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October 8, 1991


The opinion of the court was delivered by: Clarkson S. Fisher, District Judge.


Before this court is a motion for summary judgment as to defendant's liability brought by plaintiff, Scott Lee Rustay ("Rustay"), against defendant, Consolidated Rail Corp. ("Conrail"), and a cross-motion for summary judgment brought by Conrail. For the reasons stated below, both motions for summary judgment are denied.

On April 30, 1988, at about 9:30 P.M., the defendant's train, while traveling through Alpha, New Jersey, at approximately 43 miles per hour, struck the plaintiff, who was lying on the tracks, partially severing his hand. Rustay, a twenty-year-old male, had a blood alcohol concentration of 0.16% at the time of the accident.

At his deposition, Paul Ahner, the Conrail engineer operating the train, testified that the train was approximately 400 to 500 feet away when he observed something that looked like debris or garbage on the track. In Ahner's answers to interrogatories, Ahner explained that these initial estimates of distances were wrong and that he first noticed "what appeared to be a pile of rags, debris or garbage" at a distance of 800 to 900 feet. Notwithstanding this factual differentiation, it is undisputed that Ahner did not immediately apply the brakes or sound the horn. At a distance of somewhere between 150 to 300 feet away, Ahner observed what appeared to be a person and sounded the horn while applying the emergency brake in an attempt to stop the train. The end of the train stopped approximately 900 feet past the point of impact.

The plaintiff has moved for summary judgment as to defendant's liability, and the defendant has cross-moved for summary judgment. Both motions are denied.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Brown v. Hilton, 492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). This "burden . . . may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

There is no issue for trial unless the nonmoving party can demonstrate that there is sufficient evidence favoring the nonmoving party so that a reasonable jury could return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court, however, is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.

In order for this court to grant plaintiff's motion for summary judgment as to defendant's liability, plaintiff must prove that Conrail owed a duty to Rustay, Conrail breached that duty, and this breach was the legal and proximate cause of Rustay's injuries. The plaintiff has not carried his burden. Similarly, the defendant urges this court to grant summary judgment in its favor, because it asserts that it owed no duty to the plaintiff. Because this court holds that under New Jersey law the defendant owed a duty to the plaintiff, the defendant's motion for summary judgment is denied. This court, however, cannot say as a matter of law that defendant breached its duty to the plaintiff. This is precisely the issue to be tried by the finder of fact.

It is well settled that in diversity cases a federal court must apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Howell v. Celotex Corp., 904 F.2d 3, 4 (3d Cir. 1990). Both parties argue that because the accident occurred in New Jersey, that state's law will apply. Initially, the plaintiff argues that the defendant owed a duty to Rustay. In New Jersey, the question of whether a duty is owed by a defendant is one of law, to be determined by the court. Strachan v. John F. Kennedy Mem. Hosp., 209 N.J. Super. 300, 315-16, 507 A.2d 718 (App. Div. 1986) aff'd in part and rev'd in part on other grounds, en banc 109 N.J. 523, 538 A.2d 346 (1988) (citing Essex Bell v. New Jersey Bell Tel. Co., 166 N.J. Super. 124, 127, 399 A.2d 300 (App. Div. 1979); McKinley v. Slenderella Sys. of Camden N.J. Inc., 63 N.J. Super. 571, 581, 165 A.2d 207 (App. Div. 1960); McIntosh v. Milano, 168 N.J. Super. 466, 495, 403 A.2d 500 (Law Div. 1979)). A breach of that duty is a question of fact and must be proven by the plaintiff. McIntosh, 168 N.J. Super. at 495, 403 A.2d 500.

Duty signifies conformance to a reasonable standard of legal conduct in light of apparent risk. Existence of a duty is a question of law. McKinley, 63 N.J. Super. at 581, 165 A.2d 207.

  Duty arises out of a relation between the
  particular parties that in right reason and
  essential justice enjoins the protection of the
  one by the other against what the law by common
  consent deems an unreasonable risk of harm, such
  as is reasonably foreseeable, . . . in the field
  of negligence. Duty signifies conformance "to the
  legal standard of reasonable conduct in the light
  of the apparent risk." The essential question is
  whether "the plaintiff's interests are entitled to
  legal protection against the defendant's conduct."
  . . . Duty is largely grounded in actual
  responsibilities of social living and human
  relations, such as have the recognition of
  reasonable men; and fulfillment is had by a
  correlative standard of conduct.


The issue presented in this case is whether Conrail, the landowner, owed a duty to Scott Rustay, a trespasser. New Jersey has accepted the common-law definition of trespass. "A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Hallacker v. National Bank & Trust Co. of Gloucester, 806 F.2d 488, 490 (3d Cir. 1986). Rustay falls within this definition. "Generally, a landowner owes no duty of care towards a trespasser, except to refrain from willfully injurious acts." Id. (citing Renz v. Penn Central Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981)). The plaintiff argues that when the landowner is engaged in a highly dangerous activity, like operating a train, the landowner's standard of care must be heightened. Plaintiff's brief, p. 2 (citing Restatement (Second) of Torts § 336 (1965)). It is apparent from the briefs of the parties and a review of the applicable New Jersey case law that the New Jersey Supreme Court has not addressed this issue. Therefore, this court must predict how the New Jersey Supreme Court would decide the issue.

  In the absence of an authoritative pronouncement
  from the state's highest court, the task of a
  federal tribunal is to predict how that court
  would rule. To make this prognostication we are
  not inflexibly confined by dicta or by lower state
  court decisions, although we should look to such
  statements as indicia of how the state's highest
  court might decide. See McKenna v. Ortho Pharm.
  Corp., 622 F.2d 657, 662 (3d Cir. 1980). The
  policies underlying the applicable legal doctrines,
  the doctrinal trends indicated by these policies,
  and the decisions of other ...

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