By Pat Murphy
The Daily Record Newswire
BOSTON, MA -- If my backyard suddenly became an adventure in electric shock, I'd want the power company responsible to take my home off my hands so I could live somewhere else.
That's why $200,000 in damages just doesn't seem enough for a couple who are stuck in their $460,000 home after enduring stray voltage from New Jersey Central Power & Light.
Gary and Eileen Smith have a home in Brick, New Jersey. At one time, the Smiths and their three boys were able to enjoy without hesitation a backyard that contained a cement patio, swing set, sandbox, above-ground pool and hot tub.
That all changed in July 2002.
One day, Gary walked barefoot to the hot tub and put his arm in to check the water temperature. He felt electric shock travel up his arm to his chest. The next day, he tested the water again and received an electric shock so strong that it felt as though he had been punched in the chest.
Eileen also could feel a tingling sensation when she placed her arm in the hot tub, but only after she removed her shoes.
The Smiths called in an electrician who discovered very high levels of electricity in the ground surrounding the hot tub and swing set. It was later determined that the problem "stray" voltage passing along the ground to an electrical substation operated by New Jersey Central Power & Light.
Stray voltage is a common enough problem across the country and essentially occurs when power lines are overloaded, leaving electricity that must return to a substation to complete a circuit to find the path of least resistance, typically the ground.
The electricity passing through the earth will tend to ground to such things as pools, hot tubs, outdoor irrigation systems, faucets, and swing sets.
The Smiths were advised to always wear shoes when going outside and not to touch anything metal or wear wet clothing outdoors, which tended to diminish their backyard activities. To protect themselves and their sons, the Smiths filled in the sandbox, dismantled the swing set and pool, and generally stopped using their backyard.
In addition, the Smiths spent $29,400 to install a fiberglass deck so their sons could play without touching the ground.
At the same time, New Jersey Central studied the problem and undertook system-wide measures to eliminate the stray voltage experienced by the Smiths and their neighbors.
Of course, the power company claimed that these remedial measures were effective, while the Smiths claimed that the problem persisted.
Unhappy that they could no longer fully enjoy their property, the Smiths sued New Jersey Central for nuisance. In addition, they filed a claim for inverse condemnation.
An Ocean County jury found New Jersey Central liable for nuisance, awarding the Smiths $145,000 for property damage and $50,000 for interference with the use of their property.
That sounds pretty good until one considers that, according to at least one expert, the Smiths' $460,000 home has a market value of $0 due to the stray voltage problem.
But the Smiths' inverse condemnation claim never reached the jury, being dismissed by the trial judge.
So both sides appealed the judgment of the trial court, the Smiths being unhappy with being denied the remedies of inverse condemnation, New Jersey Central peeved with the fact that it was liable for nuisance.
Last week, the New Jersey Appellate Division disappointed both parties by upholding the trial court's judgment.
As to the Smiths' inverse condemnation claim, the state appeals court said that the case "clearly does not involve a permanent physical occupation of plaintiffs' property; defendant did not, for example, erect utility poles on part of plaintiffs' property. Plaintiffs have continued to occupy and use all of their property even though the [stray voltage] from defendant's electrical distribution system interfered with that use. ...
"Moreover, that interference was temporary or intermittent, rather than permanent; or at least a trier of fact could reasonably have reached this conclusion based on defendant's proofs."
So the Smiths are stuck with their home.
But New Jersey Central is also stuck with paying the nearly $200,000 in damages awarded by the jury because the state appeals court rejected the power company's argument that the Smiths needed to prove negligence in order to succeed on their nuisance claim.
"A negligence claim is directed solely at the conduct of the defendant; if that conduct is not unreasonable under all the circumstances, it will be found not to have been negligent. ...
"On the other hand, a defendant's conduct may be found to have constituted a nuisance even though the conduct has sufficient social utility to be considered reasonable so long as damages are paid to the party whose use and enjoyment of land has been interfered with by this conduct," the court explained. (Smith v. New Jersey Central Power & Light)
Published: Thu, Aug 25, 2011
