FRANCINE ANASTASOPOULOS, et al. v. NEW JERSEY TRANSIT et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1789-06T21789-06T2

FRANCINE ANASTASOPOULOS and PETROS

ANASTASOPOULOS, as Guardians for

the infant decedent, ANTONIS

ANASTASOPOULOS and on behalf of the

ESTATE OF ANTONIS ANASTASOPOULOS,

and FRANCINE ANASTASOPOULOS and

PETROS ANASTASOPOULOS, individually,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT and MARK MATTHEW

MALONEY,

Defendants-Respondents.

 
___________________________________

Argued October 22, 2007 - Decided

Before Judges Lintner, Parrillo and Graves.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-6516-04.

E. Drew Britcher argued the cause for appellants (Britcher, Leone & Roth, attorneys; Mr. Britcher, of counsel; Mindy Michaels Roth, on the brief).

Karen L. Jordan, Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Jordan, on the brief).

PER CURIAM

Seventeen-year-old Antonis Anastasopoulos (Tony) was killed when he was struck by a New Jersey Transit (NJT) train on the evening of August 19, 2002, as he and two friends attempted to cross a train overpass in Montclair, New Jersey. His parents (plaintiffs) sued NJT in their capacity as guardians, alleging that the train tracks were in a dangerous condition because they were accessible and routinely used by pedestrians as a shortcut. Plaintiffs also named Mark Maloney, the train's engineer, as a defendant, alleging that he negligently operated the train by failing to stop in time to avoid hitting decedent.

Plaintiffs appeal from an order of the Law Division granting summary judgment in favor of NJT and Maloney. We affirm the order dismissing plaintiff's complaint insofar as it states a cause of action against NJT for maintaining a dangerous condition, pursuant to immunity afforded by the Tort Claims Act. However, we reverse the order insofar as it grants summary judgment on plaintiffs' claim of negligent operation by Maloney and vicarious liability of NJT for those acts.

On the evening of August 19, 2002, seventeen-year-old Tony met his girlfriend, sixteen-year-old Allison Holmes-Surbeck and her friend, fourteen-year old Abigail Banegas, at a restaurant in Montclair. They left the restaurant and eventually decided to go to a video store to rent a movie. Tony suggested that they use the train tracks because it was a shorter and more direct route to the video store. As they walked east down the tracks, they reached the train trestle that crosses over Valley Road in Montclair. It was approximately 9:00 p.m. The trestle is an "open deck" bridge consisting of two sets of tracks with railroad ties, separated by a space. There is no flat walking space. Signs posted on both sides of the trestle warn of the danger of a fast moving train and prohibit trespassers from using the trestle.

Allison proceeded down the trestle first, with Abigail and Tony following. Abigail was wearing "clunky" shoes, so Tony held her hand and walked beside her in order to help her over the gaps on the trestle. As they proceeded on the overpass, the train approached. Allison and Abigail were able to move out of the way, but the train hit Tony, throwing him onto the road below. He was pronounced dead at the scene.

In a statement taken after the accident, Allison said she saw the train coming toward them when she was nearly across the trestle and she ran the rest of the way to safety. She could see a bright light on the front of the train and heard the horn. She turned and saw that Abigail's shoe had gotten caught between the railroad ties. Tony freed Abigail's foot from the shoe, and then he threw her out of the way of the train before the train hit him. Abigail stated that she was about halfway or three-quarters of the way across the trestle when she saw the oncoming train. She started running, but fell and lost her shoe. She could not remember Tony throwing her or pushing her off the tracks.

