River, east of the Sousa Bridge, in the District of Columbia. They rode to the stadium, through the stadium parking lot, and onto a path or road. Plaintiffs' Pretrial Brief at 183. They passed a sign at the entrance to that road that bore the words "No Unauthorized Vehicles." One of the plaintiff's friends saw the sign; plaintiff did not. Brown Deposition at 10; Eldee Edwards, Jr. Deposition at 22. They followed the road for about one-half mile (Brown Deposition at 10) past the D.C. Jail, behind the D.C. General Hospital, behind a fenced cemetery and down toward defendant's railroad tracks. They then came to a grassy area. Beyond this grassy area lay the railroad tracks; on the far side of the tracks was another grassy area and then the Anacostia River.
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.
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.
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.
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.
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.
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.
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.
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 tracks at the point of the incident are "mainline" or "through" tracks. Twenty to twenty-eight through trains pass there every day. Trains are not stored, loaded or switched in the area nor are there side tracks there for such purposes. Trains stop there only en route when required by signals for operational purposes of the railroad.
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.
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.
The required report was filed in 1972. Federal Railroad Administration, Report to Congress, Railroad-Highway Safety Part II: Recommendations for Resolving the Problem (U.S. Dept. of Transportation) (August 1972) (partial copy attached as Ex. A to Defendant's 9(h) Statement). Although the FRA had considered fencing and posting of signs at railroad rights-of-way as a possible solution to the problem of pedestrian deaths and injuries, including catenary injuries (see id. at 52), it expressly declined to recommend these alternatives to Congress. Id. at 53, 56-57. Instead, it reported the expense that would be involved in fencing some 30,000 miles of urban rights-of-way ($ 2.3 billion in 1972), noted the lack of assurance that fencing would be effective in preventing pedestrian access, and suggested further study before specific regulations were enacted. Id. at 55-57. The problem of catenary injuries to trespassers was noted in one sentence in the 108-page report, id. at 52, but no specific solutions were suggested, let alone adopted. No regulations to require fencing or signing have been promulgated subsequently by the FRA, and Congress has not imposed any such statutory requirements, even though it has twice amended the Act (in 1976 & 1980).
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.
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.
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.
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 three-tenths of a mile of the same site. Plaintiffs have proffered no more specific evidence regarding the circumstances of these two accidents, although the Court has examined Windom's deposition.
An additional undisputed fact is that in subsequent litigation of the Windom incident, Judge Richey of this Court granted a directed verdict in favor of the defendant railroad, Penn Central; that judgment was affirmed on appeal. Windom v. Penn Central, No. 479-72 (D.D.C. Feb. 21, 1973) (partial transcript attached to Defendant's Memorandum in Support), aff'd without opinion, 494 F.2d 1157 (D.C. Cir. 1974). In his decision rendered from the bench in Windom, Judge Richey noted that "railroads . . . are not insurers of property" and need not "endure unbearable burdens to maintain [their] property or a railroad line." Id., transcript at 412. He therefore granted judgment as a matter of law, holding that the railroad had not breached its duty of reasonable care, and that "the issue of reasonableness is for the court because of the uncontroverted facts in this case which permit only a single inference to be drawn." Id. at 414-15.
By analogy to the reasoning in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), federal courts in the District of Columbia exercising diversity jurisdiction must apply the substantive law of the District as announced by its highest court. Steorts v. American Airlines, Inc., 207 U.S. App. D.C. 369, 647 F.2d 194, 196-97 (D.C. Cir. 1981); Lee v. Flintkote Co., 193 U.S. App. D.C. 121, 593 F.2d 1275, 1278-79 n.14 (D.C. Cir. 1979). Analysis of this case must therefore begin with consideration of the en banc decision of the District of Columbia Court of Appeals in Holland v. B & O Railroad Co., 431 A.2d 597 (D.C. Ct. App. 1981).
The Holland decision resolved a long controversy concerning the applicable standard of liability in the District of Columbia for landowners in cases of injury to trespassers. In 1953 the United States Court of Appeals for the District of Columbia (sitting as the highest court in this jurisdiction) adopted the strict common law standard that trespassers may recover only in cases of "intentional, wanton or willful injury." Firfer v. United States, 93 U.S. App. D.C. 216, 208 F.2d 524, 528 (D.C. Cir. 1953). In 1972, however, the United States Court of Appeals suggested that common law distinctions between trespassers and other persons were "alien to modern tort law," and that a single standard of "reasonable care under the circumstances" should be applied in cases of injury to any person when present on another's land. Smith v. Arbaugh's Restaurant, Inc., 152 U.S. App. D.C. 86, 469 F.2d 97, 100-101 (D.C. Cir. 1972). In Holland, a nine-year-old boy was injured by a moving train while trespassing on the unfenced tracks of two railroads. The trial court had granted summary judgment in favor of the railroads, relying on the strict standard of Firfer; on appeal, the plaintiff argued that the less stringent standard of Arbaugh's should have been applied.
