Wayne Latimore v. New Jersey American Water Company

CourtNew Jersey Superior Court Appellate Division
DecidedJune 10, 2025
DocketA-2466-23
StatusUnpublished

This text of Wayne Latimore v. New Jersey American Water Company (Wayne Latimore v. New Jersey American Water Company) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wayne Latimore v. New Jersey American Water Company, (N.J. Ct. App. 2025).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2466-23

WAYNE LATIMORE,

Plaintiff-Appellant,

v.

NEW JERSEY AMERICAN WATER COMPANY,

Defendant-Respondent,

and

STATE OF NEW JERSEY and NEPTUNE TOWNSHIP,

Defendants. _________________________

Submitted April 28, 2025 – Decided June 10, 2025

Before Judges Gummer, Berdote Byrne, and Jacobs.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1065-22.

Lawrence S. Reynolds, attorney for appellant. Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent (Michael T. Kearns, of counsel and on the brief).

PER CURIAM

In this personal-injury action, plaintiff appeals the trial court's grant of

summary judgment to defendant New Jersey-American Water Company, Inc.,1

dismissing his negligence claim. We affirm because plaintiff has failed to

establish defendant breached a duty owed to him to survive summary judgment.

I.

On September 18, 2020, plaintiff was proceeding in the westbound lane

of Route 33 in Neptune Township when his vehicle ran over a cast-iron water

main cap, rupturing his driver's-side tire. The police report from the accident

indicated "the water main cap was dislodged and located on the eastbound side

of [Route] 33. . . . [The New Jersey Department of Transportation] and

[defendant] were both notified."

1 In the complaint, plaintiff identified this party as New Jersey American Water Company. In its answer, New Jersey-American Water Company, Inc., stated it had been improperly pleaded as New Jersey American Water Company. Because the other defendants named in the complaint did not participate in this appeal, we refer to this defendant as "defendant" in this opinion for ease of reading. A-2466-23 2 In his complaint 2 plaintiff alleged he suffered several injuries due to this

incident. Plaintiff further alleged defendant had installed, maintained,

controlled, or regulated water mains and covers on the roadway where the

accident occurred, and plaintiff's injuries were the direct and proximate result of

defendant's negligence.

During discovery, plaintiff deposed the senior manager of field operations

for defendant ("corporate witness"). He testified he was not aware of any history

of issues with the cap in question and indicated Neptune Township Police had

not previously reported that this cap had become dislodged. Notwithstanding

that testimony, the corporate witness acknowledged there had been instances

where other caps had become dislodged by snowplows and cars driving over

them. He testified that because of this possibility, defendant would perform

routine inspections of the caps every "two or four years," depending on the size

of the cap. He also testified inspections were made every time defendant was

notified, either by the police, customers, or any other eyewitness, that a cap was

loose. During this deposition, plaintiff did not inquire about the frequency of

defendant's inspection of the cap in question, whether this cap had become

2 Plaintiff initially named the State of New Jersey and Neptune Township as defendants; default was entered against the State, and plaintiff's complaint was dismissed with prejudice as to Neptune Township. A-2466-23 3 previously dislodged in the past, or the date of the last inspection for this cap.

Additionally, plaintiff failed to provide any opposing evidence—lay or expert—

opining on the efficacy of defendant's inspection frequency and maintenance of

its caps in general.

Defendant moved for summary judgment, arguing "there is no evidence

of how long the water valve cap/lid was off the opening, what caused the cap/lid

to be removed, and no evidence that [defendant] had notice that the cap/lid was

removed from the water valve opening." In opposition, plaintiff contended that

defendant's witness had "acknowledge[d] that the caps do come out of their

receptacle for various reasons, including cars running over them, but the water

company considered no policy for protecting this from happening or locking the

water caps." Plaintiff further argued defendant was "on notice of the hazardous,

dangerous conditions, which was entirely known and foreseeable that the caps

come out onto the roadway, creating a potentially dangerous situation for

traveling vehicles." Plaintiff contended defendant was on notice of the problem

because it did not "consider any safety" for the caps and the caps do not screw

in or lock.

Despite stating "[e]ssentially, this is a claim for strict liability," the trial

court in its oral opinion analyzed the case pursuant to negligence principles and

A-2466-23 4 granted defendant's motion, finding "there is no evidence" defendant breached

a duty owed to plaintiff. With respect to defendant's practice of inspecting its

caps, the court reasoned:

[t]here is no testimony in the record indicating that [defendant] failed to conduct those inspections or those inspections were flawed, or that the timing of those inspections is improper, or that whatever means they used or method they employed to devise the type of inspection, the timing of the inspections or the amount of inspections were improper.

....

[T]here is no evidence that [defendant's] determination that these caps would be inspected every two to four years, as opposed to any other time period, or that the nature and manner of inspection was faulty, or that this cap was not inspected as it was supposed to be within their two to four-year guideline.

The judge also addressed plaintiff's concern over a lack of locking mechanisms

on defendant's caps:

[t]here is no expert who has testified or provided an opinion that having [a locking] mechanism on any of these caps was either feasible, practical, possible or, again, efficacious. Without such testimony, you can't assume that such is the case. That is the role of an expert, and it does not exist in this case.

This appeal followed.

A-2466-23 5 II.

In reviewing these arguments on appeal, we are guided by familiar

principles. On a summary judgment motion, a court must view the motion

record in a light most favorable to the non-moving party, here plaintiff. Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 528–29 (1995); see also R. 4:46-

2(c). To survive summary judgment, the opposing party must produce evidence

that creates a genuine issue of material fact, and "[c]onclusory and self-serving

assertions by one of the parties are insufficient to overcome the motion."

Vizzoni v. B.M.D., 459 N.J. Super. 554, 567 (App. Div. 2019). We apply the

same legal standards on appeal and review a grant of summary judgment de

novo. Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 124-25 (2023).

Furthermore, because questions of the presence or absence of a legal duty

inherently entail issues of law, we likewise assess those issues de novo. S.V. v.

RWJ Barnabas Health, Inc., 481 N.J. Super. 86, 100 (App. Div. 2025).

As an initial matter, we disagree with the trial court that this is a case of

strict liability.

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Wayne Latimore v. New Jersey American Water Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-latimore-v-new-jersey-american-water-company-njsuperctappdiv-2025.