The train had stopped at the Watchung Station prior to arriving at the trestle. After leaving the Watchung Station, the train travels up a grade and around a curve, before it reaches the straightaway that leads to the trestle. In a statement given on August 20, 2002, Maloney said that, as he came around the curve he had all his lights on and when he first saw the bridge "everything . . . looked fine." Then he saw what appeared to him as "trespassers on the bridge," who appeared to be "fighting or wrestling," at which point he put the train in its emergency stop procedure. In his depositions, Mahoney testified that when he first reached the straightaway he was not able to see the individuals on the bridge. He had "no idea" how long he was on the straightaway before he saw them on the bridge. Again, he stated that upon seeing them he immediately put the train into emergency. Maloney was not sure what position the throttle was in when he put the train into emergency. He stated, however, that as he climbed the grade he had the throttle at "full to get up out of the hill" then "backed it down" as he rounded the curve. Later, in his deposition, he stated that the throttle was in position "eight" when he put the train into emergency. When a train is put into emergency, it goes into a power lockout system and the position of the throttle is no longer relevant.

The train's event recorder showed that the train had reached a speed of 38 miles per hour when the train was put into emergency braking. It also showed that the throttle was in the eighth position when put into emergency.

Plaintiffs' expert, James R. Loumiet, using an overhead photograph, approximated the distance from the tangency of the curve to the point of impact on the trestle as approximately 800 feet. He also estimated the time between tangency and impact as approximately 14-15 seconds. He noted that the train was equipped with two headlights and two auxiliary lights. He opined that with just one of the train's headlights illuminated the engineer should have been able to see the individuals on the bridge as soon as he rounded the curve, at which point the train was traveling at 26 miles per hour and was approximately 16.8 seconds from impact. Using a reaction time of 1.0 to 2.5 seconds, Loumiet opined that Maloney had 14-15 seconds, which was "more than enough time" to stop the train and avoid the impact. He noted that, according to the event recorder, no evasive action (braking) was taken by Maloney until the train was 1.8-2.8 seconds or 101-155 feet from impact, at which time the train was traveling at 38 miles per hour. The event recorder also established that the horn and bell were activated when the train was 3.8-4.8 seconds or 208-261 feet from point of impact and the train stopped 300 feet and 9 inches past the point of impact. He concluded that if Maloney had applied the brakes in emergency as close as 6.8 seconds prior to impact, a distance of 362 feet, he could have stopped the train short of the trestle.

Stephen Klejst, Deputy General Manager of Safety and Training for NJT Rail Operations, testified that they had not performed a sight distance test in order to determine how far away the train was from the trestle when it was possible for the engineer to see the teenagers. Klejst also testified that it is known that people walk the tracks, though he was not aware of any problems with trespassers on the Boonton line where the accident took place.

Granting summary judgment on plaintiff's claim that NJT maintained a dangerous condition, the judge found that plaintiffs' proofs failed to establish that the trestle and its tracks created a substantial risk of injury when used with due care. In Point II of their appellate brief, plaintiffs assert that their proofs were sufficient to establish a prima facie case that the trestle constituted a dangerous condition of public property to withstand NJT's motion for summary judgment. They argue that NJT maintained a dangerous condition by failing to deter pedestrians from using the railroad overpass as a means to cross a heavily traveled roadway, despite actual or constructive knowledge of that use. They also argue that the condition of the tracks, which allowed a foot to get caught between the ties, was sufficient to establish a dangerous condition of public property to survive summary judgment.

N.J.S.A. 59:4-2 of the Tort Claims Act provides that a public entity is liable for injuries that are proximately caused by the dangerous condition so long as "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred" and the public entity either "created the dangerous condition" or "had actual or constructive notice . . . a sufficient time prior to the injury to have taken measures to protect against [it]." N.J.S.A. 59:4-1a defines 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." (Emphasis added). Thus, in order to present a liability claim for the creation or knowledge of a condition of public property, the plaintiff must first establish that the condition is dangerous. "Whether property is in a 'dangerous condition' is generally a question for the finder of fact." Vincitore v. N.J. Sports and Exposition Auth., 169 N.J. 119, 123 (2003). "However, 'like any other fact question before a jury, [that determination] is subject to the court's assessment whether it can reasonably be made under the evidence presented.'" Vincitore, supra, 169 N.J. at 124 (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)) (alteration in original).