The District of Columbia Court of Appeals rejected the plaintiff's argument, both as a matter of precedent and as a matter of law. First, on February 1, 1971, the courts of the District of Columbia had been reorganized, and after that date the United States Court of Appeals was no longer the binding arbiter of District of Columbia law. The D.C. Court of Appeals held in Holland that, because Arbaugh's was decided by the U.S. Court of Appeals after the date of court reorganization (and, incidentally, because Arbaugh's facts did not involve a trespasser), the decision was not controlling and the Firfer decision remained the law of the District. Holland, 431 A.2d at 600; see M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). The Holland court therefore rejected "the attempt in Arbaugh's to rewrite the general law of tort liability of landowners in the District of Columbia." 431 A.2d at 600. Second, after consideration of the differing standards of liability set forth in Firfer and Arbaugh's, the en banc court refused to abandon common law distinctions between trespassers and other entrants onto land. "In this jurisdiction, trespassers may, generally speaking, only recover from landowners for injuries that were willful, wanton, or that resulted from maintenance of a hidden engine of destruction." Holland, 431 A.2d at 601.
Having made the decision to adhere to the strict common law standard of recovery for trespasser cases, the Holland court then went on to consider whether an exception to the rule might apply in the case before it. Because the case involved a minor, the court authoritatively stated that the "narrow exception" of the "attractive nuisance" doctrine, as spelled out in § 339 of the Restatement (Second) of Torts, could be invoked.
That section, however, was to be "strictly applied, and [permits liability] only when all five elements of the section [§ 339] are satisfied." Id. at 602. Applying § 339 to the facts in Holland, the court held that "a moving train is a danger so obvious that any nine-year-old child allowed at large would readily discover it and realize the risk involved." Id. at 603. Therefore, the court ruled that as a matter of law under § 339(c), no trespassing minor can recover for injuries caused by a moving train in the District of Columbia. The grant of summary judgment for the railroad was consequently affirmed. Id.
Having decided that requirement (c) of Restatement § 339 was not satisfied, the Holland court stated that it was "unnecessary to consider whether other elements of" § 339 were also satisfied. Id. at 603 n. 11. The court noted, however, that
courts have consistently held that in the absence of statutory requirements[,] railroads are generally under no duty to erect fences or maintain other safeguards and that, therefore, allegations [in a child-trespasser case seeking recovery on the basis of a failure to safeguard railroad tracks] do not satisfy the requirements of the Restatement rule.
Id. This observation made by the highest court in the District of Columbia sitting en banc, while undeniably dictum, is still entitled to considerable weight in this Court in the absence of more direct statements of local law.
Three judges dissented in Holland, and their views complete the picture of the current state of local law in this type of case. The dissenters' basic point was that, although the particular plaintiff in Holland might not have stated facts sufficient to recover under § 339, "rigid" legal rules barring individual consideration of future cases should not be stated. For this reason the dissenters recommended that
each case concerning a child trespasser and a railroad should . . . be decided on its facts under Restatement § 339, . . . leaving it to the trial court to grant summary judgment, direct a verdict, or enter judgment notwithstanding the verdict whenever the facts assuredly favor the railroad.
Id. at 605 (Ferren, A.J., dissenting). The dissenters argued that "not every child at large . . . will appreciate the danger of a train in every setting," and that although "in many if not most locations the addition of warning signals or fences . . . would do little to cut down the risks while costing a prohibitive sum," there could be "other locations where the value of additional safeguards might outweigh the costs of installing them." Id. at 604.
Consideration of both the majority and the dissenting opinions in Holland leads to several conclusions concerning the present state of District of Columbia law. First, the general rule remains that the trespassers cannot recover unless a landowner's injurious conduct has been "willful or wanton." Second, the "narrow exception" of Restatement § 339 remains available to minors who trespass in the District of Columbia, but that section is to be "strictly applied." Finally, "in many if not most locations," railroads have no duty in the absence of statutory requirement to fence their rights-of-way. To these three points, at least, agreement of the en banc Holland court was unanimous.
Before addressing the application of § 339 to plaintiffs' facts here, defendant and plaintiffs attempt to claim judgment as a matter of law on the basis of various federal and District of Columbia statutes relating to railroads. Defendant argues that any local common law remedy that plaintiffs might otherwise have has been preempted by Congress's decision to provide for uniform federal regulation of railroad safety via the 1970 Railroad Safety Act, supra, slip op. pp. 14-15, and the decision made pursuant to that Act by the Secretary of Transportation to require neither fencing nor other safeguards at urban railroad rights-of-way such as the one at which plaintiff was injured. At the other extreme, plaintiffs contend that D.C. Code § 7-1434
renders defendant strictly liable for injuries caused by its catenary system.
Although it would seem that the D.C. Court of Appeals' decision to apply common law principles in Holland necessarily rejected defendant's preemption argument sub silentio, both arguments will be briefly discussed here. Neither argument provides a convincing basis for judgment in this case, although as more fully discussed below, see infra, slip op. p. 58, the regulatory decisions made by the Secretary of Transportation under the Act and defendant's compliance with all those decisions as well as all local safety regulations does bear on the reasonableness of defendant's actions for purposes of Restatement § 339(e).
A. Strict Liability
Sections 1430-35 of Title 7 of the D.C. Code were enacted by Congress in 1934 as one bill, granting authority to the steam railroads then operating within the District of Columbia "to electrify their lines . . . with an alternating current overhead catenary or other type of electrification system." D.C. Code § 7-1430, Act of March 27, 1934 (Pub. Law No. 73-137, 48 Stat. 506-507). Section 1434 provides that
said railroad companies shall be liable for any accident to, or injuries sustained by, any person by reason of any act or omission of the railroad companies or by their agents or servants during the . . . operation of the electrical equipment and apparatus of the railroad trains.