United States District Court, District of New Jersey
October 8, 1991
SCOTT LEE RUSTAY, PLAINTIFF,
CONSOLIDATED RAIL CORPORATION, DEFENDANT.
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
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.
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
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 courts may also inform
In addition, we may consult treatises, the
Restatement, and the words of scholarly
Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co.,
652 F.2d 1165
, 1167 (3d Cir. 1981). In evaluating all of the
relevant sources, it is this court's conclusion that under New
Jersey law Conrail owed a duty to the plaintiff.
The starting point for this analysis is Renz v. Penn Central
Corp., 87 N.J. 437, 435 A.2d 540 (1981), a case decided by the
New Jersey Supreme Court in 1981. In Renz, a minor plaintiff
was injured while attempting to cross between the cars of a
stationary train. Id. at 439, 435 A.2d 540. The railroad based
its defense on the Railroad Immunity Act, N.J.S.A. 48:12-152,
arguing that the statute precluded recovery by the plaintiff.
Id. at 440, 435 A.2d 540. The statute provided that persons who
were hurt as a result of walking, standing or playing on or
along the railroad could not recover for their injuries,
because the statute deemed them guilty of contributory
negligence. Id. (citing N.J.S.A. 48:12-152). The Renz
court abrogated this result by infusing principles of
comparative negligence into the statute. Id. at 460,
435 A.2d 540. Because of its treatment of the statute, the Renz court
declined to address the issue of whether the railroad, as a
property owner, is entitled to avail itself of the lower
standard of care owed to a trespasser or whether the railroad
is a dangerous instrumentality owing a higher duty of care. The
Renz discussion of this precise issue, in dicta, however, is
The court began by setting forth the traditional standard of
care owed to a trespasser in New Jersey. Id. at 461,
435 A.2d 540 ("Traditionally, a landowner owed no duty to a trespasser
other than to refrain from an act willfully injurious."). The
court continued by explaining that the "doctrine of trespass is
not rigid; rather, it is sufficiently flexible to fulfill the
purposes of our legal system in serving the needs of
present-day society." Id. In this regard, the court noted that
property owners are subject to a higher standard of care when
the property owned by the landowner can be classified as a
dangerous instrumentality. Id. The majority then examined the
Appellate Division opinion issued in Eden v. Conrail, 175 N.J. Super. 263,
418 A.2d 278 (App. Div. 1980), modified, 87 N.J. 467,
435 A.2d 556 (1981) (the companion case to Renz).
The Eden appellate court stated:
Even as to a trespasser, the old common-law
doctrine that an owner of land owed him no duty of
care except to refrain from causing injury to such
person by willful or wanton conduct has been
modified "so as to put the interests of the
parties in better balance." Potter v. Finch & Sons,
76 N.J. 499, 504 [388 A.2d 614] (1978). Especially
with respect to instrumentalities possessing a real
potential for grievous bodily harm, the standard of
duty is the protection of others against an
unreasonable risk of harm. Imre v. Riegel Paper
Corp., 24 N.J. 438, 444 [132 A.2d 505] (1957).
Renz, 87 N.J. at 461, 435 A.2d 540
(quoting Eden, 175 N.J.
Super. at 280, 418 A.2d 278
The Eden appellate court's language is instructive because
where the state's highest court has not ruled on an issue the
"decisions of a state intermediate appellate court are evidence
of state law . . . and must be given significant weight in the
absence of any indication that the highest court would rule
otherwise." General Elec. Credit Corp. v. Ger-Beck Mach. Co.,
806 F.2d 1207, 1209 (3d Cir. 1986).
The plaintiff argues that if the New Jersey Supreme Court
were called upon to rule on this case they would not provide
Conrail with the lower standard of duty owed to a trespasser,
that is, merely a duty to refrain from willfully injurious
acts. Instead, plaintiff argues that the New Jersey high court
would charge the defendant with a higher standard of care,
because operating a train is a highly dangerous activity. This
court agrees. The plaintiff cites section 336 of the
Restatement (Second) of Torts for the proposition that a
landowner who knows or has reason to know of the presence of a
trespasser will be liable for any harm caused by the
landowner's "failure to carry on his activities
upon the land with reasonable care for the trespasser's
safety." Restatement (Second) of Torts § 336 (1965). Comment b
to that section states:
b. Precautions when Possessor's Activities Highly
Dangerous. If the activity which a possessor of
land carries on upon it is one which, even though
carelessly conducted, is likely to cause only some
harm which, though substantial, is less than death
or serious bodily harm, the possessor is not
required to exercise care for a trespasser's safety
unless he knows of his presence at some point made
dangerous by the activity or unless he sees an
object or hears a sound which makes him regard the
presence of a trespasser as substantially certain
or at the least highly probable. On the other hand,
the gravity of danger threatened by an activity
which, unless carefully carried on, is likely to
cause death or serious bodily harm, requires the
possessor to exercise reasonable care not only when
he knows that a trespasser is at some point made
dangerous by it, or is reasonable certain or
regards it as highly probable that he is at such a
point, but also when he sees an object or hears a
sound which causes him to realize that there is a
substantial chance that the trespasser may be at
such a point. This is in accordance with the
tendency of the law not only to require a greater
amount of care when life and limb are at stake,
than where only some minor harm is likely to occur,
but also to extend the duty of protection to
persons to whom no duty would be owing if a less
serious harm were threatened.
The illustration provided by the Restatement is very similar to
the facts of this case. The illustration reads as follows:
1. The engineer of the X & Y Railroad Company
sees lying upon the track a pile of clothing such
as would give a reasonable man cause to suspect
that it might contain a human being. Under these
circumstances the engineer is not entitled to
assume that it is not a human being but is
required to keep the engine under control until he
is certain that it is not.
Restatement (Second) of Torts § 336 cmt. b, illus. 1 (1965).
This illustration was adopted by the Eden appellate court.
Eden, 175 N.J. Super. at 281, 418 A.2d 278. The Eden court
explained that "in view of the gravity of the danger the
engineer has a duty of care commensurate with the foreseeable
risk involved." Id.
The defendant argues that the engineer acted reasonably and
therefore could not protect Rustay from harm. This, even if
true, is a question of fact for the jury. This court merely
holds that under New Jersey law a railroad operator owes a duty
of care to a trespasser on the tracks because of the inherently
dangerous nature of the activity it is engaged in. Therefore,
defendant's motion for summary judgment is denied.
As previously shown, this court cannot say as a matter of law
that the defendant breached this duty of care. This is a
question of fact to be determined by the jury. Huddell v.
Levin, 537 F.2d 726, 734 (3d Cir. 1976) (the jury must decide
whether the standard of care was breached by the defendant).
Therefore, the plaintiff's motion for summary judgment is
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