injury settlements. Plaintiffs had an understanding

with the State and NJDOT that no stipulation of dismissal would

be filed until plaintiffs were paid the settlement proceeds,

which did not occur until October 9, 2012.

I

As a result of the delay between the settlement and the

filing of the stipulation of dismissal, JAFLO and JCP&L seek

dismissal of plaintiffs' appeal as untimely. Under Rule 2:4-

1(a), "[a]ppeals from final judgments of courts . . . shall be

5 A-1743-12T3 taken within 45 days of their entry." On the filing of a

motion, and "on a showing of good cause and the absence of

prejudice," this Court may extend that appeal window by "a

period not exceeding 30 days." R. 2:4-4(a). An appeal "must be

accomplished within the stated time," and "[f]ailure to comply

effectively forever bars an allegedly aggrieved party from

seeking further relief." See Alberti v. Civil Serv. Comm'n,

(1963).

But "[f]or a judgment to be final and therefore appealable

as of right, it must dispose of all claims against all parties."

Smith v. Jersey Cent. Power & Light Co.,

(App. Div.) (internal quotation marks omitted), certif.

denied,

(2011). When a trial court enters an order

of summary judgment that dismisses some, but not all, parties,

the order "is interlocutory rather than final, and leave to

appeal [must] be sought." See Yuhas v. Mudge,

(App. Div. 1974). Finally, "[t]he inherent power of

the court to modify its own interlocutory orders prior to the

entry of final judgment has long . . . been recognized in New

Jersey." Johnson v. Cyklop Strapping Corp.,

(App. Div. 1987), certif. denied,

(1988).

JAFLO contends that the appeal in this case is untimely.

JAFLO argues that the clock for the time to appeal began to run

6 A-1743-12T3 on September 12, 2011, after plaintiffs settled with the State

and NJDOT, and the court marked the matter as closed and removed

it from the active list, and not when plaintiff filed the

stipulation of dismissal over a year later on November 15, 2012.

JAFLO further contends that plaintiffs' notification to the

court to cancel the trial date and mark as withdrawn dispositive

motions between those parties supports its position that this

was a conclusive settlement. Not surprisingly, JCP&L concurs,

and adds that the settlement would have been enforceable

regardless of whether the stipulation of dismissal was filed.

Therefore, JCP&L asserts that, for appeal purposes, the matter

really concluded on September 12, 2011.

Plaintiffs counter that, in this case, until the settlement

funds were available and the case dismissed with prejudice,

further litigation could have ensued. In any event, we agree

with plaintiffs that Straus v. Borough of Chatham,

(App. Div. 1998), controls. In that case, a plaintiff

sued a municipality, a property owner, and a tenant for injuries

sustained resulting from a fall on a sidewalk.

. The

court granted summary judgment in favor of the property owner

and the tenant, but the matter was still open as to the

municipality.

Plaintiff eventually settled with the

7 A-1743-12T3 municipality, signed a personal release, and filed a stipulation

of dismissal seven days later.

.

Plaintiff appealed the trial court's grant of summary

judgment fifty-two days after the settlement and release and

forty-five days after the filing of the stipulation of

dismissal. We nonetheless found the appeal to be timely.

The relevant language reads:

Without any authority, defendants assert that the time to appeal began to run on the date the release was signed, and therefore, the notice of appeal was untimely. . . . In our view, [the date that the stipulation of dismissal was filed] was the date of final judgment. Before that date there was no final judgment since all issues had not been resolved as to all parties.

[Id. at 33 (citation omitted).]

In this case, no final judgment was filed until the stipulation

of dismissal was entered. Thus, Straus is controlling.

We think it is also significant that plaintiffs' delay in

filing the stipulation resulted from the exhaustion of State

resources. It was reasonable for plaintiffs to act cautiously,

and delay the filing, until those defendants were able to fund

the promised payment. The delay was occasioned by

considerations related solely to the settlement with the State,

and not from an attempt to manipulate the deadline for filing an

appeal.

8 A-1743-12T3 That the case was marked closed for administrative purposes

is simply not dispositive. Cf. In re Mercer Cnty. Prob. Dep't,

(App. Div. 1970) (holding that a

judge's administrative directive, even in the form of an order,

did not constitute an appealable final judgment). The

stipulation of dismissal was filed within a reasonable time

after the receipt of the funds. The notice of appeal was

properly filed, calculated from that date. Accordingly, we do

not dismiss the appeal as untimely.

II

On the merits, plaintiffs argue that the motion judge erred

in granting summary judgment by ignoring material facts in

dispute, and by failing to correctly interpret applicable

precedent in defining each defendant's duty to the plaintiffs.

We do not agree.

As a threshold question, we conclude that the motion judge

properly considered the facts in the light most favorable to

plaintiffs, while affording them "all legitimate inferences."

See R. 4:46-2(c). We apply the same standard on appeal. Rowe

v. Mazel Thirty, LLC,

(2012). As a matter of

law, we agree that defendants did not owe plaintiff a duty of

care.

