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James Fiorello, Individually and As Administrator Ad Prosequendum For v. Lewis Wright

January 25, 2011

JAMES FIORELLO, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM FOR THE ESTATE OF DECEDENT ANDREW WACHTLER AND CAROLYN WACHTLER, AS ADMINISTRATIX OF ESTATE OF DECEDENT SUSAN WACHTLER, PLAINTIFFS-APPELLANTS,
v.
LEWIS WRIGHT, NEW JERSEY TRANSIT, CITY OF GARFIELD, DAHNERTS PARK LAND APARTMENTS, DEFENDANTS, AND COUNTY OF BERGEN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5249-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 18, 2011

Before Judges Lisa and Reisner.

Plaintiffs James Fiorello and Carolyn Wachtler*fn1 appeal from a September 11, 2009 order granting summary judgment dismissing their complaint against defendant Bergen County. We affirm.

The undisputed facts can be summarized briefly. Plaintiffs' decedent, Andrew Wachtler, age eighteen, was killed while walking along the New Jersey Transit train tracks near a county park. He was walking immediately adjacent to the tracks, with his back to the direction from which a train was traveling. He was wearing earphones and listening to his MP3 player. As the train approached, the engineer sounded the horn and applied the emergency brakes; however, decedent, apparently oblivious to the danger, did not stop or turn around, but instead stepped onto the tracks in front of the train and was killed.

Decedent apparently entered the track area through an opening in a fence that intersected a path leading to the railroad right of way. Plaintiffs presented no evidence that the County owned the path.*fn2 Members of the public sometimes used the path to reach the track area and then walked along the tracks as part of a shortcut to and from the county park. Plaintiffs sued several defendants, including New Jersey Transit and the County. This appeal, however, relates only to the complaint against the County.

In an oral opinion placed on the record on September 11, 2009, Judge Robert C. Wilson held that the County was entitled to immunity under the Tort Claims Act (TCA), N.J.S.A. 59:4-2. In his opinion he reasoned:

[The County is] not liable for a purported dangerous condition on someone else's property that is not under any dominion and control by the County. Here that's where the decedent was killed. And even if the argument is that [the County was] negligent [in] not putting up . . . a fence, that doesn't rise to the status of being a palpably unreasonable, dangerous condition that they needed to guard against.

Here it's a park. And, unfortunately, kids hop the fence . . . . So even a fence I doubt would be a deterrent here. . . . [Decedent] was taking a shortcut. Unfortunately, had he been just crossing the tracks, he might not have been killed. But he was walking along the [track] bed with his back towards the train when he abruptly then walked into the train bed, and the train hit him.

I cannot find that the plaintiff[s] can overcome the burden of the Tort Claims Act.

On this appeal of Judge Wilson's grant of summary judgment, our review is de novo, employing the same standard used by the trial court. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Having reviewed the record, we find no basis to disturb Judge Wilson's decision.

To overcome the immunity provided by the TCA, a plaintiff must prove "that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred." N.J.S.A. 59:4-2. Plaintiffs must also prove that the "public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." N.J.S.A. 59:4-2b. "Dangerous condition" is "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. 59:4-1a.

In determining whether the property is in a dangerous condition, the court must determine whether the plaintiff had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property. The focus of the inquiry is not on the ...


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