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June 16, 1977

MYRON ALSTON, ET AL., Plaintiffs,

The opinion of the court was delivered by: GASCH


 This personal injury action involves a 1972 accident in which the minor plaintiff, Myron Alston, then nine years of age, sustained a serious injury to his left leg while admittedly attempting to "hop" a railroad car owned and operated by defendant Baltimore & Ohio Railroad Company ("B&O"). As a result of this injury, Myron's leg was surgically amputated above the knee. Suit was brought on his behalf by his father, Preston Alston, who sought also to recover for certain expenditures which he has personally incurred in connection with Myron's injury. After a jury verdict was returned in the amount of $608,000, *fn1" defendant B&O moved for judgment notwithstanding the verdict or in the alternative for a new trial. Upon careful study of the matter and for the reasons fully set forth below, the Court finds that the defendant's motion for judgment notwithstanding the verdict should be granted.


 The accident giving rise to this lawsuit took place on June 27, 1972, in the vicinity of 9th and Kearney Streets, N.E., Washington, D.C. On that day, Myron Alston and some of his young friends were playing on and near certain premises owned and operated by defendant B&O Railroad Company. These lands surround several sets of railroad tracks used by defendant for both freight and passenger trains; they extend north and south of Kearney Street, and west from 9th Street, for several hundred yards.

 At the point at which the accident occurred, there are two sets of parallel tracks running in a long north-south curve. While Myron and his friends were playing on defendant's land adjacent to these two tracks, *fn2" a freight train consisting of almost one hundred cars *fn3" approached on the track farthest from the children and slowed to a halt. *fn4" Myron then walked up to the train and "hopped" onto one of its boxcars. *fn5" At that time, the train was stationary in such a position that both the forward and rear portions of it extended beyond either end of the sharp curve of the track and were completely out of sight from Myron's position on the boxcar. *fn6" A short time later, after the train had begun to move, Myron jumped off of the side of the boxcar but failed to clear the tracks; his left leg was severely injured by the wheels of the train and required surgical amputation above the knee.


 In bringing this action on Myron's behalf, his father charged defendant B&O Railroad with breaching its duty of reasonable care in connection with its maintenance and control of the lands upon which the accident occurred. He asserted that the defendant should have known that children such as his son often frequented these particular premises and that there existed a foreseeable danger that an accident such as Myron's might inevitably one day take place. Only through the defendant's negligence, he insisted, was such a tragedy allowed to occur. Specifically, he charged the defendant with negligently failing to erect all necessary fences, barricades, or warning signs sufficient to deter children such as Myron from entering onto the property in question and from exposing themselves to its foreseeable hazards. Defendant's failure to take these precautions was particularly negligent, Mr. Alston contended, in light of the special and well-known attraction which these lands held for children such as his son.

 From the outset of this litigation, B&O Railroad has taken the position that it owed no duty to Myron under the circumstances presented and thus was not negligent as a matter of law. *fn7" In its pretrial motion for summary judgment, it interposed the defense that Myron fully appreciated the dangerousness of his actions and supported this position with reference to certain deposition testimony in which Myron admitted to having known it was dangerous to "fool around with trains." *fn8" Such appreciation on Myron's part, defendant argued, operated as an absolute bar to recovery as a matter of law *fn9" and made the presentation of any further factual evidence at trial unnecessary. *fn10" Although this Court found defendant's arguments (and the deposition testimony upon which they were based) to be compelling, it felt that the better course was to afford plaintiffs the fullest possible opportunity to secure and present any countervailing evidence on this particular element of the case, *fn11" as well as upon the specific charges of negligence which they had raised. It was -- and remains -- this Court's view that the summary judgment stage is an inappropriate juncture for the determination of issues such as those presented in this lawsuit. See, e.g., Best v. District of Columbia, 291 U.S. 411, 415-16, 78 L. Ed. 882, 54 S. Ct. 487 (1934); Hankins v. Southern Foundation Corp., 216 F. Supp. 554, 558 (D.D.C.), aff'd, 117 U.S. App. D.C. 150, 326 F.2d 693 (1963). Accordingly, defendant's motion for summary judgment was denied and the plaintiffs were allowed an opportunity to develop fully at trial all issues presented -- including Myron's asserted appreciation of the risk which he undertook when he "hopped" defendant's train.


 At trial, the plaintiffs adduced much evidence in an effort to support their theory of negligence. Viewed in the light most favorable to them, *fn12" this evidence indicates that in 1972 the defendant knew (or had reason to know) that children often played by the tracks near the scene of his accident and that they had done so for quite some period of time. *fn13" Further, the evidence reflected that no warning signs were present in the immediate vicinity of 9th and Kearney Streets at the time of the accident, although there was some evidence that certain signs had been placed there by defendant previously. *fn14" It could also be inferred from the evidence presented *fn15" that Myron had never been formally warned either at home or at school that "hopping" trains was dangerous. *fn16" Finally, it was uncontested that the defendant had erected no fence or other barricade along the hundreds of yards of its right-of-way at 9th and Kearney Streets in any attempt to deter children such as Myron from approaching its tracks. On this latter point, the plaintiffs were permitted to present lengthy and detailed testimony concerning certain precautions which defendant might have undertaken (e.g. the erection of fences and the posting of warning signs) as part of such an attempt. *fn17"

  For its part, defendant adduced certain evidence at trial which lent strong support to the legal defense which it had raised in its summary judgment motion. *fn18" On cross-examination of Myron Alston, for example, defense counsel once again elicited from him the admission that on the day of the accident he had entered defendant's premises intending to "hop a ride" on a train even though he "knew it was dangerous to fool around with trains." *fn19" Further, the uncontradicted testimony of two of Myron's young friends, Joseph Speight and Eric Toliver, established beyond any doubt that Myron was most familiar with the practice of "train hopping" and was indeed a veteran of many such incidents. *fn20" In fact, it was the testimony of Eric Toliver, who was present at the time of Myron's accident, that he and Myron had "jumped on trains" together earlier that afternoon; *fn21" Eric himself declined to join Myron once again in this activity later that afternoon when Myron was hurt only because he feared his sister Suzy, who had accompanied them this second time, would "tell" on him. *fn22" Finally, defendant presented additional evidence documenting certain safety measures which it had undertaken prior to the time of Myron's accident *fn23" and indicating the relative ineffectiveness of the fencing measures advocated by plaintiffs, *fn24" the absence of which plaintiffs insist amounts to negligence. *fn25"

 At the close of the testimony, the Court once again considered the defendant's argument that under the circumstances presented it was not negligent as a matter of law, this time in context of a motion for a directed verdict and in light of the evidence adduced by both sides. The matter was taken under advisement and accordingly the case was submitted to the jury. *fn26" After a verdict was returned in favor of the plaintiffs, *fn27" defendant renewed its motion in the form of a motion for judgment notwithstanding the verdict or in the alternative for a new trial. After long and reflective study of this matter and upon careful review of the applicable law, the Court has come to the firm conviction that defendant's motion for a directed verdict at the close of trial should have been granted and that judgment for defendant notwithstanding the verdict should now be entered.


 This case involves a tragic injury which all concerned, especially the Court, readily agree should never have occurred. The important question which it unavoidably raises is whether the defendant railroad company should be held liable for injuries sustained by a nine-year-old child under circumstances such as those presented here. *fn28" There was a time when this issue would have been resolved with unyielding decisiveness in favor of the owner-occupier of land, simply on the basis of the injured party's classificatory status as a trespasser under the common law. *fn29" Approximately a century ago, however, the law began to recognize that this harsh principle should not be applied without exception where the trespasser is a child of "tender years." In the 1873 landmark case of Sioux City & Pacific R. Co. v. Stout,30 the Supreme Court first recognized the necessity of treating trespassing children differently from trespassing adults and, in the case of a six-year-old injured on a railroad turntable, held that a landowner could under some circumstances be liable to such a trespasser of "tender age." *fn31" After this notion evolved through a process of subtle delineation -- which included, at one point, the legal fiction embodied by the attractive nuisance doctrine *fn32" -- it was codified in the Restatement of Torts as the rule applied by the "great majority of American courts" today. *fn33" This standard, bottomed upon the modern consensus that landowners should take reasonable precautions to protect unwary children from foreseeable dangers on even private premises, creates a landowner's duty of reasonable care to trespassing children which arises whenever certain specific circumstances are found to exist. As such, it represents both a radical departure from the landowner's near-absolute insulation from liability to all trespassers under early common law, *fn34" as well as a logical improvement upon the later requirement that the trespassing child be injured by the very hazard which presumably attracted him onto the landowner's premises. *fn35" The Restatement rule provides as follows:


§ 339. Artificial Conditions Highly Dangerous to Trespassing Children


A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if


(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and


(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and


(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and


(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and


(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

 Restatement of Torts, (Second), Section 339 (emphasis added).

 This formulation has for some time now been the rule applied by District of Columbia courts in cases involving injuries to trespassing children. See, e.g., Hankins v. Southern Foundation Corp., 216 F. Supp. 554, 558-59 & n.4 (D.D.C.), aff'd, 117 U.S. App. D.C. 150, 326 F.2d 693 (1963). In McGettigan v. National Bank, 115 U.S. App. D.C. 384, 320 F.2d 703, cert. denied, 375 U.S. 943, 11 L. Ed. 2d 273, 84 S. Ct. 348 (1963), the Court of Appeals for the District of Columbia Circuit applied Section 339 to find a basis for holding a landowner liable for injuries suffered by a nine-year-old boy playing with an explosive flare which his eleven-year-old brother had brought home from the defendant's deserted premises. *fn36" The major question posed by that case, as both the Court's initial and supplemental opinions make quite clear, *fn37" was whether the foreseeability requirements of Clauses (a) and (b) of Section 339 had been satisfied by the circumstances presented. *fn38" This question was resolved in the affirmative, the Court finding that "a general condition prevailed which put the landowner on notice" of the potential danger involved in keeping dangerous items in an unattended structure. *fn39" Hence, it was concluded that the landowner was to be held to the Restatement's standard of reasonable care, *fn40" inasmuch as the requirement of Clause (c) was found also to be readily satisfied:


Furthermore the presence of children who could not be expected to appreciate and therefore avoid the risk created by the flare is a factor here of utmost significance.41

 Twelve years later, in Luck v. Baltimore & Ohio Railroad Co., 166 U.S. App. D.C. 283, 510 F.2d 663 (1975), the Circuit Court had occasion to emphasize the significance of McGettigan's break with the attractive nuisance doctrine and its concomitant application of the Restatement's conditional standard of reasonable care. "Any remaining confusion concerning the landowner's duty to children," said the Court in Luck, "was laid to rest in McGettigan. . . ." *fn42" Accordingly, the defendant railroad was held liable to an eight-year-old girl struck by a train while rescuing her six-year-old brother as he attempted to play "superman" in the path of that train. *fn43" As was the case in McGettigan,44 there was absolutely no question in Luck concerning the injured party's appreciation of the risk, *fn45" since under the rescue doctrine the Luck plaintiff assumed the status of her totally unwitting brother. *fn46" It is not surprising, then, that neither opinion contains any express reference to Clause (c) of Section 339, *fn47" although the basic principles of that formulation were applied, wherever pertinent, in both decisions. *fn48"

 Yet there currently exists no small amount of uncertainty regarding the potential liability of a landowner to persons (including even adults) who are injured while trespassing upon his property. By unavoidable implication, this necessarily calls into question the very vitality of Restatement Section 339 as a carefully-drawn exception to the aforementioned common law trespasser rule. *fn49" This confusion stems from the District of Columbia Circuit's recent decision to abandon the common law classificatory scheme under which a landowner's potential tort liability is determined according to the precise status of the injured party. *fn50" In Smith v. Arbaugh's Restaurant, Inc., 152 U.S. App. D.C. 86, 469 F.2d 97 (1972), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 399, 93 S. Ct. 2774 (1973), the Court of Appeals criticized "the awkwardness of fitting the circumstances of modern life into the rigid common law classifications of trespassers, licensees, and invitees" *fn51" and held as follows:


