PHILADELPHIA – For the moment, a federal judge has dismissed litigation from the estates of two minor children from Chester, who were killed one year ago by a passing Amtrak train going from New York to Washington, D.C., through granting the transit company’s motion for judgment on the pleadings.
Siana Gordon (Administratrix of the Estate of Jahaad Atkinson, a minor) and Wydeia Kimble (Administratrix of the Estate of Ah’yir Womack, a minor) both of Chester, first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 27, 2023 versus National Railroad Passenger Corporation, of Washington, D.C.
“Amtrak owns railroad lines in the eastern United States that are enclosed by fencing. Amtrak is responsible for building, repairing, and maintaining said fencing. On or about April 29, 2023, there was a gaping hole in the fencing protecting the track at the location of Central and Tilghman Streets in Chester, Pennsylvania,” the suit said.
“It is common practice for children to walk through said hole in the fence adjacent to the railroad in order to gain access to the nearby playground at Memorial Park. On April 29, 2023, five to seven children, including Jahaad and Ah’yir, walked through said hole onto the tracks. On April 29, 2023, at approximately 4:30 p.m., Amtrak Train 161, going from New York to Washington D.C., struck and killed Jahaad and Ah’yir. Amtrak is in possession of video that allegedly captured Jahaad and Ah’yir being struck by Train 161.”
The suit added that same video illustrates that Jahaad and Ah’yir were “dragged by the Amtrak train and did not die instantaneously.”
“It is alleged, and therefore averred that Amtrak knew or had reason to know, that children and adults were likely to trespass on the train tracks in this area of its land because they erected fencing which would prevent children from walking onto the tracks. Thus, trespassers were anticipated. Amtrak, as a possessor of the land on which the incident took place, owed Jahaad and Ah’yir, minors, a duty of care to avoid serious bodily injury or death,” the suit stated.
“It is also alleged and therefore averred that Amtrak knew or should have known that a complete, well-maintained fence was necessary to prevent children from trespassing on its train tracks. As such, Amtrak knew or should have known that lack of such a fence would pose an unreasonable risk of death and/or a serious bodily injury to those children. It is also alleged and therefore averred that Jahaad and Ah’yir, because of their youth, neither discovered the dangerous condition, nor realized and/or appreciated the serious risk of death or bodily injury involved in crossing Amtrak's train tracks. It is also alleged and therefore averred that Amtrak failed to exercise reasonable care to eliminate the danger and risk of death and serious bodily injury or otherwise protect children from this danger.”
In a Sept. 15, 2023 answer to the complaint, Amtrak denied its substantive allegations and provided 16 separate affirmative defenses.
“Plaintiffs’ complaint fails to state a claim upon which relief can be granted. Any claims which plaintiffs may have against Amtrak may be barred, or alternatively, reduced by virtue of the doctrine of comparative negligence and/or contributory negligence, pursuant to the provisions of the Pennsylvania Comparative Negligence Act. Plaintiffs’ claims may be limited or precluded by federal and/or state law. The injuries and damages alleged in the complaint were due to, and proximately caused by, plaintiffs’ and/or decedents’ own negligence, carelessness, recklessness, willfulness and/or wantonness. To the extent plaintiffs’ decedents assumed the risk of which they now complain, they should be barred from recovery. There is no basis to support a claim for punitive damages, as Amtrak did not act outrageously, with evil motive, with reckless indifference or in any manner giving rise to claim for punitive damages. Plaintiffs’ claim for punitive damages violates the United States Constitution and/or Pennsylvania Constitution. To the extent any claims against Amtrak are inconsistent with federal or state law, statutes or regulations, or any rules or regulations issued by the Federal Railroad Administration, same are preempted, precluded, or otherwise limited,” the defenses said.
