Hawes v. New Jersey Dept. of Transp.
Decision Date | 08 January 1988 |
Citation | 556 A.2d 1224,232 N.J.Super. 160 |
Parties | Eula HAWES, Administratrix ad Prosequendum and General Administratrix of the Goods, Chattels, Rights and Credits of the Estate of Johnny A. Hawes, and Individually, Plaintiff, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, et al., Defendants. |
Court | New Jersey Superior Court |
Robert J. Giasullo, for plaintiff (Bursik, Kuritsky & Giasullo, West orange).
Adele C. Baker, for defendants (Deputy Atty. Gen., W. Cary Edwards, Atty. Gen.).
This is a motion for summary judgment brought by the defendants New Jersey Department of Transportation (DOT) and New Jersey Transit Corporation (NJT).
The plaintiff is the administratrix of the estate of the decedent, who was struck and killed by a train owned by NJT when he attempted to cross a railroad track.
In this suit, the plaintiff contends that the defendants allowed a dangerous condition to exist on the right of way of the railroad because they failed to erect fences or take other steps to prevent pedestrians from crossing the tracks, despite knowledge that the area in question was one regularly used by trespassers.
The defendants argue, in this motion, that the property is dangerous only if it is used without due care, as was the situation in this case, and that since it is otherwise not dangerous, it does not fall within the statutory definition. 1
The plaintiff responds that the foreseeable dangerous activity upon the property (trespassers) creates a dangerous condition, and is, therefore, encompassed by the statute.
The question presented to this Court is whether a foreseeable dangerous activity on property which is otherwise not dangerous creates a dangerous condition as defined by the statute. Cases which have interpreted the statute have concluded that the term "dangerous condition" refers to the physical condition of the property itself, such as an uneven sidewalk, Guerriero v. Palmer, 175 N.J.Super. 1, 417 A.2d 547 (Law Div.1979), a broken window above a courtyard, Speaks v. Jersey City Housing Authority, 193 N.J.Super. 405, 474 A.2d 1081 (App.Div.1984), or a pothole, Whaley v. County of Hudson, 146 N.J.Super. 76, 368 A.2d 980 (Law Div.1976).
Dangers created by the activities of persons using the property have not been held to constitute a dangerous condition. See, e.g. Rodriguez v. N.J. Sports and Exposition Authority, 193 N.J.Super. 39, 472 A.2d 146 (App.Div.1983), (presence at racetrack of persons with criminal intent is not a dangerous condition); Cogsville v. Trento 159 N.J.Super. 71, 386 A.2d 1362 (App.Div.1978), ("dangerous" dog owned by a tenant in a city dwelling is not a dangerous condition); Setrin v. Glassboro State College, 136 N.J.Super. 329, 346 A.2d 102 (App.Div.1975), (persons who attacked plaintiff on campus of state college not a dangerous condition); Sharra v. City of Atlantic City, 199 N.J.Super. 535, 489 A.2d 1252 (App.Div.1985), (bicylcist riding bicycle on boardwalk struck by another bicyclist not a dangerous condition).
The case of Ross v. Moore, 221 N.J.Super. 1, 5, 533 A.2d 398 (App.Div.1987) summarizes the case law:
"In applying the tort claims act, N.J.S.A. 59:1-1 et seq., we have consistently rejected the contention that dangerous activities of other persons on public property, even if reasonably foreseeable, establish a dangerous condition of the property itself." (Citations omitted).
In Setrin v. Glassboro State College, 136 N.J.Super. 329, 346 A.2d 102 (App.Div.1975), the plaintiff, who was stabbed by a fellow student while exiting his college gymnasium, claimed that the college was liable for creating a dangerous condition within the meaning of the statute, because it was aware of previous similar episodes and had knowledge of disturbances which had occurred earlier on the day in question. The court held that a dangerous condition is not created by the acts of third persons, and that therefore, the college was not liable to the plaintiff. The court quoted from a California case:
Hayes v. State, 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855 (1974).
and concluded:
"Consideration of the overall statutory design leads us to the conclusion that the 'dangerous condition' of the property intended to provide a basis for the imposition of liability would not include the mere presence on the property of a person with criminal intent or purpose as in the facts of this case." (136 N.J.Super. at 333-334, 346 A.2d 102).
In this case, the plaintiff contends that the property in question was dangerous because the State knew that people were crossing the tracks in the area and should have, therefore, done something to prevent them from doing so. If a governmental entity, however, is not liable for the foreseeable activities of a third person which results in injuries to a claimant, how then is it responsible for activities which it could foresee of the injured person himself? Put another way: if the decedent in this case had died as a result of being struck by another person while on the railroad tracks, case law would prohibit the imposition of...
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