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Vacirca v. Consolidated Rail Corp.

Decided: November 7, 1983.

SALVATORE VACIRCA, PLAINTIFF,
v.
CONSOLIDATED RAIL CORP., A PENNSYLVANIA CORP., JOHN DOE (A FICTITIOUS NAME), STATE OF NEW JERSEY, UNITED STATES CUSTOMS SERVICE, JAMES POE (A FICTITIOUS NAME), OFFICER OF THE HUDSON COUNTY PROSECUTOR, JOSEPH ROE (A FICTITIOUS NAME), DIV. OF ALCOHOLIC BEVERAGE CONTROL, AND JEFFREY TOE, (A FICTITIOUS NAME), DEFENDANTS



Castano, J.s.c.

Castano

Under what now is an established line of cases in New Jersey, a railroad may not be held vicariously liable for acts of railroad policemen committed when they are performing police-type functions even though at that time they are clearly employees of the railroad which pays their salaries and can fire them at will. See Trangone v. Penn Central Transp. Co., 176 N.J. Super. 506 (App.Div.1980); Evanyke v. Electric Ferries Co., 106 N.J.L. 387 (E. & A.1929); Taylor v. New York & c., R.R. Co., 80 N.J.L. 282 (E. & A.1910); Sturla v. Central R.R. Co., of N.J., 4 N.J.Misc. 287 (Sup.Ct.1926), aff'd 103 N.J.L. 507 (E. & A.1926); Macknowski v. Hudson & Manhattan R.R. Co., 14 N.J.Misc. 778 (Sup.Ct.1936); Dellabello v. Central R.R. Co., 99 N.J.L. 348 (Sup.Ct.1923); Tucker v. Erie Ry. Co., 69 N.J.L. 19 (Sup.Ct.1903).

The underlying rationale of those decisions is that a railroad policeman is responsible to the State, and not to the railroad, for

the way in which he conducts his police duties because he is acting under a statutory commission from the State. Trangone, supra, 176 N.J. Super. at 510; Evanyke, supra, 106 N.J.L. at 390; Taylor, supra, 80 N.J.L. at 284; Sturla, supra, 4 N.J.Misc. at 288; Macknowski, supra, 14 N.J.Misc. at 779; Tucker, supra, 69 N.J.L. at 21.

If the railroad is not liable vicariously when police duties are involved and the policemen are responsible to the State, then, the plaintiff reasons in this case, the State must be liable vicariously for their acts when they are performing police functions. And so, he has shaped the Trangone rationale into a claim against the State.

Plaintiff says he was the victim of an unlawful search by three railroad policemen who then failed to return his property. Under Trangone, he argues, the State is liable for the acts of those policemen.

The State, on the other hand, insists that the provisions of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., and not plaintiff's interpretation of Trangone, determine its liability and that the cause of action plaintiff would seek to assert is totally unauthorized under the Tort Claims Act. The matter is before me on the State's motion for Summary Judgment which, in my view, must be granted.

Confusion on the subject has been generated by several of the cases which preceded Trangone and which, in the process of exculpating the railroad, referred to railroad policemen as "state officers." Taylor, supra, 80 N.J.L. at 284; Tucker, supra, 69 N.J.L. at 21.

Under the Tort Claims Act, the combined provisions of N.J.S.A. 59:2-2 and N.J.S.A. 59:1-3 affirm that a public entity is vicariously liable for the tortious acts or omissions of an officer

of that entity.*fn1 Since railroad policemen have been held to be state officers, the argument is made that the State then must be liable under N.J.S.A. 59:2-2 for the police acts.

Although facially seductive, that reasoning overlooks that all of the cases which refer to railroad policemen as "state officers" predated the Tort Claims Act. That language was employed at a time when there was sovereign immunity. Consequently, those courts could not possibly have had the ...


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