                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4324-17T1

D'ANDREA POWELL,

          Plaintiff-Appellant,

v.

TOWNSHIP OF NEPTUNE, NEW
JERSEY AMERICAN WATER
COMPANY,

          Defendants-Respondents,

and

JERSEY SHORE UNIVERSITY
MEDICAL CENTER,

     Defendant.
________________________________

                    Submitted May 2, 2019 – Decided July 5, 2019

                    Before Judges Whipple and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1359-16.

                    Hanus & Parsons, LLC, attorneys for appellant (Marc
                    Peter Caswell, on the brief).
            Plosia Cohen LLC, attorneys for respondent Township
            of Neptune (Jonathan Frederic Cohen, of counsel and
            on the brief; David Jonathan Ulric, on the brief).

            Marshall Dennehey Warner Coleman & Goggin,
            attorneys for respondent New Jersey American Water
            Company (Walter F. Kawalec, III and Paul Christoph
            Johnson, on the brief).

PER CURIAM

      Plaintiff, D'Andrea Powell, appeals from the November 17, 2017 orders

entering summary judgment for defendants. We affirm.

      Plaintiff was injured when she tripped and fell after stepping on an open

utility valve access box in a private access road on the property of Jersey Shore

University Medical Center (Jersey Shore) at the intersection of Davis Avenue

and the Jersey Shore access road. The valve access box was located just north

of where Davis Avenue (a public road) ends in a T-intersection with the Jersey

Shore access road (a private road). A valve access box is a small, circular metal

access hole, which permits access to underground utility shut-off valves.

Normally, valve boxes are covered by iron caps, but the caps can become

dislodged. Plaintiff alleges the valve box was uncapped when she tripped over

it.

      Plaintiff sued the Township of Neptune (Township), New Jersey

American Water Company (American Water) and Jersey Shore. Jersey Shore

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                                       2
settled with plaintiff, and the remaining two defendants each denied

responsibility for or ownership of the valve box.       Defendants moved for

summary judgment and both argued they only owned and were responsible for

equipment on or underneath public roadways but not the property where plaintiff

was injured. Additionally, even if plaintiff could prove ownership, she could

not show either defendant had actual or constructive notice of the missing valve

box cap.

      Plaintiff advanced three unsuccessful theories. First, she argued if the

valve box was a sewer pipe, then the Township bears responsibility because the

Township owns and operates the sewer system on township property. After her

injury, a cap stamped "sewer" was placed on the valve box, which led plaintiff

to believe the Township owned the valve box. However, plaintiff could not

confirm the pipe below the valve box was, in fact, a sewer pipe. The Township

uses two types of sewer pipes: "mains" and "laterals." "Mains" are large sewer

pipes that run beneath public roadways and are accessible by manhole covers

wide enough to fit a person. "Laterals" are smaller pipes that connect the mains

to private property, and the individual property owner is responsible for their

maintenance and repair. Lateral access points are smaller than manhole covers

and are only located on private property. There are no lateral access points on


                                                                        A-4324-17T1
                                       3
public roadways in the Township. Hence, the Township denied ownership of

the valve box where plaintiff tripped.

      Plaintiff's second theory is if the valve box was a water pipe, American

Water owns it. American Water owns and operates water mains and services

lines. Water mains are larger pipes, typically under public roadways, that

convey water. Service lines connect the water main to private property. The

point at which a service line connects to private property is called a curb stop.

A curb stop is a fitting device attached to the service line used to shut off water.

Connecting lines begin at the curb stop, provide water to private property and

are owned by the property owner.

      American Water produced tariffs, which define the terms and conditions

of water service, for both before and after plaintiff's injury.        Both tariffs

explained American Water was responsible for service lines and curb stops,

while the property owner was responsible for connecting lines. Valve boxes,

like the one plaintiff tripped over, are placed along mains, service lines and

connecting lines. The type of line each valve box connects to dictates who is

responsible for the valve box.           Jeremiah Hulsart, an American Water

representative, certified American Water did not own any assets or equipment




                                                                            A-4324-17T1
                                          4
beneath the valve box plaintiff tripped on. Jersey Shore admitted plaintiff

tripped on its property but denied ownership of the valve box.

      American Water maintains service logs for the valve boxes it owns. Its

representatives are responsible for servicing valve boxes and replacing caps if

necessary. Hulsart certified American Water had no notice or complaints of a

missing cap on Davis Avenue in the year before plaintiff's injury.

      Plaintiff posited a third theory: the Township's snowplows damaged the

cap. The Township is responsible for plowing Davis Road but not the access

road. The Township's snowplow drivers are instructed to make a U- or K-turn

when they reach the access road in order to proceed in the opposite direction on

Davis Avenue. Hulsart explained it was possible for a snowplow to dislodge a

cap, but plaintiff produced no direct evidence showing a snowplow, in fact, did

so.