In Garrison v. Twp of Middletown, 154 N.J. 282, 291-93 (1998), the Court set forth a two-part analysis for determining the existence of due care with a third criteria for determining proximate cause. More recently, the Vincitore Court cited that same analysis:

The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is "so objectively unreasonable" that the condition of the property cannot reasonably be said to have caused the injury. The answers to those two questions determine whether a plaintiff's claim satisfies the Act's "due care" requirement. The third involves review of the manner in which the specific plaintiff engaged in the specific activity. That conduct is relevant only to proximate causation . . . .

[Vincitore, supra, 169 N.J. at 126.]

When considering whether a dangerous condition exists, "a landowner . . . is not obliged to anticipate and protect against every conceivable dangerous activity by others. Rather, the State is entitled to assume that its property will be used with due care in a reasonably foreseeable manner." Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 588 (App. Div.), certif. denied, 122 N.J. 325 (1990).

In Hawes v. N.J. Dep't of Transp., 232 N.J. Super. 160, 161 (Law. Div.), aff'd o.b., 232 N.J. Super. 159 (App. Div. 1988), the plaintiff's decedent was hit and killed by a train as he walked across the tracks. The plaintiff contended, similar to the assertion here, that the property was dangerous because the State knew that people were crossing the tracks in the area and should have done something to prevent them from doing so. The Law Division judge found:

[I]t is clear to this Court that if a person were to use the defendant's property with due care, he would encounter no substantial risk of harm. Common sense dictates that a person using due care would make certain that no trains were approaching before walking across a railroad track. Exercising even a minimum of care, a person should be able to eliminate any chance of being hit by a train. Accordingly, [New Jersey Transit's] property did not constitute a dangerous condition.

[Id. at 164.]

The Law Division judge also pointed out that "railroad tracks are for trains, not people, and . . . a railroad track that is utilized with due care should normally be considered safe for the purpose which it exists." Id. at 165.

In Lopez v. N.J. Transit, 295 N.J. Super. 196, 199-200 (App. Div. 1996), the plaintiffs' fourteen-year-old decedent was hit by a train and killed while attempting to walk across railroad tracks. The decedent and two friends crossed the tracks, intending to climb a wall on the far side and slide down an adjacent light pole. As the train approached, the decedent became scared and tried to run back across the tracks, where he was struck and killed by the train. Affirming summary judgment, we held that the property was not in a dangerous condition and the tracks were not a dangerous condition because the physical condition of the tracks themselves was not defective. Id. at 202. We rejected the plaintiff's theory that the minority of the plaintiff was relevant to the alleged dangerous condition of the property. Ibid.

In Vincitore, supra, 169 N.J. at 121-23, plaintiff's decedent, a horse trainer, was killed when his car was struck by a train while crossing a gated railroad track that ran through racetrack grounds owned by the Authority. The accident occurred during the off-season. During the racing season, the gate would remain open until a train approached, at which time the train would signal and a guard would close the gate until the train had passed. In the off-season, there was no guard present. Distinguishing the facts in Lopez and Hawes from the facts in Vincitore, the Court noted:

In this case, the objectively reasonable general public, familiar with the operation of the gates at the crossing, could have approached the crossing and interpreted the open gates to mean that it was safe to cross. In Hawes and Lopez, the decedents were not reasonably relying on a belief, based on the defendants' prior operation of the crossing, that it was safe to cross. Further, the decedents in those cases were on foot. Vincitore was driving an automobile. It is much more likely that the driver of a car, traveling at a speed well in excess of foot speed even after he or she slows down for a crossing, could be caught off guard and find himself or herself in the path of an oncoming train.

[Vincitore, supra, 169 N.J. at 129.]

We agree with the findings of the motion judge that decedent's use of the train tracks and trestle as a footpath shortcut is so objectively unreasonable that the unguarded condition of the property cannot reasonably be said to have caused the injury. The use of tracks alone as a footpath is objectively unreasonable. The increased and obvious danger posed by use of an elevated overpass as a pedestrian walkway with less opportunity for escape from an approaching train provides added support to the conclusion that its use as a footpath did not constitute use with due care in a reasonably foreseeable manner as required by the Tort Claims Act.

