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Roe by M.J. v. New Jersey Transit Rail Operations, Inc.

Superior Court of New Jersey, Appellate Division

October 14, 1998, Argued ; December 24, 1998, Decided

A-883-97T1

Opinion

 [*74]  [**303]   The opinion of the court was delivered by

STEINBERG, J.A.D.

Plaintiff Mary Jane Roe (a fictitious name) by her mother and natural guardian M.J. appeals from the grant of summary judgment in favor of defendant New Jersey Transit Rail Operations, Inc. (NJ Transit) and from the subsequent denial of her motion for reconsideration. We agree with plaintiff that there were genuine factual issues that precluded the grant of summary judgment and that Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 688 A.2d 1018 (1997) which was relied upon by the motion judge, is distinguishable on [***2]  its facts from those here alleged. Accordingly, we reverse.

] Since this is an appeal from the grant of summary judgment, we review the evidence on the motion in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523, 666 A.2d 146 (1995). According to that evidence, on August 6, 1994, plaintiff, then twelve years old, was sexually assaulted by an unknown assailant. Plaintiff had been walking behind her sisters from her home to a public swimming pool. The route they took, a common route to the pool, crossed the north end of the Orange Street City Subway Station located at a grade level crossing of the Newark City Subway. The station is owned by the City of Newark, but is leased to NJ Transit. Inbound trolley cars stop on the south side of Orange Street and outbound trolley cars stop on the north side of Orange Street. An overpass for Interstate 280 (I-280) passes over the outbound side of the platform. Passengers using the trains wait on a wooden platform at the station where the cars stop to pick up and discharge passengers. A mile-long fence along the tracks, erected by NJ Transit on railroad property, separates [***3]  the station  [*75]  from the [**304]  adjacent Essex County park, known as Bound Brook Park. There is a gate in the fence beyond the passenger area leading into the park from the station which opens directly under the I-280 overpass. The gate, which permits access to the tracks by NJ Transit personnel, is also a commonly used entrance to the park and provides a shortcut through the park. It is undisputed that the gate and the fence are on property controlled by defendant. On the inside of the fence near the gate is a large NJ Transit sign for Orange Street.

The gate is mainly used by students who go through it to and from public school, and is also used as an entrance to the park. In his deposition, the superintendent of the Newark Subway System explained that while the gate had a latch, it had been generally left open and students from the area had been accustomed to swing on it, causing it to break. As a result, in either 1989 or 1990, the gate was bolted permanently open to prevent them from swinging on the gate and damaging it. The gate had not been bolted closed because it had been open for years and was known to provide access to the park. Although NJ Transit contends that the gate is not used [***4]  by its passengers, the superintendent of the subway system conceded in his deposition the possibility that NJ Transit passengers use it for access to the station.

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317 N.J. Super. 72 *; 721 A.2d 302 **; 1998 N.J. Super. LEXIS 511 ***

MARY JANE ROE A MINOR, A FICTITIOUS NAME, BY HER MOTHER AND NATURAL GUARDIAN M.J., PLAINTIFF-APPELLANT, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. AND JOHN DOE AND RICHARD ROE (SAID NAME BEING FICTITIOUS), DEFENDANT-RESPONDENT.

Subsequent History:  [***1]  Approved for Publication December 24, 1998.

Prior History: On appeal from the Superior Court of New Jersey, Law Division, Essex County.

CORE TERMS

gate, dangerous condition, fence, station, assault, bolting, public entity, passengers, adjacent, overpass, subway, public property, permanently, invitation, tenants, path, condition of property, deposition, assailant, shortcut, erected

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Summary Judgment Review, Standards of Review, Governments, State & Territorial Governments, Claims By & Against, Torts, Public Entity Liability, Liability, State Tort Claims Acts, Exclusions From Liability, Premises & Property Liability, General Premises Liability