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March 31, 1997

THE SHERWIN WILLIAMS COMPANY, Defendant; Third-Party Plaintiff v. THE COUNTY OF CAMDEN, Third-Party Defendant

The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 This is a diversity action in which plaintiff, Sterling E. Cordy, alleges that he suffered severe personal injuries in a bicycle-riding accident allegedly caused by defendant's negligent maintenance of its abandoned railroad spur track where it crosses a county road. Presently before the court are a variety of summary judgment motions brought by the parties in this case. Although these motions raise a number of legal and factual issues, probably the most interesting issue raised is whether the fact that an injured adult bicyclist was not wearing a helmet at the time of his bicycle-riding accident may be offered as evidence that the bicyclist failed to mitigate his damages. Second, the Opinion will explore the statutory immunity of a public entity that failed to maintain roadway pavement so that the road would be precisely level with the railroad tracks that cross it. Third, the Opinion will discuss the duties of the owner of an abandoned rail spur owed to the users of the public road which the tracks cross. The court's resolution of these and the other issues implicated by these summary judgment motions follows.


 On the morning of August 30, 1991, plaintiff, a 46-year-old male, was severely injured while riding his bicycle in Lindenwold, New Jersey. The accident occurred while plaintiff was riding westbound along Egg Harbor Road and attempted to ride over a set of railroad tracks that intersect with Egg Harbor Road in a perpendicular manner. The railroad tracks were slightly elevated above the adjoining road surface. (Pl. Ex. 29, 35). Thus, when the front tire of plaintiff's bicycle made contact with the elevated, eastern-most railroad track, the track allegedly stopped the bicycle's forward momentum and plaintiff was launched head-first over the handlebars and on to the street pavement. (Pl. Ex. 34). Plaintiff alleges that he suffered a number of severe injuries as a result of this accident, including spinal injuries that have caused paralysis.

 The railroad tracks in question were owned by defendant The Sherwin Williams Company ("Sherwin") at the time of the accident. (Pl. Ex. 9, p. 3). Sherwin had acquired the railroad line in 1930, when it merged with Lucas Paints, the former owner of the line. (Pl. Ex. 1, pp. 18-19). The railroad line is known as a "spur," as it connects the Sherwin plant in Gibbsboro, New Jersey to the main rail line in Lindenwold. (Id.). The spur crosses Egg Harbor Road near the intersection of the spur and the main line. During the 1970's, Sherwin occasionally used the spur to transport materials to its plant. Although Sherwin has never sold the railroad line to any other party, it closed its Gibbsboro plant in 1978 and has not used the tracks since that time. (Pl. Ex. 9, p. 3).

 Plaintiff filed his complaint against Sherwin in New Jersey Superior Court on January 29, 1993. Sherwin subsequently removed the case to this court. Shortly thereafter, Sherwin filed a third-party complaint against the County of Camden (the "County").

 Plaintiff's complaint alleges that Sherwin's negligent maintenance of its railroad tracks proximately caused plaintiff's bicycle accident and injuries. Sherwin responds by contending that it was plaintiff's own negligence that brought about his biking accident. In addition, in its third-party complaint, Sherwin contends that because plaintiff's accident took place on a county road, the County is the party responsible for any dangerous condition arising from the elevated position of the railroad tracks in question. Sherwin argues that the tracks are "elevated" only because the adjoining road surface has worn away, and not because of any improper maintenance of the tracks themselves.


 I. Summary Judgment Standard

 A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

 In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("The nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").

 The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). However,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden if proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.

 Celotex, 477 U.S. at 322-323. In such situations, "the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." 477 U.S. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").

 The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

 II. The County's Motion for Summary Judgment on the Third-Party Complaint

 The New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 et seq. (the "Act"), provides that public entities such as the County "shall only be liable for their negligence within the limitations of the Act." N.J.S.A. § 59:1-2. The Act strictly delineates the conditions under which a public entity may be found liable for negligence, and represents New Jersey's "general rule favoring the immunity of public entities." Pico v. State, 116 N.J. 55, 59, 560 A.2d 1193 (1989). Under the regime established by the Act, "immunity is the rule, and liability the exception" for public entities. Bombace v. City of Newark, 125 N.J. 361, 372, 593 A.2d 335 (1991).

 Among other limitations, the Act provides that a public entity is liable for an injury caused by a condition of the public entity's property only if it is established that "the property was in a dangerous condition at the time of the [plaintiff's] injury, that the injury was proximately caused by the dangerous condition, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred." N.J.S.A. § 59:4-2 (emphasis added). The Act defines "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. § 59:4-1(a) (emphasis added). The Act also notes that "nothing in [the Act] shall be construed to impose liability upon a public entity for a dangerous condition . . . if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. § 59:4-2.

 In certain cases, this question of "dangerous condition" must be resolved by the court as a matter of law, in order to ensure that the "legislatively-decreed restrictive approach to liability" is enforced. Polyard v. Terry, 160 N.J. Super. 497, 508, 390 A.2d 653 (App. Div. 1978), aff'd o.b., 79 N.J. 547, 401 A.2d 532 (1979). The pertinent inquiry is whether reasonable minds could differ as to whether the condition was indeed "dangerous" as defined by the Act. 160 N.J. Super. at 510.

 In this case, the court finds that a reasonable juror could not conclude that the condition in Egg Harbor Road that allegedly caused plaintiff's injuries was a "dangerous condition." The allegation in this case is that plaintiff's injuries resulted when plaintiff's front bicycle tire struck the eastern-most rail of the Gibbsboro spur as it crosses Egg Harbor Road. The rail allegedly created a dangerous condition because it was elevated over the roadway, thereby creating an obstacle for passers-by. Defendant argues that this elevation was caused by wear and tear of Egg Harbor Road itself.

 The record indicates, however, that the rail was raised above the surrounding roadway only by a very slight amount. Specifically, as all parties apparently agree, at the point at which plaintiff's tire made contact with the rail, the rail was raised between only 5/8 of an inch and 7/8 of an inch from the roadway. (County Ex. JJ; Df. br. at 15; see County Ex. R). This slightly elevated train track, less than one inch high when compared with the adjacent roadway and in plain view of the users of the roadway, could not rationally be found to have created a substantial risk of injury when used in a foreseeable manner with due care. See N.J.S.A. § 59:4-1(a). Indeed, such minor bumps and dips in the roadway are commonplace in the roads of this area. See, e.g., Polyard, 160 N.J. ...

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