Plaintiffs' added assertion that the ties created a dangerous condition for pedestrians because a foot can get caught in the space between them simply begs the question. The tracks and ties located on the overpass were for trains not pedestrians. Indeed, the fact that a person's foot could get caught while walking normally is inconsistent with the contention that its normal use was as a pedestrian walkway. Simply stated, traversing a railroad trestle by walking on the tracks to cross the road below is not a normal use.

Determining that plaintiffs did not present a prima facie case of liability against Maloney for his actions in failing to stop the train, the judge mistakenly used the palpably unreasonable standard. She concluded:

While this dispute would be sufficient to defeat summary judgment on a standard of ordinary negligence, governing case law requires the court to apply the Tort Claims Act standard of palpable unreasonableness.

Neither this court, nor any other rational factfinder could dispute that Mr. Maloney's conduct was not palpably unreasonable where he admitted[ly] attempted to activate the trains' emergency brake within seconds of becoming aware of motion on the tracks.

The plaintiff's dispute of mere seconds is insufficient to defeat a summary judgment motion based upon a standard of palpable unreasonableness.

There is no genuine issue of material fact that Mr. Maloney could be held to have violated the palpably unreasonable standard . . . nor can New Jersey Transit be held vicariously liable for his actions. (Emphasis added).

On appeal, plaintiff asserts that the judge used the wrong standard of care, that the applicable standard to be applied regarding Maloney's operation of the train and NJT's vicarious liability is negligence. In its appellate brief, NJT concedes that the applicable standard is negligence and it would be vicariously liable if Maloney was negligent. However, it argues, as it did before the motion judge, that plaintiffs' proofs are nevertheless insufficient to establish a prima facie case of negligence.

N.J.S.A. 59:2-2 imposes respondeat superior liability on a public entity when the public employee is liable for an act within the scope of that employee's employment. Moreover, unless there is an immunity "provided by law," a public employee is liable under the Tort Claims Act for an "act or omission to the same extent as a private person." N.J.S.A. 59:3-1a. Because Maloney's alleged acts or omissions in the operation of the train do not fall within other provisions of the Tort Claims Act creating immunity or application of the palpably unreasonable standard, the common law negligence standard is to be applied in determining his liability. Accordingly, NJT's liability would be subject to the principles of respondeat superior as Mahoney's operation of the train occurred within the scope of his employment. N.J.S.A. 59:2-2a.

Viewing Loumiet's opinions in the light most favorable to plaintiffs, as we are required to do under Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we agree with the judge's observations that plaintiffs' proofs are sufficient to defeat summary judgment on the allegation that Maloney negligently failed to make proper observations and apply the emergency stop procedures in time to prevent plaintiffs' decedent's death. Generally, it is inappropriate to grant summary judgment where expert opinions differ. Rubanick v. Witco Chem. Corp., 125 N.J. 421, 440-41 (1991). We do not determine whether a jury will accept Loumiet's opinion. However, we are satisfied, based upon our review of the entire record, that his opinion creates a genuine issue of material fact sufficient to defeat summary judgment. We note in passing that, although the remaining claim is to be adjudicated based upon the negligence standard, Maloney and NJT are entitled to any defenses that would be available to a private person, including, of course, the defense of comparative negligence on the part of plaintiffs' decedent. See N.J.S.A. 59:2-1b and 59:3-1b.

 
We reverse the order insofar as it dismisses plaintiffs' allegation that Maloney negligently operated the train, as well as any vicarious liability that may attach to NJT on such claim. In all other respects, the order for summary judgment is affirmed. The matter is remanded for further proceedings.

The point where the track goes from curved to straight.

The term "palpably unreasonable" appears in N.J.S.A. 59:2-3d and 59:3-2d, dealing with discretionary decisions to determine whether and how to utilize or apply existing resources, and N.J.S.A. 59:4-2 for failing to protect against a dangerous condition of public property.

(continued)

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A-1789-06T2

November 9, 2007