holding, in a case where the plaintiff was struck by a train and killed, that a jury could find the defendant’s failure to guard the railroad crossing to be palpably unreasonable because it “knew of the risk, knew that having guards operate the gate eliminated that risk, and knew that people who ordinarily traversed the crossing during the racing season likely would have believed that open gates meant it was safe to proceed”
How later courts described this case
- holding, in a case where the plaintiff was struck by a train and killed, that a jury could find the defendant’s failure to guard the railroad crossing to be palpably unreasonable because it “knew of the risk, knew that having guards operate the gate eliminated that risk, and knew that people who ordinarily traversed the crossing during the racing season likely would have believed that open gates meant it was safe to proceed”
- noting that one consideration in deciding whether property is in dangerous condition is if “the property poses a danger to the general public when used in the normal, foreseeable manner”
- analyzing risk posed by an unguarded railroad crossing from viewpoint of reasonable members of the general public
- explaining the Garrison standard
Written by the judges who cited it.
The opinion
*133 COLEMAN, J.,
dissenting.
I would affirm the judgment dismissing the complaint substantially for the reasons expressed by the Appellate Division in its well-reasoned opinion. I write separately to state why I believe the majority has misapplied our recent decision in Garrison v. Township of Middletown, 154 N.J. 282 , 712 A.2d 1101 (1998). Unlike the majority, I conclude that the Elkwood railroad crossing did not constitute a “dangerous condition” within the meaning of the Tort Claims Act, N.J.S.A. 59:4-2 (Act).
To recover under the Act, a plaintiff must prove, among other things, that at the time of the injury the public entity’s property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and that the dangerous condition proximately caused the injury. N.J.S.A. 59:4-2. Even if each of the above elements is proven, the Act imposes no liability on a public entity “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.” Ibid.
Essential to<the determination of a public entity’s tort liability is the definition of the statutory phrase “dangerous condition.” The Act defines a “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” N.J.S.A. 59:4-1a. Thus, by its very terms, the Act explicitly requires that a dangerous condition can be found to exist only when the public entity’s property “is used with due care.” Hence, the real question in this case is whether permitting people to use a flat railroad crossing without operational safety gates created a substantial risk of injury when the property was used with due care. The phrase “due care” in the context of this case focuses first on the threshold determination of whether the public entity’s property was in a dangerous condition.
In Garrison, supra, 154 N.J. at 293-94 , 712 A.2d 1101 , the Court held that for purposes of the public entity’s liability under the Act, a condition of the publie property is not dangerous unless *134 the specific plaintiff who brought the action, as opposed to the generic class of potential plaintiffs, satisfies the threshold requirement that he or she used due care in a reasonably foreseeable manner when encountering the property.
When the property poses a danger to all users, an injured party may establish that the property was in a dangerous condition notwithstanding his or her failure to exercise due care. In that case, the plaintiffs negligence does not relate to due care but rather to issues of proximate cause or comparative negligence. Unless the property can be said to pose a danger to all users, courts must first concentrate on the activity in which the plaintiff engaged. The purpose of the evaluation is to ascertain whether the plaintiff engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property. As we observed in Garrison , “[t]he focus of the inquiry is not on the details of the plaintiffs activity, but on the nature of the activity itself.” Id. at 292 , 712 A.2d 1101 .
Application of the Garrison principles to this case leads me to conclude that the record does not establish that the Elkwood unguarded railroad crossing was a dangerous condition to all users. The crossing was visible for some distance — it was flat with unobstructed view in both directions. The accident occurred on a clear day. There was at least one sign posted stating “Stop use caution.” The train that struck decedent sounded audible warnings before the accident. In light of those facts, the conclusion “that plaintiffs use was not ‘with due care’ is manifest.” Id. at 293 , 712 A.2d 1101 . The decedent’s failure to yield to a clearly visible train that was sounding audible warnings was so objectively unreasonable that the condition of the property cannot reasonably be said to have caused the injury. The crossing was safe when used with due care, and the risk of harm was created only when foreseeable users failed to exercise due care. Id. at 290 , 712 A.2d 1101 . I agree with Hawes v. New Jersey Dep’t of Transp., 232 N.J.Super. 160 , 556 A.2d 1224 (Law Div.), aff'd, 232 N.J.Super. 159 , 556 A.2d 1224 (App.Div.1988), and Lopez v. New Jersey *135 Transit, 295 N.J.Super. 196 , 684 A.2d 986 (App.Div.1996), that the objectively reasonable member of the public is expected to cross railroad tracks without incident. I also agree with the Appellate Division in this case that this should particularly “be so when the train is visible, sounding audible warnings and the crossing contains both a stop sign and a caution sign. Proceeding in the face of these circumstances does not bespeak use of the property with due care.”
I would therefore affirm the judgment of the Appellate Division.
Justice LaVecchia joins in ths opinion.
For reversal and remandment — Chief Justice PORITZ and Justices STEIN, LONG, VERNIERO and ZAZZALI — 5.
Dissenting — Justices COLEMAN and LaVECCHIA — 2.