Devon Collins v. New Jersey Transit

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1882-23

DEVON COLLINS,

ADMINISTRATRIX OF THE

ESTATE OF SHANNON

FLOOD, DEVON COLLINS,

GUARDIAN AD LITEM FOR

SHEA LULLA, AN INFANT,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT, NEW

JERSEY TRANSIT RAIL

OPERATIONS, INC., THE

HUDSON-BERGEN LIGHT RAIL,

21ST CENTURY RAIL

CORPORATION, AECOM

TECHNOLOGY CORPORATION,

WASHINGTON GROUP

INTERNATIONAL,

URS CORPORATION,

URS CORPORATION

WASHINGTON DIVISION, and

ALEXANDER BISHOP,

Defendants-Respondents,

and

THE STATE OF NEW JERSEY,

THE CITY OF JERSEY CITY,

ITOCHU CORPORATION,

KINKISHARYO

INTERNATIONAL LLC,

Defendants.

Argued February 12, 2025 – Decided May 8, 2025

Before Judges Marczyk and Paganelli.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-0134-21.

Alan T. Friedman argued the cause for appellant

(Bagolie Friedman, LLC, and Eisbrouch Marsh, LLC,

attorneys; Alan T. Friedman, Spencer A. Sink, and

David Eisbrouch, of counsel and on the brief).

John W. Gregorek argued the cause for respondents

(Ruprecht Hart Ricciardulli & Sherman, LLP,

attorneys; John W. Gregorek and Thomas C. Hart, of

counsel and on the briefs).

Michael C. Shapiro argued the cause for amicus curiae

New Jersey Association for Justice (Epstein Ostrove,

LLC, attorneys; Michael C. Shapiro, of counsel and on

the brief).

PER CURIAM

Plaintiff Devon Collins, as Administratrix of the Estate of Shannon Flood

(decedent), and as Guardian Ad Litem for Shea Lulla, appeals from the trial

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2

court's February 5, 20241 order granting summary judgment in favor of

defendants New Jersey Transit Corporation (NJT), Twenty-First Century Rail

Corporation, AECOM Technology Corporation, Kinkisharyo International LLC,

and Alexander Bishop (defendants).

In this matter, we are asked to address the contours of the immunities

provided to railroads under N.J.S.A. 48:12-152. We conclude the railroad was

not entitled to immunity under the facts presented here, where decedent was

struck while using a pedestrian crossing as permitted under N.J.S.A. 48:12-

152(a), and that the immunity provision set forth in N.J.S.A. 48:12-152(b)(5) is

not applicable. Moreover, even if subsection (b)(5) were implicated, decedent

was using the crossing as intended, and therefore, the railroad was not entitled

to immunity. Accordingly, we reverse the order of summary judgment and

remand for further proceedings in accordance with this opinion.

I.

On December 24, 2019, decedent was killed when she was struck by a

light rail train after entering a designated pedestrian crossing over NJT's railroad

track for the Hudson Bergen Light Rail (HBLR) at the intersection of Hudson

1

The court, at plaintiff's request, vacated the February 5 order and entered an

amended order dated February 14 clarifying the case was dismissed based on

the immunity provisions set forth in N.J.S.A. 48:12-152.

A-1882-23

3

and York Streets in Jersey City. The incident was captured on multiple video

cameras on the train, and at the Exchange Place Station, as the train approached.

The train tracks at issue run adjacent to Hudson Street and are located on

NJT's dedicated railroad right of way for the HBLR. The crossing for

pedestrians and vehicles going over the right of way and Hudson Street is

controlled by pedestrian signals and traffic lights.

Decedent worked across the street from the accident location. On the day

of the incident, she was seen walking through the intersection approximately

five minutes prior to the accident using the same pedestrian crossing at issue.

The train, operated by Bishop, was scheduled to arrive at the Exchange Place

Station at 4:34 p.m., which was approximately twenty-five seconds after the

accident. Prior to the collision, the train was heading north, and decedent was

seen walking in the same direction on the sidewalk adjacent to the tracks.

As the train approached the pedestrian crossing, it had the "proceed

signal" and the right of way to proceed through the crossing. Approximately

seven seconds prior to impact, Bishop sounded the train's horn because he saw

decedent walking on the sidewalk approaching the crossing. As the train

approached the crosswalk, decedent turned to her left, towards the track, and

entered the crossing approximately two seconds before being struck by the train.

