This is a motion for summary judgment brought by the defendants New Jersey Department of Transportation (DOT) and New Jersey Transit Corporation (NJT).
The plaintiff is the administratrix of the estate of the decedent, who was struck and killed by a train owned by NJT when he attempted to cross a railroad track.
In this suit, the plaintiff contends that the defendants allowed a dangerous condition to exist on the right of way of the railroad because they failed to erect fences or take other steps to prevent pedestrians from crossing the tracks, despite knowledge that the area in question was one regularly used by trespassers.
N.J.S.A. 59:4-2 imposes liability upon a public entity for injury caused by a dangerous condition of the entity's property. The term "dangerous condition" is defined by N.J.S.A. 59:4-1(a) as follows:
"'Dangerous condition' means 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."
The defendants argue, in this motion, that the property is dangerous only if it is used without due care, as was the situation in this case, and that since it is otherwise not dangerous, it does not fall within the statutory definition.*fn1
The plaintiff responds that the foreseeable dangerous activity upon the property (trespassers) creates a dangerous condition, and is, therefore, encompassed by the statute.
The question presented to this Court is whether a foreseeable dangerous activity on property which is otherwise not dangerous creates a dangerous condition as defined by the statute. Cases which have interpreted the statute have concluded that the term "dangerous condition" refers to the physical condition of the property itself, such as an uneven sidewalk, Guerriero v. Palmer, 175 N.J. Super. 1 (Law Div.1979), a broken window above a courtyard, Speaks v. Jersey City Housing Authority, 193 N.J. Super. 405 (App.Div.1984), or a pothole, Whaley v. County of Hudson, 146 N.J. Super. 76 (Law Div.1976).
Dangers created by the activities of persons using the property have not been held to constitute a dangerous condition. See, e.g. Rodriguez v. N.J. Sports and Exposition Authority, 193 N.J. Super. 39 (App.Div.1983), (presence at racetrack of persons with criminal intent is not a dangerous condition); Cogsville v. Trenton 159 N.J. Super. 71 (App.Div.1978), ("dangerous" dog owned by a tenant in a city dwelling is not a dangerous condition); Setrin v. Glassboro State College, 136 N.J. Super. 329 (App.Div.1975), (persons who attacked plaintiff on campus of state college not a dangerous condition); Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App.Div.1985), (bicyclist riding bicycle on boardwalk struck by another bicyclist not a dangerous condition).
The case of Ross v. Moore, 221 N.J. Super. 1, 5 (App.Div.1987) summarizes the case law:
"In applying the tort claims act, N.J.S.A. 59:1-1 et seq., we have consistently rejected the contention that dangerous activities of other persons on public property, even if reasonably foreseeable, establish a ...