Before this court is a motion for summary judgment as todefendant's liability brought by plaintiff, Scott Lee Rustay("Rustay"), against defendant, Consolidated Rail Corp.("Conrail"), and a cross-motion for summary judgment brought byConrail. For the reasons stated below, both motions for summaryjudgment are denied.
On April 30, 1988, at about 9:30 P.M., the defendant's train,while traveling through Alpha, New Jersey, at approximately 43miles per hour, struck the plaintiff, who was lying on thetracks, partially severing his hand. Rustay, a twenty-year-oldmale, had a blood alcohol concentration of 0.16% at the time ofthe accident.
At his deposition, Paul Ahner, the Conrail engineer operatingthe train, testified that the train was approximately 400 to500 feet away when he observed something that looked likedebris or garbage on the track. In Ahner's answers tointerrogatories, Ahner explained that these initial estimatesof distances were wrong and that he first noticed "whatappeared to be a pile of rags, debris or garbage" at a distanceof 800 to 900 feet. Notwithstanding this factualdifferentiation, it is undisputed that Ahner did notimmediately apply the brakes or sound the horn. At a distanceof somewhere between 150 to 300 feet away, Ahner observed whatappeared to be a person and sounded the horn while applying theemergency brake in an attempt to stop the train. The end of thetrain stopped approximately 900 feet past the point of impact.
The plaintiff has moved for summary judgment as todefendant's liability, and the defendant has cross-moved forsummary judgment. Both motions are denied.
Summary judgment is appropriate when there is no genuineissue of material fact and the moving party is entitled tojudgment as a matter of law. Fed.R.Civ.P. 56; Brown v. Hilton,492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing thatno genuine issue of material fact exists rests initially on themoving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573(3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50L.Ed.2d 748 (1977). This "burden . . . may be discharged by`showing' . . . that there is an absence of evidence to supportthe nonmoving party's case." Celotex Corp. v. Catrett,477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once aproperly supported motion for summary judgment is made, theburden shifts to the nonmoving party to "set forth specificfacts showing that there is a genuine issue for trial."Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).
There is no issue for trial unless the nonmoving party candemonstrate that there is sufficient evidence favoring thenonmoving party so that a reasonable jury could return averdict in that party's favor. Anderson, 477 U.S. at 249, 106S.Ct. at 2510. In deciding a motion for summary judgment, thecourt must construe the facts and inferences in a light mostfavorable to the nonmoving party. Pollock v. American Tel. &Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role ofthe court, however, is not "to weigh the evidence and determinethe truth of the matter, but to determine whether there is agenuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct.at 2511.
In order for this court to grant plaintiff's motion forsummary judgment as to defendant's liability, plaintiff mustprove that Conrail owed a duty to Rustay, Conrail breached thatduty, and this breach was the legal and proximate cause ofRustay's injuries. The plaintiff has not carried his burden.Similarly, the defendant urges this court to grant summaryjudgment in its favor, because it asserts that it owed noduty to the plaintiff. Because this court holds that under NewJersey law the defendant owed a duty to the plaintiff, thedefendant's motion for summary judgment is denied. This court,however, cannot say as a matter of law that defendant breachedits duty to the plaintiff. This is precisely the issue to betried by the finder of fact.
It is well settled that in diversity cases a federal courtmust apply the substantive law of the forum state. Erie R.R.Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed.1188 (1938); Howell v. Celotex Corp., 904 F.2d 3, 4 (3d Cir.1990). Both parties argue that because the accident occurred inNew Jersey, that state's law will apply. Initially, theplaintiff argues that the defendant owed a duty to Rustay. InNew Jersey, the question of whether a duty is owed by adefendant is one of law, to be determined by the court.Strachan v. John F. Kennedy Mem. Hosp., 209 N.J. Super. 300,315-16, 507 A.2d 718 (App. Div. 1986) aff'd in part and rev'd inpart on other grounds, en banc 109 N.J. 523, 538 A.2d 346(1988) (citing Essex Bell v. New Jersey Bell Tel. Co., 166 N.J. Super. 124,127, 399 A.2d 300 (App. Div. 1979); McKinley v.Slenderella Sys. of Camden N.J. Inc., 63 N.J. Super. 571, 581,165 A.2d 207 (App. Div. 1960); McIntosh v. Milano, 168 N.J. Super. 466,495, 403 A.2d 500 (Law Div. 1979)). A breach ofthat duty is a question of fact and must be proven by theplaintiff. McIntosh, 168 N.J. Super. at 495, 403 A.2d 500.
