WILLIAM BRENNAN v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2410-04T22410-04T2

WILLIAM BRENNAN,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT RAIL

OPERATIONS, INC.,

Defendant-Respondent.

___________________________________________________

 

Submitted July 12, 2005 - Decided

Before Judges Fuentes and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 6727-03.

Davis & Martillotti, attorneys for appellant (G. Sander Davis of counsel; Ms. Davis and Stephanie A. Gahagan, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff William Brennan, appeals from the grant of summary judgment in favor of his employer, defendant New Jersey Transit Rail Operations, Inc., and from the denial of his motion for reconsideration of his claim for damages under the Federal Employers' Liability Act (FELA) 45 U.S.C.A. 51 et seq.

The facts are neither complicated nor in dispute. On June 7, 2002, plaintiff was employed by defendant, New Jersey Transit Rail Operations, as a conductor. As the train made its regular stop that day at the Hoboken station, plaintiff attempted to open the door leading to the engineer's compartment. The door was locked. Plaintiff and every other employee on the train possessed a key to the lock on that door, but plaintiff alleges that over the prior fifteen years, every time he had to open the engineer's compartment door, it was unlocked. Even when the door was unlocked, plaintiff was required to exert significant force to open it. On June 7, however, the engineer had locked that door without notice to any of the other employees.

The engineer indicated he had locked the door to restrain commuters from exiting through the door. According to plaintiff, when he attempted to open the door by pulling on it, he sustained injuries to his left arm that have been painful and have required physical therapy.

On August 11, 2003, plaintiff filed a complaint in Superior Court, Law Division, Essex County, under FELA to recover damages from defendant for the injuries sustained during the course of his employment. Defendant filed a motion for summary judgment, which was granted by Judge Michelle Hollar-Gregory on October 8, 2004. Plaintiff moved for reconsideration and that motion, heard on December 3, 2004, was denied.

On appeal to this court, plaintiff argues that the trial court erred by failing to apply the proper standard. He emphasizes that summary judgment should not be granted unless there is zero probability of defendant's negligence or zero probability of any such negligence contributed to the injuries of plaintiff. He contends the trial court's decision effectively deprives railroad workers in the State of New Jersey and William Brennan, in particular, of their rights under the FELA.

We have considered defendant's arguments in light of the record and applicable law and we find them to be without merit. The contention relating to the perceived impact of the trial judge's ruling upon railroad workers in general is beyond the proper scope of this appeal. It does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

First, the order denying the motion for reconsideration is affirmed since plaintiff merely asserted the same evidence presented during the motion for summary judgment. R. 4:49-2. Second, we are satisfied that Judge Hollar-Gregory applied the correct standard and that the order granting summary judgment should be affirmed.

"On appeal, we apply the same standard as the trial court in determining whether the grant or denial [of summary judgment] was correct." Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient" to resolve the alleged disputed issue in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "The [] court must not decide issues of fact but merely decide whether there are any such issues." Antheunisse, supra, 229 N.J. Super. at 402.

Plaintiff brought this action under FELA, alleging that defendant negligently failed to provide a reasonably safe workplace and that such alleged negligence resulted in plaintiff's injury. FELA provides, in pertinent part, that "Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . ." 45 U.S.C.A. 51. Thus, in a FELA case, plaintiff must produce evidence, either direct or circumstantial, that justifies or supports an inference of employer negligence. Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 318 ((App. Div. 2003) (citing Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 508, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493, 500 (1957)). Plaintiff's burden is satisfied by showing that defendant's negligence "played any part, even the slightest[,] in producing the injury for which damages are sought." Stevens v. N.J. Transit Rail Operations, supra, 356 N.J. Super. at 318 (citations omitted).

Although the FELA standard is generally more liberal than the common law negligence standard, "FELA plaintiffs must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation." Id. at 319 (citing Aparicio v. Norfolf and Western R.R. Co., 84 F.3d 803, 810 (6th Cir. 1996)). "[A] trial court is justified in withdrawing . . . issue[s] from the jury's consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee." Hines v. Contrail, 926 F.2d 262, 268 (3d Cir. 1991) (quoting Pehowic v. Erie Lackawanna R.R., 430 F.2d 697, 699-700 (3d Cir. 1970)).

FELA requires every employer to exercise reasonable care to provide its employees with a safe work environment. Reasonable foreseeability, however, is a prerequisite to any claim. Hines v. Conrail, supra, 926 F.2d at 268. The employer's responsibility is measured by "what a reasonably prudent person would anticipate as resulting from a particular condition." Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 118, 83 S. Ct. 659, 665-66, 9 L. Ed. 2d 618, (1963). As our State Supreme Court has observed, "[t]he question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996) (citations omitted).

Foreseeability of harm is the most important factor in determining the presence of a duty to exercise reasonable care. Ibid. The "ability to foresee injury to a potential plaintiff does not in itself establish the existence of a duty, but it is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Id. at 572-73 (citations omitted). If the foreseeability of the injury is ascertained then a court will analyze the fairness and policy factors such as: the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution, to determine if "imposition of a duty is warranted." Id. at 573.

Here there is no evidence to establish that defendant knew or should have known about a potential hazard or that it failed to act reasonably with regard to any such hazard. Defendant did not have notice, either actual or constructive, that the facially innocuous act of locking a door could cause anyone injury. No similar prior accident has been alleged and no circumstances have been described that would suggest that defendant could or should have foreseen that someone might sustain injuries as a result of a door being locked.

Each employee had a key to the door. Thus, even though the door was not usually locked, any employee trying to enter through that locked door would reasonably be expected to use the key made available by the employer. Beyond that, it is not reasonably foreseeable that an employee, even if he mistakenly believed the door was unlocked, would injure himself by trying to pull the door open.

It is not sufficient for plaintiff to assert that it was common practice for the door to be unlocked. Plaintiff has failed to produce any evidence that it was foreseeable that a person could be injured. Locking a door could pose a hazard where rapid exit is required due to some emergency. As the facts are presented, no emergency existed and haste was not a factor. Since we conclude as a matter of law the plaintiff's injury was not foreseeable, it is not necessary to engage in the further analysis of the factors of fairness and policy, suggested by the Court in Carvalho, supra, 143 N.J. at 573, to determine whether imposition of a duty is warranted.

Viewing the undisputed facts and legitimate inferences in a light most favorable to plaintiff, we are convinced that no reasonable fact finder could find defendant acted negligently. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540.

 
Affirmed.

(continued)

(continued)

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A-2410-04T2

October 5, 2005