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


January 25, 2011


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

Per curiam.


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 details of the plaintiff's activity, but on the nature of the activity itself.

Although the inquiry "does not refer to the actual activities of the plaintiff," it invites examination whether the plaintiff's "conduct while engaging in a foreseeable activity amounts to an objectively reasonable use of the property." [Garrison v. Twp. of Middletown, 154 N.J. 282, 292 (1998)(citations omitted).]

In Garrison, plaintiff was injured while playing touch football at night on a poorly-illuminated commuter parking lot. Id. at 285. The Court concluded that even if plaintiff fell because of an unevenness or "declivity" in the paving, that did not establish that the lot was in a dangerous condition. Id. at 293. The lot was not dangerous if used to park cars, its intended use. Ibid. But plaintiff was not using the lot for its intended purpose and was not acting with due care:

Touch football on a poorly-lit uneven railroad-station parking lot constitutes a use of public property that is as a matter of law "without due care." The fact that plaintiff was injured does not prove that the condition of the property posed a risk of harm to anyone who exercised due care in the use of the property. [Ibid.]

Similarly, in Levin v. County of Salem, 133 N.J. 35 (1993), the Court found that a publicly owned bridge was not in a dangerous condition, where the plaintiff had jumped off the bridge into shallow water and been injured. Id. at 37. The Court reasoned that "there was no missing plate, no broken bolt, no defect in the bridge itself that caused or contributed to cause the tragic accident. The danger arose because the bridge was where the shallow water was." Id. at 49.

Plaintiffs argue that the County should have known its residents were using the tracks as a short-cut and should have closed off the opening in the fence and posted signs warning that the tracks were dangerous. They also argue that the judge erred in deciding that decedent's conduct, in walking on the tracks with his back to the train while wearing headphones, was so obviously negligent that it was the sole proximate cause of the accident. We disagree.

Decedent was not walking on property owned or controlled by the County at the time of the accident. The fact that he might have been taking a short-cut over New Jersey Transit's property on his way to or from the County park does not render the County liable. See Weiser v. County of Ocean, 326 N.J. Super. 194, 202 (App. Div. 1999). Plaintiffs' reliance on Roman v. City of Plainfield, 388 N.J. Super. 527 (App. Div. 2006), and Posey v. Bordentown Sewerage Authority, 171 N.J. 172 (2002), is misplaced. In Roman, the City affirmatively prevented a homeowner from trimming tree roots in order to repair a dangerous sidewalk on which the plaintiff fell. Roman, supra, 388 N.J. Super. at 530-32, 534. Likewise in Posey, the Court held "that a public entity may be liable for a dangerous condition on private property that is proximately caused by the public entity's activities on public property, in this case, directing storm-drainage water onto private property." Posey, supra, 174 N.J. at 175. In this case, there is no evidence that the County took any action to create a dangerous condition on the New Jersey Transit train tracks.

Further, the fact that some members of the public may make dangerous use of public property does not mean that the property itself is in a dangerous condition. See Garrison, supra, 154 N.J. at 292. In this case, there is no proof that the train tracks or the path were in a dangerous condition. In the very similar cases of Lopez v. New Jersey Transit, 295 N.J. Super. 196, 199 (App. Div. 1996), and Hawes v. New Jersey Department of Transportation, 232 N.J. Super. 160, 164 (Law Div.), aff'd o.b., 232 N.J. Super. 159 (App. Div. 1988), courts held that playing on railroad tracks, or walking across them without looking for approaching trains, evidenced a lack of due care and did not render the tracks in a dangerous condition. Decedent was engaged in a highly dangerous and negligent use of public property, and a use for which the property was not intended. His conduct, rather than the condition of the property, caused the fatal accident.


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