NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1071-24
MARK SOLARO,
Plaintiff-Appellant,
v.
FIRSTENERGY CORPORATION, FIRSTENERGY SERVICE COMPANY, JERSEY CENTRAL POWER & LIGHT COMPANY, TOWNSHIP OF WEST MILFORD, PASSAIC COUNTY, NEW JERSEY DEPARTMENT OF TRANSPORTATION and STATE OF NEW JERSEY,
Defendants-Respondents,
and
MARION NOVACK and EDWARD NOVACK,
Defendants. _____________________________
Argued December 17, 2025 – Decided July 20, 2026
Before Judges Gummer, Vanek, and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0160-22.
Ruxandra M. Laidacker argued the cause for appellant (Kline & Specter, PC, attorneys; Charles L. Becker, Ruxandra M. Laidacker, Kimberly M. Collins, Frank Mangiaracina and Benjamin O. Present, on the briefs).
Marco P. DiFlorio argued the cause for respondents FirstEnergy Corporation, FirstEnergy Service Company and Jersey Central Power & Light Company (Salmon, Ricchezza, Singer & Turchi, LLP, attorneys; Marco P. DiFlorio, on the brief).
Semeraro & Fahrney, LLC, attorneys for respondent Township of West Milford (R. Scott Fahrney, on the brief).
Eric M. Bernstein & Associates, LLC, attorneys for respondent Passaic County (Eric M. Bernstein, on the brief; Philip G. George, of counsel and on the brief).
Genova Burns, LLC, attorneys for amicus curiae New Jersey Utilities Association (Kenneth J. Sheehan, of counsel and on the brief).
PER CURIAM
In this tree-fall case, plaintiff Mark Solaro appeals from summary-
judgment orders dismissing with prejudice his negligence claims against
defendants Jersey Central Power & Light Company (JCP&L) and FirstEnergy
Service Company (FESC). Based on our de novo review and unpersuaded by
plaintiff's extended duty argument, we affirm.
A-1071-24 2 I.
Plaintiff was injured when a tree fell on a car he was operating on State
Route 23 in West Milford Township on May 3, 2019. Following his submission
of an initial pleading, plaintiff filed an amended complaint on March 26, 2021,
naming as defendants JCP&L, FESC, FirstEnergy Corporation, the Township of
West Milford, Passaic County, the New Jersey Department of Transportation
(NJDOT), the State of New Jersey, Marion Novack, Edward Novack, and
fictitious entities that allegedly provided arborist services to defendants . The
complaint contained causes of action against all defendants for negligence and
negligence per se. Plaintiff asserted, among other things, JCP&L and FESC
were negligent in that they had failed to perform an alleged duty to "inspect,
maintain, monitor, groom, cut down, and manage the trees surrounding power
lines along Route 23 North in West Milford Township," including the tree that
fell on plaintiff's car.
In the spring of 2022, plaintiff stipulated to the dismissal of the Novack
defendants and the Township. The remaining defendants moved for summary
judgment. Plaintiff withdrew opposition to FirstEnergy Corporation's motion
and consented to that party's dismissal from the case. The court denied the
A-1071-24 3 State's, the County's, and NJDOT's motions. Plaintiff subsequently stipulated
to the dismissal of those defendants.
After hearing argument on December 14, 2023, the trial court entered
orders and placed a decision on the record granting JCP&L's and FESC's
motions and dismissing the claims against them with prejudice. The court
determined the tree that had fallen on plaintiff's car was located in a preserve in
a public park owned by Passaic County. The court also found a power line was
next to the tree, but plaintiff's injuries were not caused by the power line, an
undisputed fact confirmed by plaintiff's counsel during argument. In its
decision, the court relied on McGlynn v. State, 434 N.J. Super. 23 (App. Div.
2014), a tree-fall case in which we affirmed an order granting JCP&L summary
judgment, holding it did not have a duty "to tend to . . . trees so as to promote
highway safety," id. at 34.
Plaintiff appeals from the December 14, 2023 orders. Plaintiff also listed
in his notice of appeal the November 7, 2024 stipulation dismissing Passaic
County. Plaintiff did not brief any issues regarding that stipulation or the
negligence per se claim, and his counsel confirmed during oral argument before
this court plaintiff was not pursuing an appeal of that stipulation or the dismissal
of the negligence per se count. See Morris v. T.D. Bank, 454 N.J. Super. 203,
A-1071-24 4 206 n.2 (App. Div. 2018) (finding "[a]n issue not briefed is deemed waived on
appeal"). After plaintiff filed his notice of appeal, we granted leave to appear
as amicus curiae to the New Jersey Utilities Association, which urges us to
affirm.