Duty signifies conformance to a reasonable standard of legalconduct in light of apparent risk. Existence of a duty is aquestion of law. McKinley, 63 N.J. Super. at 581, 165 A.2d 207.
Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, . . . in the field of negligence. Duty signifies conformance "to the legal standard of reasonable conduct in the light of the apparent risk." The essential question is whether "the plaintiff's interests are entitled to legal protection against the defendant's conduct." . . . Duty is largely grounded in actual responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.
The issue presented in this case is whether Conrail, thelandowner, owed a duty to Scott Rustay, a trespasser. NewJersey has accepted the common-law definition of trespass. "Atrespasser is a person who enters or remains upon land in thepossession of another without a privilege to do so created bythe possessor's consent or otherwise." Hallacker v. NationalBank & Trust Co. of Gloucester, 806 F.2d 488, 490 (3d Cir.1986). Rustay falls within this definition. "Generally, alandowner owes no duty of care towards a trespasser, except torefrain from willfully injurious acts." Id. (citing Renz v.Penn Central Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981)). Theplaintiff argues that when the landowner is engaged in a highlydangerous activity, like operating a train, the landowner'sstandard of care must be heightened. Plaintiff's brief, p. 2(citing Restatement (Second) of Torts § 336 (1965)). It isapparent from the briefs of the parties and a review of theapplicable New Jersey case law that the New Jersey SupremeCourt has not addressed this issue. Therefore, this court mustpredict how the New Jersey Supreme Court would decide theissue.
In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how that court would rule. To make this prognostication we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide. See McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir. 1980). The policies underlying the applicable legal doctrines, the doctrinal trends indicated by these policies, and the decisions of other courts may also inform our analysis. In addition, we may consult treatises, the Restatement, and the words of scholarly commentators.
Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co.,652 F.2d 1165, 1167 (3d Cir. 1981). In evaluating all of therelevant sources, it is this court's conclusion that under NewJersey law Conrail owed a duty to the plaintiff.
The starting point for this analysis is Renz v. Penn CentralCorp., 87 N.J. 437, 435 A.2d 540 (1981), a case decided by theNew Jersey Supreme Court in 1981. In Renz, a minor plaintiffwas injured while attempting to cross between the cars of astationary train. Id. at 439, 435 A.2d 540. The railroad basedits defense on the Railroad Immunity Act, N.J.S.A. 48:12-152,arguing that the statute precluded recovery by the plaintiff.Id. at 440, 435 A.2d 540. The statute provided that persons whowere hurt as a result of walking, standing or playing on oralong the railroad could not recover for their injuries,because the statute deemed them guilty of contributorynegligence. Id. (citing N.J.S.A. 48:12-152). The Renzcourt abrogated this result by infusing principles ofcomparative negligence into the statute. Id. at 460,435 A.2d 540. Because of its treatment of the statute, the Renz courtdeclined to address the issue of whether the railroad, as aproperty owner, is entitled to avail itself of the lowerstandard of care owed to a trespasser or whether the railroadis a dangerous instrumentality owing a higher duty of care. TheRenz discussion of this precise issue, in dicta, however, isinstructive.
The court began by setting forth the traditional standard ofcare owed to a trespasser in New Jersey. Id. at 461,435 A.2d 540 ("Traditionally, a landowner owed no duty to a trespasserother than to refrain from an act willfully injurious."). Thecourt continued by explaining that the "doctrine of trespass isnot rigid; rather, it is sufficiently flexible to fulfill thepurposes of our legal system in serving the needs ofpresent-day society." Id. In this regard, the court noted thatproperty owners are subject to a higher standard of care whenthe property owned by the landowner can be classified as adangerous instrumentality. Id. The majority then examined theAppellate Division opinion issued in Eden v. Conrail, 175 N.J. Super. 263,418 A.2d 278 (App. Div. 1980), modified, 87 N.J. 467,435 A.2d 556 (1981) (the companion case to Renz).
