Renz v. Penn Central Corp.

RENZ, AND MADELINE PLAINTIFFS-APPEL FREDERICK RENZ CORPORATION, LANTS, IN v. PENN CENTRAL SUCCESSORS BLANCHETTE, RICHARD C. W. INTEREST TO ROBERT MACARTHUR, BOND, THE TRUSTEES OF AND JOHN H. CORPO OF PENN CENTRAL TRANSPORTATION PROPERTY DEFENDANT-RESPONDENT, RATION, AND CONSOLIDATED CORPORATION, CORPORATION, A PENNSYLVANIA RAIL DOE, DOE, EMPLOYEES AND RICHARD UNKNOWN JOHN SEVERALLY, DEFENDANTS, JOINTLY, OF THE AFORESAID ALTERNATIVE, THE DEFENDANTS. AND IN September January 1981. Argued 1981 Decided .438 (Tomar, Kudatzky argued appellants cause for K.

Steven Adourian, A. Parks, Seliger, attorneys; Ronald Simonoff & counsel). Graziano, of Scatchard, argued respondent B. the cause for

William Jr. Scatchard, (Capehart attorneys). & was delivered opinion Court HANDLER, J. Renz, Jr., plaintiff, age then

In this case the Frederick walking along were Railroad companions four Penn Central tracks, attempted April Renz to cross between when climbing coupling. of a over the stationary cars train engaged activity in this and he fell The train moved as Renz was resulting ultimately in the loss beneath the wheels of the train leg a other. one and fracture of the by guardian his ad litem instituted an action Plaintiff some of damages recover for from the railroad and act, immunity employees. The railroad raised the railroad 48:12-152, this Plaintiffs moved to strike N.J.S.A. a defense. Act, Comparative theory Negligence on the defense 2A:15-5.1, -5.2, superseded the rail- either or modified N.J.S.A. were immunity comparative principles act so fault road applicable now in cases this. like Division, motion was denied. The plaintiffs’

In the Law completely judge immunity trial reasoned that the railroad act by absolving any duty liability exonerates a railroad from it of “[njegligence depends upon an anteced- trespassers. Because reasoned, negligence, and duty,” the court ent any play part could no comparative negligence, therefore against action a railroad. strike, moved plaintiffs motion to

Following the denial appeal interlocutory leave determination. successfully for granted then direct certification. This Court

I appeal, companion Conrail, This as well as the case of Eden v. (1981), today, important 87 N.J. 467 decided raise the same question act, of whether the railroad N.J.S.A. 48:12- recovery against which bars a injuries railroad for sustained by persons engaged particular unauthorized activities on property, railroad continues to insulate a railroad from tort liability light changes of fundamental in our involving the doctrines of contributory comparative and negligence. In a case, Sons, recent Potter v. (1978), Finch & 76 N.J. 499 this issue was raised but was not considered because the accident there prior occurred statutory to current changes in our tort laws relating to these doctrines. The consideration and resolution of case, however, issue in this timely and cannot be avoided. provides: railroad act It shall not be lawful for other than those any person connected with or along the railroad to walk employed upon the tracks of when any except highway. the same injured engine shall be laid upon public Any person by walking, standing playing jumping or car while or on a railroad or on or off a car while injury in motion shall be deemed to have contributed to the sustained damages and owning shall not recover therefor from the or any company

operating crossing the railroad. This section shall not to the of a railroad apply crossing, (emphasis added) lawful person any public private The statute substantively was first enacted in L. c. time, 285. At that the enactment only consisted of the second and third sentences of the statute as appears. it now The first sentence 1903, 257, 55, was added in L. c. except § grammatical minor changes the statute has remained intact since that date.

We note at the construing outset in this enactment statutory language given should be ordinary meaning absent specific intent to the contrary. Levin v. Township of Parsippa Hills, ny-Troy (1980); 82 N.J. Abbotts Dairies v. Arm strong, (1954). Thus, we must first look at the wording evident of the plain statute to ascertain its meaning and intent. by

The statute its unambiguous language provides any person hurt as a walking, standing playing result of or on or along a railroad or its jumping tracks or moving or off a guilty car is of contributory negligence. person Such a is deemed to have injury “contributed to the sustained” and the railroad shall person not be liable to any personal such injuries attributable to that conduct. purport The clear of this language gist and the meaning of its intended is that certain conduct contributory negligence. constitutes

In terms of the applicability of this viability statute and its today, important it is to understand this central theme. That this is the meaning clear of the by statute is illuminated historical sequential reference to the passage present law. statute, noted, as was first enacted in 1869. At that time it referred solely to contributing conduct injury contributory — to the liability of a respect railroad with —and persons certain engaged in such conduct. The statute as a matter of equated certain conduct with contributory negli- gence which posited it as an absolute affirmative defense bar- ring recovery against a railroad. The statute made no reference to the persons status of covered its terms and did not explicitly duty refer to the of care owed a railroad as a carrier, landowner or common nor any did it make reference to trespass or similar involving doctrines per- landowner duties to sons its property.

The later addition of the present first sentence of the statute not, sense, did in any change terms, meaning the essential import of the statutory immunity. explicitly Rather it made walking along unlawful, railroad tracks clearly intending that this activity encompassed liability provisions within the statute, as well providing the railroad with additional sanc- against person tions engaged See, g., such conduct. e. Sons, Potter supra, (statute v. Finch & applied to an eleven- year-old boy walking tracks). on defendant’s railroad Furey Cf. (E. N.Y.C. & 1902) (1869 H.R.R.R. 67 N.J.L. 270 & A. statute, just prior addition, to the 1903 apply person did not to a them, tracks, place than at a

walking rather across railroad straight- crossing). Thus the statute its public than a other scope persons falling may provides forward within terms incorporated damages from a because of the not recover railroad negligence. contributory theory common law of major of railroad immu- obstacle to this construction the interpretation Egan judicial of statute in nity act the perceived That Court the Erie R. N.J. 243 upon immunity hinged statute as the provisions of the trespass, absolving law in effect the railroad theory common of the duty persons engaged activities enumerat- of a care to interpreta- applying in the the statute under this ed statute. it, Egan Court examined New tion to the before the facts trespass “at the time Jersey’s common law doctrine of adoption many years thereafter.” the statute Court, however, Jersey jurispru- at 250. The focused New dence in this as of the date that the statute first area enacted as a whole. It concluded that under the law State, enactment, statutory in the “a landowner as then codified trespasser owed no than to refrain from inflict- duty to a other injury through ing upon him willful and wanton conduct.” Id. at 250-251.

