Opinion
DOCKET NO. A-0385-13T4
06-20-2014
YUN CHEN, Plaintiff-Appellant, v. NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, on the brief). Jessica M. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Anderson, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9013-11.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, on the brief).
Jessica M. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Anderson, on the brief). PER CURIAM
In this personal injury action, plaintiff Yun Chen appeals the Law Division order that granted summary judgment to defendant New Jersey Transit Corporation (NJT) and dismissed her complaint with prejudice. Viewing the evidence on the motion record in the light most favorable to plaintiff, the trial court concluded she had not established a triable issue as to whether she was injured as a result of a dangerous condition of NJT's property. We affirm.
Plaintiff was injured at NJT's train station in Edison. According to her deposition testimony, she had taken a train from her home in New York to visit an aunt. She exited her train at the Edison stop and telephoned her aunt to let her know she had arrived. While speaking with her aunt, the NJT train she had exited left the station.
After the NJT train that plaintiff had exited left, another train passed through the station. She testified: "[A]nother train came by at a very fast speed and then my arm was injured." Plaintiff could not determine whether that train was an NJT train or an Amtrak train.
As the train passed through the station, a heavy metal object, about the size of a softball, struck plaintiff's right hand. There was a screw on one side of the object, but not on the other. Plaintiff did not see where the metal object came from or how it was propelled through the air.
Someone called the police and the police had an ambulance transport plaintiff to a hospital where doctors stitched up and casted her hand. She eventually underwent surgery for her injury.
Plaintiff filed a single-count complaint against NJT and alleged that NJT either negligently operated or maintained its train so as to create a dangerous condition, which caused her injury. NJT filed an answer, denied the complaint's allegations, and asserted numerous defenses under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
Following discovery, NJT moved for summary judgment. In the statement of material facts it submitted with its summary judgment motion, NJT recounted plaintiff's version of the events leading to her injury as set forth in her complaint and deposition testimony, and quoted hearsay statements of two witnesses and a police officer contained in NJT and Edison police reports.
Rule 4:46-2(a) requires a party moving for summary judgment to include with the motion a "statement of material facts . . . with or without supporting affidavits." The rule requires that the statement of material facts "set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." The rule further requires that the citation "identify the document and . . . specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on." The court may deny without prejudice a summary judgment motion "for failure to file the required statement of material facts." Ibid.
The two witnesses were walking behind plaintiff when the incident occurred. They are quoted in one of the police reports as saying they "noticed a possible Amtrak train traveling South in the center track . . . [and] noticed a metal object fall off the train or kicked up by the train fly in the air and strike [plaintiff]." In the other police report, an officer wrote that "a check with the Amtrak office revealed the only westbound trains on track three in that area were Amtrak 141 and 643. Amtrak 141 stopped at Metropark train station and Amtrak 643 stops at Newark Airport thus resulting in Amtrak 643 accelerating at a higher speed in that location."
In opposition to the summary judgment motion, plaintiff responded to NJT's statement of material facts. She admitted the account of the accident she had given in her complaint and deposition, and admitted the existence of the police reports but disputed the truth of the statements contained in those reports.
Plaintiff neither objected to the hearsay statements based on Rule 1:6-6 ("If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ."), nor cited to the factual basis in the record supporting her dispute of the witnesses' hearsay statements, see R. 4:46-2(b).
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The trial court granted NJT's motion. Plaintiff appealed. She presents the following arguments:
The trial court erred in granting [NJT's] motion for summary judgment and dismissing plaintiff's complaint as a matter of law.
A. Plaintiff, an invitee of [NJT], established a prima facie case of liability under N.J.S.A. 59:4-2.
B. Plaintiff vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the "mode of operation" doctrine.
When a party appeals an order granting summary judgment, we review the motion de novo and apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Having considered the facts in the case before us under that standard, we conclude that the trial court properly granted summary judgment to NJT.
We first address the argument in point A of plaintiff's brief. The elements of a liability claim against a public entity for an injury caused by a condition of its property are contained in N.J.S.A. 59:4-2, which provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
"This provision places the burden squarely on the plaintiff to prove each of its elements . . . ." Carroll v. N.J. Transit, 366 N.J. Super. 380, 386 (App. Div. 2004) (citations omitted). Plaintiff has failed to establish either that a dangerous condition existed, or that NJT had notice of a dangerous condition on its property.
Fatal to plaintiff's proofs is that she does not know the source of the object that struck her hand, or how it struck her hand. The object could have come from a passing train, which is consistent with the statements of the witnesses who were walking behind her, or, as plaintiff theorizes, the object could have been "kicked up" from the tracks. But absent evidence that the object came from an NJT train, plaintiff cannot establish that NJT's property was in a dangerous condition or that NJT had notice of such dangerous condition. And even if the object had been "kicked up" from the tracks, plaintiff offered no evidence that an incident had ever occurred where an object had been "kicked up" from the tracks by a passing train, or that a similar object had been on or near the tracks long enough for NJT to have discovered it.
Stated differently, plaintiff presented no competent evidence from which a reasonable jury could have inferred that NJT had notice of a dangerous condition. Plaintiff "is required to show by competent evidential material that a genuine issue of material fact exists." James Talcott, Inc. v. Shulman, 82 N.J. Super. 438, 443 (App. Div. 1964). "Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (citation and internal quotation marks omitted).
Plaintiff's argument in point B of her brief that she "vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the 'mode of operation' doctrine" is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We have previously held that the doctrine of res ipsa loquitur does not apply to personal injury claims against public entities based upon the existence of an alleged dangerous condition of public property, Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 327 (App. Div. 2000), and that "the mode of operation rule has no application to a public entity whose liability for maintaining a dangerous condition is rigidly confined to situations where, among other requirements, the public entity . . . was actually or constructively aware of its existence," Carroll, supra, 366 N.J. Super. at 390.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION