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May 18, 1987

Stanley Foshee, et al., Plaintiffs,
Consolidated Rail Corporation, Defendant

The opinion of the court was delivered by: GREENE

 On July 25, 1982, Derek Foshee, then a thirteen-year old boy, was seriously injured, losing both legs and an arm, *fn1" by a Conrail freight train on the main Conrail tracks in northeast Washington. After a trial, the jury returned a verdict in favor of plaintiffs, awarding $ 1.5 million to Derek and $ 70,859.10 to his parents. *fn2" Presently pending before the Court is the railroad's motion for a judgment notwithstanding the verdict pursuant to Rule 50(b), Fed. R. Civ. P. *fn3" Three principal arguments are made in support of the motion, as follows.


 The railroad contends that under District of Columbia law *fn4" plaintiff was either a trespasser or a bare licensee, and that on either hypothesis, it only owed him the duty not to engage in intentional or willful injury. *fn5" This argument depends upon the continuing vitality of a thirty-four-year old decision of the U.S. Court of Appeals for this Circuit in Firfer v. United States, 93 U.S. App. D.C. 216, 208 F.2d 524 (D.C. Cir. 1953), which, in pertinent part, decided that mere acquiescence by a landowner to the use by the public of his property does not elevate any particular member of that public to a status higher than that of bare licensee to whom only the duty not to engage in intentional injury is owed.

 Several decisions of the District of Columbia Court of Appeals since Firfer have dealt with the landowner liability question and, in the opinion of this Court, their effect has been to undermine the value of Firfer as binding precedent. *fn6"

 In Smith v. Arbaugh's Restaurant, Inc., 152 U.S. App. D.C. 86, 469 F.2d 97 (D.C. Cir. 1972), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 399, 93 S. Ct. 2774 (1973), the U.S. Court of Appeals rejected the common law theories predicating landowner liability on the status of the entrant and enunciated a single standard of care owed to all entrants: "[a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances." 469 F.2d at 100. The court went on to state that in determining the degree of care demanded in a specific situation, the jury should consider "'the likelihood that [the landowner's] conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which [the landowner] must sacrifice to avoid the risk'" (citation omitted).

 In 1981, the D.C. Court of Appeals confronted the same issues on an en banc basis in Holland v. Baltimore and Ohio R.R. Co., 431 A.2d 597 (D.C. App. 1981). One of the issues before the court in that case was the question whether the Firfer rule should be abandoned with respect to a landowner's liability to trespassers. Noting that the trespasser classification had not been included in the movement towards abolishing distinctions between a landowner's liability on the basis of the plaintiff's status, the court held that the standard set forth in Firfer pertaining to a landowner's liability to trespassers remained valid precedent. 431 A.2d at 596-97. In the court's view, the single standard of care set forth in Arbaugh was without precedential effect with regard to trespassers. *fn7"

 Although it is defendant's position that Holland authoritatively resurrected the Firfer rule with its strict distinctions among separate classes of individuals who may be found on the land of others, it does not appear that the D.C. Court of Appeals views the situation in that manner. In fact, shortly after Holland was handed down, the local appellate court reversed a trial court decision which did not accord the plaintiff the invitee status to which, in the view of the appellate tribunal, she might well have been entitled. Washington Metropolitan Area Transit Authority v. Ward, 433 A.2d 1072 (D.C. App. 1981). Judge Ferren stated in his concurrence that, with respect to both licensees and invitees, the standard to be applied is that of reasonable care under the circumstances. 433 A.2d at 1074. That is also the view espoused in recent decades by the great majority of other jurisdictions *fn8" and, as noted above, by the U.S. Court of Appeals for this Circuit. See Arbaugh's, supra.9

 In view of this history, this Court is not prepared to hold that the District of Columbia still clings to the Firfer rule. The appropriate way to measure the duty of a landowner toward those on his land is to determine whether he exercised toward them reasonable care under the circumstances.

 It follows from what has been said that the railroad's motion cannot be granted on the basis that, under District of Columbia law properly interpreted, it only owed to plaintiff the duty not intentionally to injure him. The true test is that of reasonable care under the circumstances, and the motion will now be considered in light of that standard.


 The railroad contends next that, whatever the standard, there was no proof at the trial that it was negligent. In order to evaluate that contention, a brief summary of the evidence of this tragic accident is in order. Derek Foshee entered upon the railroad property with six of his friends, one of their purposes being to traverse the railroad land to visit a video arcade on the other side of the tracks. There was some discussion of "hopping" a Conrail freight train that was approaching -- as some of the boys in the area had done on quite a few occasions -- but the evidence does not reveal with certainty what conclusion, if any, was reached in regard to such an enterprise. *fn10" Suffice it to say that eventually the train -- approximately one mile long and consisting of six engines, 98 freight cars, and a caboose -- passed the area where the boys were congregated at a speed of nineteen miles per hour *fn11" within a distance of no more than ten feet from Derek Foshee.

 There was a gap in the evidence as to what occurred next. Plaintiff himself stated, with some support in the medical records, that, as a consequence of the trauma he suffered, he has no memory of how the accident occurred. Each of his companions testified in almost identical language that at the time of the accident he was looking in the opposite direction and thus could not describe what precipitated the accident and plaintiff's injuries. All that is clear is that Derek Foshee somehow came to be under the wheels of the train and that he was seriously injured as indicated above.

 The issue which the Court must consider is whether under these circumstances there was any evidence upon which a reasonable jury could find the railroad guilty of negligence and, if the answer is in the affirmative, whether that negligence was the proximate cause of the injury. See generally, Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723, 726 (D.C. Cir. 1978); Pomeroy v. Pennsylvania Railroad, 96 U.S. App. ...

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