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Casey Hammond v. New Jersey Transit

December 19, 2011

CASEY HAMMOND, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2936-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 1, 2011

Before Judges Carchman and Baxter.

In this action filed pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act), plaintiff Casey Hammond appeals from an order of the Law Division granting defendant New Jersey Transit summary judgment and dismissing plaintiff's complaint. Judge Darlene J. Pereksta determined that a displayed sign on defendant's property was not a "dangerous condition." We agree and affirm.

These are the facts before the judge on the motion for summary judgment. On February 20, 2008, plaintiff was attempting to catch "the Dinky"*fn1 at the Princeton Junction Train Station. As he was approaching the waiting train, the conductor told the approaching passengers to "hurry up." Fearful that he was about to miss the train, which would have forced him to wait for another half hour, plaintiff sprinted up the steps two-at-a-time. In his haste, Hammond focused on the train rather than the steps or people immediately in front of him, and near the top of the stairs, he darted to the right. His shoulder then "clip[ped]" a station sign, causing Hammond to fall and suffer a knee injury.

Plaintiff, a resident of Philadelphia, was only generally familiar with the train station, as he had used the Dinky just four times before February 20, 2008. He claimed not to have been in a hurry on the day of his injury and that he started sprinting only when the conductor implored him and other patrons to "hurry up." Although the nearest patron, who was also running to catch the train, was approximately six feet in front of plaintiff as they ascended the platform stairway, plaintiff failed to notice the station sign and was not aware that he had collided with it until he gathered himself after falling on his buttocks and hands. Apparently, the impact of his shoulder clipping the sign was extremely forceful because he was "running so fast" by the time he reached the top of the stairs. As a result of the incident, plaintiff suffered severe injuries.

According to Charles Sulkowski, defendant's Manager of Third-Party Rail Claims, the sign -- the edge of which was nearly flush with the stairway railing -- had been installed at least ten years before plaintiff's accident and had not been the subject of any recorded complaints or concerns since its installation. Although defendant denied responsibility for the incident, it admitted during discovery that the sign was moved following the accident. It acknowledged that it both installed the sign in its original position and currently possesses and controls the Dinky station.

Following discovery, defendant moved for summary judgment. The judge granted the motion, and this appeal followed.

Our evaluation of an appeal from a grant of summary judgment requires us to "employ the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citation omitted). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining whether a genuine issue of material fact exists, we must consider whether the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). If "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact" under R. 4:46-2. Ibid. (citation omitted). Because only a legal question remains after resolution of all factual matters, the standard of review is then de novo. Henry, supra, 204 N.J. at 330.

Even though plaintiff argues that there are genuine issues of material fact, the motion judge in the first instance - and now this court on appeal - must determine whether there was a genuine issue as to the alleged "dangerous condition" caused by the sign. See Brill, supra, 142 N.J. at 540. See also Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001) (reasoning that, in the Tort Claims Act context, a question of fact for the jury is nonetheless "subject to the court's assessment whether it can reasonably be made under the evidence presented").

Plaintiff's cause of action was premised on the application of the Act. The Act provides that "immunity from tort liability [for public entities] is the general rule and liability is the exception." Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998) (citation omitted).

Under the Act, a public entity will be 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 ...


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