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CAREY v. CONRAIL

December 28, 1992

JASON CAREY, A MINOR, by MARGE CAREY and KENNETH EISLER, his parents and natural guardians, and MARGE CAREY and KENNETH EISLER, in their own right, Plaintiffs,
v.
CONSOLIDATED RAIL CORPORATION ("CONRAIL"), JAMES A. THOMAS, JOHN F. McCONAGHY, EUGENE MOLLOY, NATIONAL RAIL PASSENGER CORPORATION ("AMTRAK"), and FLUORO-PLASTICS, INC., Defendants.



The opinion of the court was delivered by: BY THE COURT; ROBERT F. KELLY

 R.F. KELLY, J.

 DECEMBER 28, 1992

 Plaintiffs commenced this action seeking compensation for injuries sustained when Plaintiff Jason Carey was struck by a Conrail train on April 5, 1990. Defendant Fluoro-Plastics, Inc. ("Defendant Fluoro") owns property located adjacent to the railroad tracks where the accident occurred. Defendant Amtrak owns the property upon which the railroad tracks are located. A fence separates the property owned by Defendant Fluoro and the property owned by Amtrak. Pursuant to Federal Rule of Civil Procedure 12(c) and (h)(2), Defendant Fluoro filed this Motion for Judgment on the Pleadings arguing that Plaintiffs have failed to state a claim upon which relief can be granted. Based upon the reasons set forth below, the Motion of Defendant Fluoro for Judgment on the Pleadings is hereby granted.

 Plaintiff Jason Carey allegedly climbed through a hole in the fence which borders the property owned by Defendant Fluoro to gain access to the railroad tracks. Plaintiffs argue that Defendant Fluoro was negligent because it failed to inspect and control the area near the railroad tracks; failed to maintain or fix holes in its fence; failed to warn Plaintiff Jason Carey of the dangers created by the holes in the fence; and encouraged the use of the hole in the fence as a right-of-way to gain access to the railroad tracks.

 Even though a moving defendant has filed an answer to a plaintiff's complaint, a court should treat a motion for judgment on the pleadings as if it were a motion to dismiss. National Assoc. of Pharmaceutical Mfr., Inc. v. Ayerst Laboratories, 850 F.2d 904, 909 n.2 (2d Cir. 1988). In resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view these allegations and inferences in a light most favorable to the non-moving party.

 Pursuant to Pennsylvania law, in order for Plaintiffs to sustain a cause of action in negligence against Defendant Fluoro, Plaintiffs must establish the following elements:

  *fn1" A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks;

 2. A failure on his part to conform to the standard required;

 3. A reasonable causal connection between the conduct and the resulting injury; and

 4. Actual loss of damage resulting to the interest of another.

 Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606, 612 (Pa. Super. 1985) (citing Prosser, LAW OF TORTS, § 30 at 143 (4th ed. 1971)). Defendant Fluoro maintains that Plaintiffs' claims against it must fail because Defendant Fluoro had no duty or obligation as a matter of law to protect Plaintiff Jason Carey from harm on adjacent land.

 Under Pennsylvania law, a possessor of land has no duty to erect fencing or provide warnings so as to deter persons from entering adjoining property in which a dangerous condition exists which was not created or maintained by the possessor of land. Houck v. Samuel Geltman & Co., 400 Pa. Super. 534, 583 A.2d 1244 (Pa. Super. 1991); see also Cousins v. Yaeger, 394 F. Supp. 595 (E.D. Pa. 1975) (landowner had no duty to erect a fence on his property which adjoined railroad right-of-way since dangerous condition did not exist on landowner's property); Heller v. Consolidated Rail Corp., 576 F. Supp. 6 (E.D. Pa. 1982), aff'd, 720 F.2d 662 (3d Cir. 1983) (landowner had no duty to guard against dangerous conditions which exist on adjoining property). Accordingly, Defendant Fluoro has no duty to erect a fence or to provide warnings so as to deter persons such as Plaintiff Jason Carey from entering the adjacent land owned by Amtrak where the railroad tracks are located.

 Plaintiffs maintain that the cases cited above are distinguishable from the present case since a fence did not separate the railroad tracks and the adjoining property in those cases. Plaintiffs argue that Defendant Fluoro was negligent in failing to maintain or repair its existing fence. However, under Pennsylvania law, an adjoining property owner has no duty to repair or maintain its fence to prevent persons from climbing through holes in the fence to gain access to neighboring land upon which railroad tracks are located. See ...


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