On appeal, plaintiff argues JCP&L and FESC owed him a duty of care
pursuant to New Jersey case law and vegetation-management regulations
applicable to electric distribution companies (EDCs). He also contends the court
erred in relying on McGlynn when it determined these defendants did not owe a
duty of care to him under the circumstances of this case. We disagree and affirm.
II.
"We review a grant of summary judgment de novo, applying the same
standard that governed the trial court's determination." Padilla v. Young Il An,
257 N.J. 540, 547 (2024). Summary judgment is proper if, viewing the evidence
in a light most favorable to the non-moving party, the record demonstrates "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." Friedman v. Martinez, 242
N.J. 449, 471-72 (2020) (quoting R. 4:46-2(c)).
McGlynn involved a 2003 incident in which a tree fell on a passing
vehicle, killing its driver and injuring the other passengers. McGlynn, 434 N.J.
A-1071-24 5 Super. at 27. "As the tree fell, it brought down power lines along the roadside."
Ibid. In that case, we rejected the plaintiffs' argument that JCP&L had a duty
"to keep power lines free from encroaching vegetation, in furtherance of the
uninterrupted provision of power to [its] customers, and th[e] . . . failure to
remove a dead tree that was not affecting the flow of electricity . . . warrant[ed]
the imposition of such a duty." Id. at 32.
We determined JCP&L "had a clear and defined commitment to keep
vegetation controlled in order to prevent interruptions in service," but "[t]o
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." Ibid.
We held "[t]he private land owner bears the principal responsibility to exercise
due care over trees that might pose a hazard to travelers on an adjoining
highway" and that "the obligation to monitor trees over hundreds of miles of
roadway for a broad purpose such as the safety of passing motorists would be
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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-1071-24
MARK SOLARO,
Plaintiff-Appellant,
v.
FIRSTENERGY CORPORATION, FIRSTENERGY SERVICE COMPANY, JERSEY CENTRAL POWER & LIGHT COMPANY, TOWNSHIP OF WEST MILFORD, PASSAIC COUNTY, NEW JERSEY DEPARTMENT OF TRANSPORTATION and STATE OF NEW JERSEY,
Defendants-Respondents,
and
MARION NOVACK and EDWARD NOVACK,
Defendants. _____________________________
Argued December 17, 2025 – Decided July 20, 2026
Before Judges Gummer, Vanek, and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0160-22.
Ruxandra M. Laidacker argued the cause for appellant (Kline & Specter, PC, attorneys; Charles L. Becker, Ruxandra M. Laidacker, Kimberly M. Collins, Frank Mangiaracina and Benjamin O. Present, on the briefs).
Marco P. DiFlorio argued the cause for respondents FirstEnergy Corporation, FirstEnergy Service Company and Jersey Central Power & Light Company (Salmon, Ricchezza, Singer & Turchi, LLP, attorneys; Marco P. DiFlorio, on the brief).
Semeraro & Fahrney, LLC, attorneys for respondent Township of West Milford (R. Scott Fahrney, on the brief).
Eric M. Bernstein & Associates, LLC, attorneys for respondent Passaic County (Eric M. Bernstein, on the brief; Philip G. George, of counsel and on the brief).
Genova Burns, LLC, attorneys for amicus curiae New Jersey Utilities Association (Kenneth J. Sheehan, of counsel and on the brief).
PER CURIAM
In this tree-fall case, plaintiff Mark Solaro appeals from summary-
judgment orders dismissing with prejudice his negligence claims against
defendants Jersey Central Power & Light Company (JCP&L) and FirstEnergy
Service Company (FESC). Based on our de novo review and unpersuaded by
plaintiff's extended duty argument, we affirm.
A-1071-24 2 I.
Plaintiff was injured when a tree fell on a car he was operating on State
Route 23 in West Milford Township on May 3, 2019. Following his submission
of an initial pleading, plaintiff filed an amended complaint on March 26, 2021,
naming as defendants JCP&L, FESC, FirstEnergy Corporation, the Township of
West Milford, Passaic County, the New Jersey Department of Transportation
(NJDOT), the State of New Jersey, Marion Novack, Edward Novack, and
fictitious entities that allegedly provided arborist services to defendants . The
complaint contained causes of action against all defendants for negligence and
negligence per se. Plaintiff asserted, among other things, JCP&L and FESC
were negligent in that they had failed to perform an alleged duty to "inspect,
maintain, monitor, groom, cut down, and manage the trees surrounding power
lines along Route 23 North in West Milford Township," including the tree that
fell on plaintiff's car.
