United States District Court, W.D. Pennsylvania
PATRICIA MANFRED, individually, and as Administratrix of the Estate of Joseph J. Gray, Deceased, Plaintiff,
NATIONAL RAILROAD PASSENGER CORPORATION and NORFOLK SOUTHERN RAILWAY COMPANY, Defendants.
NORA BARRY FISCHER, District Judge.
Plaintiff Patricia Manfred brings this action individually and as Administratrix of the Estate of Joseph J. Gray, her deceased son, alleging wrongful death and survival claims against both remaining Defendants. (Docket No. 1). On October 2, 2014, Defendants moved for Summary Judgment, arguing no liability as to all counts. (Docket No. 39). Said Motion is now fully briefed. (Docket Nos. 40, 41, 44, 45, 48, 49, 50, 55, 57). Upon consideration of the parties' filings, their arguments presented at the January 9, 2015 Motion Hearing, (Docket No. 51), the Supplemental Briefs, (Docket Nos 55, 57), the last of which was filed on February 13, 2015, and for the reasons more fully stated herein, Defendants' Motion, (Docket No. 39), is GRANTED.
On October 21, 2010, Harry McIntosh, a certified locomotive engineer employed by National Railroad Passenger Corporation ("AMTRAK"), (Docket No. 40 at ¶ 3), operated a passenger train known as "The Pennsylvanian, " on a route from Pittsburgh to New York City, (Id. at ¶ 4). At approximately 7:33 AM, the train came around a curve onto a straight line when, somewhere near mile post 346,  McIntosh observed something on the tracks. (Id. at ¶¶ 1, 6). According to McIntosh, it took him a second or two to determine that the "something" was a person. (Id. at ¶ 8). That person was Joseph Gray. (Id. at ¶ 9). He was walking in the same direction that the train was traveling, with his back toward McIntosh. (Id. ). Gray was walking within the gauge of the track on which McIntosh's train was traveling. (Id. at ¶ 19).
At some point after identifying that Gray was walking within the gauge of the track, McIntosh sounded the train's horn. (Id. at ¶ 10). At no time did Gray attempt to leave the gauge of the track or respond in any manner to the train's horn. (Id. at ¶ 20; Docket No. 40-1 Ex. 4). McIntosh sounded the horn for 9.1 seconds. (Docket No. 40 at ¶ 30). Four to five seconds into the sounding of the horn, an "Engineer Initiated Emergency" of the brakes was made. (Id. ). It took the train 24 seconds and 975 feet to come to a complete stop once the emergency brake was applied. (Docket No. 44 at ¶ 38). Unfortunately, the train did not stop in time, fatally striking Gray. (Docket No. 40 at ¶ 22; Docket No. 40-1 Ex. 4).
After coming to a complete stop, McIntosh exited the cab of the locomotive to assess the situation. (Docket No. 40 at ¶ 23). Gray was not on the front of the locomotive, but McIntosh did find earbud headphones hanging on the left side of the locomotive. (Id. at ¶¶ 23-24). Additionally, a witness, Zoltan Weslowski, observed Gray walking in the middle of the train tracks with his hood up. (Id. at ¶ 25). It appeared to Weslowski that Gray was wearing headphones. (Id. ). Weslowski further confirmed the general narrative that the train approached Gray from behind with its horn sounding continuously before striking him, and that Gray made no attempt to move out of the way of the train. (Id. at ¶ 26).
The relevant section of track was a class 3 track, meaning that the maximum allowable operating speed for passenger trains is 60 miles per hour. (Id. at ¶ 29 (citing 49 C.F.R. § 213.9)). At no time did the train's speed exceed the maximum allowable speed for passenger trains on this section of the track. (Id. at ¶ 31).
II. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). Under Rule 56, a district court must enter summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323.
When a non-moving party would have the burden of proof at trial, the moving party has no burden to negate the opponent's claim. Id. The moving party need not produce any evidence showing the absence of a genuine issue of material fact. Id. at 325. "Instead, ... the burden on the moving party may be discharged by showing'-that is, pointing out to the district court- that there is an absence of evidence to support the nonmoving party's case." Id. After the moving party has satisfied this low burden, the nonmoving party must provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id. at 324. "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Id.
In considering these evidentiary materials, "courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations omitted). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson, 477 U.S. at 255. To that end, the Third Circuit has noted that "depositions are one of the best forms of evidence for supporting or opposing a summary-judgment motion, ' and that affidavits, not being subject to cross-examination, are likely to be scrutinized carefully by the court to evaluate their probative value.'" In re CitX Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006) (quoting 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2722, at 373, 379 (3d ed. 1998)). Even inconsistencies within a Plaintiff's deposition may "cast doubt on the plaintiff's story" and "are matters ultimately useful in determining the plaintiff's credibility, " but they "are not proper considerations on a motion for summary judgment." Chatman v. City of Johnstown, PA, 131 F.Appx. 18, 20 (3d Cir. 2005). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The parties do not contest the applicability of Pennsylvania law to this action, as all relevant events occurred within the Commonwealth.
Defendants argue that summary judgment should be entered in their favor on liability because Gray was a trespasser and Plaintiff has failed to present any evidence of willful or wanton misconduct. (Docket No. 41 at 1). In support of this position, they aver that: (1) Engineer McIntosh did not breach the standard of care owed a trespasser; (2) Plaintiff's claims based on excessive speed or failure to control speed are preempted; (3) Defendants had no duty to fence or barricade the railroad right of way or to post warning signs; and (4) Plaintiff's request for punitive damages cannot be supported based on her allegations. The Court addresses each contention, in turn.
a. Gray's Status and the Duty of Care Owed
The Pennsylvania Superior Court has held that "[g]enerally, the determination of whether an individual is an invitee, licensee, or trespasser is one of fact for the jury. Where the evidence is insufficient to support an issue, however, it may be appropriate for the court to remove that issue from the jury." Palange v. Phila. Law Dept., 640 A.2d 1305, 1307 (Pa.Super. Ct. 1994). The Pennsylvania Railroad Civil Immunity Statute defines a "trespasser" as "[a] person who enters onto railroad property without any right, lawful authority or the express consent of the railroad." 42 Pa.C.S.A. § 8339.1(c). Consistent with that definition, the Pennsylvania Supreme Court has cited and applied, though never officially adopted, the Second Restatement's definition, under which a trespasser is "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." RESTATEMENT (SECOND) OF TORTS § 329 (1965); see also Rossino v. Kovacs, 718 A.2d 755, 756-57 (Pa. 1998). Additionally, the Third Circuit, applying Pennsylvania common law, has held that "[m]ere acquiescence to trespassing does not alter an entrant's status, " so that "a foreseeable trespasser is still a trespasser." Estate of Zimmerman v. Se. Pa. Transp. Auth., 168 F.3d 680, 686 (3d Cir. 1999).
The Railroad Civil Immunity Statute provides the following relating to the duty of care owed to a trespasser:
(a) General rule.-A railroad carrier owes no duty of care to keep its railroad property safe for entry or use by any trespasser who enters upon any railroad property or railroad right-of-way or to give any warning to such trespasser entering or going on that railroad property of a dangerous condition, use or activity thereon. Except as set forth in subsection (b), a railroad carrier shall not:
(1) Be presumed to extend any assurance to a trespasser entering or going on railroad property without the railroad carrier's consent that the ...