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Bishop applied the brakes one second prior to impact. It is undisputed decedent

was in the railroad crossing at the time of impact.

Plaintiff asserts operators of HBLR trains are only permitted to use their

horn in cases of emergency or to prevent an accident. Plaintiff alleges that

immediately after Bishop sounded his horn, he accelerated the train. Defendants

argue decedent never looked to see if a train was coming as she walked into the

crosswalk and that the pedestrian signal indicated she was not permitted to cross.

Plaintiff filed a complaint in January 2021 against NJT, the State of New

Jersey, the City of Jersey City, Twenty-First Century Rail Corporation, AECOM

Technology Corporation, Itochu Corporation, and Kinkisharyo International

LLC, seeking damages under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6,

and the Survivor's Act, N.J.S.A. 2A:15-3.2 Bishop was later added as a

defendant. The complaint contained seven counts alleging, among other

theories of recovery, negligent operation of the light rail train.

After defendants answered the complaint, the parties engaged in

discovery. In December 2023, defendants moved for summary judgment

2

Plaintiff dismissed the State of New Jersey without prejudice in April 2021.

In July 2021, the court dismissed the complaint against defendant Itochu

Corporation without prejudice pursuant to Rule 1:13-7.

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seeking to dismiss plaintiff's claims, asserting immunity under N.J.S.A. 48:12 -

152.3 Plaintiff opposed defendants' motion.

On February 2, 2024, the court heard oral arguments. Defendants argued

they were entitled to immunity under N.J.S.A. 48:12-152 because plaintiff was

not using the crosswalk as intended. They argued the crosswalk was not on a

public highway and was thus railroad property. They also argued NJT owns a

"real property interest, vis-à-vis their right[]of[]way, whether . . . an easement

or a covenant," and "a right[]of[]way is a property interest."

The trial court ruled that N.J.S.A. 48:12-152(a) did not "prohibit

somebody from using a crossing . . . established by a railroad," and the statute

was meant "to keep the trespassers out." The court found subsection (b) "deals

with liability for people that are on railroad property" and explained:

[I]f you read [subsection (a)] it deals with prohibiting

people from using railroad property, or any

right[]of[]way of any railroad. [Subsection (a)] brings

. . . both [(a) and (b)] together. You can't walk on the

right[]of[]way, you can't walk on property owned by a

railroad, except you could use a crossing, or where we

intend you to be. So now that's only dealing with

trespassing.

3

In January 2024, Jersey City also moved for summary judgment, asserting it

did not own or control the crossing and that NJT "owned[,] maintained[,] and

controlled" the crossing. Plaintiff did not oppose Jersey City's motion, and it

was subsequently granted. That order is not before us on appeal.

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[Subsection (b)] then deals with those who are

utilizing the property of the railroad. It's part of the

same statute . . . . The only logical way to read it is

[subsection (b)] then [is] trying to clarify [subsection

(a)] which applies on its face to property owned by a

railroad and rights[]of[]way. And maybe it could've

been phrased a little bit better in [subparagraph (b)(5)].

But I think when [subsection (b)(5)] say[s] "[u]sing the

property of any railroad in a manner in which it [i]s not

intended to be used . . . ," they're trying to clarify the

permission that they're giving in [subsection (a)]. And

[subsection (a)] on its face applies to right[s]of[]way[].

. . . [T]he right[]of[]way is involved here, at a

minimum . . . . [D]efendant is arguing it's clear from

this motion record [they] absolutely have ownership of

that crossing walk area, it's not part of the public

property. I'm not even going to go there. I'm finding

at a minimum, even if it's only a right[]of[]way, then

[subsection (b)(5)] applies to [plaintiff's] conduct . . . .

That's the only way . . . [subsections (a) and (b)], which

are intended to be read together, . . . make any sense.

Otherwise you could . . . be drunk . . . , stumble on this

crosswalk in violation of huge blinking red lights, . . .

and get killed by [a] train and then say it was only a

crosswalk you only had the right[]of[]way so I can sue,

[subsection (b)] doesn't apply to prevent me from suing.

That's a ridiculous reading of the statute. [4] This [c]ourt

will not do that. I'm going to grant the motion based

upon . . . the immunities as to all railroad[] companies,

under N.J.S.A. 48:12-152 . . . .