Rather than continue to predicate liability on the status of the entrant, we have decided to join the modern trend and to apply ordinary principles of negligence to govern a landowner's conduct: A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. *fn52"

 Accordingly, it was concluded by the Court that the defendant's potential liability to the plaintiff, a Health Inspector who slipped and fell on a flight of greasy metal stairs while engaged in an official inspection of defendant's restaurant, *fn53" was not circumscribed according to whether the plaintiff occupied the status of a "licensee" as opposed to that of a "business invitee"; *fn54" rather, the landowner's duty was to be that of "reasonable care under all the circumstances." *fn55"

 Yet despite the Court of Appeals' stated intention in Arbaugh's "to reduce current confusion in the law of the District of Columbia," *fn56" the application of that decision has produced new confusion concerning a landowner's duty to persons who would under common law standards be denominated trespassers. Since Arbaugh's involved the question of an injured party's status within the old "licensee/invitee" dichotomy, *fn57" there is no question but that the Court of Appeals' opinion will with progressive simplicity obviate the future necessity of drawing what have in the past been all too often artificial -- yet dispositive -- distinctions within that particular classificatory scheme. But it is not completely settled whether that opinion should be read as also effecting the demise of the trespasser classification in this jurisdiction and, for purposes of the case at bar, the resultant substitution of an automatic duty of "reasonable care under all the circumstances" *fn58" for the more precise, requisite-laden formulation contained in Restatement Section 339. *fn59" In a recent case involving an adult trespasser which raised this very question, the Court of Appeals observed as follows:


In Arbaugh's Restaurant this court was not required to decide whether the common law standard of care toward trespassers should be preserved intact, or abandoned along with the "invitee" and "licensee" classifications. Thus, some confusion today exists regarding the landowner's duty toward an adult trespasser.

  Hopkins v. Baker, 553 F.2d 1339, 1342 (D.C. Cir., 1977). Although it was ventured in a footnote to that opinion that "the rationale" of Arbaugh's "would seem fully applicable to the trespasser problem as well," *fn60" the Court flatly declined to so hold, preferring instead to allow the matter to remain "as yet unresolved in this jurisdiction." *fn61"

 The Court of Appeals' evident hesitancy to jettison the common law trespasser rule, and therefore to bring about all that such a move would signify, *fn62" appears to this Court most understandable upon consideration of some of the logical concerns which are raised by such a contemplated step. A concurring opinion to the Arbaugh's decision, for example, expressed deep concern with the "broader sweep" of that opinion *fn63" -- particularly as it might apply to property other than that "used as a business establishment" *fn64" -- and the writer felt compelled to make, inter alia, the following observations:


I certainly see some rough common sense in the broad notion that a householder has no legal duty, as to trespassers entering without his consent, to fill up holes and otherwise tidy up his property so that it is in reasonably safe condition -- though this is a broad conception subject to limited exceptions. [citing Restatement of Torts, (Second), §§ 333-339] I do not find these principles "awkward . . . in the circumstances of modern life" or contrary to "accepted values and modern experience." Perhaps my difficulty is that I have not studied these problems deeply enough. But then, they are not involved in the case at bar, and were not argued. *fn65"

 Less than one year later, in a "social invitee" case which was held by the Court of Appeals to fall squarely within the rule of the Arbaugh's case, *fn66" a concurring opinion addressed the trespasser question more decisively:


. . . I agree with the majority that the sound evolution that is the hallmark of the common law has brought it at the present time to the point where the traditional distinction between licensees and invitees is properly considered the relic of a bygone age. . . .


This does not, however, mean that the requirements of judicial administration in a modern, largely urban, industrialized society necessarily extend so far as to require a change in the liability of an occupant of land to a trespasser. . .. This was the problem that particularly prompted my separate opinion in [ Arbaugh's Restaurant ].