      On November 17, 2017, after hearing oral argument, the judge found

plaintiff did not prove either the Township or American Water owned the valve

box and dismissed her claims. The judge found plaintiff's claims against the

Township were speculative at best. The only proof plaintiff presented tending

to show the Township owed the valve box was that it was stamped "sewer."

However, plaintiff presented no proof this was anything but a lateral pipe, which


                                                                         A-4324-17T1
                                       5
meant it was Jersey Shore's property. Moreover, plaintiff failed to even raise an

inference that the Township's snowplows were responsible for dislodging the

cap.

       Plaintiff argued the valve box was connected to a water pipe, and the

judge, affording plaintiff that inference, concluded Jersey Shore owned the

valve box. Still, plaintiff offered no facts capable of disputing American Water's

argument that all water delivery equipment past the curb stop belonged to Jersey

Shore.      Even if American Water owned the valve box, plaintiff failed to

demonstrate it had constructive notice a cap was missing. This appeal followed.

       On appeal, plaintiff argues the jury should have decided whether the valve

box connected to a sewer or water pipe, and considering the trial judge found

the valve box connected to a water pipe, the judge erred in concluding American

Water did not have constructive notice of a dangerous condition. Plaintiff also

contends a jury could find a Township snowplow dislodged the cap because the

director of public works, who testified the Township does not plow the access

road, did not actually plow Davis Avenue that winter. Finally, plaintiff argues

the judge erred by not considering the facts in a light most favorable to her. We

disagree.




                                                                          A-4324-17T1
                                        6
      We "review the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for summary

judgment should be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The evidence must be viewed in "the light most favorable to the non-

moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524

(2012).

      Determining whether there is a genuine issue for trial "does not require

the court to turn a blind eye to the weight of the evidence; the 'opponent must

do more than simply show that there is some metaphysical doubt as to the

material facts.'" Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523-24

(App. Div. 2004) (quoting Big Apple BMW, Inc v. BMW of N. Am., Inc., 974

F.2d 1358, 1363 (3d Cir. 1992)). Opposition to a motion for summary judgment

requires "competent evidential material" beyond mere "speculation" and

"fanciful arguments." Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374

N.J. Super. 556, 563 (App. Div. 2005). To survive summary judgment, the


                                                                          A-4324-17T1
                                        7
opposing party must, with the benefit of all favorable inferences, show a rational

factfinder could determine the plaintiff met her burden of proof. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 481 (2016).

      A property owner owes a duty of care to prevent harm arising from a

defect in property the owner had actual or constructive knowledge of and the

opportunity to remedy. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563

(2003); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).

However, proof of a fall and existence of a dangerous condition "does not, in

and of itself, establish actual or constructive notice." Prioleau v. Ky. Fried

Chicken, Inc., 434 N.J. Super. 558, 571 (App. Div. 2014), aff'd in part and

modified in part, 223 N.J. 245 (2015); Arroyo v. Durling Realty, LLC, 433 N.J.

Super. 238, 243 (App. Div. 2013). Rather, the plaintiff must prove, at the least,

the dangerous condition's nature and duration was such that the property owner

should have reasonably discovered it. Brown, 95 N.J. at 291; Bozza v. Vornado,

Inc., 42 N.J. 355, 360 (1964).

      Here, the trial judge properly found no genuine issue of material fact.

Even affording plaintiff all favorable inferences, she presented no evidence to

demonstrate either the Township or American Water was responsible for the

valve box. Assuming plaintiff tripped over a sewer pipe, it was a lateral and


                                                                          A-4324-17T1
                                        8
belonged to Jersey Shore. If it was a water pipe, it was past the curb stop and

Jersey Shore's responsibility. Whether a snowplow dislodged the cap is pure

speculation. If a trial was held, plaintiff would have the jury speculate as to who

owned the valve box. However, "[a]n inference [of negligence] can be drawn

only from proved facts and cannot be based upon a foundation of pure

conjecture, speculation, surmise or guess." Prioleau, 434 N.J. Super. at 570-71

(second alteration in original) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)).

      Even if we were to assume the valve box connected to a water pipe,

plaintiff presented no facts to indicate American Water should have been aware

the cap was missing. Hulsart certified American Water received no service

requests to repair or replace the cap on the particular valve box plaintiff tripped

over. Plaintiff put forward no evidence capable of rebutting this. A Jersey Shore

representative testified that he thought American Water owned the valve box,

but this tends to show, at best, ownership, not constructive knowledge. As a

result, a rational factfinder could not determine either defendant breached a duty

of care.

      Affirmed.




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