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Lisowski v. New Jersey Transit


October 10, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-13231-04.

Per curiam.


Argued September 16, 2008

Before Judges Winkelstein and Fuentes.

Defendant New Jersey Transit appeals from a final judgment following a jury verdict finding it fifty-one percent liable for injuries plaintiff sustained on January 20, 2004, when the car she was driving was struck by a train. We affirm.


As was her custom, on January 20, 2004, at 5:00 p.m., plaintiff left work in Paramus and drove to Garfield to pick up her daughter from an after-school program. She generally took a route over the Midland Avenue railroad crossing. The train traveled over that crossing about the same time every day.

While plaintiff drove south on Midland Avenue toward the crossing, it was getting dark, and, although the roadway was clear, snow was on the sides of the road from snowfall a few days prior. As she approached the railroad crossing, plaintiff was driving behind a tow truck to which one car was attached. Before proceeding over the railroad tracks, the tow truck stopped at a white line on the road in front of the railroad gate. The gate was up at this time and the signal that a train was approaching had not been activated.

The roadway at this location inclined upward toward the tracks. Plaintiff's expert witness testified that when a car is stopped at the white stop line before the railroad crossing, visibility in January at 5:18 p.m., the time plaintiff's car was hit by the train, is such that the driver of the vehicle cannot see whether any vehicles above the incline are on or beyond the railroad tracks.

After stopping, the tow truck proceeded over the tracks. Plaintiff then drove up to the white line, stopped, and looked to see if a train was coming. The gate was still up and the signal that a train was approaching had not been activated. While plaintiff was stopped at the white line, the back of the car attached to the tow truck was about three car-lengths in front of her vehicle.

Plaintiff began to drive up the incline. Claire Choi, who was driving behind plaintiff, had stopped at the white line, thought it was clear to move forward, and started up the incline. She did not cross the tracks, however, because "there was still traffic." Suddenly, the tow truck stopped; part of the car it was towing remained on the tracks. With Choi directly behind her, plaintiff stopped behind the towed vehicle. She looked to her left and saw a train approaching.

Choi testified that while she was stopped on the incline, railroad warning lights activated and the gate started to come down on her car, so she drove in reverse away from the gate. Choi saw that the tow truck and plaintiff's car were still on the tracks.

Plaintiff was blocked by the towed vehicle from moving forward off of the tracks. She was unable to move to the right because snow was on the ground, and she could not move to the left due to oncoming traffic. Consequently, she put her car in reverse, to back off of the tracks. She testified that: "As [she] went back, [her] car fell into a hole." She stated that the car's right front wheel fell into a hole, and when she pushed the gas pedal, the wheel spun and the car did not move.

The train was approaching; it was loud and she could feel its heat. She opened the car door, intending to run, placing her legs and feet out of the car. After her feet hit the ground, she heard the train hit her car and the next thing she remembered was lying on the pavement. Plaintiff sustained permanent injuries from the accident, and required back surgery.

Plaintiff's expert, Robert Hintersteiner, testified that the crossing mats between the rail tracks make the surface flush with the roadway, protecting pedestrians and vehicles crossing over the tracks by creating a smoother ride. He testified that without mats, the tires on cars crossing the tracks would have to climb six to eight inches over a steel rail, in which a tire could get caught.

Plaintiff conceded, and the court held, that the expert could not testify that the mat at the crossing should have been extended because the size and placement of the mat complied with federal regulations. The expert was permitted to testify, however, that a trench located next to the mats constituted a dangerous condition. He explained that Midland Avenue was twenty-nine feet wide but as the roadway rose to the top of the incline, it narrowed to twenty-two feet in width. He continued,

As you get across the tracks, [the roadway] widened up. So what happens is it narrowed down, and if it's covered with snow, you don't know where the roadway ends. And there [were] no lines, pavement markings or anything telling you... where the roadway ends, where the travel lane was.

So it could be anywhere in here. So a motorist at night would not know. So you go forward, then you back up, you're backing up into this trench because... you've only got 22 feet of roadway. And if you move the car into the lane of traffic where it widens up to 29 feet, you come straight back, you're going to end up in a trench. Where the tracks end. (sic)

He testified that at night, with snow on the road, driving south down Midland Avenue, as plaintiff did on January 20, 2004, a motorist could not see the hole, "because there [were] no pavement markings there" and the area was covered with snow.

