On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Approved for Publication November 21, 1996. As Amended December 9, 1996.
Before Judges Kleiner and Coburn. Coburn, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Coburn
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
In this wrongful death action, plaintiffs appeal from the grant of summary judgment to the remaining defendants, New Jersey Transit (and New Jersey Transit Rail Operations, Inc.), W.S. Kelton, the engineer of the New Jersey Transit train which struck and killed the decedent, Nelson Lopez, while he stood on the railroad's tracks, and City of Paterson, the owner of adjoining property.
Plaintiffs posit their claims against New Jersey Transit and City of Paterson on the theory that a dangerous condition of their property caused the accident. N.J.S.A. 59:4-2. The claim against Kelton is based on an allegation of negligence in the operation of the train. The action against New Jersey Transit fails since the cause of the accident was not the condition of its tracks, but the danger of unauthorized use of those tracks for private recreational activity; the City of Paterson is not liable because the accident did not occur on its property; and the engineer, Kelton was entitled to summary judgment because plaintiffs presented no evidence of negligence. Therefore, we affirm.
On December 5, 1990, at about 5:30 p.m., Nelson Lopez, age 14, and two friends approached the railroad tracks owned by New Jersey Transit at a point about a quarter of a mile from the Paterson station. They walked up an embankment and then crossed the tracks to a cement wall which was immediately adjacent to the further track. The cement wall was owned by the railroad. On the other side of the wall and below it was property owned by the City of Paterson. A light pole was located on the city's land close enough to the wall so that one could jump on it from the wall and slide down. When the light pole was erected, sometime before 1977, there were remains of an old rusty fence on top of the wall. Around 1988, New Jersey Transit removed what was left of the fence. Viewing the evidence most favorably from plaintiffs' point of view, we must assume that for at least three or four years before the accident children would cross the tracks, step on the wall, and slide down the pole at least three or four times a week. The children were chased away from this activity on many occasions by employees of the City and by the police. The New Jersey Transit engineer, defendant Kelton, had rarely seen adults or children in this area before the accident but he had understood from other engineers that trespassing occurred there, that it was a "bad spot."
Nelson Lopez and his friends heard the train coming. The friends quickly slid down the pole, but Lopez, apparently frightened by the oncoming train, attempted to cross back over the railroad tracks. He was struck as he stood on one of the tracks after the train rounded a curve and entered the straightaway where the wall was located. Before rounding the curve, the engineer could not see the accident area.
Because of the hour, it was dark, but the weather was clear.
The tracks were dry. The engine's headlights were on full. The train was moving at its normal speed of forty miles per hour. The engineer was seated in the operating compartment of the engine at the head of the train. He was looking forward as the train came out of the curve onto the straightaway. He immediately saw Nelson Lopez standing on the tracks on which the train was running and within a half second hit all the emergency brakes. Tragically, the engine could not stop in time to avoid the accident.
Plaintiffs' claim against New Jersey Transit, a public entity, is governed by N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. To recover, plaintiffs must establish that a "dangerous condition" of defendant's property was a proximate cause of the accident. Levin v. County of Salem, 133 N.J. 35, 626 A.2d 1091 (1993). In Levin the Court rejected the proposition that "whenever danger exists, so does a dangerous condition of property." Id. at 49. Instead, it adhered to prior statements of the law holding that "dangerous condition" as used in this statute refers to the "'physical condition of the property itself and not to activities on the property.'" Id. at 44 (citation omitted).
The accident in Levin happened when plaintiff dove into shallow tidal waters from a bridge owned by the County. This use of the bridge had been common for years. Plaintiff claimed that the County was liable for failure to erect a fence at the edge of the bridge, asserting the lack of a fence was a dangerous condition of public property in light of the well-known diving activity. The Court rejected the claim because ...