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Schwarz v. Port Authority Transit Corp. Div. of Delaware Port Authority

December 2, 1997


On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication December 2, 1997.

Before Judges Long, Kleiner and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D.

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by


Plaintiff Jeffrey Schwarz *fn1 appeals from summary judgment orders entered on September 3, 1996, and September 30, 1996, dismissing his complaint against defendants Port Authority Transit Corporation Division of the Delaware Port Authority (PATCO) and City of Philadelphia (City), respectively.

The principal issue on appeal is whether PATCO can be held liable for the criminal assault of plaintiff, committed by a gang of youths, while he was walking in an underground concourse area. The area was not leased from the City and was not maintained or patrolled by PATCO. The concourse area was used by pedestrians in the same manner as if it were an above-ground city street. It was also used by patrons of PATCO, because the concourse area provided access to PATCO's ticket vending machine and the turnstiles through which patrons entered the platform area of PATCO's underground train system.

We need not recount in detail the precepts governing the consideration of the motions for summary judgment. Initially, we note that in reviewing trial court decisions on summary judgment motions, appellate courts apply the same standards as trial courts; deciding first whether there exists a genuine issue of material fact, and if not, whether the lower court's ruling on the law was correct. Sagendorf v. Selective Ins. Co., 293 N.J. Super. 81, 94, 679 A.2d 709 (App. Div. 1996) (citing Allstate Redevelopment Corp. v. Summit Assoc., Inc., 206 N.J. Super. 318, 327, 502 A.2d 1137 (App. Div. 1985)). Under R. 4:46-2, a court must grant summary judgment when there is no genuine issue as to any material fact challenged and the moving party is entitled to judgment as a matter of law.


When deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion Judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. This assessment of the evidence is to be conducted in the same manner as that required under Rule 4:37-2(b).

[ Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995).]

From our careful review of the record, the salient facts appear without genuine dispute. The lower court's ruling on the applicable law is the principal issue. Plaintiff, a New Jersey resident, was a student at an art school in the City. He travelled back and forth daily, using the PATCO transit system. Occasionally, as on the day in question, plaintiff used the PATCO station located at 13th and Locust Streets.

On September 9, 1993, at approximately 7:00 p.m., as plaintiff was returning home, he descended the stairway at the corner of Broad and Locust Streets, and began walking in an underground hallway towards the concourse at 13th and Locust Streets. About halfway down the hallway, plaintiff noticed five youths approaching him from the westerly side of the hall. Their assault on plaintiff began when one of the youths threw a saltshaker at him. The shaker missed and hit the wall. Plaintiff continued walking toward the main concourse area. When he was about fifty feet short of the turnstile area, one of the youths ran up behind plaintiff and knocked him to the floor. As plaintiff attempted to get up, the same assailant punched him in the nose. The gang then surrounded him and rifled his pockets. They took his wallet, wrist watch, and school bag and then ran back down the hallway and disappeared. Plaintiff was able to find his crumpled train ticket on the floor. He took the next PATCO train to Camden, where he reported the assault to a PATCO policeman. Together, they returned to the station at 13th and Locust Streets, waited for a City police officer to arrive, showed the officer the location of the assault, and supplied the information needed by the officer to file a report.

There is no doubt that the assault in the concourse area occurred on property owned, maintained, and patrolled by the City. PATCO does lease property in that area from the City, but the leased property begins at the location of the turnstiles and extends away from the concourse area, to the train platform and tracks. PATCO maintains a police patrol on the property leased to it. The City patrols the concourse area outside of and away from the turnstile area, which is a public walkway for use by both PATCO patrons and members of the general public. PATCO is not given authority in the lease documents to patrol the City-owned concourse area. Neither the PATCO officer assigned by PATCO to patrol the leased station area nor the City officers assigned to patrol the City-owned concourse area witnessed the attack.

In opposition to defendants' motion for summary judgment, plaintiff's expert concluded that the general location of the assault was a crime-plagued area, that the attack on plaintiff was foreseeable, that defendants failed to provide a reasonably safe area for pedestrians and patrons of PATCO, that defendants breached their duty of care to plaintiff to warn of the potential danger, and that such failures and breaches on the part of defendants were a proximate cause of plaintiff's injuries.

In granting defendants' motion, the trial Judge noted that the assault took place in an area of the concourse which was some feet short of the area where he perceived that PATCO was obliged to exercise reasonable care for the safety of its patrons. The court reasoned that, while the assault took place on property owned, controlled, and maintained by the City, the area in which PATCO would be responsible for the safety of its patrons extended up to, but not beyond, the reach of its surveillance camera. It was shown that PATCO maintained and operated a closed-circuit TV surveillance camera at the ticket machine area. The camera's reach extended approximately forty-six feet away from the turnstiles, into the general concourse area not leased to PATCO. The assault on plaintiff occurred about fifty feet away from the turnstiles, and about four feet short of the reach of the surveillance camera. Because the assault occurred outside the camera's reach, the trial court concluded that PATCO was absolved from liability to plaintiff. Under the facts of this case, we do not view the reach of PATCO's surveillance ...

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