On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication July 2, 1996. As Corrected July 31, 1996.
Before Judges Shebell and Dreier. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Plaintiff, Levar Boyd, a minor, and his parents, Dorothy Boyd and Frederick Boyd, filed this tort action against defendant, Consolidated Rail Corporation (Conrail), alleging that Levar sustained personal injuries on defendant's property as a result of defendant's negligence, and that plaintiffs, as parents, were forced to expend large sums of money to care for their son's injuries. Conrail filed its answer denying the allegations, and asserted plaintiff failed to state a claim upon which relief could be granted because it owed no duty to the plaintiff, a trespasser.
On August 22, 1995, defendant moved for summary judgment. After argument was heard on September 29, 1995, the motion Judge stated:
Well, it's an interesting motion, and I'm going to grant the motion and bring it to a head. The Court acknowledges that the plaintiff, who was about 13 years of age, was going from school to home, crossing the Pavonia yards where all freight traffic is brought in and out of South Jersey. It's a 24-hour operation with four sets of tracks.
The Court acknowledges, and has to, in a [summary judgment] motion all the evidence that's been presented that would appear to be favorable to the plaintiff: number one, that the defendant knew that kids crossed these railroad tracks and regularly. The evidence discloses that plaintiff saw a stopped train. He climbed up on the ladder of the car, and while he was descending the ladder the train moved. He fell and lost his leg.
It is undisputed that nobody knew that he was on the car, and nobody knew in connection with the operation of that particular train.
The Court is obligated to place the plaintiff into the category of a trespasser by statute. The Court, likewise, agrees that comparative negligence would apply. The question is, however, the duty owed to the plaintiff and whether there was any evidence of a breach of that duty. The Court does not find as a matter of law that the operation of a railroad is a dangerous condition and that the duty is to refrain from intentional acts. This can hardly be any intentional act due to the fact that nobody knew he was there. And, the foreseeability of somebody crossing the railroad tracks might be one thing, but the foreseeability that somebody's going to climb onto the train is another.
I can't concede [sic] of the Courts of this state imposing a duty on the railroad in this fact pattern which would be so oppressive as to make the operation of this railroad yard meaningless.
There's evidence -- or there's case law from other states that clearly indicate that there's no particular duty to provide a watchman. There's no particular duty to provide fencing, and there's case law in this state that would hold that there's -- the railroad -- a railroad is not a dangerous condition in and of itself.
I'm also satisfied that the plaintiff has failed to provide evidence, any evidence, that he can, in fact, meet all the elements of 3:39 [sic] in the restatement of torts [sic]. The motion is granted.
Plaintiffs appeal seeking reversal of the grant of summary judgment. We reverse and remand.
This accident occurred in the Pavonia Freight Yard in Camden, which is owned and operated by Conrail. The yard is the hub of all freight train activity in Southern New Jersey, and operates twenty-four hours a day. The yard is in excess of a mile in length and consists of a number of tracks for shifting and storing rail cars.
The yard is located between Veterans Memorial Middle School, which plaintiff attends, and a large apartment complex, where plaintiff resides. On September 18, 1992, plaintiff was on his way home from school with a schoolmate. The boys left school at ...