Having statutory codified that the enactment determined liability” “providing common rule from to a trespasser, then reviewed the evolution of id. Court trespass principles, common law which had led in more recent doctrine,” concluded, times to a flexible id. at 252-253. It “more that, nonetheless, trespass did intend that doctrine, incorporated as statute be altered or fully so with it viewed to be modified as to be coincident what of its the relevant law at the time decision.1 decisional decision, Egan premised upon 1An the common law assessment of the trespass, proffered than which is doctrine rather case, greatly concurring opinion simplify in this our task of would enacting ascertaining original Legislature’s intent in statute. court, then, by Egan In view of this the we analysis cannot legal conclude with the theory underpinning sureness that the statutory enactment was one of contributory rather trespass solely upon than to appears based what be the clear However, of import language the the of statute. because the legal theory correct of statute is our analysis the crucial to of its time, terms at this we must look further ascertain whether legislative the intent indeed indicates that clear words the of the bespeak statute that contributory negligence are to be disre- garded trespass and that is to be underlying legal deemed the theory so, of doing ¿gree the act. we with the general methodology Egan the such inquiry of Court that must commence with an evaluation of “the common law of New Jersey .. . adoption the time of the of statute.” 29 the N.J. [a]t However, view, journey 250. in that our means a back to before, operative provision 1869 and liability since the substantially statute was enacted form its current at that date rather than the 1903 when additional element was added. Thus, question Legislature answered is to be whether the negate duty intended its enactment to railroad’s to individu- als within scope trespass, as Egan based doctrine of statute, despite viewed the fact that the chose to contributory frame statute in terms of negligence and fault.

II A century ago, jurisprudential principle for the basis no liability person that to a landowner a attached when injured clearly while improperly firmly his land was not or Nevertheless, ignore Egan we cannot the clear determination contributory negligence of statute is doctrine under the “irrele- vant,” 29 N.J. at “[t]he and that effect of the statute to absolve a company trespasser,” duty to railroad from a id. at 248. Indeed the entire opinion Egan theory trespass, contributory discussed the common law negligence. plainly Egan Id. at This 248-251. indicates Court immunity upon treating concluded that the statute conferred persons trespassers. covered its terms as upon either lack non-liability time was based

settled. At that (a injured doctrine) fault of the (the or the duty trespass re- notion). denying some contributory negligence cases duty of a to the covery trespassers talked in terms lack of trespasser; spoke fault others terms trespasser. cases, question of the Many example, allowed the early to the liability trespassing children to be sent landowners trespass being potentially jury they because viewed an act of g., City indirectly negligence. E. & or indicative Sioux Stout, Wall) 657, 660, (17 21 L.Ed. Pacific R.R. Co. U.S. in a (1874) (discussing “plaintiff’s negligence, whether made form, allegation plaintiff indirectly direct under the that the trespasser”); R.R. 26 Daley was a v. Norwich and Worcester 591, (trespass defendants (1858) 598 did not excuse the Conn. trespasser being negligence the culpable from for their unless 507, Gardiner, injury); Birge the v. 19 Conn. had contributed to (1849) (stating trespass some of involve no fault that acts of of the is the cause “negligence and that defendant here action; responsible consequences the and for entire he alone it, plaintiff’s part”); the of has been fault on unless there Whirley Whiteman, v. (1858)(“defendants 623-624 Tenn. wrongful guilty negligence supposed were . the of ... and .. himself, plaintiff trespassing upon act of in the defendant’s property, liability”). can excuse them from These cases [not] e., upon knowing plaintiff, focused the fault of the /. child not enough alleged guilty negligence, any to of rather than be upon the theory blamelessness the defendant based the of possessed duty plaintiff. to the landowner was not of a Other cases, injured however, trespasser in non-liability looked at to an duty. g., Hendry, terms of a E. v. 34 N.J.L. lack of Vanderbeck 1871) (question plaintiff’s negligence (Sup. of Ct. permission granted jury to the in that improperly submitted Morgan no plaintiff’s duty”); to traverse land “creates Hallowell,. (“the of City (1869) consequences of 57 Me. belong, has they upon . .. him who an accident where [remain] way, though wandered out of may guilty he have been of no ordinary acceptation term”); in Sweeny Colony Newport Old and Railroad Company, Mass.

(1865) (“[t]he owner of the land protect is not bound to or provide safeguards wrongdoers.”). thereabouts, then,

As of 1869 and when the railroad passed, statute was initially employed approaches courts two deny liability trespassers focusing presence on the or —one landowner, absence of duty part on the and one essence, emphasizing the fault of victim. the law had not gelled yet single preferred terms of a or rationale that would generally govern Marsh, generally such cases. See History Invitees, Comparative Trespassers, Law of Licensees and Law.Q. Legislature, It must be assumed that the statute, drafting the initial was aware differing ap- of these proaches. perceive language we the choice em- ployed by Legislature, was no accident. If enacting statute, adopt had wanted to approach presence focusing upon the absence landowner duty, and to codify duty trespassers, a rule no it could very by relating well have simply done so the statute to the status of plaintiff Instead, property vis-a-vis the the railroad. it conduct, clearly plaintiff’s chose to employ- focus action or ing language, fault-based principles negligence, indicative of referring and specifically to the doctrine of fault. because, time, This is of especial significance at this the courts already this adopted State had of contributory the doctrine applied and had it specifically in context of Nichols, Jersey railroad Express accidents. New Co. v. N.J.L. (E. 1867); Jersey Transportation 434 & A. New Railroad and Co. West, (E. 1867); v. 33 N.J.L. 430 & A. Railroad Central Co. v. Moore, 1854). (E. N.J.L. 824 & A.

