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July 7, 1983

ELDEE EDWARDS, JR., et al., Plaintiffs,

The opinion of the court was delivered by: OBERDORFER


 On July 7, 1979, plaintiff Eldee Edwards, Jr. (hereinafter "plaintiff"), who was 11 years old at the time, climbed on top of one of defendant's trains and was seriously injured by exposure to a high-voltage electric wire ("catenary wire") that was suspended 18 1/2 feet above the tracks and supplies power to defendant's through trains. Invoking federal diversity jurisdiction, plaintiff and his father instituted this action through their guardian ad litem, plaintiff's grandfather. They seek $ 250,000 in special damages on behalf of the plaintiff's father, and $ 20 million in compensatory damages and $ 50 million in punitive damages on behalf of the child. Six months of discovery are now complete and the facts and law have been well developed in pretrial pleadings. Defendant now moves for a summary judgment that the undisputed material facts establish that it cannot be held liable in this case as a matter of law. Plaintiffs have opposed the motion, and a hearing on the motion was held on May 15, 1983.

 Plaintiff suffered tragic and serious injuries when he was shocked by defendant's catenary wire. Nevertheless, as explained below, the accompanying Order will grant defendant's motion on the authority of § 339 of the Restatement (Second) of Torts (1965), which is controlling in this jurisdiction under the en banc decision in Holland v. B & O R. Co., 431 A.2d 597 (D.C. Ct. App. 1981). *fn1" In brief, the following facts are undisputed:

 (a) plaintiff trespassed onto the track area and train where he was injured;

 (b) children trespassing by bicycle on the site where plaintiff was injured, including plaintiff, were not deterred by the "no authorized vehicle signs" posted along the only access road to the site or by "no trespassing" signs stencilled on each catenary wire pole;

 (c) the wire which caused plaintiff's injury was suspended 18 1/2 feet above the tracks and was "ordinarily inaccessible." Plaintiff's Pretrial Brief (filed April 19, 1983) at 195;

 (d) only "through trains" use the tracks where plaintiff was injured, and the only possible means of access to the catenary wire was by climbing onto one of defendant's through trains during the brief and random minutes when the trains must occasionally stop there for a signal;

 (e) the Secretary of Transportation has plenary authority to require fencing and additional posting at such sites, but has conspicuously refrained from doing so; and

 (f) defendant has voluntarily fenced its rail yards and tracks or "de-energized" its catenary wires at other urban sites where the catenary wires are more accessible to trespassing children.

 Based on these undisputed facts, a rational jury could come to only certain conclusions under § 339:

 (1) that defendant neither knew nor had reason to know that the wire 18 1/2 feet above the tracks at the site where plaintiff was injured would be accessible or involved an "unreasonable risk" of harm to trespassing children (Restatement § 339(b));

 (3) defendant had no statutory or common law duty under federal or District of Columbia law to fence, place guards, or post more signs at the site where plaintiff was injured to protect against a tragic incident such as the one at issue here, and was exercising "reasonable care" in its maintenance of the site (Restatement § 339(e)).


 A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." F. R. Civ. P. 56(c). The undisputed facts and "inferences to be drawn" from those facts "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam). "The court may not weigh or resolve issues of fact," Rodway v. United States Department of Agriculture, 157 U.S. App. D.C. 133, 482 F.2d 722, 727 (D.C. Cir. 1973), and to support summary judgment the record "must demonstrate that [the] opponent 'would not be entitled to [prevail] under any discernible circumstances.'" National Ass'n of Governmental Employees v. Campbell, 192 U.S. App. D.C. 369, 593 F.2d 1023, 1027 (D.C. Cir. 1978) (quoting Semaan v. Mumford, 118 U.S. App. D.C. 282, 335 F.2d 704, 705 n.2 (D.C. Cir. 1964)). See also International Underwriters, Inc. v. Boyle, 365 A.2d 779, 782 (D.C. 1976) (summary judgment standards in District of Columbia).