4

The court overlooked that N.J.S.A. 48:12-152(b)(1) specifically provides

immunity to the railroad when an individual comes in "contact with any

equipment . . . or rolling stock of any railroad, if death or injury occurred while

that person was: (1) under the influence of alcohol . . . by a blood alcohol

concentration [(BAC)] of 0.10% or higher."

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The court went on to state:

When it says using the property of any railroad in

[subsection (b)(5)], I . . . construe that logically as

conjunctive with [subsection (a)] . . . . [T]o say that

someone can use the railroad property the way it was

not intended to be used and clearly and openly in

violation of posted regulations, and yet still sue the

railroad company because [one is] only on the

right[]of[]way of the railroad as opposed to the

technical property owned by a railroad . . . I can't

believe that the [L]egislature would've intended that to

proceed.

The court subsequently entered an order granting defendants' motion and

dismissed plaintiff's complaint with prejudice based on the immunity provisions

in N.J.S.A. 48:12-152.

II.

On appeal, plaintiff argues the trial court erred in its statutory

interpretation of N.J.S.A. 48:12-152 because it considered the terms railroad

"property" and railroad "right of way" as interchangeable. She contends

N.J.S.A. 48:12-152 was intended to protect railroads from lawsuits filed by

trespassers, not from individuals legally within crossings established by

railroads. She also asserts that even if N.J.S.A. 48:12-152(b)(5) is controlling,

the trial court improperly granted summary judgment because there are genuine

issues of material fact in dispute.

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"We review a trial court's grant of summary judgment de novo, applying

the same standard as the trial court." Hyman v. Rosenbaum Yeshiva of N.

Jersey, 474 N.J. Super. 561, 572 (App. Div. 2023). Summary judgment is

appropriate "if 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). "To decide

whether a genuine issue of material fact exists, the trial court must 'draw[] all

legitimate inferences from the facts in favor of the non-moving party.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Globe Motor Co. v.

Igdalev, 225 N.J. 469, 480 (2016)).

"We review questions of statutory interpretation de novo." Libertarians

for Transparent Gov't v. Cumberland Cnty., 250 N.J. 46, 55 (2022). "When

interpreting a statute, [the] aim [is] to effectuate the Legislature's intent, which

is best indicated by the statutory text." Keyworth v. CareOne at Madison Ave.,

258 N.J. 359, 379 (2024) (citations omitted). See also DiProspero v. Penn, 183

N.J. 477, 492 (2005) ("The Legislature's intent is the paramount goal when

interpreting a statute and, generally, the best indicator of that intent is the

statutory language."). "In construing statutory text, 'words and phrases shall be

A-1882-23

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given their generally accepted meaning, unless that meaning is inconsistent with

the clear intent of the Legislature or unless the statute provides a different

meaning. Words in a statute should not be read in isolation.'" Keyworth, 258

N.J. at 379-80 (quoting Shelton v. Restaurant.com, Inc., 214 N.J. 419, 440

(2013)).

Accordingly, courts are to "read the statute[] in [its] entirety and construe

each part or section . . . in connection with every other part or section to provide

a harmonious whole." C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459-

60 (2014) (quoting State v. Marquez, 202 N.J. 485, 499 (2010)). "If the text's

plain meaning is clear and unambiguous, 'we apply the law as written.'"

Keyworth, 258 N.J. at 380 (quoting State v. J.V., 242 N.J. 432, 443 (2020))

(internal quotation marks omitted). "Conversely, if the text is ambiguous, 'we

may turn to extrinsic evidence, including legislative history to aid our inquiry.'"

Ibid. (quoting W.S. v. Hildreth, 252 N.J. 506, 518 (2023)). See also DiProspero,

183 N.J. at 492-93 ("[I]f there is ambiguity in the statutory language that leads

to more than one plausible interpretation, we may turn to extrinsic evidence,

'including legislative history, committee reports, and contemporaneous

construction.'" (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75

(2004))).

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By way of background, railroads have been accorded statutory immunity

in this state since 1869. See 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 [pre-1998 amendments] form in the general

revision of the New Jersey Statutes in 1937"). The 1937 version of the statute

provided:

It shall not be lawful for any person other than those

connected with or employed upon the railroad to walk

along the tracks of any railroad except when the same

shall be laid upon a public highway.