Examination of the historical context of the immuni- statute, then, ty no discloses evidence that would warrant plain wording legislation conclusion that of this should be Hence, ignored. we conclude that an examination this back- leads to an of the statute forthright construction ground and a Egan. While part from law that differs in interpretation of the stating individ- clearly that agree we can injury sus- to the to have contributed “shall be deemed uals any damages” meant therefor and shall not recover tained as a relevant, common law doctrine judicially-developed adopt a to embrace non-liability, we believe it meant predicate for trespass. negligence, not contributory doctrine of common law theory legal basis judicial discourse about Although the consistent, the has not been immunity since that time of railroad sup- immunity statute involving the railroad decisions earliest as based of the statute port reading and construction liability reasonably clear that the negligence. It is contributory quality of upon the understood to turn of the railroad was trespass- plaintiff his status as a engaged conduct —not based contributory negligence affixing of the bar of er —and the Co., 70 N.J.L. 290 v. Erie Railroad upon that conduct. Powell Co., R.R. 50 N.J.L 478 (E. 1904); Pennsylvania Diebold v. & A. Powell, trespasser attempting to (S.Ct. 1888). a case where a injured, free ride was moving train to catch a jump on a grounds, court, stated: deciding the case on common after injured that a for the person If a statute were needed support proposition negligence, guilty jumping of contributory on or off a train in motion while 806. N.J.L at 293.] L. p. [70 such an enactment is to be found Pamph. subsequent by many was followed early interpretation This the statute in terms clearly cases which viewed Co., 93 N.J.L. 57 Pennsylvania v. Railroad negligence. Zelman 1920); (E. Kowaleski v. 1919), 94 N.J.L. 283 & A. (Sup. Ct. aff’d 1939), Co., (3 cert. den. 308 103 F.2d 827 Cir. Pennsylvania R. (1939); Erie R. Co. v. 84 L.Ed. 467 60 S.Ct. U.S. Swiderski, (3 1912); Pennsylvania-Read- 197 F. 521 Cir. Cohen 1944); Lines, (E.D. also F.Supp. Pa. See ing Seashore 1921); Co., (3 W. R. 274 F. 599 Cir. v. Delaware L. & Houston (E.D. 1940). Co., F.Supp. 214 N.Y. R. Pennsylvania Lissak v. explicitly Egan supra, Erie the cases Prior to R. upon trespass statute was based theory stated that

447 were two Supreme cases, United States Court Erie R. Co. v. Duplak, 440, 610, 52 (1932) 286 S.Ct. 76 U.S. L.Ed. 1214 and Erie Hilt, 97, 435, R. Co. v. (1918), viz, 247 U.S. 38 S.Ct. 62 L.Ed. 1003 seemingly The statute ... in an form the adopts unqualified policy common law as we in New understood, and some believe, Massachusetts, Jersey, injure other that while a landowner states, cannot for a intentionally lay traps coming his person license, without he is not bound to upon premises provide dangers, from other undisclosed or to his trespasser’s safety own interrupt otherwise lawful for the chance that someone occupations provide be may there. U.S. at S.Ct. at unlawfully 443-444, 1216; 76 L.Ed. at [286 611, U.S. at 436, S.Ct. L.Ed. at 1005] Hilt, case, supra, however, lead Erie R. in denying Co. v. liability, relied on a lower Jersey, court decision from New Co., City Barcolini v. Atlantic (Sup. & S.R.R. 82 N.J.L. 107 Ct. 1911), legislative which did not mention at all the intent or underlying theory behind the simply applied railroad statute but the clear denying direction recovery damages statute persons obviously covered its terms. A later decision our highest court reached any the same result but without indication that underlying trespass thesis of the statute was rather than negligence. Co., Drelich v. Erie R.R. 91 N.J.L. (E. 1917). 600 & A. Supreme Thus the United States thoroughly Court did origin examine the basis of correctly statute or meaning define the actual and intent Nevertheless, New Jersey immunity interpretation act. Egan, supra,2 interpretation followed in an which we did not Potter, supra. Still, Egan, undertake to reexamine in after even Division, Appellate terminology mindful of the clear statute, encompassing principles referred to it as of contrib utory negligence. Pennsylvania Co., Kovacs R.R. N.J.Su per. (App.Div.1962). Pennsylvania- 456-457 See Felici v. Lines, Reading N.J.Super. (App.Div. Seashore 378-379 2Egan relied also Hess v. Railroad N.J.L. City Atlantic upon (E. 1921) & A. could which be read to indicate dictum that the statute was underlying based course, Of as we have ex- theory trespass. give conclusion, words of the statute rise to the plained, opposite determination also supported by much of decisional law. underlying whether uncertainty as to

1964) (indicating trespass). contributory negligence or theme is one interpretation consequences of this today, the Until this case practical difference made little immunity of the railroad statute liability because most claimants involving in railroad situations plain words of the recovery by from would have been barred statute, was deemed to incor- regardless of whether the statute Nevertheless, it is contributory negligence trespass. porate case, compan- well as the important disposition of this Conrail, meaning supra, clarify the true to ion case of Eden light significant changes present time in of the statute at the fault, materially relating since in our tort laws if the statute is one consequences may ensue legal different upon principles of contribu- immunity predicates which railroad trespass. expressly We therefore tory negligence rather than statute, stating that the that adopt reach the conclusion and injury to have contributed to the individuals “shall be deemed damages,” any therefor intended sustained and shall not recover grounds rooted in liability from on provide railroad contributory negligence. theory the common

Ill reinterpretation operative Given this reevaluation and statute, approach the main issue before this may we now statute, as it is the railroad based Court —whether contributory negligence, bars upon the common law doctrine of who, while on the tracks without recovery person in favor of a authorization, injured negligently a railroad train.

A sequel to this Court’s respects This is the many case in mother, Sons, supra. There a decision in Potter v. Finch & son, litem for her sued a railroad individually guardian and as ad her son while of the crew of the train which struck members granted The trial court along he walked the railroad tracks. summary judgment in employees, favor the railroad and its relying Appellate 48:12-152. N.J.S.A. Division affirmed and this Court then reversed in part. Determining that the immunity, railroad statute defines an and accordingly was to be construed, strictly the Court determined did act apply Nonetheless, employees. the Court affirmed that the recovery statute barred on behalf plaintiff of the infant railroad, against the other than for willful or wanton conduct. urged Comparative Act, It was Negligence Potter 2A:15-5.1, replaced N.J.S.A. which common law defense of contributory negligence with comparative negligence doc- trine, impliedly repealed or otherwise modified the railroad act, immunity serving replace to bar the absolute of contributo- ry negligence provided partial in that act with the bar of comparative negligence. Pashman, responding Justice to this dissent, “emphasizefd] assertion in any his that railroad related injury occurring August on or after 1973—the effective date Act, Comparative of the Negligence N.J.S.A. 2A:15-5.1—would view, be date, not case.” his controlled this after that “where salutary statutory enactment and the relic con- [that] flict, the 76 at prevail.” former would Id. N.J. How- 509-510. ever, because the in accident that case occurred in December 1972,prior the the Comparative Negligence to effective date of Act, majority of the Court did not the question address impact Comparative Negligence Act N.J.S.A. question 48:12-152. Id. at n.3. That is now at hand. indicated, plaintiffs As urge passing in Comparative Negligence Legislature impliedly repealed Act the the railroad immunity repealer doctrine, however, The implied gener act. is disfavored, 133, 154 ally City Byrne, (1980); of Camden v. 82 N.J. Morristown, 160, 164 New Jersey (1974), P. B. A. v. 65 State N.J. required searching and is not this in proper in case for legislative understanding of the railroad act. That understanding by searching can be reached examination purpose historic of the 1869 enactment. Such historical ascertaining appropriate meaning review is in crucial to be proper applica- to its the statute and serves illuminate accorded is analytic approach not unlike present time. This tion at the 251-252, Egan, the Court undertaken enacting determine whether changes recognize any evolutionary in 1869 intended statute been that had codified operative in the common doctrine statute, how- As we have construed the original statute. doctrine, subject- ever, must be operative common law which contributory negligence, analysis, ed this is that of trespass. the common law. Its