In the spring of 2022, plaintiff stipulated to the dismissal of the Novack
defendants and the Township. The remaining defendants moved for summary
judgment. Plaintiff withdrew opposition to FirstEnergy Corporation's motion
and consented to that party's dismissal from the case. The court denied the
A-1071-24 3 State's, the County's, and NJDOT's motions. Plaintiff subsequently stipulated
to the dismissal of those defendants.
After hearing argument on December 14, 2023, the trial court entered
orders and placed a decision on the record granting JCP&L's and FESC's
motions and dismissing the claims against them with prejudice. The court
determined the tree that had fallen on plaintiff's car was located in a preserve in
a public park owned by Passaic County. The court also found a power line was
next to the tree, but plaintiff's injuries were not caused by the power line, an
undisputed fact confirmed by plaintiff's counsel during argument. In its
decision, the court relied on McGlynn v. State, 434 N.J. Super. 23 (App. Div.
2014), a tree-fall case in which we affirmed an order granting JCP&L summary
judgment, holding it did not have a duty "to tend to . . . trees so as to promote
highway safety," id. at 34.
Plaintiff appeals from the December 14, 2023 orders. Plaintiff also listed
in his notice of appeal the November 7, 2024 stipulation dismissing Passaic
County. Plaintiff did not brief any issues regarding that stipulation or the
negligence per se claim, and his counsel confirmed during oral argument before
this court plaintiff was not pursuing an appeal of that stipulation or the dismissal
of the negligence per se count. See Morris v. T.D. Bank, 454 N.J. Super. 203,
A-1071-24 4 206 n.2 (App. Div. 2018) (finding "[a]n issue not briefed is deemed waived on
appeal"). After plaintiff filed his notice of appeal, we granted leave to appear
as amicus curiae to the New Jersey Utilities Association, which urges us to
affirm.
On appeal, plaintiff argues JCP&L and FESC owed him a duty of care
pursuant to New Jersey case law and vegetation-management regulations
applicable to electric distribution companies (EDCs). He also contends the court
erred in relying on McGlynn when it determined these defendants did not owe a
duty of care to him under the circumstances of this case. We disagree and affirm.
II.
"We review a grant of summary judgment de novo, applying the same
standard that governed the trial court's determination." Padilla v. Young Il An,
257 N.J. 540, 547 (2024). Summary judgment is proper if, viewing the evidence
in a light most favorable to the non-moving party, the record demonstrates "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." Friedman v. Martinez, 242
N.J. 449, 471-72 (2020) (quoting R. 4:46-2(c)).
McGlynn involved a 2003 incident in which a tree fell on a passing
vehicle, killing its driver and injuring the other passengers. McGlynn, 434 N.J.
A-1071-24 5 Super. at 27. "As the tree fell, it brought down power lines along the roadside."
Ibid. In that case, we rejected the plaintiffs' argument that JCP&L had a duty
"to keep power lines free from encroaching vegetation, in furtherance of the
uninterrupted provision of power to [its] customers, and th[e] . . . failure to
remove a dead tree that was not affecting the flow of electricity . . . warrant[ed]
the imposition of such a duty." Id. at 32.
We determined JCP&L "had a clear and defined commitment to keep
vegetation controlled in order to prevent interruptions in service," but "[t]o
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." Ibid.
We held "[t]he private land owner bears the principal responsibility to exercise
due care over trees that might pose a hazard to travelers on an adjoining
highway" and that "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," such as JCP&L. Id. at 33-34. We
concluded "no societal goal [wa]s advanced by the imposition of a duty [on
A-1071-24 6 JCP&L] . . . . to tend to the trees so as to promote highway safety" and that the
duty "fell on the private landowner and NJDOT." Id. at 34.
Just as he argued before the trial court, plaintiff argues on appeal McGlynn
does not apply to his case. He contends McGlynn was premised solely on
JCP&L's contractual duties and the incident at issue in McGlynn occurred before
the New Jersey Board of Public Utilities (the Board) promulgated vegetation-
management regulations in 2006. According to plaintiff, those new regulations
imposed a new public-safety duty on EDCs that requires them to prevent non-
electrical hazards and, consequently, to remove trees near power lines that pose
a non-electrical risk to passing motorists. We are unpersuaded by those
arguments. We do not view McGlynn to be so limited nor the regulations so
expansive.
