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Danow v. Penn Central Transportation Co.

Decided: October 24, 1977.

RUTH DANOW, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT DANOW, DECEASED, PLAINTIFFS,
v.
PENN CENTRAL TRANSPORTATION COMPANY AND ITS TRUSTEES, RICHARD C. SINANSKY, QUIGLEY COMPANY, COUNTY OF MIDDLESEX, STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION AND THE PUBLIC UTILITIES COMMISSION, DEFENDANTS



Furman, J.s.c.

Furman

The scope of state liability under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , is at issue on the state's motion for summary judgment, R. 4:67-5, in a tort action arising out of a railroad grade crossing accident in the early morning hours of September 26, 1975.

Plaintiff's decedent was a passenger in a motor vehicle traveling westbound on Bordentown Avenue, a Middlesex County road, which was struck by a Penn Central freight train at a grade crossing in Sayreville. Penn Central, Middlesex County, the State Department of Transportation and the State Public Utilities Commission are joined as defendants, along with the Quigley Company, the owner of the grade crossing, and Sinansky, the driver of the motor vehicle.

According to the pretrial discovery version of the facts most favorable to plaintiff, one crossbuck was defective, visibility approaching the grade crossing in a westerly direction was restricted, no advance warning signs were installed on Bordentown Avenue, no flashing lights or bells were in operation, this accident was the 12th at the grade crossing since 1959, all reported to the Public Utilities Commission or to the Department of Transportation, which succeeded to regulatory authority over grade crossings in 1972 (N.J.S.A. 27:1A-62), state representatives made regular inspections of the grade crossing, a report of a dangerous condition because of poor visibility was filed by a state inspector in 1974, and no enforcement of grade crossing safety regulations had been undertaken by any state agency prior to this accident.

The Tort Claims Act circumscribes state tort liability, whatever the decisional law preceding it. Cf. Willis v. Dept. of Cons. & Ec. Dev. , 55 N.J. 534 (1970). Governmental

tort immunity is the rule except as otherwise set forth in the act. N.J.S.A. 59:2-1; English v. Newark Housing Auth. , 138 N.J. Super. 425, 428, 429 (App. Div. 1976).

Plaintiff urges the applicability of N.J.S.A. 59:4-2, which provides:

A public entity is 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. a public entity had actual or constructive notice of the dangerous condition under Section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

Admittedly, the grade crossing in question was not owned or leased by the State, nor did the State hold an easement or right of way across it. Plaintiff relies, nevertheless, on the ...


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