Contributory negligence a doctrine of reported origins judicial, having appeared in a court are it first Forrester, Eng. 11 East decision in Butterfield v. Rep. Bohlen, Negligence, 21 Contributory 926. Harv.L.Rev. Law, Green, of North- (1908); Negligence Illinois 39 Ill.L.Rev. James, Negligence, 62 (1944); Contributory western Univ. 36 Torts, James, (1953); Harper Yale Law L.J. (1971). Prosser, found (1956); The Law of Torts It 22.1 § § through judicial way into the common law State century. Co. of the last Central Railroad decisions in the middle Rediker, Moore, (E. 1854); Vandergraft A. 24 N.J.L. 824 & Note, Hall L.Rev. (Sup.Ct.1849). 1 Seton N.J.L. See Note, (1970); development As 26 Rut.L.Rev. judi- law, negligence was based contributory the common Bohlen, su- public policy and social values. perceptions cial of James, pra; supra. undergone itself contributory negligence has

The doctrine of oscillating change the course of its evolution. Central in Moore, presents inkling supra, v. 1854 an initial Railroad Co. inception: judicial of a doctrine even uneasiness about the go Although cases far as to that the decide, it has been that the so supposed degree great however on the want of of care whatever, part plaintiff, any concurring negligence of a the defendant, with the the will recovery by preclude that authorities, we are after a examination of all former, satisfied, careful N.J.L. at understood, no well considered sustains that position. [24 case properly quoting & from 1 Adol. Ellis Nurdin, N.S.] Lynch

451 Nonetheless, legisla- a mere decade time later —at the of this tive contributory of negligence enactment —the doctrine had come precluding recovery to be viewed as part of a negligent plaintiff, regardless degree culpability. of his Compare Jersey West, Transportation New Railroad & Co. v. (Sup.Ct.1866), (E. 1867) N.J.L. 91 aff’d 33 N.J.L. & A. with Express Nichols, New Jersey (E. 1867). Co. v. N.J.L. A.& Contributory negligence however, precept, as common law also experienced liberalizing influences. Most significantly, judicial recognition there was application defense, negligence contributory plain- it must be shown that tiff’s is a conduct direct or effective cause the accident in order to recovery. Pennsylvania bar Thus in R. R. Co. v. Righter, (E. 1880), 42 N.J.L. adopted & A. the Court what significant exceptions seemed be to the defense of contributory negligence. negligent injury of his If, act, would have means of spite occurred by negligent injury conduct of the or if defendant, is disconnected from his legal injury. act there is then no contribution cause, to the independent any “fairly

The Court noted question also debatable” as to whether plaintiff’s negligence contributed the accident is jury. similarly, Id. And a distinction between “remote” “proximate” contributory negligence was employed in Men ger Laur, (Sup.Ct.1893). 55 N.J.L.

These seemed parallel evolving generally, cases the doctrine liable, though plaintiff that a even defendant contribut- ed injury, to the if the last defendant had the clear chance to avoid the accident. This doctrine of the last clear chance course, flowed, metaphysical from notions causation well as general resistance to the defense. James, Doctrine, See A Last Clear Chance: Transitional 47 Yale Chance, L.J. (1938); MacIntyre, The Rationale Last Clear Harv.L.Rev. general notwithstanding, trend the Court of Errors and Appeals explicitly explanation repudiated and without the doc- Ry. trine of last clear chance in Brennan v. Public Service 452 (E. 1930). Although last clear chance & A.

106 N.J.L. State, however, between in this distinction adopted negligence, proxi- merely contributory and remote or conditional Public Ser- contributory negligence mate remained. Sutton v. Co., 947, (2 1946), 157 F.2d 948 Cir. cert. Transp. vice Interstate 828, 870, (1946); Pangborn L.Ed. 1277 den. 330 U.S. S.Ct. J., 84, (1955).3 of N. 18 N.J. 100-102 v. Central Railroad Co. 1959, contributory Egan, time of the doctrine at the narrowed, although flexible negligence, modified and more burdens, essence, was, trespass, allocating like the doctrine of for had the importance intact. This is of we note even negli- contributory Egan analyzed applied and the law Court it not and should not have gence trespass, than would rather reflecting suffi- of that doctrine as viewed the modifications values as warrant a underlying policy cient shift in and social application the statute. The statute was meant different policy be the doctrine and of contributo- hinged upon and reflect time ry negligence essentially passage as it existed at the any which long as “there existed reasons legislation so Merenoff, v. justly undergird still the doctrine.” Merenoff 535, (1978) (involving interspousal N.J. common Risko, doctrine); 482, (1970) v. 56 N.J. Immer (same); 44, (1961) (same). As the Long Landy, 50-51 as of contributory negligence was alive and well doctrine Egan have the same conclusion as the we would reached time. regard Court in to the statute away 3Contributory negligence was further winnowed somewhat rulings party plaintiff. contributory negligence of a third cannot bar that the (1949) (passenger Pennsylvania 323-324 Kaufman v. Railroad N.J. driver); negligence of Menth v. in a not barred car was Inc., (1950) (defendant negligently Corp., Breeze 441-442 who N.J. way promoted spread of a fire was liable even maintained shed which Nichols, though fire); party Rappaport N.J. another started (tavern (1959) unlawfully liable who sold alcohol minor was 202-206 owner party party to a for a accident the minor even third traffic between though accident). minor caused

453 B We must still evaluate the evolution of the common law doctrine of contributory negligence and viability the continued of the reasons which underlie that doctrine since the time Egan. major change development has been the and emer gence comparative negligence.4 doctrine of As of 1950 comparative negligence adopted had been in the common law Britain, jurisdictions of Great all provinces, the Canadian New Zealand Prosser, and Western Comparative Negli Australia. gence, 1, (1953). However, 1968, 41 Cal.L.Rev. 2 as late as well after Egan this Court’s opinion, recog all but seven states still nized the of contributory negligence defense in its traditional Schwartz, form. Contributory Comparative G. Negligence: 697, Reappraisal, Nonetheless, A (1978). 87 Yale 697 L.J. com parative negligence has overwhelming support since attracted the United majority States and 1974 it had become the rule. accepted Id. It is Symposium, now in over 40 states. See 82 473, 477-478, W. (1980). Va.L.Rev. 30-31 n. Supreme 1973 Court Florida became the first Ameri

can court century judicially adopt comparative negli in this gence. Jones, (Fla.). Hoffman v. relatively 280 So.2d 431 In period many short courts have followed Florida. Judicial adoption comparative negligence of the doctrine of is now well-accepted practice theory. as well as Li v. Yellow Co. Cab California, 858, 804, Cal.Rptr. 119 13 532 1226 Cal.3d P.2d (1975); Co., 397, United States v. Reliable Transfer 421 95 U.S. 1708, State, (1975) (admiralty); S.Ct. 44 L.Ed.2d 251 Kaatz v. 4Additionally, negligence plaintiff the notion that remote would not bar a expanded negligence so have been a must “substantial recovery. Corporation, factor” in bar order to v. Bethlehem Steel 59 O’Brien 114, ,See (1971). N.J. John’s & Shirt 124 - 125 also Dziedzic v. St. Cleaners 128, Launderers, Caulfield, Inc., (1969). N.J. v. 53 165 Cf. Latta (1979) (distinction directly” plaintiff 133 who “contributed between plaintiffs negligence result and “was cannot recover and the situation where only remotely indirectly involved.”)

454 Larson, (Alaska S.Ct.1975); Kirby 400 Mich.

540 1037 P.2d Appalachian Power (1977); Bradley 256 N.W.2d 400 Rizzo, (W.Va.S.Ct.1979); Scott v. 634 P.2d S.E.2d Ribar, Ill.App.3d (N.M.S.Ct.1981); Alvis v. compara Ill.Dec. 421 N.E.2d fears about overwhelming it now diminished and is an tive have everywhere. Pros ly jurisprudence rule almost See accepted Continuity in the 1; Keeton, Creative ser, supra, Cal.L.Rev. Torts, Van (1962); Law of 75 Harv.L.Rev. Symposium, Schwartz, Comparative Negligence derbilt L.Rev. (1968); V. Keeton, Legal 697; supra, L.J. Schwartz, 87 Yale (1974); G. Cases, Harv.J.Legis. Comparative Negligence and Process Powell, But cf. (1980); Symposium, supra, 82 W.Va.L.Rev. 473. Contributory Negligence: Necessary A Check on American Jury, 43 A.B.A.J. comparative of judicial adoption for the policy

The reasons a forcefully expressed by Justice Francis in negligence were Corporation, v. Bethlehem in O'Brien Steel opinion concurring 114, 125 majority (1971) (the four-person which a N.J. case in contributory negligence be a of held that must the Court first Francis, bar). be a Justice with whom “substantial factor” to joined, Justice Proctor stated: negligence to was The rule that is bar contributory complete recovery judges. have been the into the common Whatever may imported by unjust justification regarded it is it, historical almost today universally loss whose to visit an entire accidental on one of parties and inequitable negligent negligence with conduct combined the other party produce

the loss. If is to remain the test of then doctrine fault liability, negligence among which of the loss those involves comparative apportionment fault is more consistent with based whose contributed to occurrence liability on a fault premise. just negligence The a more and socially principle comparative represents desirable distribution of loss than that ever achieved the application by long-standing negligence. I that if rule of believe also contributory comparative negligence State, were to made in our settle- be applicable pre-courthousesteps jury encouraged; trial; more trial ments would be there would be waivers clogged. would be less would be less of a and calendars problem; delays negligence judge-made Since the bar of present contributory our law, adopting humanize that law authority is not comparative open to reasonable change. and the time seems to make question, ripe [Id. 126.] The Court did not feel the need to act Justice Francis’ suggestion and grounds. decided the case on narrow Nonethe- less, the velocity of rushing tide growing; there was heightened recognition that underpinning the reasons contribu- tory negligence flawed, were discordant with notions of social justice and out harmony with contemporary values. Legislature

The itself obviated the judicial need for direct action adopting an providing act for comparative negligence, May effective on 2A:15-5.1, 1973. recog- N.J.S.A. -5.2. nizing the changes fundamental public policy origins since the of the doctrine of contributory negligence and the irresistable demand for just a more framework for imposing liability, per- mitting redress apportioning personal injuries losses for field, the tort pointedly stigmatized the harsh and anachronistic doctrine of contributory negligence, viz: legislation unjust

This modifies the most outmoded and law of this that is State, negligence. the law of accompanying [Statement L. c. 146.] Legislature, essence, gave parliamentary endorsement to an insistent and public policy, filling undeniable a breach in legal our system which the courts could well have filled them- selves in the exercise of powers expound their the common law.

This evolution of principle the common law comparative of negligence jurisprudence has also been witnessed in our involv- ing Thus, strict liability. Inc., Leasing, Ettin v. Ava Truck 53 463, (1969) Court, N.J. 474 per Jacobs, the Justice indicated that judicial adoption of comparative negligence principles might be And, welcome. Comparative the Negligence recently Act was applicable deemed liability to strict actions “in those circum- scribed plaintiff’s areas in which may conduct be found to constitute contributory negligence.” Angelo Suter v. San Foundry Co., 150, (1979). & Machine Importantly, Justice writing Schreiber for the Court noted that “we are not judicially be comparative negligence could that

unmindful adopted liability Id. at n. 3. in strict cases.” jurisdic Accordingly, it clear that the common law of is undergone change adoption of the tion massive since the has today compelled to in 1869. This Court is act longer a part is no recognize negligence that which for the reasons Jersey jurisprudence, New common law its evanesced and originally justified the doctrine’s birth have supportive longer historically values no nourish continued buttressed, though alone firmly survival. This conclusion compara significant statutory the enactment by, dictated repudiation express legislative tive doctrine and the on this scale contributory negligence. Legislative action law,” impulse the common “generative serves as a forceful into judiciary engaged the which is in the especially relevant growth Haynes law. v. First decisional common Nat’l Bank, (1981); Lally Copygraphics, State 188-89 N.J. Towing (1981); Van N.J. Beeck Sabine 342, 351, 452, 456, L.Ed. U.S. S.Ct.

short, policies originally which statute confirms that exist; longer underlay contributory negligence no doctrine which become gave mores rise the doctrine have moribund and set in this replaced have been different of values both jurisdiction throughout recognized, and nation. It is now injury is realistically justly, responsibility and for tortious by and victims and tort frequently authored shared between Consequently, liability injury alike. resultant simi feasors be larly responsibilities participants should and mirror apportioned fault. in accordance with their combined entirely comparative negligence, we conclude theories, legal upon fundamentally new doctrine based different values, policies law replaced and social has the common doctrine contributory negligence. To the extent common relating liability continues to address and determine issues personal field, developed injury tort it must now be applied doctrine, in a pres- manner consistent with the new ently defined N.J.S.A. 2A:15-5.1.5

C Legislature, We must next determine whether in rooting immunity railroad act in the common law contributory of negligence, intended for that to codification remain immutable and unchanged, as a prospective application, matter in the face a total abolition its underlying common law founda- tion. confronting question give weight we must full

the maxim statutory immunity construction that railroad is, statutes, act like immunity strictly all narrowly be Sons, construed. supra, Potter Finch & 76 N.J. at 502. See (1979) Harrison v. Middlesex Water 401-402 (landowner’s immunity strictly construed); statute Immer v. Risko, supra (marital 56 N.J. at 487 - 488 statute construed). strictly Examples of this strict construction railroad employees statute abound. railroad bar, Potter, have not statutory been allowed to assert this supra; and the has inapplicable statute been injured deemed to a child when he crawling top struck electric wire while of a car, R.R., railroad N.J.Super. (App.Div. Jasiczek v. Penna. 1966), (1967), certif. den. 49 N.J. 366 rescuer a of an unauthor person act, contrary ized on tracks to the Demetro Penna. R.R., 90 N.J.Super. (App.Div.1966), passenger who was step by girder, resting knocked off a car while on the step train, after having Lehigh Valley run to R. catch Co. v. specifically provides:

5The statute Contributory negligence recovery by any shall not bar in an action legal person representative negligence damages or his to recover resulting injury person negligence property, or death if such greater against negligence person recovery than the whom sought, any damages percentage but sustained shall be diminished recovering. person sustained of attributable to the and, (3 1927), prior to the Stevenson, F.2d 748 Cir. tracks than amendment, walking across railroad rather person a them, Furey v. & N.Y.C. standing playing or walking, 270, (E. 1902), but Felici v. A. cf. 67 N.J.L. & H.R.R.R Lines, N.J.Super. at supra, 83 Seashore Pennsylvania-Reading recog immunity of statute This strict construction the 378-379. recovery or generally nizes immunities serve to bar curtail that wrongdo wrongful rather than to define conduct or exonerate ing; wrong a does lose its wrongful a act is no less and not precluded by the quality simply liability because tortious against consequences the superimposition of an Tevis, (1979); act. Merenoff v. Mere Tevis v. 79 N.J. 547-549; noff, Long supra, Landy, 35 N.J. at supra, 76 N.J. at principle herein is 50. relevant to our determination the Also law, meaningful statute some that a must in order to remain unknown or non given application situations times be enactment, of its which anticipated at the time existent or are, nevertheless, original within fairly to be viewed as changes legislative in use fundamental intendment. Co., supra, Water in property, g., e. v. Middlesex Harrison Merenoff, g., supra, in relationships, e. Merenoff v. interpersonal governmental interrelationships, Safeway e. Inc. v. g., Trails Furman, (1964), den. 379 U.S. cert. S.Ct. (1964), perceptions criminality, even 13 L.Ed.2d and e.g., Young, (1978), State 77 N.J. 245 were unforeseen action, required legislative initial have the rein time of terpretation law in application statutory and fresh of relevant and of a order to avoid inadvertent unintended creation preserve statutory anomaly legislation and to for such hiatus contemporary place sensible scene. recognize perva- we Cognizant guidelines, must these change wrought by sive in our laws profound and tort comparative negligence. doctrine of We cannot attribute to original remain inflexi- an intent that enactment change in impervious ble such a and avulsive dramatic jurisprudential prin- principles underlying and the reasons those supra, Keeton, ciples.6 75 Harv.L.Rev. 463. See to be there is Consequently, it is our determination imputed legislative intent the enactment the railroad original act to but now replace extinct common rule with the new doctrine of respect, analysis totally 6In this our the dissimilar to notion that the Legislature impliedly repealed immunity current has the act Negligence Comparative of enactment the Act. Ante at 449-450. the Had Legislature passing Comparative Negligence the Act 1972 that realized immunity actually upon underlying the 1869 railroad act was based the contributory negligence, trespass jurisprudence doctrine of than as our rather time, may very had dictated at that it well the have been inferable that Comparative Negligence implicitly of enactment the Act intended to disavow doctrines, modify contrary incorporated immunity or like that in the railroad act. However, reading Egan a fair decision leads the to conclusion that generally trespasser the statute viewed as a statute at the time that the Comparative Negligence Act was enacted. See ante 442. There is nothing suggest Legislature the to that in 1972 entertained a different conception immunity implied of repealers the railroad statute. since generally invoked, g., are reluctantly Byrne, disfavored e. Camden and 82 N.J., (1980), impute Legislature we it believe unsound to to the repeal immunity intent to the railroad act. bearing upon generally application implied repealer Also the Legislature, subsequent doctrine is the fact that the to the the enactment of Act, Comparative Negligence passed (1978), Bill No. S. which would explicitly repealed immunity have proposed the railroad act. Since this repealer law, was vetoed the Governor and thus was not enacted into it part repeal is not of evidence an intent on the of the earlier to by implication immunity passed Comparative Negli- the it statute when the gence Farms, Bay, (1978); Act. See Garden State Inc. v. 77 N.J. Creecy, (1969); Day Camp, Schmoll v. 54 N.J. Fraser v. Dee Robin Hoek, (1965); Asbury N.J. Bd. of Ed. of Park v. 235- Indeed, Compara- it is somewhat evidential the view that the Negligence immunity tive Act does not address the railroad statute. Never- theless, attempted passage repealer, express part upon the of an actuated recognition acceptance judicial immunity and criticism of the railroad stat- ute, g., Finch, supra, legislative repudiation e. Potter v. and the of contribu- tory negligence, strengthen public policy does serve to our conclusion that today longer contributory negligence. can no accommodate the doctrine of old both exem- negligence.7 Since N.J.S.A. 2A:15-5.1