 Cooper v. Goodwin, 155 U.S. App. D.C. 449, 478 F.2d 653, 657-58 (1973) (Leventhal, J., concurring) (emphasis added). *fn67" In that case, as in the later Hopkins decision, *fn68" the majority opinion fell tellingly short of abolishing the common law trespasser classification. *fn69" It was suggested by the Court, however, that a landowner's liability to a trespasser should logically turn on certain particular questions of "foreseeability," *fn70" the very Restatement Section 339 ingredients upon which the outcome turned in McGettigan.71


 In order for this Court to rule on the pending motions, it finds itself relegated to the difficult task of determining an appropriate legal standard within the context of the above-described "unresolved" area of the law. Defendant contends, as it has during every stage of this litigation, *fn72" that its potential liability for Myron Alston's accident is governed by the Restatement Section 339 exception to the common law trespasser rule and that it owes a particular duty of reasonable care only if the requisites of that formulation have been met. *fn73" Plaintiffs, on the other hand, contend that under Arbaugh's and Luck a landowner now automatically owes a duty of reasonable care to one who trespasses upon his land and that the Restatement standards are therefore inapposite. *fn74" They ask that this Court not disturb the jury's verdict and insist that there exists substantial evidence upon which a jury properly could have found defendant to be negligent. *fn75"

 For the Court to accept plaintiffs' position, however, would require it to take a significant and questionable legal step which the Court of Appeals for this Circuit has on two occasions declined to take, first in Cooper76 and again only very recently in Hopkins.77 Moreover, this Court regards as compelling the reservations expressed by Judge Leventhal *fn78" and is frankly no less troubled by them. *fn79" The Court is therefore unwilling to extend the Arbaugh's rationale to the trespasser situation here before it and to jettison the Restatement in the process. *fn80" Rather, it should follow the Restatement Section 339 criteria applied in McGettigan, particularly insofar as they require that certain elemental threshold determinations be made by the Court prior to a consideration of the defendant's "reasonableness." *fn81" Certainly, the Arbaugh's decision itself does not dictate to the contrary. *fn82"

 Nor does the later Luck decision compel the application of any standard other than those which were applied so explicitly in McGettigan. Plaintiffs point to that case as purported evidence that Restatement Section 339 has somehow been abandoned in favor of the Arbaugh's standard, for child-trespasser cases. Such an argument, however, not only ignores the express acknowledgement in Luck that the import of Arbaugh's does not extend to the trespasser category, *fn83" but it also overlooks the fact that Luck presented a situation wholly different from the case at bar. *fn84" This Court simply cannot read Luck, as plaintiffs would suggest, as departing in any way from the Restatement standards applied in McGettigan.85

 This is not to say, however, that the Arbaugh's standard of "reasonable care under all the circumstances" necessarily holds no significance for a child-trespasser case such as the instant one. Quite to the contrary, because inasmuch as any reasonable assessment of "all the circumstances" surrounding Myron Alston's accident would logically include, as considerations of the first order, an analysis of the appreciation and foreseeability elements of Section 339 Clauses (a) through (c), *fn86" it would appear that the progressive Arbaugh's approach comports strikingly well with the Restatement standards for child-trespasser cases. *fn87" In fact, this Court is of the view that the Arbaugh's reasonable care standard -- particularly in view of its all-important "under all the circumstances" qualification -- would become virtually identical to Section 339 if it were extended to the trespasser category and applied to child-trespasser situations such as this one. *fn88" After all, it must be remembered that Section 339 is simply a specially-tailored exception to the harsh common law trespass rule *fn89" which by its express terms *fn90" triggers a duty of reasonable care to trespassing children who are within a certain foreseeable zone of risk and who "because of their youth" do not fully appreciate the dangerousness of the hazard with which they intermeddle. *fn91" Why would not the Arbaugh's standard effectively approximate Section 339 in a child-trespasser case if the common law trespasser classification were to be abolished? *fn92"

