case have also sought summary judgment on issues pertaining to plaintiff's case against defendant Sherwin. The court will now proceed to address the summary judgment motion brought by plaintiff himself.
Plaintiff has moved for partial summary judgment on various issues in this case. First, he seeks a court order declaring that defendant Sherwin was negligent and that defendant's negligence was a proximate cause of plaintiff's injuries. Plaintiff also asks the court to dismiss defendant's proffered affirmative defenses of assumption of risk, contributory negligence, and comparative negligence.
A. Plaintiff's Negligence and Causation Arguments
Plaintiff contends that "as a matter of law, Sherwin-Williams was negligent in failing to properly repair and maintain its Egg Harbor Road track crossing where this accident occurred." (Pl. Br. at 41). The court notes initially that the New Jersey courts have demonstrated a strong reluctance to decide issues of common law negligence as a matter of law. See, e.g., Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 505-08, 677 A.2d 705 (1996); Harpell v. Public Serv. Coordinated Transp., 20 N.J. 309, 317-18, 120 A.2d 43 (1956). It is against this legal backdrop that the court attempts to resolve plaintiff's motion as it would be resolved by the New Jersey Supreme Court. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967).
As discussed previously, the section of the Gibbsboro tracks on which plaintiff was injured was elevated less than one inch from the surrounding roadway. In fact, two experts in this case have analyzed the accident scene and concluded that the condition of the tracks and roadway presented little, if any, danger to a bicyclist riding along Egg Harbor Road. (Pl. Ex. 35, p. 45). As one expert explained, "A bicyclist encounters, and expects to encounter, numerous bumps as bad or worse than the tracks in question. Such bumps normally do not cause any problem with control of the bicycle." (Pl. Ex. 35). On the basis of evidence such as this, the court easily concludes that a rational juror could find that defendant did not act unreasonably in not ensuring that the rail track and roadway were on an exactly level plane. The court has reviewed the evidentiary items put forth by plaintiff on this motion, such as the evidence that defendant violated railroad industry standards by not ensuring that the top of the rails and the surrounding highway surface were "in the same plane." (Pl. Ex. 30). Such industry standards are not dispositive of negligence issues, however, see McComish v. DeSoi, 42 N.J. 274, 282, 200 A.2d 116 (1964), and a juror could properly conclude that the separation between rail and road in this case was so de minimis as to render defendant's failure to take corrective action reasonable. Plaintiff's motion for summary judgment on this issue will be denied.
Even if plaintiff could establish as matter of law that defendant breached its duty of care to plaintiff, plaintiff has not adequately demonstrated for purposes of this summary judgment motion, that any such breach must have been the proximate cause of plaintiff's injuries. Indeed, two expert witnesses retained by defendant have stated in their expert reports that plaintiff's accident was proximately caused by a defect in plaintiff's bicycle, and not by the bump in Egg Harbor Road. (Pl. Ex. 35, 45). As one of the experts explains:
4) The railroad tracks which Mr. Cordy attempted to cross could not stop the bicycle abruptly. This is simply physically impossible. . . .