September 18, 2012
SILVIA FUNES, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ELMER ANTONIO FUNES MARTINEZ, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 for passenger use nor shall it prohibit a person from using a crossing established by the railroad.
b. No person shall recover from the company owning or operating the railroad or from any officer or employee of the railroad, any damages for death or injury to person or property as a result of contact with any equipment, machinery, wires or rolling stock of any railroad, if death or injury occurred while that person was:
(1) under the influence of alcohol as evidenced by a blood alcohol concentration of 0.10% or higher by weight of alcohol in the person's blood; or
(2) under the influence of drugs, other than drugs medically prescribed for use by that person and used in the manner prescribed; or
(3) engaging in conduct intended to result in personal bodily injury or death; or
(4) engaging in conduct proscribed by subsection a. of this section; or
(5) using the property of any railroad in a manner in which it was not intended to be used or in violation of posted regulations. In the absence of proof to the contrary, any person injured while attempting to board or disembark from a moving train shall be presumed to have used the property in a manner in which it was not intended to be used.
This subsection shall apply notwithstanding the provisions of P.L.1973, c. 146 (C.2A:15-5.1 et seq.).
c. This section shall not preclude recovery for injury or death of a person who was, at the time of the injury, less than 18 years of age. [N.J.S.A. 48:12-152.]
As plaintiff's decedent, Martinez, was concededly in the railroads' right of way and not an employee of the railroads, nor a paying passenger on their train, and not crossing the tracks at an established crossing, he was engaged in conduct proscribed by the unambiguous terms of N.J.S.A. 48:12-152a at the time of the accident. Hence, pursuant to the express language of N.J.S.A. 48:12-152b(4), his estate may not recover damages for his death from the railroads or their employees. Plaintiff's allegations that defendants were negligent in operating the train and maintaining the tracks cannot alter this result because the statute imposes an absolute bar to recovery by anyone unlawfully upon a railroad's right of way notwithstanding the provisions of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.17. N.J.S.A. 48:12-152b.
Impliedly conceding that Martinez's conduct in trespassing upon the railroads' right of way bars recovery by his estate if the statute applies, plaintiff does not contend that her decedent is not within the scope of the statute, but rather that the railroads are not covered by its provisions. She contends that the railroad immunity statute was not intended by the Legislature to extend immunity to out-of-state, for-profit corporations such as defendants, but instead was limited to protecting New Jersey's "public utilities" among which these defendants cannot be counted. Plaintiff, however, can point to no case to support these contentions. Our own review of the case law in this area and the history of railroad immunity in New Jersey lead us to the opposite conclusion.
There exists an extensive body of case law in New Jersey relating to railroads, most of it concentrated in the last decades of the nineteenth century through the middle decades of the twentieth century, an extended discussion of which is beyond the scope of this opinion. It is worth noting, however, that railroads have been accorded statutory immunity in this State since 1869. Egan v. Erie R.R. Co., 29 N.J. 243, 247-48 (1959) (recounting the history of N.J.S.A. 48:12-152 as it stood in 1959, stating "[t]his statute had its origin in 1869. L. 1869, c. 285, p. 806. It was enacted in virtually the [same] language as part of the General Railroad Law in 1903, L. 1903, c. 257, § 55, and re-enacted in its present form in the general revision of the New Jersey statutes in 1937").*fn1
Prior to 1873, railroads in New Jersey were incorporated under special charters as for-profit corporations through acts of the legislature granting specific franchises. See W. Jersey & Seashore R.R. Co. v. Bd. of Pub. Util. Comm'rs, 87 N.J.L. 170, 172 (E. & A. 1915). With the enactment of the General Railroad law in 1873, railroad companies formed thereafter were incorporated under the provisions of that law and its subsequent revisions. Ibid. But for a brief period when they were nationalized during the First World War,*fn2 railroads here and elsewhere were incorporated as private for-profit entities and continued as such until Congress created Amtrak and Conrail in the 1970s. See W. Union Tel. Co. v. Pa. R.R. Co., 123 F. 33, 37 (3d Cir. 1903) ("Railroads are, it is true, subject to use for the public benefit, and in that sense they are public highways; but they are owned, not by the public, but by corporations, which, so far at least as ownership is concerned, are private corporations."); see also Se. Pa. Transp. Auth. v. Interstate Commerce Comm'n, Rail Servs. Planning Office, 644 F.2d 238, 240-42 (3d Cir. 1981) (reviewing the creation of Amtrak and Conrail and the reorganization of railroad ownership in the 1970s). Accordingly, plaintiff's assertion that the legislature did not intend to bestow immunity on for-profit railroads is inconsistent with the history of both the statute and the development of the nation's railroads.