comparative doctrine, aas matter of plifies the new common law and codifies intent, later must be legislative initial the enactment imputed statute, into infused the railroad the determination below and Accordingly, we reverse trial, new the court should for trial. In this remand case present in to the factual situation apply the statute as construed injured attempting while to appeal person struck —a stationary. thought cars which he were walk between railroad comparative negligence apply would such The doctrine of act, and, person engrafted the railroad individual, coverage him bringing of that within conduct act, negligence. or threshold would constitute minimal However, imputed negligence such alone would not bar the up to plaintiff jury apply from It be recovery. would comparative negligence doctrine under 2A:15-5.1 et N.J.S.A. seq. recognizing the defendant railroad bears burden circumstances, proof to establish under all of the extent negligence degree plaintiff’s in terms of its contribution Only if resulting injury. accidental original interpretation Legislature support 7We find further for our that the passing immunity the statute on a common law doctrine did not based upheavals later in the common mandate a stoical inflexible indifference to and Legislature’s immunity through imposition grant of to a railroad law. legislative grants negligence of is not unrelated to other of immunity. respect interspousal immunity, with tort a common law doctrine, recognized legislative adoption of this a statute Court persons “rigidly” restricting ability to sue one another did not of married Rather, immunity. “immunity apply only incorporate interspousal should “disappear” and should when where reasons for existence continue” 482, Risko, (1970). policy longer behind v. it no exists. Immer Merenoff, 535, (1978). sup- Accord Merenoff v. N.J. 548-549 Additional port holding for our in the which is found correlative situation confronted California, Supreme Cal.Rptr. in Li v. California Court Yellow Cab Co. of 858, 804, (1975). judicially adopted There 13 Cal.3d 532 P.2d the court comparative negligence despite statutory in 1872 enactment which had contributory negligence. codified a version the doctrine of comparative basis exceeds that of the railroad would it serve to bar recovery.8

IV We feel compelled to address an additional area raised our interpretation of the statute. Our determination that the rail- road immunity grounded act is principles negligence, course, does not mean that the railroad as a property owner is deprived of protection the normal and concerning traditional liability persons coming upon private landowners to property. plaintiff

Since the contention that trespasser was a was raised initially litigation the railroad to invoke absolute act, bar of the railroad it is reasonably anticipa- to be ted pursue that the railroad will plaintiff the contention that trespasser at common law in order to avail itself of the lesser duty of care owed in appropriate such circumstances. It is then to consider briefly and discuss the common law doctrine of trespass, likely as it will be relevant in the retrial of this matter.

Traditionally, a landowner duty trespasser owed no to a other than to willfully injurious. refrain from acts g., E. Kaproli N.J., (E. Central R.R. of 105 N.J.L. 227-228 & A. 1928); Co., Staub v. Public Railway Service 97 N.J.L.

(E. 1922); Collins, Co., & A. Hoberg v. La very & 80 N.J.L. (E. Co., 1910); A.& Dierkes v. Hauxhurst Land 80 N.J.L. (E. Nevertheless, 1911). 370-371 & A. in the evolution of the common trespass law of some accommodation of principles See, g., Snyder Jay has occurred. e. Realty I. today effect, given prospective except 8Our decision is to be as to its application Merenoff, plaintiffs. supra; Merenoff v. Darrow v. Hanover Township, course, recognized, 58 N.J. 410 It is that our determina modifying statutory tion the common law basis of the does prevent taking legislative from further action in this area. Willis, Compare Dev., Dept. (1970), et. al. v. of Cons. Ec. with & N.J. seq. (sovereign immunity) Collopy Eye N.J.S.A. 59:1-1 et v. Newark and Infirmary, (1959) 2A:53A-7, (eleemosynary Ear 27 N.J. 29 with N.J.S.A. -8 immunity). 462 Co., supra, 29 N.J. (1959); Egan v. Erie R.

30 N.J. 303 Corp., (1957); Taylor 251-252; Riegel Paper 24 N.J. 438 Imre v. Liberty 22 N.J. 454 Caroff v. Highway Authority, v. N.J. (1956); Company, N.J.Super. 1977), Lumber (App.Div. certif. Egan v. Erie vein N.J. den. 74 In this the Court Co., R. supra, observed that as to courts restricted the common-law recent our have [i]n previous policy years to considera- of the owner of land Humanitarian nonliability trespassers. balancing led to flexible tions and of social have a more doctrine reasons policy right of his with interest in the society’s landowner’s the use land against injury. of its N.J. at [29 251-252.] protection youth rather, “suffi- trespass rigid; is not it is the doctrine legal purposes system our

ciently to fulfill flexible day society.” Snyder Jay v. I. serving present needs of Realty, catego- supra, 30 N.J. at 311 (reaffirming the traditional invitee). trespasser, ries of licensee and Moreover, long we note there has been an established governing liability to exception general rules landowner subject higher whereby to a trespassers, property owners are property standard when owned the landowner can of care v. See, g., Imre dangerous instrumentality. be e. classified as a Co., Inc., Riegel Paper Corp., supra; Harris v. Mentes Williams Co., Jersey Broadcasting 11 N.J. Strang v. South (1953); etc., E. Lady Spenzierato N.J. v. Our Monte (1952); Director Orange, Piraccini v. 112 N.J.L. (E. 1934); A. & Railroads, Winkle (E. 1920); General 95 N.J.L. Van & A. v. 1890). American Boiler 52 N.J.L. (Sup. Steam Ct. Fritz, majority Appel- regard, Judge writing for the Conrail, case of Eden v. Division, companion pointed- late in the ly observed: Even of land as to a the old common law doctrine an owner trespasser causing injury owed him no of care to refrain from to such person duty except willful or wanton conduct has been modified “so as to the interest put balance.” 76 N.J. at 504. Sons, in better Potter Finch & supra, parties possessing a with to instrumentalities real respect potential Especially grievous against is the others harm, standard bodily duty protection Riegel of that 24 N.J. at unreasonable risk harm. Imre Paper Corp., supra, 444. That has for been to the benefit of infant principle applied trespass- years where