 Rule 56 also requires that when a motion for summary judgment is filed that is adequate to support judgment, an opposing party must specifically defend against that motion. Rule 56(e) provides that, in such a case, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial." F. R. Civ. P. 56(e). As our Court of Appeals has stated, "in order to raise a material issue of fact . . ., more is necessary tha[n] mere assertions in the pleadings." Bloomgarden v. Coyer, 156 U.S. App. D.C. 109, 479 F.2d 201, 208 (D.C. Cir. 1973); cf. National Ass'n v. Campbell, supra, 593 F.2d at 1029. Summary judgment on issues that are more often left for a jury is generally appropriate "where the facts are undisputed and only one conclusion may reasonably be drawn from them." Flying Diamond Corp. v. Pennaluna & Co., Inc., 586 F.2d 707, 713 (9th Cir. 1978); accord Bloomgarden v. Coyer, supra, 479 F.2d at 212 (summary judgment appropriate where there is "no basis on which a jury could rationally find" otherwise); Quinto v. Legal Times of Washington, 506 F. Supp. 554, 564 (D.D.C. 1981) (summary judgment appropriate "where only one inference is possible from the evidence"). See slip op. pp. 59-63, infra.

 In furtherance of Rule 56(e), this judicial district has enacted Local Rule 1-9(h), which provides as follows concerning the obligation to defend against summary judgment with specificity:

With each motion for summary judgment . . . there shall be served and filed . . . a statement of the material facts as to which the moving party contends there is no genuine issue. . . . A party opposing such a motion shall serve and file . . . a concise "statement of genuine issues" setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, and shall include therein references to the parts of the record relied upon to support such statement. In determining a motion for summary judgment, the court may assume that the facts as claimed by the moving party in his statement of material facts are admitted to exist except as and to the extent that such facts are controverted in a statement filed in opposition to the motion.

 Our Court of Appeals has made it clear that "failure to file a proper Rule 1-9(h) Statement . . . may be fatal to the delinquent party's position." Gardels v. Central Intelligence Agency, 205 U.S. App. D.C. 224, 637 F.2d 770, 773 (D.C. Cir. 1980). Yet when the Court called the failure to counsel's attention at the argument on the motion for summary judgment, he simply acknowledged his failure, stating that "we felt that perhaps we should refer, by incorporation, to other pleadings filed." Transcript at 46 (May 16, 1983). He has not subsequently designated specific facts that may exist in the record or in his 225-page Pretrial Brief to point out material issues which remain disputed and would preclude summary judgment. In Gardels, supra, our Court of Appeals stated that courts may require "strict compliance" with Rule 1-9(h), and that its "purposes clearly are not served when one party . . . fails in his statement to specify the material facts upon which he relies and merely incorporates entire affidavits and other materials without reference to the particular facts recited therein which support his view." 637 F.2d at 773.

 Were this case not so tragic and it was not an injured infant plaintiff who would suffer from counsel's failure, summary judgment could be granted for defendant on this procedural failure alone, as defendant's motion and 1-9(h) statement are more than adequate to justify such a ruling. Because of these special circumstances, however, the Court has conducted an independent and detailed review of the record, including the filed depositions, discovery responses, pleadings and plaintiffs' overlong and largely unhelpful Pretrial Brief. *fn2" The facts as presented below reflect the Court's best judgment as to the most favorable case that plaintiffs could draw from the record. See Habib v. Raytheon Co., 199 U.S. App. D.C. 11, 616 F.2d 1204, 1208 (D.C. Cir. 1980). Evidence presented by defendant that has not been challenged is accepted as true, but the Court has disregarded any facts proffered by defendant for which a contest is factually suggested anywhere in the record. Even after this exhaustive review of the record, the Court is convinced that plaintiffs could not prevail were a jury to hear the undisputed facts, and that defendant must be granted judgment as a matter of the law governing in the District of Columbia.