Similarly unfounded is plaintiff's assertion that defendant railroads are not entitled to immunity because they cannot be considered "public utilities" covered under Title 48 because Conrail does not own or operate its rail line for public use. See N.J.S.A. 48:2-13a (defining "public utility" under the Department of Public Utilities Act of 1948 as including any corporation owning or operating a railroad for public use). Plaintiff reasons that because the railroad immunity statute falls under Title 48 which, in accordance with its title, concerns itself only with public utilities, if defendants cannot be considered public utilities then they are not entitled to immunity under the statute.
Initially, we question the logic of the argument because New Jersey
Transit, which operates a passenger railroad, is not
considered a public utility as defined by N.J.S.A. 48:2-13, the
statute on which plaintiff relies, yet is covered by the railroad
immunity statute, N.J.S.A. 48:12-152. N.J.S.A. 27:25-8a ("The
corporation or any subsidiary thereof shall not be considered a public
utility as defined in R.S. 48:2-13 and except with regard to . . .
R.S. 48:12-152 the provisions of Title 48 of the Revised Statutes
shall not apply to the corporation or any subsidiary thereof.").
Further, the Board of Public Utilities (the successor agency to the
Department of Public Utilities) has not regulated railroads since 1979
pursuant to a Reorganization Plan signed by Governor Byrne.*fn3
See Reorganization Plan for the Board of Public Utilities and
the Department of Transportation - 1978 (reprinted after
More important, however, is that railroads have been considered instrumentalities of public use in this State since before the creation of the first public utility law in 1911. Stockton v. Cent. R.R. Co. of N.J., 50 N.J. Eq. 52, 72 (Ch. 1892) (railroads are given special privileges because of the benefits they confer upon communities, they afford speedy and comfortable passage to and from divers parts of the country, carry produce of mines, farms and factories to markets, distribute industries throughout the land, feed the multitudes in populous cities, and accomplish many other beneficent ends). The railroads continued to be considered such even after their demise in bankruptcy in the early 1970s. In enacting the Regional Rail Reorganization Act in 1973, which created Conrail from the bankrupt remains of several railroads, including the Central Railroad of New Jersey and the Lehigh Valley Line, Congress specifically found that "[t]he public convenience and necessity require adequate and efficient rail service in this [northeast] region and throughout the Nation to meet the needs of commerce, the national defense, the environment, and the service requirements of passengers, United States mail, shippers, States and their political subdivisions, and consumers." 45 U.S.C.A. § 701(a)(3).
Although Conrail, as Congress intended, is now back in private hands as the wholly owned subsidiary of both Norfolk Southern and CSX, its character as a rail service provider critical to public convenience and necessity has not changed. While it is true, as plaintiff contends, that Conrail does not itself now contract with customers as a common carrier, it remains a local rail service provider and the means by which Norfolk Southern and CSX insure that their customers' freight shipments are moved from the customer's siding to the long distance freight trains Norfolk Southern and CSX run across the country. Accordingly, plaintiff's argument that defendants do not own or operate their railroads for public use is inconsistent with both the facts and the law in this area.
Finally, we address plaintiff's argument that the railroad immunity statute does not apply to foreign corporations such as defendants. Defendants Norfolk Southern and CSX, both Virginia corporations, and Conrail, a Pennsylvania corporation, maintain that they are considered corporations of this State and another state under Chapter 12 of Title 48 because Congress merged the Central Railroad of New Jersey with several other bankrupt railroads to create Conrail. Specifically, defendants contend that N.J.S.A. 48:12-131, which provides that any out-of-state railroad company consolidating or merging with a railroad incorporated in this State shall be considered a corporation "of this State and some other State or States," applies to them, and thus that N.J.S.A. 48:12-1, which states that the provisions of Chapter 12 "shall apply to all railroad companies however formed, created or organized under any law of this State," makes clear that they are covered by N.J.S.A. 48:12-152, the railroad immunity statute. Plaintiff counters that as only parts of the Central Railroad of New Jersey were acquired by Conrail from the railroad's trustee in bankruptcy, Conrail did not fully merge with the Central Railroad and thus is not covered by N.J.S.A. 48:12-131. Although we are inclined to believe that defendants have the better argument,*fn4 we have no need to resolve this point as there is a much simpler and more straightforward resolution to the question of whether the Legislature intended the railroad immunity act to apply to Conrail.
