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Vincitore v. New Jersey Sports and Exposition Authority

July 19, 2001

GERALDINE VINCITORE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL VINCITORE AND GERALDINE VINCITORE, INDIVIDUALLY PLAINTIFF-APPELLANT
v.
NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DEFENDANT-RESPONDENT, AND NEW JERSEY TRANSIT, ROBERT STOCKER, JOHN DOE, RICHARD ROE, ABC CORPORATION, AND DEF CORPORATION, SAID NAMES BEING FICTITIOUS, DEFENDANTS



The opinion of the court was delivered by: Zazzali, J.

As amended July 19, 2001.

GERALDINE VINCITORE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL VINCITORE AND GERALDINE VINCITORE, INDIVIDUALLY PLAINTIFF-APPELLANT
v.
NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DEFENDANT-RESPONDENT, AND NEW JERSEY TRANSIT, ROBERT STOCKER, JOHN DOE, RICHARD ROE, ABC CORPORATION, AND DEF CORPORATION, SAID NAMES BEING FICTITIOUS, DEFENDANTS

John M. Peduto argued the cause for appellant. John S. Fitzpatrick argued the cause for respondent (Fitzpatrick, Reilly, Supple & Gaul, attorneys).

The opinion of the court was delivered by: Zazzali, J.

Argued January 30, 2001

 On certification to the Superior Court, Appellate Division.

This appeal requires us to decide whether an unguarded railroad crossing through Monmouth Park Race Track was a "dangerous condition" under the New Jersey Tort Claims Act (Act). N.J.S.A. 59:4-2. After a verdict in favor of plaintiff, the Appellate Division reversed in an unpublished opinion, concluding that the crossing was not a "dangerous condition." We disagree, and therefore reverse.

I.

The decedent, Michael Vincitore, was a former police officer who began training horses full-time after he retired from the Jersey City Police Department in 1978. He raced horses at various tracks, including Monmouth Park Race Track. Defendant, the New Jersey Sports and Exposition Authority (Authority), owns and operates the Track. In February 1995, Vincitore left his home to travel to the Race Track. The Track was closed for the off-season, but Vincitore needed to retrieve equipment he had left at the stables. Vincitore had been stabled there for approximately ten years. During that period, he previously had been to the Track during the off-season, but he was predominantly there during the racing season.

In order to reach the stables, Vincitore had to cross railroad tracks that run north to south across the Race Track grounds. The tracks were not guarded by flashing lights or crossbucks. Instead, the Authority had installed sliding metal gates made of fencing on both sides of the tracks. Each gate was approximately 47 feet away from tracks. After retrieving his equipment, Vincitore drove through the first gate, which was open. At the same time, a train approached the crossing. The engineer, Robert Stocker, blew the whistle four times -- two long, one short, and one long -- for a total of approximately thirty seconds. He blew the last whistle just as he reached the crossing. Stocker had looked away for a few seconds, and when his eyes returned to the right, he saw Vincitore's car on the tracks. He and Vincitore made eye contact, and he saw that Vincitore had a puzzled look on his face. Despite Stocker's attempt to stop the train, it collided with Vincitore's car. Vincitore died from the injuries.

During the racing season, the gates were left open. When a train approached, a bell would ring in the guard shack and guards would close the gates. Approaching drivers would stop and wait for the guards to reopen the gates, which the guards would do after the train passed. During the off-season, there are no guards on duty. The record is unclear regarding how the crossing is regulated in the absence of guards. According to two of defendant's employees, the gates were generally locked. If someone needed to cross the tracks, he or she would seek out an employee of the Authority, who would open the gates. In contrast, Robert Juliano, the director of facilities for the Monmouth Park Race Track, and Robert Callan, the former director of security, testified that even in the off-season the gates were open during the day. At the end of the day shift, the track firemen were responsible for closing and locking the gates. The firemen would then open the gates the next morning. Despite the lack of clarity on that issue, it is undisputed that the gates were open at the time of the collision.

It is also unclear what safety precautions defendant took in the nonracing season concerning the crossing. Juliano testified that during the off-season defendant would place movable stop signs on either side of the crossing in order to regulate traffic. Callan, however, testified that the stop signs were in place year round, during both the racing and nonracing seasons. There was also a permanent sign just off the roadway facing Vincitore that read "STOP USE CAUTION," and had a symbol for railroad crossing at the bottom.

After her husband's death, plaintiff, Geraldine Vincitore, filed a wrongful death action against the Authority, New Jersey Transit (Transit), and Stocker, the engineer. The Authority and Transit counterclaimed, alleging that Vincitore's estate was liable for damages he caused to the train. That counterclaim was later settled. After a bench trial, the court found the Authority liable, concluding that the railroad crossing was a "dangerous condition" under the Act. The court also found that Vincitore was comparatively negligent and reduced plaintiff's recovery by the percentage of fault attributed to Vincitore, 33%. N.J.S.A. 2A:15-5.2. The court found in favor of New Jersey Transit and Stocker.

The Authority appealed, and the Appellate Division reversed. That court, in a per curiam opinion, concluded that the railroad crossing was not a "dangerous condition," and, therefore, that plaintiff did not satisfy the requirements for the imposition of liability under the Act. We granted certification, 165 N.J. 603 (2000), and now reverse.

II.

A.

Whether property is in a "dangerous condition" is generally a question for the finder of fact. See Roe ex rel. M.J. v. New Jersey Transit Rail Operations, Inc., 317 N.J. Super. 72, 77-78 (App. Div. 1998) (stating that whether property was in a "dangerous condition" was question for jury), certif. denied, 160 N.J. 89 (1999); Daniel v. New Jersey Dep't of Transp., 239 N.J. Super. 563, 573 (App. Div.) (same), certif. denied, 122 N.J. 325 (1990); Model Jury Charges (Civil), § 5.18 (February 1996) (providing jury instruction regarding whether plaintiff established a "dangerous condition"). In the case of a bench trial, then, the question of whether property is in a "dangerous condition" ordinarily is for the trial court sitting as the finder of fact. However, "like any other fact question before a jury, [that determination] is subject to the court's assessment whether it can reasonably be made under the evidence presented." Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993). Thus, the critical question in this appeal is whether a reasonable factfinder could have concluded that plaintiff demonstrated that the property was in a "dangerous condition." Daniel, supra, 239 N.J. Super. at 573 (holding that because reasonable jury could have reached a decision in favor of plaintiff, trial court properly allowed jury to consider public entity's liability under the Act).

B.

In Willis v. Department of Conservation & Economic Development, 55 N.J. 534 (1970), we abrogated the common-law doctrine of sovereign immunity from tort liability. The Legislature responded by enacting the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, which reestablished the general rule of immunity but created narrow exceptions to that rule. N.J.S.A. 59:1-2; see generally Margolis & Novack, Claims Against Public Entities, comment on N.J.S.A. 59:1-2 (2001) (discussing purpose of the Act). We are now required, once again, to interpret one of those exceptions, N.J.S.A. 59:4-2.

N.J.S.A. 59:4-2 provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably ...


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