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.
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 ...