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No Duty Owed by Private Utility Company to Remove Dead Tree in Right of Way to Prevent Accident

The Plaintiffs in McGlynn v. State of New Jersey, no. L-2-06 (App. Div. Jan. 3, 2014) claimed that Jersey Central Power and Light Company (“JCP&L”) owed a duty of care to remove vegetation in its right of way that posed a risk of harm to users of the highway. The Appellate Division found that no such duty existed.

The Plaintiffs asserted a negligence claim against JCP&L when a tree fell on their car as they were traveling on a rural road. It killed one occupant and injured the other three occupants. As the tree fell, it brought down power lines with it.

The tree was located on privately owned land, situated within JCP&L’s right-of-way. The tree was also in the right-of-way maintained by the New Jersey Department of Transportation (“NJDOT”). NJDOT would trim the trees in the right-of-way unless the work needed to be done was located near utility poles or power lines. Then NJDOT would contact the utility company to do the work.

The Appellate Division considered whether there was any duty owed by JCP&L to the plaintiffs. It was undisputed that JCP&L had a commitment to keep vegetation controlled to prevent interruptions in service. However, the court found that it would create an onerous burden to expand that commitment to include maintenance of vegetation for the benefit of passing motorists where this responsibility already exists on the individual property owner and NJDOT.

The Court pointed out that there was no contractual obligation of JCP&L to do more than to maintain its lines within its right-of-way so as to provide uninterrupted service. The obligation to monitor trees over hundreds of miles of roadway to ensure the safety of passing motorists would be overwhelming to a private entity.

Hence, the Appellate Division concluded that JCP&L’s failure to remove a dead tree from a stretch of woods, despite having such tragic consequences, was neither foreseeable, nor within the scope of its day-to-day activities. The Court found that this duty fell on the private landowner and NJDOT.

Our appeals courts often liberally construe the circumstances to impose a duty on a defendant so as to find a remedy for an injured party. Likely, because there were other culpable parties (the landowner and the NJDOT), the Appellate Division did not impose such a duty on this private utility company.

Illinois Based Employee of Computer Consulting Software Company Cannot be Sued in New Jersey Due to Lack of Jurisdiction

Baanyan Software Services tried to sue its Illinois based employee in New Jersey for breach of contract. In Baanyan Software Services v. Kuncha, no. A-2058-12T3 (Dec. 19, 2013 App. Div.), the Appellate Division found that New Jersey lacked jurisdiction over this employee and the company would have to sue him in Illinois.

Baanyan, an information technology development and software consulting company, with headquarters in Edison, New Jersey, hired the defendant Kuncha as a computer system analyst pursuant to a written consulting agreement. When Kuncha was hired, she was living in California, which is where she signed the agreement.

The terms of the contract were negotiated by email and telephone calls. The contract contained no forum selection clause, in which the parties would select a forum state as the state where any lawsuits would be filed for any disputes that might arise under the contract.

The contract required that Kuncha relocate to Illinois to service Baanyan’s clients. Thereafter, she was paid by direct deposit into her Illinois bank account. At no time, did the defendant work in New Jersey, nor did she provide any services to a Baanyan client located in New Jersey.

She only worked for Baanyan for about 6 months, and began working for one of their clients and then a competitor after moving to Tennessee. Baanyan sued Kuncha for breach of contract and other claims.

Kuncha moved to dismiss based upon lack of jurisdiction. She argued lack of minimum contacts with the State of New Jersey. The Appellate Division applied the federal constitutional standard and found that her acts did not create either general jurisdiction, nor specific jurisdiction.

Simply telephonic contacts with individuals and entities located in New Jersey alone were insufficient minimum contacts to establish personal jurisdiction of the defendant. Receiving payment from Baanyan and submitting timesheets to Baanyan were all electronic and did not require any contact with New Jersey. The court found that, to allow Baanyan, an international company to compel an individual employee to defend a New Jersey lawsuit, where that employee was hired to work in Illinois, violated principles of “fair play and substantial justice.”

This case points out the difficulties there may be in obtaining jurisdiction in suing an individual or a company who has no connection to the State of New Jersey but for a contract entered into with the New Jersey company. With the use of today’s technology, many contracts are entered into solely using electronic means. Using a forum selection clause would likely have prevented this jurisdictional problem because the parties would have chosen this state as its forum to resolve any disputes.