CASEY HAMMOND v. NEW JERSEY TRANSIT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1061-10T4

CASEY HAMMOND,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT,

Defendant-Respondent.

________________________________________________________________

December 19, 2011

Submitted November 1, 2011 - Decided

Before Judges Carchman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2936-08.

Kleeman & DiGiovanni, P.C., attorneys for appellant (Joseph J. DiGiovanni, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

PER CURIAM

In this action filed pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act), plaintiff Casey Hammond appeals from an order of the Law Division granting defendant New Jersey Transit summary judgment and dismissing plaintiff's complaint. Judge Darlene J. Pereksta determined that a displayed sign on defendant's property was not a "dangerous condition." We agree and affirm.

These are the facts before the judge on the motion for summary judgment. On February 20, 2008, plaintiff was attempting to catch "the Dinky"1 at the Princeton Junction Train Station. As he was approaching the waiting train, the conductor told the approaching passengers to "hurry up." Fearful that he was about to miss the train, which would have forced him to wait for another half hour, plaintiff sprinted up the steps two-at-a-time. In his haste, Hammond focused on the train rather than the steps or people immediately in front of him, and near the top of the stairs, he darted to the right. His shoulder then "clip[ped]" a station sign, causing Hammond to fall and suffer a knee injury.

Plaintiff, a resident of Philadelphia, was only generally familiar with the train station, as he had used the Dinky just four times before February 20, 2008. He claimed not to have been in a hurry on the day of his injury and that he started sprinting only when the conductor implored him and other patrons to "hurry up." Although the nearest patron, who was also running to catch the train, was approximately six feet in front of plaintiff as they ascended the platform stairway, plaintiff failed to notice the station sign and was not aware that he had collided with it until he gathered himself after falling on his buttocks and hands. Apparently, the impact of his shoulder clipping the sign was extremely forceful because he was "running so fast" by the time he reached the top of the stairs. As a result of the incident, plaintiff suffered severe injuries.

According to Charles Sulkowski, defendant's Manager of Third-Party Rail Claims, the sign -- the edge of which was nearly flush with the stairway railing -- had been installed at least ten years before plaintiff's accident and had not been the subject of any recorded complaints or concerns since its installation. Although defendant denied responsibility for the incident, it admitted during discovery that the sign was moved following the accident. It acknowledged that it both installed the sign in its original position and currently possesses and controls the Dinky station.

Following discovery, defendant moved for summary judgment. The judge granted the motion, and this appeal followed.

Our evaluation of an appeal from a grant of summary judgment requires us to "employ the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citation omitted). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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." R. 4:46-2(c). In determining whether a genuine issue of material fact exists, we must consider whether the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). If "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact" under R. 4:46-2. Ibid. (citation omitted). Because only a legal question remains after resolution of all factual matters, the standard of review is then de novo. Henry, supra, 204 N.J. at 330.

Even though plaintiff argues that there are genuine issues of material fact, the motion judge in the first instance and now this court on appeal must determine whether there was a genuine issue as to the alleged "dangerous condition" caused by the sign. See Brill, supra, 142 N.J. at 540. See also Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001) (reasoning that, in the Tort Claims Act context, a question of fact for the jury is nonetheless"subject to the court's assessment whether it can reasonably be made under the evidence presented").

Plaintiff's cause of action was premised on the application of the Act. The Act provides that "immunity from tort liability [for public entities] is the general rule and liability is the exception." Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998) (citation omitted).

Under the Act, a public entity will be liable for:

injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. [the] public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

[N.J.S.A.59:4-2.]

However, even if the foregoing elements are satisfied by a preponderance of the evidence, a public entity will not be liable unless "the action the entity took to protect against the condition or the failure to take such action was . . . palpably unreasonable." Ibid.; Wymbs v. Twp. of Wayne, 163 N.J. 523, 532 (2000).