The expert opined that the trench, or hole, had existed for a minimum of two years prior to the accident. He stated that New Jersey Transit rules dictate that a track foreman physically walk the tracks approximately every month to check for problems-checking "every bolt and every spike." Defendant's witnesses did not substantially contradict Hintersteiner's testimony.

Following the close of plaintiff's case, defendant moved for a directed verdict pursuant to Rule 4:37-2(b). The court denied that motion. The jury returned a verdict finding defendant fifty-one percent liable and plaintiff forty-nine percent liable for the accident. The jury awarded plaintiff $750,000 in damages for past pain and suffering and a like amount for future pain and suffering. The court entered a molded judgment against defendant in plaintiff's favor in the amount of $765,000. The court denied defendant's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial and remittitur.*fn1


We first turn to defendant's argument that the court erred in denying its motion for judgment notwithstanding the verdict, or alternatively, for a new trial. Defendant claims that no reasonable jury could have concluded that plaintiff's car became stuck in a hole. We disagree.

A defendant may move for an involuntary dismissal after conclusion of the plaintiff's evidence, R. 4:37-2(b), and for judgment at the close of all of the evidence. R. 4:40-1. In reviewing those motions, the issue before the trial court and on appeal is the same: could the evidence, together with the legitimate inferences therefrom, sustain a judgment in plaintiff's favor? Pressler, Current N.J. Court Rules, comment 2 on R. 4:37-2(b) (2009). Accepting as true all evidence supporting the plaintiff's case and affording her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). In evaluating the motion, neither the trial court, nor this court, is "concerned with the worth, nature or extent (beyond a scintilla) of the evidence." Id. at 5.

A trial court shall grant a motion for new trial, "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a); Dolson, supra, 55 N.J. at 6. "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

Here, the substance of defendant's argument to support both its motion for judgment and its motion for a new trial is that because no reasonable jury could conclude that plaintiff's car was caught in a hole, plaintiff was unable to show a dangerous condition as defined by N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act (TCA). That section provides that:

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 foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. [N.J.S.A. 59:4-2.]

The TCA defines a dangerous condition as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a).

The Supreme Court has articulated a three-part analysis to determine what constitutes a "dangerous condition" under the TCA. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 126 (2001). Step one is to determine whether the property poses a danger to the general public when used in the normal, foreseeable manner. Ibid. Step two is to decide whether the nature of the plaintiff's activity is "so objectively unreasonable" that the condition of the property cannot reasonably be said to have caused the injury. Ibid. These two steps determine whether the plaintiff has acted with "due care" under the TCA's "dangerous condition" definition. Ibid. The third step is an examination of the manner in which the plaintiff engaged in the specific activity. Ibid. This third step is only relevant to proximate causation and comparative fault. Ibid. Determination of a "dangerous condition" is a question for the finder of fact. Id. at 123. This determination, however, "'like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the evidence presented.'" Id. at 124 (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).

In Vincitore, a train struck the plaintiff's vehicle at a railroad crossing in the Monmouth Park Race Track, resulting in the plaintiff's death. Id. at 121-22. During the racing season, an attendant closed the gates at the track when a train was approaching. Id. at 122. The accident took place when the track was closed; the gate was open and no attendant was present. Ibid. The Court ruled that the tracks were a dangerous condition on the property because, applying step one of the test, a reasonable factfinder could conclude that the crossing posed a substantial risk of injury to objectively reasonable members of the general public who normally used the crossing. Id. at 127. Someone familiar with the operation of the gates during racing season could have understood that open gates signified it was safe to cross. Ibid. The Court also found that a factfinder could reasonably conclude that the plaintiff's behavior was not "so egregiously unreasonable that the injury had little or nothing to do with the condition of the property," as the plaintiff drove across the tracks at a crossing designed for exactly that purpose. Ibid.