 There would appear, though, to exist at least one significant distinction between the two formulations, one which is pertinent to the manner in which the defendant railroad's potential liability in this case is to be determined. As has been stated, Section 339 carves out an exception to the common law trespasser rule by causing a landowner's duty of reasonable care to arise "if" certain specified elements are present. *fn93" The absence of any one required element renders irrelevant an assessment of the landowner's "reasonableness" and signifies that he is not liable as a matter of law. *fn94" Under the Arbaugh's standard, on the other hand, the determination of a landowner's liability appears to proceed from the premise that a duty of reasonable care is automatically owed; the trier of fact must therefore determine, upon a consideration of "all the circumstances," whether that given standard of "reasonableness" had been met. *fn95" The principal difficulty with applying this approach to trespasser cases, this Court feels, is that there is simply no basis under either common law or statute for requiring a landowner to meet a subjective standard of "reasonableness" toward a person who unlawfully enters onto his premises with the avowed intention of knowingly and deliberately exposing himself to an unconcealed, obviously dangerous hazard thereon. *fn96" As regards such a trespasser, the law has never presumed -- and should not now presume -- a landowner's duty unless it is first shown that certain extenuating "circumstances," considered in the context of contemporary social policy, so require. *fn97"

 After full consideration of the evidence presented at trial, the Court can draw no other conclusion than that Myron Alston was just this sort of trespasser. It is undisputed on the record that he entered the defendant's premises with the specific intention of "hopping" a moving train, despite the fact that he knew it was dangerous to "fool around" with a train in such a way. *fn98" Moreover, this realization was not predicated upon some mere abstract understanding on Myron's part concerning such danger. *fn99" Quite to the contrary, Myron's knowledge of trains, and of "train hopping," was gleaned through considerable personal experience with that activity; according to his own testimony and the uncontradicted testimony of his friends, he had engaged in it repeatedly on at least several prior occasions. *fn100" The fact that he was only nine years of age when he unsuccessfully subjected himself to that dangerous experience is readily dwarfed into insignificance by the evidence establishing that Myron unquestionably understood and appreciated *fn101" that risk as fully -- and perhaps even more fully -- than most persons twice or several times his age. *fn102" A careful review of the record reveals no substantial evidence upon which a reasonable person could reach a conclusion to the contrary. *fn103"

 Thus, since as the "circumstances" of Myron's accident unquestionably include his full appreciation of the risk, the instant case does not meet the requirement of Restatement 339(c) and therefore cannot support plaintiffs' allegation that the defendant railroad breached a duty of reasonable care by failing to prevent Myron somehow from risking both life and limb. *fn104" It has never been part of our law that a landowner may be liable to one who, after unlawfully entering his land, proceeds to wantonly expose himself to unmistakable danger in total disregard of a fully-understood risk, simply for the thrill of the venture. *fn105" Such a result is expressly proscribed by the Restatement *fn106" and this Court cannot imagine that it falls within the contemplation of the Court of Appeals in Arbaugh's, even if the doctrine of that decision were to be extended to the trespasser classification. *fn107"

 Accordingly, defendant B&O Railroad is entitled to a judgment as a matter of law that it is not liable for Myron Alston's injuries *fn108" and its motion for judgment notwithstanding the verdict will be granted.

 OLIVER GASCH / Judge [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 433 F. Supp.]


 Upon consideration of defendant's motion for judgment notwithstanding the verdict, the memoranda of points and authorities filed in support thereof, and the memorandum of points and authorities filed in opposition thereto, and upon further consideration of the argument of counsel in open Court, the evidence presented at trial, and the entire record herein, and for the reasons fully set forth in the Court's Memorandum issued this day, it is by the Court this 16th day of June, 1977,

 ORDERED that defendant's motion for judgment notwithstanding the verdict be, and hereby is, granted; and it is further

 ORDERED that the jury verdict for plaintiffs returned on July 13, 1976 and entered by the Court on July 15, 1976 be, and hereby is, set aside; and it is further

 ORDERED that judgment be, and hereby is, entered in favor of defendant.


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