9 A-1743-12T3 To establish a prima facie case of negligence, an injured

plaintiff must demonstrate: (1) a duty of care, (2) breach of

that duty, (3) proximate cause, and (4) damages. D'Alessandro

v. Hartzel,

(App. Div. 2011). Whether

a legal duty exists, as well as the scope of the duty, are

questions of law for the court to decide.

In determining whether a duty is owed, the first step in

the analysis, notions of fairness and public policy must be

taken into account. Acuna v. Turkish,

(2007), cert. denied,

,

,

(2008). As the court said in Acuna, quoting Prosser & Keeton

on Torts, Lawyer's Edition § 53, at 359 (W. Page Keeton ed., 5th

ed. 1984): "No better general statement can be made than that

the courts will find a duty where, in general, reasonable

persons would recognize it and agree that it exists."

.

An injured party must demonstrate more than the mere

foreseeability of harm. Kelly v. Gwinnell,

(1984). A claimant must also establish grounds for a "value

judgment, based on an analysis of public policy, that the actor

owed the injured party a duty of reasonable care."

Plaintiffs have not established such grounds in this case.

The basis for plaintiffs' claim is that they are the third party

10 A-1743-12T3 beneficiaries of defendants' contractual undertakings to keep

power lines free from encroaching vegetation, in furtherance of

the uninterrupted provision of power to JCP&L customers, and

that defendants' failure to remove a dead tree that was not

affecting the flow of electricity nonetheless warrants the

imposition of such a duty.

It is not disputed that JCP&L had a clear and defined

commitment to keep vegetation controlled in order to prevent

interruptions in service. To expand that commitment to include

maintenance of vegetation for the benefit of passing motorists,

where power lines are unaffected, would create an onerous burden

without a corresponding benefit where the responsibility already

exists, to a greater or lesser extent, on individual property

owners and NJDOT.

This is not an instance where, for example, defendants were

in the process of negligently removing a dead tree or a tree

limb, and a passerby was injured. Nor is it an instance where a

power line was damaged, fell onto the roadway, and, thus,

created a hazard.

Nor is this a factual scenario such as the one in Carvalho,

supra, 132 N.J. at 571-72, 577-78, where a duty was imposed on a

construction site engineer for the death of a construction

worker employed by a subcontractor. The engineer in Carvalho

11 A-1743-12T3 oversaw the installation of in-ground utility pipes, was on the

work site daily, and directly supervised the "existing

conditions and the actual performance of the work undertaken by

the workers at the site." Id. at 569-70. In that situation,

"there was an overlap of work-progress considerations and work-

safety concerns." Id. at 575.

The engineer controlled the work site, a significant factor

missing here. Id. at 576. The engineer had the authority to

halt the job for safety reasons. Ibid. He had been informed

about the instability of the trenches used by workers in

installing pipes, as trench walls had collapsed on the site the

week prior to the collapse of a trench that led to Carvalho's

death. Id. at 576.

The Court found that the engineer's role involved, of

necessity, responsibility for the safety and control of the work

area, and that he had actual knowledge of site conditions. Id.

at 575-76. Therefore, the Court found that a duty of care was

owed to the employee of a subcontractor even though the engineer

never expressly assumed responsibility for his safety. Id. at

569, 577-78. Considerations of fairness and public policy

required the imposition of a duty of care. Id. at 577. The

conditions that resulted in the death were known, foreseeable

risks. Id. at 573-74. And most importantly, the engineer "had

12 A-1743-12T3 the opportunity and was in a position to foresee and discover

the risk of harm and to exercise reasonable care to avert any

harm." Id. at 578. Those factors are missing here.

The private land owner bears the principal responsibility

to exercise due care over trees that might pose a hazard to

travelers on an adjoining highway. See Narsh v. Zirbser Bros.,

Inc.,

(App. Div. 1970). NJDOT in this

case had a right-of-way over the same wooded strip over which

JCP&L had its right-of-way, and NJDOT managed the vegetation in

that area in order to prevent hazards such as the one in this

case.

There was no contractual obligation on JCP&L to do more

than to maintain the lines within its designated right-of-way so

as to provide uninterrupted service. Moreover, the obligation

to monitor trees over hundreds of miles of roadway for a broad

purpose such as the safety of passing motorists would be an

overwhelming burden on a private entity. And here, the property

owner had that responsibility, as did NJDOT, a government

entity.

JCP&L is a private utility company. That JCP&L did not

remove a dead tree from a stretch of woods, and that the fall

had such tragic consequences, was neither foreseeable nor within

the scope of its day-to-day activities.

13 A-1743-12T3 If JCP&L did not have a duty of care, it follows as night

the day that JAFLO did not have that responsibility either. We

reiterate that this was not an instance where JAFLO, JCP&L's

contractor, was negligent while removing a dead tree or tree

limbs, or otherwise in the act of maintaining vegetation.

Thus we conclude that no societal goal is advanced by the

imposition of a duty to act in this case. See City Check

Cashing, Inc. v. Mfrs. Hanover Trust Co.,

(2001). Neither defendant assumed a general responsibility to

tend to the trees so as to promote highway safety. See

. Here, the responsibility fell on the

private landowner and NJDOT.

Affirmed.

14 A-1743-12T3