Any person injured by an engine or car while walking,

standing or playing on a railroad or by jumping on or

off a car while in motion shall be deemed to have

contributed to the injury sustained and shall not recover

therefor any damages from the company owning or

operating the railroad. This section shall not apply to

the crossing of a railroad by a person at any lawful

public or private crossing.

[Id. at 247 (quoting N.J.S.A. 48:12-152 (1937)).]

N.J.S.A. 48:12-152 was amended in 1998 in response to a series of cases

beginning with Renz v. Penn Central Corp., 87 N.J. 437 (1981), and culminating

in Ocasio v. Amtrak, 299 N.J. Super. 139 (App. Div. 1997). When the first

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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, 29 N.J. at 250. 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. Our Supreme Court rejected the argument,

holding the Legislature had "solidified the common law in effect at the time of

the [statute's] enactment as it related to trespassers upon 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, our Supreme Court read the

statutory history differently. The Renz Court concluded 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 -5.8.

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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, 87 N.J. at 459-

60. Accordingly, after Renz, the railroads no longer enjoyed complete immunity

from claims of injured trespassers and instead were only absolved of liability if

they could prove that the plaintiff's negligent contribution to his own injuries

exceeded that of the railroad's. Id. at 460-61. This court subsequently applied

Renz in two cases, holding 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, 299 N.J. Super. at 150-51.

Following this court's opinion in Ocasio, the Legislature amended the

railroad immunity statute in 1998, restoring to railroads the absolute immunity

from claims of trespassers they had enjoyed before Renz, except as to minors,

including railroad officers and employees within the protections of the statute,

extending the statute's definition of trespass, 5 and expressly repudiating

application of the Comparative Negligence Act to railroad trespassers.

5

The statute previously applied only to those persons injured by "an engine or

car while walking, standing or playing on a railroad." N.J.S.A. 48:12-152

(1937). The amended statute applies to anyone "com[ing] into contact with any

equipment, machinery, wires or rolling stock of any railroad." N.J.S.A. 48:12 -

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The Legislature in 1998 did as the Renz Court suggested it could and

adopted an approach under subsection (a) focusing on whether the plaintiff was

unlawfully within the right of way. Renz, 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-à-vis the property of the railroad."). The

Legislature also addressed specifically prohibited conduct in enacting

subsection (b).

In its current form, N.J.S.A. 48:12-152, titled "[p]rohibition on entering

upon the right of way of a railroad or coming into contact with equipment,

machinery, wires, or rolling stock of railroad; restrictions on recovery for injury

or death," provides for immunity granted to railroads in this state. N.J.S.A.

48:12-152(a) states:

No person other than those . . . employed upon the

railroad . . . shall enter upon the right of way of any

152(a). Thus the amendment effectively abrogated the holding in Jasiczek v.

Pennsylvania Railroad, as it relates to adult trespassers. 90 N.J. Super. 380,

383-84 (App. Div. 1966) (holding former N.J.S.A. 48:12-152 does not apply to

a plaintiff injured by overhead high-voltage wire while trespassing on railroad

right of way as the former version spoke "in terms of an injury by an engine or

car").

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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.

N.J.S.A. 48:12-152(b), in relevant part, provides:

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 . . . by a

[BAC] of 0.10% or higher . . . ; or

(2) under the influence of drugs, other than

drugs medically prescribed . . . 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

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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 ([N.J.S.A.] 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.

Plaintiff asserts we must interpret immunity statutes narrowly, rather than

broaden their applicability. See Cohen v. W.B. Assocs., Inc., 380 N.J. Super.

436, 441 (App. Div. 2005). She further contends the trial court erred in relying

on subsection (b)(5) to find immunity because the court mistakenly conflated

the terms "right of way" and "property" as used in N.J.S.A. 48:12-152. She

argues subsection (a) does not include the word "property," and had the

Legislature intended subsection (a) to apply to railroad "property," it would have

included that language. Thus, plaintiff maintains a plain reading of the statute

shows subsection (a) applies only to railroad rights of way, and not railroad

property.

Plaintiff further contends subsection (b)(4) provides a violation of

subsection (a) can only occur on a railroad right of way, and a railroad is immune

from suit for violations of subsection (a), with the exception of persons using a

crossing established by the railroad. She argues that because decedent was in

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the crossing at the time of the accident, defendants cannot be immune under

subsection (b)(4).