N.J.S.A. 48:12-152 was significantly amended in 1998 in response to a series of cases beginning with Renz v. Penn Cent. Corp., 87 N.J. 437 (1981), and culminating in Ocasio v. Amtrak, 299 N.J. Super. 139 (App. Div. 1997). When the first railroad immunity statute became law in 1869, it merely codified the common law of New Jersey that a landowner owed no duty to a trespasser other than to refrain from willful and wanton conduct. Egan, supra, 29 N.J. at 250. One hundred years later in Egan, the plaintiffs contended that the statute had become an anachronism as courts had by then restricted the prior common law policy of a landowner's duty to trespassers in a variety of ways, leaving the statute "isolated" within our premises liability law. Id. at 251-52. The Supreme Court rejected the argument, holding that the Legislature had "solidified" the common law in effect at the time of the statute's enactment as it related to trespassers on the rights of way of railroads, and the evolution of the common law in the area provided no basis "to encroach upon a field where the Legislature has spoken."
Id. at 252.
More than twenty years later in Renz, the Supreme Court read the statutory history differently. The Renz Court concluded that the Legislature had intended to predicate the railroads' statutory immunity on the common law doctrine of contributory negligence and not trespass. 87 N.J. at 448. Contributory negligence, however, had been abrogated in New Jersey by the Legislature in 1972 when it adopted the Comparative Negligence Act. N.J.S.A. 2A:15-5.1 to -5.17. In order to resolve the apparent conflict between the railroad immunity statute and the Comparative Negligence Act, the Court infused the doctrine of comparative negligence into the railroad immunity statute. Renz, supra, 87 N.J. at 459-60. Accordingly, after Renz, the railroads no longer enjoyed complete immunity from the claims of injured trespassers. Instead, they would be absolved of liability only if they could prove to a jury that the plaintiff's negligent contribution to his own injuries exceeded that of the railroad. Id. at 460-61.
We subsequently applied Renz in two cases against Conrail and Amtrak, holding in both that the railroads owed trespassers a duty of reasonable care under all surrounding circumstances. Boyd v. Conrail, 291 N.J. Super. 608, 618-19 (App. Div. 1996); Ocasio, supra, 299 N.J. Super. at 150-51. Following our opinion in Ocasio, the Legislature in 1998 comprehensively amended the railroad immunity statute, restoring to railroads the absolute immunity from the claims of trespassers they had enjoyed before Renz, except as to minors, including railroad officers and employees within the protections of the statute,*fn5 extending the statute's definition of trespass,*fn6 and expressly repudiating application of the Comparative Negligence Act to railroad trespassers.
The point of this brief history is to illustrate the care that the Legislature took in crafting the statute in its current form. Obviously aware of the extended discussion in Renz regarding the disparate opinions over many decades engendered by the Legislature's choice to include both "status" and "conduct" concepts in the 1869 and 1903 renditions of the statute, the Legislature in 1998 did as the Renz Court suggested it could and adopted an approach focusing solely on whether the plaintiff was unlawfully within the right of way. 87 N.J. at 445 ("If the Legislature, in enacting the railroad immunity statute, had wanted to adopt an approach focusing upon the presence or absence of landowner duty, and to codify a rule of no duty to trespassers, it could very well have done so simply by relating the statute to the status of the plaintiff vis-a-vis the property of the railroad.").
More to our point, the Legislature obviously amended the railroad immunity statute in response to cases against Conrail and Amtrak. In light of this history, it is beyond comprehension that the Legislature intended to exclude Conrail from the protections of the railroad immunity act, as plaintiff maintains, without having made that intent express in these carefully crafted amendments.*fn7 See Marley v. Palmyra, 193 N.J. Super. 271, 291 (Law Div. 1983) (legislature presumed to have known the state of the law and to have acted logically in enacting new legislation). Accordingly, we reject the notion that N.J.S.A. 48:12-152 does not apply to defendant railroads and conclude that Judge Wertheimer was correct in finding defendants immune from liability based on the undisputed fact that plaintiff's decedent was unlawfully within the defendant railroads' right of way when he was fatally struck by the train. Because we find that the railroad immunity statute applies and controls disposition of this matter, we need not address plaintiff's remaining points on appeal.