"Whether a person owes a duty of reasonable care toward another turns
on whether the imposition of such a duty satisfies an abiding sense of basic
fairness under all of the circumstances in light of considerations of public
policy." Holm v. Purdy, 252 N.J. 384, 402 (2022) (quoting Hopkins v. Fox &
Lazo Realtors, 132 N.J. 426, 439 (1993)). A court's "determination whether to
impose a duty may be informed by a statute, even when the statute creates no
civil cause of action for a violation." Id. at 403. Regulations can also evidence
A-1071-24 7 the existence of a duty of care. See Steinberg v. Sahara Sam's Oasis, LLC, 226
N.J. 344, 361 (2016) (finding violation of regulatory standards "may be
considered as evidence of negligence"); Alloway v. Bradlees, Inc., 157 N.J. 221,
236 (1999) (applying to regulations "the well-established principle that the
violation of a legislated standard of conduct may be regarded as evidence of
negligence if the plaintiff was a member of the class for whose benefit the
standard was established").
Because the meaning of a statute is a question of law, we review a trial
court's statutory interpretation de novo. Fuster v. Twp. of Chatham, 259 N.J.
533, 546 (2025). In performing that de novo review, we are guided by the well-
established principles of statutory construction. Those principles apply equally
to our interpretation of regulations. Medford Convalescent & Nursing Ctr. v.
Div. of Med. Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985)
(finding "[r]egulations are subject to the same rules of construction as a
statute").
When interpreting a statute, we "determine and give effect to the
Legislature's intent." In re H.D., 241 N.J. 412, 418 (2020) (quoting N.J. Dep't
of Child. & Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 20 (2013)).
"[S]tatutory construction begins with an examination of the plain language of
A-1071-24 8 the statute, 'ascrib[ing] to the . . . words their ordinary meaning and
significance.'" State v. Higginbotham, 257 N.J. 260, 280 (2024) (omission and
second alteration in original) (quoting DiProspero v. Penn, 183 N.J. 477, 492
(2005)). "We 'may neither rewrite a plainly-written enactment of the Legislature
nor presume that the Legislature intended something other than that expressed
by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484,
488 (2002)). We neither "ignore the words the Legislature chose to include in
a statute, nor . . . add language the Legislature chose not to include." State v.
C.C.W., 481 N.J. Super. 551, 572 (App. Div. 2025). To determine legislative
intent, we "look not only at the particular statutory language but also to the
design of the statute as a whole." Est. of DeMartino v. Div. of Med. Assistance
& Health Servs., 373 N.J. Super. 210, 219 (App. Div. 2004); see also In re Est.
of Brown, 448 N.J. Super. 252, 260 (App. Div. 2017) (same). Applying those
principles, we consider the regulations on which plaintiff relies.
In N.J.S.A. 48:2-13, the Legislature authorized the Board to regulate "all
public utilities," which include corporations that own any "electricity
distribution" systems. In N.J.S.A. 48:3-96(a) of the Electric Discount and
Energy Competition Act of 1999, N.J.S.A. 48:3-49 to -98.5, the Legislature
authorized the Board to "adopt . . . standards for the inspection, maintenance,
A-1071-24 9 repair and replacement of the distribution equipment and facilities of electric
public utilities."
Citing those statutory provisions as its authority, the Board in 2006
adopted new specified standards for vegetation management. 38 N.J.R. 5396(a)
(Dec. 18, 2006). The Board already had in place a regulation requiring EDCs
to have "inspection and maintenance programs . . . as appropriate to furnish safe,
proper and adequate service" and to "mitigat[e] those interruption causes with
the greatest impact on reliability such as those related to equipment, vegetation,
and animals." N.J.A.C. 14:5-7.7 (2001); see also 33 N.J.R. 123(a) (Jan. 2, 2001).
