Utility Shocked Again - JCP&L liable for Shocks

PRESS RELEASE
LAKEWOOD, NEW JERSEY

Utility Shocked Again
JCP&L liable for Shocks

Electric companies in New Jersey when faced with a novel claim prefer to go to trial rather than settle.  William J. Wolf, Esq. of Bathgate, Wegener & Wolf, P.C., in Lakewood, New Jersey knows that first hand.  The plaintiffs he represented in two cases dealing with electrical distribution systems won jury verdicts against electric companies.

Mr. Wolf, assisted by several attorneys at Bathgate, Wegener & Wolf, P.C., represented John and Sandra Altoonian in a lawsuit against Atlantic City Electric Company. The Altoonians alleged that the electromagnetic field (“EMF”) produced by Atlantic City Electric’s distribution lines caused John Altoonian’s leukemia, devalued their property and caused emotional distress.  After a three month trial in 1996, a jury in Cape May County, although not finding a causal link between Mr. Altoonian’s cancer and EMF, returned a verdict in favor of the Altoonians.  It is believed that the jury verdict was the only one ever rendered in an EMF trial.  Shortly after Atlantic City Electric filed an appeal, the case settled.

In 2002, Gary Smith of Bricktown was shocked when he attempted to clean his hot tub.  Mr. Wolf’s experience with Altoonian contributed to Gary and Eileen Smith retaining Bathgate Wegener & Wolf, P.C. to represent them in a lawsuit against Jersey Central Power & Light Co., Inc. (“JCP&L”).  The Smiths’ alleged that Mr. Smith had been shocked because of stray current generated by JCP&L’s distribution system and that their property had been devalued.  In an effort to reduce the level of stray current that was present on the Smiths’ property, JCP&L tried several approaches, such as adding larger cables, but eventually devised a novel system of filters for their capacitors.  That work benefited the Smiths’ entire neighborhood.

After more than five years of discovery and numerous motions, JCP&L went to trial against the Smiths.  After a trial lasting several weeks, a jury in Ocean County in February 2008 returned a verdict in favor of the Smiths.  The Smiths’ case was the first lawsuit in New Jersey, and maybe nationwide, that related to stray current on residential property.

JCP&L filed an appeal from that jury verdict. The Smiths appealed the decision of the trial court dismissing their claim for inverse condemnation.  The Smiths, however, did not seek a new trial but only sought an award for legal fees.

On August 10, 2011, the appellate court affirmed the jury’s verdict that JCP&L had created a nuisance and the monetary award.  On the Smith’s inverse condemnation claim the appellate court decided that “… even assuming, as we do, that a sufficiently serious case of NEV [neutral to earth voltage] that an electric company was unable to correct could provide a basis for an inverse condemnation …” the jury’s finding regarding the creation of a nuisance was insufficient to support a claim for a taking of their property.  Because the Smiths did not seek a new trial on that issue the appellate court concluded that it could not, as a matter of law, equate a finding of nuisance with a claim for inverse condemnation.

JCP&L raised other issues on appeal.  In response, the appellate court concluded that JCP&L’s arguments that the Smiths had a duty to mitigate their damages by selling their house and moving, that the jury award should be vacated because months after the trial the Smiths installed a swimming pool and that the Smiths were not entitled to interest on part of the judgment were “… so clearly without merit they do not warrant discussion.”

The rulings of the appellate court can be viewed as a benefit to property owners whose land is impacted by the presence of stray current.  Not only does the appellate opinion affirm the verdict that JCP&L caused a nuisance but also offers the potential that, under a theory of inverse condemnation, legal fees could be awarded to persons who litigate when an electric utility does not address their concerns regarding the presence of stray current.

Electromagnetic fields and stray current are not unique to the properties in Altoonian and Smith.  As it relates to stray current, property owners may experience that condition and not know what is causing them to receive shocks when they touch objects, such as outdoor water faucets, located on their property.  Although an electric company may deny liability, Altoonian and Smith established that juries have concluded otherwise.

The Smiths were represented by William J. Wolf, Esq. and Pamela M. Snyder, Esq. of the law firm of Bathgate Wegener & Wolf, P.C. in Lakewood, New Jersey.  (Telephone no. 732-363-0666)