“Plaintiffs’ decedents were trespassing at the time of the incident at issue. Amtrak owed no duty to plaintiffs’ decedents, except to refrain from causing injury through willful or wanton misconduct. Amtrak had no duty to erect or maintain fencing along its tracks. Any alleged lack of fencing or lack of maintenance of fencing is not the proximate cause of plaintiffs’ or decedents’ injuries and/or damages. Amtrak did not breach any alleged duty to plaintiffs or decedents. Amtrak did not commit willful or wanton misconduct towards the decedents at the time of the incident set forth in the complaint. Plaintiffs’ decedents’ negligent, willful, wanton, and/or reckless conduct bars plaintiffs’ ability to recover damages for the injuries and damages claimed in the complaint. Any claims which plaintiffs may have against the answering defendant are barred, or alternatively, must be reduced by virtue of the Railroad Civil Immunity Act.”
After U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg granted Amtrak the right to file a motion for judgment on the pleadings on Nov. 1, 2023, pursuant to Federal Rule of Civil Procedure 12(c), the company followed through with that same motion on Dec. 1.
Amtrak’s attorneys reiterated that the children were trespassers on the train tracks, and that its only duty in such a situation is “to refrain from causing injury through ‘willful’ or ‘wanton’ misconduct.”
“Decedents were clearly trespassers on Amtrak’s track, and plaintiffs have admitted this fact in the complaint. Thus, plaintiffs have the burden of proving that Amtrak acted in a willful or wanton manner, and that such conduct was the proximate cause of plaintiffs’ damages,” according to the company’s motion.
Furthermore, Amtrak argued it had no duty under Pennsylvania law to construct or maintain fencing along its railroad tracks.
“Plaintiffs allege decedents entered onto Amtrak’s tracks due to damaged fencing with a large hole adjacent to the tracks. However, Amtrak had no duty or obligation to fence or maintain fencing, and there is no Pennsylvania authority imposing a duty on railroads to maintain the fencing they choose to erect. Therefore, the lack of maintained fencing along Amtrak’s right-of-way in Chester is not a basis of recovery for decedents’ incident, and Amtrak is entitled to judgment as matter of law on all counts of plaintiff’s complaint. In light of case law confirming that Amtrak had no duty to erect fencing or to maintain any fencing along its tracks, plaintiffs cannot proceed with their claims against Amtrak, and judgment as a matter of law should be entered on behalf of Amtrak,” per the motion.
“As a matter of law, the lack of sufficient fencing is not the proximate cause of injuries which are sustained by people who are struck by trains while on the tracks. Thus…lack of fencing cannot be the proximate cause of the injuries and damages claimed by plaintiffs in the complaint. Therefore, Amtrak is entitled to judgment as a matter of law, and judgment on the pleadings should be entered on behalf of Amtrak. For the foregoing reasons, Amtrak respectfully requests that the Court enter judgment on the pleadings in its favor and against plaintiff on all counts of the complaint.”
On Jan. 1, the plaintiffs responded to the motion for judgment on the pleadings, finding that to dismiss the case at such an early juncture was premature.
“In this case, there has not been a determination made as to whether the minor-decedents were licensees and/or a trespassers. If both minor plaintiffs’ were licensees, there would be a duty to warn them about dangerous conditions. It is premature to determine whether minor-decedents were unaware of the dangerous condition such that defendant owed them a duty to warn about the existence of such a condition,” the response brief stated, in part.
“Moreover, there could be other legal theories which arise from plaintiffs’ claims of negligence. For instance, there could be a legal argument to be made that the operator of the train was negligent in failing to sound the horn. Plaintiffs’ case is not so far along that any new legal theory would be foreclosed by the procedural posture of the action. Likewise, plaintiffs, through the filing would be requesting leave to amend their complaint to demarcate its claims of negligence. Defendant would be put on notice that failing to sound the horn as the train was approaching the railroad crossing could form the basis for a viable negligence claim and whether the operator’s failure to do so was of a wanton nature.”
The Court making a judgment on the pleadings before determining the facts would be in error, per the response filing.
“At this point in time, it is simply too soon to know whether a reasonable jury could determine defendant acted wantonly by failing to see the two minors sooner, failing to sound the horn sooner, accelerating the train while the decedent was on the tracks, failing to brake sooner and/or even apply the emergency brake. Importantly, without the ability to amend the complaint to properly aver these specific acts of negligence, plaintiff would be unable to conduct discovery on these issues to determine whether the decedent helped to create this dangerous situation,” the response brief continued.