Subsequently codified at N.J.A.C. 14:5-9.1 to 9.10, the new regulations set forth
more specific "requirements that EDCs shall follow in managing vegetation in
proximity to an energized conductor in order to ensure public safety and the
efficient and reliable supply of electric power using integrated vegetation
management and sound arboricultural practices," N.J.A.C. 14:5-9.1. The new
regulations include standards for an "annual visual inspection of all energized
conductors . . . to determine whether vegetation management is needed ,"
N.J.A.C. 14:5-9.4, and procedures to follow if an EDC determines it should
"remove or mitigate [a] hazard tree," N.J.A.C. 14:5-9.5. The regulations require
an EDC to "develop its own vegetation management standards and guidelines,"
A-1071-24 10 consistent with the regulations, prioritizing work based on "[t]he extent of the
potential for vegetation to interfere with the energized conductor," "[t]he voltage
of the affected energized conductor," and "[t]he relative importance of the
affected energized conductor in maintaining safety and reliability." N.J.A.C.
14:5-9.6(c) (emphasis added).
N.J.A.C. 14:5-1.2 defines terms the Board used in the new regulations.
"Vegetation management" is defined as "the removal of vegetation . . . to
maintain safe conditions around energized conductor(s), and ensure reliable
electric service." Ibid. "Vegetation management consists of . . . methods to
control vegetation in order to prevent hazards caused by the encroachment of
vegetation on energized conductor(s) and to provide utility access to the
conductor." Ibid. (emphasis added). Reliability is defined as "the degree to
which safe, proper and adequate electric service is supplied to customers without
interruption." Ibid. A "'[h]azard tree' is a structurally unsound tree on or off [a
public utility's] right of way that could strike electric supply lines when it fails."
Ibid. The term "[m]itigate" is defined as "the process of diminishing risk
associated with hazard trees . . . to make safe and eliminate or adequately reduce
the risks of the hazard tree to the distribution system." Ibid. (emphasis added).
A-1071-24 11 The definitions and new regulations are devoid of any reference to motorists or
vehicular passengers.
Based on our de novo review and application of statutory-construction
principles, we reach the same conclusion we reached in McGlynn, which is
wholly applicable to this case. Like this case, McGlynn involved harm caused
by a fallen tree and not downed power lines near the fallen tree. 434 N.J. Super.
at 27. Neither this case nor McGlynn involved harm caused by electric-company
equipment. Cf. Seals v. County of Morris, 210 N.J. 157, 161 (2012) (finding
JCP&L was not immune from liability in a case involving a motor-vehicle
accident and the alleged negligent placement of an electric utility pole). We did
not base our opinion in McGlynn on the plaintiffs' purported status as third-party
beneficiaries to any contractual obligation the defendants may have had to
remove vegetation. Instead, we considered the plaintiffs' negligence claim and
the overall fairness of imposing on JCP&L the duty asserted by the plaintiff s to
inspect, maintain, and remove trees not for electrical risks but for the protection
of motorists. We see no reason, including the regulations on which plaintiff
relies, to depart from our holding in McGlynn declining to impose that duty.
Reviewing those regulations, we discern no intent by the Board to impose
a duty on EDCs to inspect and manage vegetation for the purpose of protecting
A-1071-24 12 passing motorists from non-electrical risks. Plaintiff focuses on the phrase
"public safety" in N.J.A.C. 14:5-9.1. But the Board's concern for safety is
nothing new. See, e.g., N.J.A.C. 14:5-7.1(b) (2001) (referencing "the general
obligation of a regulated EDC to provide sufficient resources in order to provide
safe, adequate and proper service to its customers"); N.J.A.C. 14:5-7.7 (2001)
(requiring EDCs to have "inspection and maintenance programs . . . as
appropriate to furnish safe, proper and adequate service"); 34 N.J.R. 1390(a)
(Apr. 1, 2002) (in discussing its proposed readoption of regulations regarding
electric service, the Board states the regulations "are necessary in that they relate
directly to the provision of safe, adequate and proper service by regulated New
Jersey electric utilities").
And we do not interpret statutes and regulations by focusing on isolated
phrases. To determine the intent behind them, we "look not only at the particular
statutory language but also to the design of the statute as a whole." Est. of
DeMartino, 373 N.J. Super. at 219. Viewing the statutory and regulatory scheme
as a whole, we perceive no basis to deviate from McGlynn or to impose on
defendants "a general responsibility to tend to the trees so as to promote highway
safety." McGlynn, 434 N.J. Super. at 34. Accordingly, we affirm the December
14, 2023 orders.
A-1071-24 13 Because we affirm the orders, we do not address defendants' alternative
argument regarding FESC's purported status as a shared service company.
Affirmed.
A-1071-24 14