Plaintiff argues subsection (b)(5) is, like (b)(4), specific to location, and

pertains to the "property" of any railroad, and "property" refers to railroad real

property, such as a yard or maintenance facility. She contends that because

decedent was not using "the property of the railroad" when she was struck by

the train—rather she was on a right of way and was using the crossing as

permitted under subsection (a)—the court erred in finding defendants were

entitled to immunity.

Plaintiff asserts decedent was not engaging in "prohibited behavior" as

she was in a crossing established by the railroad, and the Legislature "did not

intend N.J.S.A. 48:12-152 to immunize a railroad from negligence for hitting a

person who is walking in a crosswalk." Lastly, plaintiff argues that even if

subsection (b) of the statute is read such that decedent was using the "property"

of the railroad when crossing the street, there are disputed issues of material fact

regarding whether decedent was using the property in a manner not intended or

in violation of posted regulations. Plaintiff asserts decedent was using the

property "exactly" as expected and a jury should determine if there were any

"posted regulations" which decedent violated.

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Defendants counter the trial court correctly found they were entitled to

immunity under N.J.S.A. 48:12-152 because decedent "impermissibly entered

onto NJT's railroad crossing and right of way and used the crossing in a manner

in which it was not intended to be used." Defendants cite to subsections (b)(4)

and (b)(5) to assert that N.J.S.A. 48:12-152

acts as a complete bar to all claims for injuries or death

caused by contact with a train while the person was

wrongfully present on 'the right of way of any railroad'

or 'using the property of any railroad in a manner in

which it was not intended to be used or in violation of

posted regulations,' regardless of whether the railroad

may also have been negligent.

Defendants contend there is no issue of fact preventing the grant of summary

judgment. Defendants rely on N.J.S.A. 1:1-2, which states unless "otherwise

expressly provided or there is something in the subject or context repugnant to

such construction, the following words and phrases, when used in any statute

. . . shall have the meaning herein given to them." N.J.S.A. 1:1-2 defines

"property" as, "unless restricted or limited by the context to either real or

personal property, includes both real and personal property." Lastly, defendants

argue decedent misused the right of way as a matter of law because she did not

look to see if a train was coming and crossed against the light.

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Amicus curiae New Jersey Association for Justice (Amicus) argues

N.J.S.A. 48:12-152 was never intended to immunize railroads when a pedestrian

is struck at a crossing where the operator could likely have avoided the accident

merely because the "Do Not Cross" signal may have been active. Rather, the

statute was intended to immunize railroads from claims of trespassers, and the

trial court's decision "represents a harsh expansion of the immunities afforded

by the Act." Amicus asserts the statute's concept of "property" was never meant

to include the crossing itself or the conduct at issue. It argues that crossing when

not indicated is not the sort of conduct that would warrant an absolute bar to

recovery. It notes the operator blew the train's horn in violation of established

policy, failed to brake in a timely manner and, in fact, accelerated as he

approached the intersection. Accordingly, it asserts this case is not about

reaction time, and a jury could reasonably conclude the operator allowed the

tragedy to unfold as he approached the crossing. It maintains the act of crossing

when not indicated is not the kind of "culpable conduct like being suicidal,

trespassing, or disembarking from a moving train that would warrant an absolute

bar to recovery."

Amicus contends the prior version of N.J.S.A. 48:12-152 was used to

formulate the current version of the statute. The first and third sentences of the

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prior statute essentially became subsection (a), and the second sentence of the

predecessor statute became subsection (b) with some additional changes. It

argues that in the current version, subsection (b)(4) bars recovery for trespass,

and the intent of (b)(5) was to maintain the prior version's immunity against the

claims of "any person injured by an engine or car while walking, standing or

playing on a railroad or by jumping on or off a car while in motion." N.J.S.A.

48:12-152 (1937).

Amicus avers the term "property" in subsection (b)(5) refers to the list of

tangible property in subsection (a), namely, "equipment, machinery, wires or

rolling stock of any railroad." N.J.S.A. 48:12-152(a). It argues if the term

"property" included the crossing itself, subsection (b)(5) would be futile.

Amicus stresses "courts 'must avoid an interpretation that renders words in a

statute surplusage.'" Johnson & Johnson v. Dir., Div. of Tax'n, 244 N.J. 413,

422 (2020) (LaVecchia, J., dissenting) (quoting Shelton, 214 N.J. at 440). It

posits the current version of N.J.S.A. 48:12-152 expressly expanded the Act by

creating "three new immunities" in subsections (b)(1), (b)(2), and (b)(3), and if

the Legislature wanted to limit the crossing exception or expand the concept of

misuse, it would have done so expressly.