Here, defendant essentially argues that plaintiff has failed to prove step one of the Vincitore test. It argues that the evidence was insufficient for the jury to reasonably conclude that plaintiff's car became stuck in a hole, and thus the property did not pose a danger to the general public when used in a normal, foreseeable manner. That argument is not supported by the record.

Plaintiff testified that when she placed her car in reverse, the right front tire became stuck in a hole and the tire spun when she stepped on the accelerator. In addition, her expert testified that when snow was on the ground, "you don't know where the roadway ends." He indicated that at night, with snow on the ground, while backing up on the railroad crossing, the car is "going to end up in a trench." The jury was entitled to credit both plaintiff's and her expert's testimony. Put another way, a factfinder could reasonably conclude that the hole in which plaintiff's tire became stuck posed a substantial risk of injury to objectively reasonable members of the general public who normally used the Midland Avenue crossing. The hole, which the evidence shows was inches from the roadway and could not be seen in the dark or when covered in snow, presented a substantial risk of harm to the general public when the crossing was used in a normal foreseeable manner.

Regarding the second step of the due care analysis, a factfinder could reasonably conclude that plaintiff's behavior was not so egregiously unreasonable that the injury had little or nothing to do with the condition of the property. Like the plaintiff in Vincitore, plaintiff here drove across tracks where a crossing was built for precisely that purpose. Plaintiff was using the property in the manner intended. It was foreseeable her car could stop on the railroad tracks when the car in front of her stopped, precluding her from crossing the tracks. It was also foreseeable that the car behind her could stop, blocking her from backing off the tracks. Plaintiff's actions were not objectively unreasonable.

In support of its position, defendant cites a number of cases where no dangerous condition was found. These cases are factually inapposite and are not dispositive based on the evidence elicited at trial. See Garrison v. Twp. of Middletown, 154 N.J. 282, 284-85 (1998) (finding no dangerous condition where the plaintiff was injured playing football at night in a commuter parking lot with an uneven surface because there was no substantial risk of injury to a person using the parking lot with due care in a foreseeable manner); Levin v. County of Salem, 133 N.J. 35, 38-49 (1993) (holding that a bridge from which people were known to dive into shallow water resulting in injury was not a dangerous condition because the bridge was not used for its intended purpose); Lopez v. N.J. Transit, 295 N.J. Super. 196, 199-200 (App. Div. 1996) (holding that railroad tracks were not a dangerous condition because they were not used for their intended purpose when a train struck a child who was crossing the tracks as children had been doing regularly for several years); Hawes v. N.J. Dep't of Transp., 232 N.J. Super. 160, 161-64 (Law Div.) (granting summary judgment for the defendant where the plaintiff was hit by a train when walking across railroad tracks because the railroad tracks did not, in and of themselves, constitute a dangerous condition), aff'd o.b., 232 N.J. Super. 159 (App. Div. 1988).


Finally, defendant claims that plaintiff failed to provide evidence sufficient to establish that defendant's actions were palpably unreasonable under the TCA. Again, we disagree.

The TCA, in relevant part, provides, "[n]othing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2. While the TCA does not define "palpably unreasonable," the Supreme Court, in Muhammad v. New Jersey Transit, 176 N.J. 185 (2003), observed that palpably unreasonable "implies a more obvious and manifest breach of duty [than ordinary negligence] and imposes a more onerous burden on the plaintiff.... [T]he term implies behavior that is patently unacceptable under any given circumstance." Id. at 195. Whether a public entity has acted in a palpably unreasonable manner is a question of fact for the jury. Vincitore, supra, 169 N.J. at 130.

Here, plaintiff's expert testified that the hole existed for two years. The evidence showed that a foreman is supposed to physically walk the tracks monthly, inspecting for problems. The expert also testified that the hole would have been visible upon such an inspection. Based upon these facts, and the condition of the railroad crossing as testified to by plaintiff and her expert, the evidence was sufficient for the factfinder to have drawn an inference that defendant should have known about the hole and taken steps to repair it prior to plaintiff's accident. Defendant did not do so, and plaintiff had no warning of the potential risk before crossing the railroad tracks. A jury, assuming all facts and inferences in favor of plaintiff, could reasonably have concluded that defendant's failure to take action was palpably unreasonable.


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