On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6516-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Parrillo and Graves.
Seventeen-year-old Antonis Anastasopoulos (Tony) was killed when he was struck by a New Jersey Transit (NJT) train on the evening of August 19, 2002, as he and two friends attempted to cross a train overpass in Montclair, New Jersey. His parents (plaintiffs) sued NJT in their capacity as guardians, alleging that the train tracks were in a dangerous condition because they were accessible and routinely used by pedestrians as a shortcut. Plaintiffs also named Mark Maloney, the train's engineer, as a defendant, alleging that he negligently operated the train by failing to stop in time to avoid hitting decedent.
Plaintiffs appeal from an order of the Law Division granting summary judgment in favor of NJT and Maloney. We affirm the order dismissing plaintiff's complaint insofar as it states a cause of action against NJT for maintaining a dangerous condition, pursuant to immunity afforded by the Tort Claims Act. However, we reverse the order insofar as it grants summary judgment on plaintiffs' claim of negligent operation by Maloney and vicarious liability of NJT for those acts.
On the evening of August 19, 2002, seventeen-year-old Tony met his girlfriend, sixteen-year-old Allison Holmes-Surbeck and her friend, fourteen-year old Abigail Banegas, at a restaurant in Montclair. They left the restaurant and eventually decided to go to a video store to rent a movie. Tony suggested that they use the train tracks because it was a shorter and more direct route to the video store. As they walked east down the tracks, they reached the train trestle that crosses over Valley Road in Montclair. It was approximately 9:00 p.m. The trestle is an "open deck" bridge consisting of two sets of tracks with railroad ties, separated by a space. There is no flat walking space. Signs posted on both sides of the trestle warn of the danger of a fast moving train and prohibit trespassers from using the trestle.
Allison proceeded down the trestle first, with Abigail and Tony following. Abigail was wearing "clunky" shoes, so Tony held her hand and walked beside her in order to help her over the gaps on the trestle. As they proceeded on the overpass, the train approached. Allison and Abigail were able to move out of the way, but the train hit Tony, throwing him onto the road below. He was pronounced dead at the scene.
In a statement taken after the accident, Allison said she saw the train coming toward them when she was nearly across the trestle and she ran the rest of the way to safety. She could see a bright light on the front of the train and heard the horn. She turned and saw that Abigail's shoe had gotten caught between the railroad ties. Tony freed Abigail's foot from the shoe, and then he threw her out of the way of the train before the train hit him. Abigail stated that she was about halfway or three-quarters of the way across the trestle when she saw the oncoming train. She started running, but fell and lost her shoe. She could not remember Tony throwing her or pushing her off the tracks.
The train had stopped at the Watchung Station prior to arriving at the trestle. After leaving the Watchung Station, the train travels up a grade and around a curve, before it reaches the straightaway that leads to the trestle. In a statement given on August 20, 2002, Maloney said that, as he came around the curve he had all his lights on and when he first saw the bridge "everything . . . looked fine." Then he saw what appeared to him as "trespassers on the bridge," who appeared to be "fighting or wrestling," at which point he put the train in its emergency stop procedure. In his depositions, Mahoney testified that when he first reached the straightaway he was not able to see the individuals on the bridge. He had "no idea" how long he was on the straightaway before he saw them on the bridge. Again, he stated that upon seeing them he immediately put the train into emergency. Maloney was not sure what position the throttle was in when he put the train into emergency. He stated, however, that as he climbed the grade he had the throttle at "full to get up out of the hill" then "backed it down" as he rounded the curve. Later, in his deposition, he stated that the throttle was in position "eight" when he put the train into emergency. When a train is put into emergency, it goes into a power lockout system and the position of the throttle is no longer relevant.
The train's event recorder showed that the train had reached a speed of 38 miles per hour when the train was put into emergency braking. It also showed that the throttle was in the eighth position when put into emergency.
Plaintiffs' expert, James R. Loumiet, using an overhead photograph, approximated the distance from the tangency*fn1 of the curve to the point of impact on the trestle as approximately 800 feet. He also estimated the time between tangency and impact as approximately 14-15 seconds. He noted that the train was equipped with two headlights and two auxiliary lights. He opined that with just one of the train's headlights illuminated the engineer should have been able to see the individuals on the bridge as soon as he rounded the curve, at which point the train was traveling at 26 miles per hour and was approximately 16.8 seconds from impact. Using a reaction time of 1.0 to 2.5 seconds, Loumiet opined that Maloney had 14-15 seconds, which was "more than enough time" to stop the train and avoid the impact. He noted that, according to the event recorder, no evasive action (braking) was taken by Maloney until the train was 1.8-2.8 seconds or 101-155 feet from impact, at which time the train was traveling at 38 miles per hour. The event recorder also established that the horn and bell were activated when the train was 3.8-4.8 seconds or 208-261 feet from point of impact and the train stopped 300 feet and 9 inches past the point of impact. He concluded that if Maloney had applied the brakes in emergency as close as 6.8 seconds prior to impact, a distance of 362 feet, he could have stopped the train short of the trestle.
Stephen Klejst, Deputy General Manager of Safety and Training for NJT Rail Operations, testified that they had not performed a sight distance test in order to determine how far away the train was from the trestle when it was possible for the engineer to see the teenagers. Klejst also testified that it is known that people walk the tracks, though he was not aware of any problems with trespassers on the Boonton line where the accident took place.
Granting summary judgment on plaintiff's claim that NJT maintained a dangerous condition, the judge found that plaintiffs' proofs failed to establish that the trestle and its tracks created a substantial risk of injury when used with due care. In Point II of their appellate brief, plaintiffs assert that their proofs were sufficient to establish a prima facie case that the trestle constituted a dangerous condition of public property to withstand NJT's motion for summary judgment. They argue that NJT maintained a dangerous condition by failing to deter pedestrians from using the railroad overpass as a means to cross a heavily traveled roadway, despite actual or constructive knowledge of that use. They also argue ...