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Amicus contends contributory negligence has never been a bar where it is

credibly alleged the railroad operator could have avoided the collision. It points

to our Supreme Court's decision in Jelinek v. Sotak, which recognized under the

prior version of N.J.S.A. 48:12-152, a railroad's duty

to use reasonable care to so operate the train as it

approaches a grade crossing with due regard to its right

of way, as to protect travelers . . . [e]ven as to those who

in disregard of due care may attempt to cross the tracks

in the face of an oncoming train or to one whose vehicle

may be stalled or stopped on the tracks . . . .

[9 N.J. 19, 23 (1952).]

Amicus also relies on Webb v. West Jersey & Seashore Railroad Co.,

where the plaintiff turned off a public road onto "a private road belonging to the

railroad company" to reach the railroad station. 100 N.J.L. 204, 205 (Sup. Ct.

1924). The private road intersected with train tracks at an established crossing,

and the plaintiff's car was struck while utilizing said crossing. Ibid. The Court

held the railroad company, even though its engine bells were ringing, was under

a duty "to use reasonable care to so operate the train as it was approaching the

crossing as to protect persons who, in the exercise of due care, were about to

cross the tracks." Id. at 206. The Court noted it was for a jury to decide whether

the plaintiff was careless in "not appreciating . . . the ringing of the bell" or in

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failing to heed the warnings of the brakemen of the approaching danger. Id. at

207.

We conclude the word "property" as used in N.J.S.A. 48:12-152(b)(5)

applies to the tangible property specifically described in N.J.S.A. 48:12-152(b),

which includes "equipment, machinery, wires or rolling stock" and does not

include the crossing as set forth in subsection (a). "Words in a statute should

not be read in isolation." Keyworth, 258 N.J. at 379-80 (quoting Shelton, 214

N.J. at 440). "Thus, 'we read . . . statutes in their entirety and construe each part

or section . . . in connection with every other part or section to provide a

harmonious whole.'" Id. at 380 (quoting C.A., 219 N.J. at 459-60).

Moreover, we "tradition[ally] . . . giv[e] 'narrow range' to statutes granting

immunity from tort liability because they leave 'unredressed injury and loss

resulting from wrongful conduct.'" Velazquez v. Jiminez, 172 N.J. 240, 257

(2002) (quoting Harrison v. Middlesex Water Co., 80 N.J. 391, 401 (1979)).

Therefore, we discern that the immunity afforded under N.J.S.A. 48:12-152 is

not applicable under the facts of this case.

N.J.S.A. 48:12-152(a) prohibits individuals from entering "upon the right

of way of any railroad" or coming "into contact with any equipment, machinery,

wires or rolling stock of any railroad," but it specifically allows an individual to

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use "a crossing established by the railroad." N.J.S.A. 48:12-152(b) identifies

when a railroad is entitled to immunity. It notes a person cannot recover

damages stemming from the individual coming into contact with "equipment,

machinery, wires or rolling stock of any railroad," if any of the provisions set

forth in subsections (b)(1) through (5) are demonstrated. At issue here is

subsection (b)(5), which shields the railroad from liability to a person "using the

property of any railroad in a manner in which it was not intended to be used or

in violation of posted regulations." (Emphasis added). We interpret the

reference to "property" in subsection (b)(5) as comprising the tangible property

specifically referenced in subsection (b).

The reference to specific tangible property in the preceding sentence of

the statute gives meaning to "property" as set forth in subsection (b)(5). There

would be no need to set forth the specific types of property in subsection (b) if

"property," as discussed in (b)(5), was meant to include both tangible and real

property. Rather, the statute could have simply stated no individual shall

recover as a result of any injury from "contact with any railroad property."

Moreover, construing subsection (b)(5) to mean the use of tangible

property is consistent when read in conjunction with the portion of the statute

that immediately follows subsection (b)(5) which provides, "[i]n the absence of

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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." The property referenced in that sentence

similarly refers to the equipment, machinery, or rolling stock of the railroad.

Here, decedent was not "using" the property ("equipment, machinery, wires or

rolling stock") of the railroad when she was struck by the train as contemplated

by subsection (b)(5) of the statute.

