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Silvia Funes, Administratrix Ad Prosequendum of the Estate of Elmer v. Norfolk Southern Corporation

September 18, 2012

SILVIA FUNES, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ELMER ANTONIO FUNES MARTINEZ, PLAINTIFF-APPELLANT,
v.
NORFOLK SOUTHERN CORPORATION, A CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF NEW JERSEY, CSX TRANSPORTATION, A CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF NEW JERSEY, CONSOLIDATED RAIL CORPORATION, A/K/A CONRAIL, A CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF NEW JERSEY, FRED PRIETO, AND DENNIS MEEKS, DEFENDANTS-RESPONDENTS, AND ASHBROOK MANOR ASSOCIATES, LLC, MARLES PROPERTIES INC., RIVERSIDE VILLAGE ASSOCIATES, ROBERT J. TUSSEL, JACOB F. TUSSEL, POZ ENTERPRISES, LLC, WILFRED H. FREDERICKS, AND RITA A. FREDERICKS, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3614-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 13, 2012

Before Judges Payne and Accurso.

Plaintiff Silvia Funes, Administratrix ad Prosequendum of the Estate of Elmer Antonio Funes Martinez, appeals from a summary judgment dismissing her complaint against defendants Norfolk Southern Corporation (Norfolk Southern), CSX Transportation, Inc. (CSX), Consolidated Rail Corporation (Conrail), and Norfolk Southern employees Fred Prieto and Dennis Meeks, arising out of her brother's death after being hit by a Norfolk Southern train. After careful review of the record in the light of applicable law, we affirm.

What little is known about this unfortunate accident can be briefly summarized. Martinez, thirty-nine years old, was walking east along the railroad tracks of the Lehigh Line in Scotch Plains near mile-marker twenty-one at approximately eight twenty-five in the morning on March 11, 2009. The day was overcast with light fog and mist. Martinez was dressed in jeans and a dark hooded jacket and walked along the ends of the wooden ties outside the northernmost rail within the right of way.

Norfolk Southern's NS212 freight train was also traveling eastbound along the Lehigh Line, moving at full speed, approximately forty-five to fifty miles per hour. The conductor, Fred Prieto, and the engineer, Dennis Meeks, testified at deposition that Prieto initially saw and called out to Meeks about what they believed was debris along the tracks roughly 1,000 feet ahead of the train. As the train closed on the object the men were watching, both realized that they were looking at a person walking along the rails. Meeks immediately sounded the horn, which also activated a bell and flashing lights on the locomotive, and applied the brakes for a full service stop. The crew testified that application of the brakes in that fashion also made a great noise as air was forcefully expelled from the train's braking system.

Martinez, who had his hood pulled up over his head, continued to walk along the tracks without altering his course. Prieto testified that Martinez did not make any effort to get out of the way of the train, but only appeared to try to turn to look around in the instant before the train struck him. This sequence of events was apparently confirmed by the rail-view event recorder mounted on the locomotive.

The crew brought the train, which was 4159 feet long and weighed 2558 tons, to a safe stop approximately a mile from the point of impact. Investigation revealed that Martinez was fatally struck in the head by a handrail mounted on the left front of the locomotive, the side on which he was walking. It is not known why Martinez was on the tracks on the day of the accident. He had been seen at a landscaping business earlier that morning looking, unsuccessfully, for work. The landscaper was located adjacent to the tracks near Goodman's Crossing, about a mile from where Martinez was struck by the train. Martinez's family surmises that he may have been walking toward a bus stop on Terminal Avenue, although there was a stop closer to the landscaper located on Lake Avenue. Nothing more is known about the circumstances of the accident beyond these few undisputed facts.

Plaintiff filed a multi-count complaint charging defendants with negligence in their operation of the freight train, and in their maintenance of the rail line on a theory of premises liability. Defendants answered and asserted several affirmative defenses, including that the claims are barred by the railroad immunity statute, N.J.S.A. 48:12-152.

After discovery, defendants moved for summary judgment asserting their statutory immunity. Judge Wertheimer granted the motion relying on the plain language of the immunity statute and plaintiff's failure to establish the breach of any duty owed to the decedent. On appeal, plaintiff contends that the judge erred in determining that N.J.S.A. 48:12-152 applies to these defendants and that issues of fact precluded summary judgment on her premises liability claim.

We review the grant of summary judgment using the same standard as the motion judge. Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). Our task here is thus to determine whether the motion judge was correct in finding defendants immune from liability based on the undisputed fact that Martinez was unlawfully within the defendants' right of way when he was fatally struck by the train.

N.J.S.A. 48:12-152, entitled "Trespassing on property prohibited; recovery barred in certain cases," provides in its entirety:

a. No person other than those connected with or employed upon the railroad who are acting within the scope of their employment shall enter upon the right of way of any railroad or come into contact with any equipment, machinery, wires or rolling stock of any railroad. This section shall not prohibit a passenger for hire from utilizing those parts of a railroad particularly intended ...


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