ers in cases where the has been discovered or there was reason trespass Strang Broadcasting v. South it. Jersey anticipate 9 Co., N.J. A.2d [86 77]. 263 at [175 N.J.Super. 279-280.] general question The duty of the trespasser care owed to a railroad, including a question of whether the railroad is to be dangerous considered a instrumentality owing higher a care, duty of anticipated, was not fully argued addressed or appeal. Consequently, it is appropriate or fair to the parties for us to undertake to questions. However, resolve these the issues are guidance raised for the litigants of the and the trial court in parties order to enable present their evi- dence and respect contentions with to these issues and for the judge trial properly to proofs presented consider under appropriate duty of care trespasser owed a and to determine whether a regarded railroad is to be dangerous instrumentali- ty classification which was not considered relevant because —a preclusive effect of N.J.S.A. 48:12-152.

Reversed and remanded. Jurisdiction is not retained. J.,

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

The statute describes certain acts which negligence. constitute change has not chosen to the effect of this unnecessary, does, conduct. It is majority as the to reexamine the common law doctrine of contributory negligence. Rather, only Comparative issue is whether the Negligence Act has any had effect on contributory negligence ascribed Immunity Railroad Act to the conduct described therein. (1959), correctly construed Egan v. Erie R. behavior. Unlike apply to certain 48:12-152 to N.J.S.A. interpreting N.J.S.A. 48:12-152 Egan as majority not read I do seven-year- case involved a That “trespasser” statute. to be a moving attempting to board injured while girl who old were employees knew that children freight The railroad’s train. vicinity of the upon in the playing the tracks to accustomed within the sought bring her action plaintiff to accident. Co., N.J. 38 Broadcasting Strang Jersey scope v. South (1953), Co., 11 N.J. 559 Mentes-Williams (1952), Harris v. and trespassing to property owner was liable held a cases which been antici presence should have years whose children of tender use of a property owner’s injured due to the pated and who were dangerous condition. instrumentality of a or creation dangerous infant she could not be sought show that as an Plaintiff also to and, the statute referred contributory negligence since guilty of fault, inapplicable. it was to is to absolve a effect of the statute Egan reasoned that “[t]he duty trespasser.” a to a company from N.J. at 248 However, applicability added). Egan not limit the did (emphasis trespassers. Egan noted that at com- to 48:12-152 of N.J.S.A. trespassers than duty no other the landowner owed mon law princi- wanton conduct and that from wilful and to refrain railroads, immunity their from so that ple applied had been Kaproli v. Central predicated the statute. liability was not 1928). N.J., (E. N.J.L. 225 & A. Under R. R. of Act, activity was deemed Immunity plaintiff’s the Railroad Egan injury pointed out sustained.” have “contributed to ques- unnecessary to consider the “it was at common law that Contributory contributory negligence. trespasser’s tion of the there been a only a factor when [had] [became] Egan 29 N.J. at 251. by alleged tortfeasor.” duty breach for the purpose was enacted “that the statute concluded cases that come liability in those providing from situations set forth therein.” Id. at 251 the factual within proposition added). Accordingly, Egan stands for the (emphasis applies person irrespective that the statute to a of his status trespasser provided injured an infant walking, he is while stand- ing, playing jumping on a railroad or on or off a car while in motion. Such strict construction is policy consonant with the expressed Sons, (1978), Potter v. Finch & 76 N.J. 499 that the statute as an strictly act be construed. conduct,

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

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

Act the fact that the by recommendation emanated from comparative the Automobile Insurance Commission. The New Study Jersey Comparative Negligence actions wherein fault concepts apply Act to all applies ascertaining from the stan- or absence of deviation community the presence acci- as, accidents, malpractice liability dard of such conduct, product liability accidents, and fall accidents, liability motor vehicle dents, liability slip No Fault & accidents, accidents, Iavicoli, etc. liability airplane liability [M. (1978), (second added)] Negligence in New at 173 emphasis Jersey Comparative language legislative Act and the desire to sweeping The of the contributory negligence satisfy conclusive effect of restrict bar also intended to loosen the total me that contributory negligence in 48:12-152 and N.J.S.A. attributed accordingly.1 statute modified that majority’s analysis leads to the same result in this case. The However, doing, judicial policy legislative in so it substitutes agree Egan respect I with which refused to intent. In modify change in the decisional the statute to accommodate regarding trespassing infants because legislative judicial is do so would be a function. There no usurpation subject Legislature, fix limitations, that the to constitutional may question as to rules of conduct which result in or liability non-liability, State’s policy it is the of the court to In such circumstances [citations omitted] duty apply legislative notwithstanding own will it conflict with the court’s may N.J. at [29 252] philosophy. importantly majority

More has abolished the doctrine of contributory negligence. majority The considered the has not personal injury effect of its elimination in situations other than judicial retaining process The is better served actions. flexibility sweeping general when which is lost or limited principle adopted. acknowledged situation this Court that the Comparative a comparable Negligence Act, N.J.S.A. 2A: 15-5.1 et modified the Joint Tortfeasors seq., Law, 2A:53A-3. of New Contribution N.J.S.A. Cartel v. Fireco Capital Corp. majority acknowledge The fails to Jersey, perceive

the difference between a modification and statutory implied repeal Railroad Act. Immunity majority’s legislative reliance on the the Railroad' attempt repeal (1978), Act, veto, S. Bill No. 1454 aborted the Governor’s Immunity Legislature of its acted position misplaced. solely supportive to Justice Pashman’s dissent in v. Finch. If the Potter response way, had had its the Act would be extinct. joins opinion. Justice in this PASHMAN SCHREIBER, JJ., concurring PASHMAN and result. For reversal and remandment —Chief Justice WILENTZ and SULLIVAN, PASHMAN, CLIFFORD, Justices SCHREIBER and HANDLER —6.

For Affirmance —None. EDEN, PLAINTIFF-RESPONDENT, WILLIAM AND CONRAIL DORRMAN, ROBERT DEFENDANTS-APPELLANTS. Argued January September 1981 Decided 1981.

Case Details

Case Name: Renz v. Penn Central Corp.

Court Name: Supreme Court of New Jersey

Date Published: Sep 28, 1981

Citation: 435 A.2d 540

Court Abbreviation: N.J.