Renz v. Penn Central Corp.

SCHREIBER, J.,

concurring.

The majority opinion misconstrues the Railroad Immunity Act, N.J.S.A. 48:12-152, and unnecessarily eliminates the common law doctrine of contributory negligence. A sweeping generality binds a court to an unknown future. Flexibility and progress in the judicial process are frequently inhibited or lost when broad principles are unnecessarily adopted. When the statute is correctly construed, the undesirability of the majority’s approach is apparent.

The statute describes certain acts which constitute negligence. The Legislature has not chosen to change the effect of this conduct. It is unnecessary, as the majority does, to reexamine the common law doctrine of contributory negligence. Rather, the only issue is whether the Comparative Negligence Act has had any effect on the contributory negligence ascribed by the Railroad Immunity Act to the conduct described therein.

*464 Egan v. Erie R. Co., 29 N.J. 243 (1959), correctly construed N.J.S.A. 48:12-152 to apply to certain behavior. Unlike the majority I do not read Egan as interpreting N.J.S.A. 48:12-152 to be a “trespasser” statute. That case involved a seven-year-old girl who was injured while attempting to board a moving freight train. The railroad’s employees knew that children were accustomed to playing upon the tracks in the vicinity of the accident. The plaintiff sought to bring her action within the scope of Strang v. South Jersey Broadcasting Co., 9 N.J. 38 (1952), and Harris v. Mentes-Williams Co., 11 N.J. 559 (1953), cases which held a property owner was liable to trespassing children of tender years whose presence should have been anticipated and who were injured due to the property owner’s use of a dangerous instrumentality or creation of a dangerous condition. Plaintiff also sought to show that as an infant she could not be guilty of contributory negligence and, since the statute referred to contributory fault, it was inapplicable.

Egan reasoned that “[t]he effect of the statute is to absolve a railroad company from a duty to a trespasser.” 29 N.J. at 248 (emphasis added). However, Egan did not limit the applicability of N.J.S.A. 48:12-152 to trespassers. Egan noted that at common law the landowner owed no duty to trespassers other than to refrain from wilful and wanton conduct and that this principle had been applied to railroads, so that their immunity from liability was not predicated upon the statute. Kaproli v. Central R. R. of N.J., 105 N.J.L. 225 (E. & A. 1928). Under the Railroad Immunity Act, the plaintiff’s activity was deemed to have “contributed to the injury sustained.” Egan pointed out that at common law “it was unnecessary to consider the question of the trespasser’s contributory negligence. Contributory negligence only [became] a factor when there [had] been a breach of duty by the alleged tortfeasor.” 29 N.J. at 251 . Egan concluded “that the statute was enacted for the purpose of providing immunity from liability in those cases that come within the factual situations set forth therein.” Id. at 251 (emphasis added). Accordingly, Egan stands for the proposition *465 that the statute applies to a person irrespective of his status as an infant trespasser provided he is injured while walking, standing, or playing on a railroad or jumping on or off a car while in motion. Such strict construction is consonant with the policy expressed in Potter v. Finch & Sons, 76 N.J. 499 (1978), that the statute as an immunity act be strictly construed.

The statute is directed to conduct, not status. It must be borne in mind that under our decisional law a plaintiff’s status is a factor in determining the duty owed by a property owner. Status is inextricably intertwined with the scope of the duty owed by the property owner. Only after that duty is defined and a breach ascertained is attention directed to the plaintiff’s conduct. The structure of the statute, though, addresses the plaintiff’s conduct irrespective of his status.

If the plaintiff’s conduct falls within the proscribed statutory areas, he is deemed to have contributed to the injury and recovery is barred. In enacting the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., the Legislature provided that “[cjontributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property.” The Act states that “[i]n all negligence actions in which the question of liability is in dispute,” the fact finder is to determine the total amount of damages and the respective percentages of the plaintiff’s and defendant’s negligence. N.J.S.A. 2A: 15-5.2. The Act has been interpreted broadly because “[i]t was the legislative belief that the Comparative Negligence Act would ameliorate to some extent the harshness which could result in application of contributory negligence in all tort actions.” Suter v. San Angelo Foundry & Machine Company, 81 N.J. 150, 161 (1979) (emphasis added). M. Iavicoli, legal counsel to the No Fault Commission, who formulated and drafted the legislation observed:

One must not be mislead [s/c] as to the effect of the Comparative Negligence Act by the fact that the comparative negligence recommendation emanated from the Automobile Insurance Study Commission. The New Jersey Comparative *466 Negligence Act applies to all negligence actions wherein fault concepts apply in ascertaining the presence or absence of a deviation from the community standard of conduct, such as, product liability accidents, malpractice liability accidents, motor vehicle liability accidents, slip and fall liability accidents, railroad liability accidents, airplane liability accidents, etc. [M. Iavicoli, No Fault & Comparative Negligence in New Jersey (1978), at 173 (second emphasis added)]

The sweeping language of the Act and the legislative desire to restrict the conclusive effect of contributory negligence satisfy me that the Legislature also intended to loosen the total bar attributed to contributory negligence in N.J.S.A. 48:12-152 and modified that statute accordingly. 1

The majority’s analysis leads to the same result in this case. However, in so doing, it substitutes judicial policy for legislative intent. In this respect I agree with Egan which refused to modify the statute to accommodate the change in the decisional law regarding trespassing infants because

to do so would be a judicial usurpation of the legislative function. There is no question that the Legislature, subject to constitutional limitations, may fix the State’s policy as to rules of conduct which result in liability or non-liability, [citations omitted] In such circumstances it is the duty of the court to apply the legislative will notwithstanding that it may conflict with the court’s own philosophy. [ 29 N.J. at 252 ]

More importantly the majority has abolished the doctrine of contributory negligence. The majority has not considered the effect of its elimination in situations other than personal injury actions. The judicial process is better served by retaining flexibility which is lost or limited when a sweeping general principle is adopted.

*467 Justice PASHMAN joins in this opinion.

PASHMAN and SCHREIBER, JJ., concurring in the result.

For reversal and remandment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER — 6.

For Affirmance — None.

In a comparable situation this Court acknowledged that the Comparative Negligence Act, N.J.S.A. 2A: 15-5.1 et seq., modified the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-3. Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 569 (1980). The majority fails to perceive or acknowledge the difference between a statutory modification and implied repeal of the Railroad Immunity Act.

The majority’s reliance on the legislative attempt to repeal the Railroad' Immunity Act, S. Bill No. 1454 (1978), aborted by the Governor’s veto, as supportive of its position is misplaced. The Legislature acted solely in response to Justice Pashman’s dissent in Potter v. Finch. If the Legislature had had its way, the Act would be extinct.