On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, L-3080-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Payne.
Plaintiffs, in a four-count complaint, sue for damages arising from personal injuries sustained in a collision between a motor vehicle and on-track railroad machinery at a crossing in New Providence. They appeal from an order granting defendants' motion for summary judgment and dismissing the complaint. The trial court also denied plaintiffs' subsequent motion for reconsideration.
In reviewing summary judgment orders on appeal, we apply the same standards that govern the trial courts. See Prudential Property & Casualty Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 App. Div. 1998). The movant must show an entitlement to judgment as a matter of law and the absence of any genuine issue of material fact. See ibid. In determining whether those standards have been satisfied, the factual background of the matter is "viewed in the light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). On appeal, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
On August 27, 2001, plaintiff William G. Randel*fn1 was driving a commercial van, approaching a railroad grade crossing. As recounted in a police report, plaintiff stated that he slowed down and continued through as normal due to the fact that the gates were up and no lights or bells were sounding. Suddenly[,] as he went through the crossing[,] he observed a piece of machinery from the corner of his eye coming at him. . . . [H]e attempted to swerve around to avoid impact, but was not successful.
The railroad machinery, operated by defendant Henry Kotei and owned by defendants New Jersey Transit Corporation (NJT) and New Jersey Rail Operations, Inc, was a scrap picker pushing a steel cart. It was on the track as part of a convoy of slow-moving work trains in place because NJT employees were changing the tracks and rail ties. Defendants' brief on appeal summarizes the record's depiction of the equipment and the operation of its components:
The scrap picker, which is motorized, has a maximum speed of ten miles per hour[,] and is comprised of two rail cars that are coupled together. One car, the "loader," has two conveyor belts. The other car, the "hopper," is comprised of two dumpster-like containers. The operator of the scrap picker picks up old spikes on the track and puts them on the loader's conveyor belts.
The loader then dumps the spikes into the hopper. Given that the scrap picker cannot turn around on the track, when the scrap picker is moving in one direction, the hopper is moving in front of the loader, but when the scrap picker is moving in the other direction, the loader is moving in front of the hopper. * * * The scrap picker was pushing along a non-motorized steel cart that had no independent means of locomotion.
This cart had a small metal coupling hook that protruded from its front end. The scrap picker was in the middle of the convoy, with at least one work train ahead of it and one work train in back of it. (Citations to the record omitted.)
The motion judge granted the motion for summary judgment because, under the pertinent provisions of the Tort Claims Act as he saw them, i.e., N.J.S.A. 59:4-1 to -10, defendants could be liable only if a dangerous condition existed, and that plaintiffs had "not demonstrated sufficient evidence" that defendants had had actual or constructive notice of a dangerous condition. The court cited Grzanka v. Pfeifer, 301 N.J. Super. 563 (App. Div. 1997) as controlling authority.
In their motion for reconsideration, plaintiffs contended that Vincitore v. New Jersey Sports and Exposition Auth., 169 N.J. 119 (2001), controls in respect of the dangerous condition, and that NJT is also independently liable for the negligent acts or omissions of its employee within the scope of his employment. See N.J.S.A. 59:2-2. Plaintiffs alleged that defendant Kotei had been negligent in the operation of the scrap picker equipment. In denying the motion for reconsideration, the motion judge adhered to his view that the law regarding dangerous conditions governs, that Grzanka controls, and that the holdings of Pico v. State of New Jersey, 116 N.J. 55 (1989), and Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320 (App. Div. 2000) support his conclusion.
On appeal, plaintiffs argue, in a single point, that the motion judge erred, and that "genuine issues of material fact exist regarding whether [NJT] is vicariously liable for the negligence of its employee or is liable for ...