Under the Act, the property must have been in a "dangerous condition" when the injury occurred. The Act defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1. The phrase "'used with due care' refers not to the conduct of the injured party, but to the objectively reasonable use by the public generally." Garrison, supra, 154 N.J.at 291. "The purpose of the evaluation is to ascertain whether the plaintiff had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property." Id.at 292. As such, for a "dangerous condition" to exist here, the sign's relation to the stairs must pose a "substantial risk of injury" to the "objectively reasonable" user of the train platform, rather than to plaintiff in the use of the stairs. SeeN.J.S.A. 59:4-1.

The Court's decision in Garrisonis instructive. In Garrison, a parking lot with a mild declivity was not a "dangerous condition" because it did not pose a "substantial risk" to normal lot users exercising "due care," though it caused a knee injury to the plaintiff when he tripped on the declivity during a night pick-up football game held on the lot. Garrison, supra, 154 N.J.at 285, 293.

Also instructive is Vincitore, where a railroad crossing gate, which failed to close at a time when a train approached the intersection, was a "dangerous condition" because the defective gate would have exposed an objectively reasonable driver to a substantial risk of injury, and the plaintiff's actions were not so unreasonable as to be the cause of the injury rather than the dangerous public property. Vincitore, supra, 169 N.J. at 129-30.

In addition, even if public property is used for its proper purpose, the "due care" provision requires that the manner of that usage be "objectively reasonable." Garrison, supra, 154 N.J. at 291. According to plaintiff, he was running up the stairs "two at a time" in an effort to catch the train, and his attention was not focused on what was in front of him but on the train on his side.

Plaintiff's collision with the sign is analogous to the plaintiff's collision with the guardrail in Johnson v. Township of Southampton, 157 N.J. Super. 518 (App. Div. 1978). There, among other of the plaintiff's contentions, we rejected the argument that a Y-shaped intersection bordered by foliage that "interfered with compass range visibility" was a dangerous condition. Id. at 523. Similarly, there was nothing inherently wrong or obviously unreasonable about the station sign's placement. Climbing a stairway in an appropriate manner and remaining attentive to what is directly ahead represents the "due care" required by the statute. The condition and location of the sign must be considered in the context of plaintiff's "use" of the suggested dangerous condition. See, e.g., Levin v. Cnty. of Salem, 133 N.J. 35 (1993) (finding no dangerous condition though no signs warned plaintiff not to dive off bridge over shallow water); Sharra v. Atlantic City, 199 N.J. Super. 535 (App. Div. 1985) (finding no dangerous condition though a town failed to paint bike lanes on boardwalk to prevent riders from colliding); Hawes v. N.J. Dep't of Transp., 232 N.J. Super. 160 (Law Div. 1988) (finding no dangerous condition though New Jersey Transit failed to erect fences that would keep pedestrians out of the path of trains).

Finally, we conclude that plaintiff could not establish his cause of action because defendant's actions in relation to the station's sign placement were not "palpably unreasonable." See N.J.S.A. 59:4-2; Brown v. Brown, 86 N.J. 565 (1981). Indeed, a public entity will not be found to have acted in a "palpably unreasonable" manner unless it was "manifest and obvious that no prudent person would approve of [the] course of action or inaction." Ogborne v. Mercer Cemetery Corp., 197 N.J.448, 459 (2009) (citation omitted). "The [palpably unreasonable] standard implies a more obvious and manifest breach of duty [than does the ordinary care standard] and imposes a more onerous burden on the plaintiff." Williams v. Town of Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).

The sign here was clearly visible and apparent to anyone walking up the stairs in the train station. We are of the view that there were no genuine issues of material fact as to either the presence of a dangerous condition or whether defendant acted "palpably unreasonably" in maintaining the sign at the station. We conclude that Judge Pereksta properly granted summary judgment.

A

1 The Dinky is the colloquial name identifying the railroad spur that connects the Northeast Corridor railroad lines with Princeton Borough.