August 24, 2007
WILLIAM G. RANDEL AND BARBARA RANDEL, PLAINTIFFS-APPELLANTS,
NEW JERSEY TRANSIT CORPORATION, NEW JERSEY RAIL OPERATIONS, INC., AND HENRY KOTEI, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 27, 2007
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 its employee[']s negligence creating a dangerous condition."
Although, plaintiffs' coupling of the personal negligence and dangerous condition claims has been unfortunate and likely responsible for the trial court's limited view of the matter, we are constrained to conclude that the motion judge's disposition on the basis indicated was erroneous. The complaint, read with the requisite liberality, see Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), pled the negligence of the employee, as well as a dangerous condition maintained by the employer, NJT. The trial court should have addressed both categories of claim separately rather than disposing of the matter on the "dangerous condition" theory alone.
The motion judge's view, based on Pico, Rocco, and Grzanka, that this is a "dangerous condition" case only, gave inadequate weight to the idea that the employee's alleged conduct in failing to stop at the crossing, or in traveling at an excessive speed for the circumstances, was wholly independent of the existence of the dangerous condition, i.e., that, for one reason or another, the automatic gates failed to close. The negligent conduct attributed to the employee had nothing to do with the "creation" of the dangerous condition. See N.J.S.A. 59:4-2a. In Pico and Rocco, the employee's conduct bore directly on the existence of the dangerous condition or the manner in which it operated. That is not the case here. Even in Rocco, however, we held that certain conduct of the railroad employee with respect to the dangerous condition, which he did not produce, was sufficient to create a jury question concerning vicarious liability as well as the dangerous condition claim. See Rocco, supra, 330 N.J. Super. at 338.
Certainly, plaintiffs' showings regarding issues of fact in respect of the circumstantial negligence of the employee were sufficient to have survived summary judgment. Even as to the "dangerous condition" approach, alone, a reasonable factfinder could conclude that the railroad's practices regarding safety at railroad crossings, i.e., that the equipment used on the tracks would not send a signal to the automatic gates and that NJT relied, instead, on safety precautions to be taken by the employees operating the equipment, "here exposed the objectively reasonable member of the general public to a substantial risk of injury[,]" and that the conditions of operation created by NJT at the crossing were responsible for the collision. Vincitore, supra, 169 N.J. at 129-30.
The discrete questions of employee negligence that were posed could not be resolved on summary judgment given the record in this matter. There is evidence that NJT's employee, Kotei, newly assigned to the duties he was performing on that day, may have been negligent in failing to stop his equipment--as he had been taught to do--before crossing wherever the tracks intersected with a public street, or that he may have been negligent in operating his equipment at an excessive speed for the circumstances. On the other hand, plaintiff's own negligence may be seen to have been a more efficient cause of the accident, if he failed to make a proper observation before crossing the tracks or otherwise omitted to exercise reasonable care for his own safety.
The record also contains sufficient indicia from which a finder of fact could conclude that NJT had, independently, created an inherently dangerous condition in operating equipment on its tracks that was not heavy enough to set off the automatic gate-lowering mechanism that was in place, or in failing to provide a signaling modality that would have worked better in the circumstances. To the extent defendants argue that the operation of railroad signals at crossings is preempted by federal regulation, see, e.g., 49 C.F.R. §§ 234.4, 234.229; 56 Fed. Reg. 33,722 (1991), we should not decide those questions of law in the first instance, but rather leave to the trial court the initial determination whether such questions may be decided on the record as it exists or whether the decision should await further development of a record isolating the essential factual questions, followed by findings of fact.
We are not, at first blush, impressed by one argument advanced by defendants, as far as we can tell, for the first time on appeal, that "[t]o the extent . . . [NJT's] internal policy concerning the right-of-way at a rail crossing [referring to NJT's own standard requiring this employee to stop at intersections] conflicts with a federal regulation on the same subject, the internal policy is preempted and cannot form a basis for liability." If NJT's internal practice is not valid, NJT should abandon or modify it. A party adversely affected by a rule or practice of a public entity may argue that it is invalid, but the entity that, in adopting it, established a standard for those governed by it, should not be advancing such an argument short of confessing error by repealing the rule or practice. In any event, in this connection as well, it is the trial court that must determine, in the first instance, the outcome on that issue, including whether it may be decided on the present record or whether decision on that question must also await further factual development.
Other mediate issues advanced by both sides on appeal were not raised before the trial court because the focus employed there, by the parties and the court, evolved from an altogether too narrow application of Tort Claims Act principles. We will not address issues that were not properly presented to the trial court, especially in a summary judgment context where basic questions of fact likely exist. Cf. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The order of the trial court granting defendants' motion for summary judgment and dismissing the complaint is reversed and the matter is remanded for further proceedings consistent with the views we have expressed.