The Eden appellate court stated:
Even as to a trespasser, the old common-law doctrine that an owner of land owed him no duty of care except to refrain from causing injury to such person by willful or wanton conduct has been modified "so as to put the interests of the parties in better balance." Potter v. Finch & Sons, 76 N.J. 499, 504 [388 A.2d 614] (1978). Especially with respect to instrumentalities possessing a real potential for grievous bodily harm, the standard of duty is the protection of others against an unreasonable risk of harm. Imre v. Riegel Paper Corp., 24 N.J. 438, 444 [132 A.2d 505] (1957).
Renz, 87 N.J. at 461, 435 A.2d 540 (quoting Eden, 175 N.J.Super. at 280, 418 A.2d 278).
The Eden appellate court's language is instructive becausewhere the state's highest court has not ruled on an issue the"decisions of a state intermediate appellate court are evidenceof state law . . . and must be given significant weight in theabsence of any indication that the highest court would ruleotherwise." General Elec. Credit Corp. v. Ger-Beck Mach. Co.,806 F.2d 1207, 1209 (3d Cir. 1986).
The plaintiff argues that if the New Jersey Supreme Courtwere called upon to rule on this case they would not provideConrail with the lower standard of duty owed to a trespasser,that is, merely a duty to refrain from willfully injuriousacts. Instead, plaintiff argues that the New Jersey high courtwould charge the defendant with a higher standard of care,because operating a train is a highly dangerous activity. Thiscourt agrees. The plaintiff cites section 336 of theRestatement (Second) of Torts for the proposition that alandowner who knows or has reason to know of the presence of atrespasser will be liable for any harm caused by thelandowner's "failure to carry on his activitiesupon the land with reasonable care for the trespasser'ssafety." Restatement (Second) of Torts § 336 (1965). Comment bto that section states:
b. Precautions when Possessor's Activities Highly Dangerous. If the activity which a possessor of land carries on upon it is one which, even though carelessly conducted, is likely to cause only some harm which, though substantial, is less than death or serious bodily harm, the possessor is not required to exercise care for a trespasser's safety unless he knows of his presence at some point made dangerous by the activity or unless he sees an object or hears a sound which makes him regard the presence of a trespasser as substantially certain or at the least highly probable. On the other hand, the gravity of danger threatened by an activity which, unless carefully carried on, is likely to cause death or serious bodily harm, requires the possessor to exercise reasonable care not only when he knows that a trespasser is at some point made dangerous by it, or is reasonable certain or regards it as highly probable that he is at such a point, but also when he sees an object or hears a sound which causes him to realize that there is a substantial chance that the trespasser may be at such a point. This is in accordance with the tendency of the law not only to require a greater amount of care when life and limb are at stake, than where only some minor harm is likely to occur, but also to extend the duty of protection to persons to whom no duty would be owing if a less serious harm were threatened.
The illustration provided by the Restatement is very similar tothe facts of this case. The illustration reads as follows:
1. The engineer of the X & Y Railroad Company sees lying upon the track a pile of clothing such as would give a reasonable man cause to suspect that it might contain a human being. Under these circumstances the engineer is not entitled to assume that it is not a human being but is required to keep the engine under control until he is certain that it is not.
Restatement (Second) of Torts § 336 cmt. b, illus. 1 (1965).
This illustration was adopted by the Eden appellate court.Eden, 175 N.J. Super. at 281, 418 A.2d 278. The Eden courtexplained that "in view of the gravity of the danger theengineer has a duty of care commensurate with the foreseeablerisk involved." Id.
The defendant argues that the engineer acted reasonably andtherefore could not protect Rustay from harm. This, even iftrue, is a question of fact for the jury. This court merelyholds that under New Jersey law a railroad operator owes a dutyof care to a trespasser on the tracks because of the inherentlydangerous nature of the activity it is engaged in. Therefore,defendant's motion for summary judgment is denied.
As previously shown, this court cannot say as a matter of lawthat the defendant breached this duty of care. This is aquestion of fact to be determined by the jury. Huddell v.Levin, 537 F.2d 726, 734 (3d Cir. 1976) (the jury must decidewhether the standard of care was breached by the defendant).Therefore, the plaintiff's motion for summary judgment isdenied.