N.J.S.A. 48:12-152(a) deals with an individual coming into contact with

the equipment, machinery, wires, or rolling stock of the railroad upon entering

the railroad's right of way. In those circumstances, an individual shall not enter

the right of way of any railroad and come into contact with this equipment

except, among other reasons, if they are "using a crossing established by the

railroad." Accordingly, decedent was not prohibited from entering the crossing.

Even if we assume that the term "property" as used in N.J.S.A. 48:12-

152(b)(5) encompassed the crossing, we are satisfied decedent was not using the

property "in a manner in which it was not intended." In adopting N.J.S.A. 48:12-

152(b)(5), the Legislature did not provide that a railroad was entitled to

immunity if a plaintiff "was in any way negligent" in using the railroad's

property. Rather, it barred recovery if the property was utilized in a "manner in

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which it was not intended to be used." N.J.S.A. 48:12-152(b)(5). Here, decedent

was utilizing the crosswalk as intended—to cross the street—even if there was

negligence on her part. Her alleged failure to make proper observations does

not equate with her using the crossing in a manner in which it was not intended.

"The Legislature is presumed to be familiar with its existing enactments

and is presumed to intend that its newer enactments be harmonized with the

existing ones, in light of the Legislature's purpose." Correa v. Grossi, 458 N.J.

Super. 571, 580 (App. Div. 2019). We assume the Legislature here understood

how to utilize the word "negligence" as the term is ubiquitous throughout our

civil code. That the Legislature chose not to use the term negligence here in

subsection (b)(5), but rather the phrase "in a manner in which it was not intended

to be used," is significant because it requires a fundamentally different analysis.

The trial court appeared to equate negligence with using the crosswalk "in

a manner in which it was not intended to be used" and determined because

decedent was negligent in entering the crossing, that immunity automatically

applied. We reject that interpretation of the statute. Decedent was not using the

property in a "manner in which it was not intended to be used." N.J.S.A. 48:12-

152(b)(5). Rather, decedent was using the property as intended, even if she was

doing so in a negligent manner.

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Defendants rely on Jelinek for the proposition that "[t]here is nothing in

[the] language [of the 1937 version of N.J.S.A. 48:12-152] that requires an

engineer to stop a train merely because of the possible danger of a collision." 9

N.J. at 23. That is correct, but our Supreme Court further noted:

There are reciprocal rights and duties involved.

The engineer can rightfully assume that travelers in the

exercise of due care with due regard to the railroad's

right of way, will not attempt to cross the tracks. But

if in the exercise of reasonable diligence it should

become apparent that the traveler in disregard of due

care or the railroad's right of way will or is attempting

to cross the crossing before the train so that a collision

will probably result, then from that point on the

engineer must with all reasonable care and diligence

attempt to stop the train. If he does so then there is no

negligence.

[Ibid.]

The Court further observed:

The duty resting upon a railroad is to use

reasonable care to so operate the train as it approaches

a grade crossing with due regard to its right of way, as

to protect travelers who in the exercise of due care are

about to cross the tracks and whether it discharged its

duty under all the facts and circumstances is usually a

matter for the jury to determine. Even as to those who

in disregard of due care may attempt to cross the tracks

in the face of an oncoming train or to one whose vehicle

may be stalled or stopped on the tracks the duty of

reasonable care and diligence still rests on the railroad.

[Ibid.]

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Although, Jelinek was decided prior to adoption of the revised version of

N.J.S.A. 48:12-152, the same principles apply, under the new statute, as

articulated by the Court. That is, merely because an individual enters a crossing

"in disregard of due care," a duty still rests on the railroad to "use reasonable

care . . . as it approaches a . . . crossing with due regard to its right of way, as to

protect travelers." Ibid.

We are satisfied the term property as set forth in subsection (b)(5) means

tangible property as set forth in subsection (b)—"equipment, machinery, wires

or rolling stock of any railroad." Because decedent was not using any of this

property when she was injured, subsection (b)(5) does not apply. Rather, we

must look to subsection (b)(4), which would apply if decedent was engaging in

any proscribed conduct under subsection (a). However, she was not a trespasser

upon any railroad right of way. Rather, she was specifically permitted to utilize

the "crossing established by the railroad." Therefore, subsection (b)(4) would

also not provide immunity for the railroad.

Reversed.

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