 A train was stopped on the tracks, extending beneath the bridge and awaiting clearance for passage through the Virginia Avenue tunnel. Plaintiff and two of his friends rode their bicycles off the road and over the grass next to the tracks and dismounted. *fn4" Accepting plaintiff's testimony as true, this train had been stopped there when the boys arrived; the train was stopped there for about twenty minutes prior to the accident. *fn5" All three boys climbed up ladders on the sides of the railroad cars. Wayne Childress and Andre Stukes climbed up the ladders but not onto the top of the railroad cars; Childress put his head above the roof level of a car, and Stukes climbed up the ladder only "halfway." Childress Deposition at 17; Stukes Deposition at 31. Stukes stopped "because I was scared, I was afraid it was too high up there. I was afraid I was going to fall." Stukes Deposition at 31.

 Plaintiff was still climbing a car when the other two boys had finished climbing. *fn6" Unlike the other two boys, plaintiff climbed all the way onto the top of a car, and stood up. He walked around a little, became "a little dizzy," and started to leave. Edwards Deposition at 44, 47. Plaintiff remembers that Stukes said to him "Come on. Let's go." Id. Both Childress and Stukes told plaintiff not to climb onto the last car; Stukes stated that he was afraid of falling and said to plaintiff "Get down, man, before you fall." Stukes Deposition at 32; see id. at 36; Childress Deposition at 19, 32. All three boys stated in deposition that they neither thought about nor realized the danger in the wires. *fn7"

  As plaintiff decided to leave the top of the railroad car, he either grabbed or came quite close to the catenary wires, which were near his head or shoulder level. *fn8" In any case, "something went 'Pow,' there was a red flash and . . . [plaintiff] was laying across the train, injured." Childress Deposition at 24. He then apparently rolled or fell from the top of the railroad car to the ground next to the tracks, landing on top of one of the bicycles. Stukes Deposition at 56-57. He was severely burned and injured, and has received extensive medical treatment for his injuries. The boys stated that only a few minutes elapsed from when they began to climb the cars until plaintiff was injured. *fn9"

 This was the sixth time that plaintiff had bicycled through this area. His friends had also visited there before on different occasions. They had seen other boys on bicycles there, as well as fishermen along the river and cars on the road from the stadium. Clarence Riddick, who had fished at the site intermittently for over a decade, had also seen children and adults in the area on numerous occasions. Riddick Deposition at 31-34. The area itself, however, appears to be isolated as far as residential housing located directly at the site is concerned. See Defendant's Statement of Material Facts as to which There is No Genuine Issue (hereinafter "Defendant's 9(h) Statement"), Exs. B, C & D (photographs of the site) (filed April 25, 1983). For purposes of summary judgment, this record indicates that the adults and children trespassed in the area not infrequently for recreational purposes. *fn10"

 Plaintiff and his friends stated that they had never seen a standing train on the tracks in their previous visits to this area. Thus they had never before climbed on a train there (or anywhere else by their testimony). They all stated in deposition that they did not consider trains dangerous, and that they were not aware of the electrical danger contained in the catenary wires above the tracks, although they had seen the wires.

 The high-voltage catenary wires supply defendant's trains with electric power through devices mounted atop the electric locomotives. Of necessity, the wires are not insulated. This catenary system has been in place above railroad tracks in Washington, D.C., since the mid-1930s. At the site where plaintiff was injured, the wires are suspended 18 1/2 feet above the ground, and are "ordinarily inaccessible." Plaintiffs' Pretrial Brief at 195. At bridges, on ground-level storage areas and other places where catenary wires would be accessible to pedestrians, defendant has either erected fences or cement walls, or "de-energized" the wires (i.e. turned off the current). Otherwise, the wires are suspended out of normal reach. *fn12" See Defendant's 9(h) Statement, para. 14; Plaintiffs' Pretrial Brief at 16, 19-20 (summarizing testimony of witnesses Ginter and Shertzer). On the poles from which the catenary lines are suspended the words "No Trespassing" have been stencilled; these words were faded or rusted so as to be obscured in some places.

 Certain facts regarding railroad safety requirements and defendant's compliance with them are also undisputed. First, in 1970, Congress enacted the Railroad Safety Act, 45 U.S.C. §§ 421, 431-444 (1976 & Supp. V 1981), Pub. L. 91-458, 84 Stat. 971 (Oct. 16, 1970) (hereinafter "the Act"). Congress's expressed purpose in enacting the Act was "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons . . . ." 45 U.S.C. § 421. The Act gave broad investigative, regulatory and enforcement powers to the Secretary of Transportation, see id., §§ 431-440, who in turn delegated authority to the Federal Railroad Authority ("FRA") to implement and administer the Act. See generally United Transportation Union v. Lewis, 228 U.S. App. D.C. 447, 711 F.2d 233 (D.C. Cir. 1983). One section of the Act required the Secretary to submit to the President and Congress "a comprehensive study of the problem of eliminating and protecting railroad grade crossings, including a study of measures to protect pedestrians in densely populated areas along railroad rights-of-way, together with his recommendations for appropriate action." 45 U.S.C. § 433(a) (emphasis supplied). The Act gave the Secretary authority to develop and implement solutions to these safety problems, see §§ 433(b), 437, but, in commenting on the need for safety regulations, the House Committee noted that it had "no intention to induce the Department [of Transportation] to prescribe regulations which will later turn out to be impractical or impossible." H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. 18, reprinted in 1970 U.S. Code Cong. & Admin. News 4104, 4115.

 It is also undisputed that the District of Columbia has not enacted any fencing requirements or other safety regulations for railroad rights-of-way or catenary wires within the District, despite the fact that the Act expressly preserves the power of state authorities to regulate local railroad safety problems. See 45 U.S.C. § 434.

 Moreover, it is also undisputed that despite the absence of statutory or regulatory requirements, defendant has voluntarily instituted an active safety protection program in areas where trains are stored or where catenary wires come into normal reach. Defendant's voluntary actions in this regard have included construction of fences and walls, posting of "high-voltage" warning signs, and de-energizing of the catenary wires. See Plaintiffs' Pretrial Brief at 13-14, 16, 19-20 (summarizing testimony of witnesses Feeley, Beyer, Ginter and Shertzer); Hasselman Deposition at 24-25, 42-43, 86; Defendant's 9(h) Statement, para. 14. Thus it is undisputed that defendant was in compliance with all existing federal and local safety requirements at the site and on the date of plaintiff's accident, and that throughout its railroad system defendant has gone beyond statutory requirements in the area of catenary safety.

 Finally, plaintiffs have proffered uncontested evidence that electrical injuries to minors caused by the catenary wires above railroad tracks have occurred in the past. *fn14" According to plaintiffs, from 1975 through August 1979 throughout the "northeast corridor" of the Amtrak system (encompassing Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland and the District of Columbia), 101 electrical injuries to trespassers on railroad cars have been reported. Eighty-six of these have been to minors. Seven such incidents have occurred since 1968 within three miles of the point at which plaintiff was injured; two of these happened within one-half mile of the spot. Plaintiffs' Pretrial Brief at 3-8.

 For reasons explained more fully below, infra at n.15 and slip op. pp. 40-45, only the two prior accidents involving minors that occurred near the site where plaintiff was injured are even arguably material here. *fn15" In March 1973, William S. Fearing was injured by catenary wires while climbing on a railroad car which may have been stationary "a few hundred yards north" from the site of plaintiff's accident. Plaintiffs' Pretrial Brief at 5. *fn16" In June 1968, seven-year-old Jeffrey Windom (now Jeffrey Harrison) was injured when he climbed a standing railroad car and came into contact with the catenary wires within ...

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