“A jury could equally find, after conducting discovery revealing a factual dispute, that the operator of the train should have seen the two minors sooner than he did, and could have avoided the accident. All of these factors would go to assess plaintiffs’ claims and proofs of wantonness on the part of decedents. Without the opportunity to move forward, plaintiffs’ would never know.”
UPDATE
In a March 29 memorandum opinion, Goldberg granted the defense’s motion for judgment on the pleadings.
“Defendant argues that plaintiffs have failed to state a claim for negligence because a railroad owes no duty to fence its property, both under common law and Pennsylvania’s ‘Railroad Civil Immunity’ statute. Pennsylvania’s Railroad Civil Immunity statute provides that ‘[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.’ The statute defines a ‘trespasser’ as ‘[a] person who enters onto railroad property without any right, lawful authority or the express consent of the railroad,” Goldberg said.
“Plaintiffs first respond that decedents were not trespassers because they were at a ‘permissive crossing’ and were thus ‘licensees.’ A permissive crossing is a ‘well-defined location” that is ‘used frequently, continuously and notoriously by the public.’ It must consist of a ‘defined passageway’ rather than a general practice of people crossing the railroad tracks. At this stage of the proceedings, the facts set forth in plaintiffs’ complaint do raise a plausible inference that there was a permissive crossing. The complaint alleges that the crossing was restricted to a well-defined location (the hole in the fence) and was used frequently, continuously, and notoriously (because the hole was ‘gaping’) by children accessing the park. Defendant counters that plaintiffs ‘admitted’ that decedents were trespassers be-cause the complaint generally refers to children ‘trespassing’ on the tracks. However, the purpose of a complaint is to set out facts, not legal theories, and these allegations do not specifically identify decedents as trespassers. Defendant also insists that video evidence shows decedents walking along the tracks rather than crossing at a defined passageway, but this extrinsic evidence is irrelevant to assessing the sufficiency of plaintiffs’ complaint.”
Goldberg said it was “therefore plausible, at this stage, that decedents crossed the tracks at a permissive crossing…and if so, [the] decedents would be ‘licensees’ rather than trespassers, and would thus fall outside the Railroad Civil Immunity Statute.”
“But the fact that decedents may not have been trespassers does not end the inquiry, as plaintiffs must still identify a duty that was allegedly breached. Train operators owe certain duties to licensees at permissive crossings, such as to give warning of the train’s approach. But plaintiffs do not allege any negligence on the part of the train operator. Instead, the only breach alleged in plaintiffs’ complaint is that defendant did not repair the fence, allowing a ‘gaping hole’ through which children regularly crossed. But a railroad has no duty to fence its property. Scarborough v. Lewis, like this case, involved a ‘hole in the fence’ through which a child gained access to the tracks. Moreover, a duty to erect fences is logically inconsistent with the notion of a permissive crossing: If a person has the railroad’s ‘permission to cross its property,’ it cannot also be true that the railroad ‘was negligent in not preventing her and other members of the public from crossing the tracks,” Goldberg said.
“Plaintiffs cite authority on the doctrine of ‘attractive nuisance,’ under which a possessor of land may be liable if trespassing children are injured by a dangerous condition. For example, in Bartleson v. Glen Alden Coal Co., the defendant was liable for failing to fence its tower. But plaintiffs have cited no authority that the general rule of attractive nuisance overrides the more specific rule that a railroad has no duty to fence its property. Alternatively, if decedents were trespassers, plaintiffs would need to allege a ‘willful or wanton failure to guard or warn against a dangerous condition, use or activity.’ ‘Wanton misconduct means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ Since the only alleged misconduct was failing to repair the hole in the fence, and this was not even negligent, plaintiffs have not alleged willful or wanton conduct. For these reasons, plaintiffs’ complaint as presently pled fails to state a claim.”
However, Goldberg’s ruling also allowed the plaintiffs to file an amended complaint within 14 days of the date of his order, at this early juncture in the case, in an attempt to cure the deficiencies outlined in his opinion.
For counts of negligence, survival and wrongful death, the plaintiffs are seeking compensatory damages and punitive damages in an amount to be determined at trial, pre- and post-judgment interest, costs including reasonable attorney’s fees, any and all relief to which the plaintiffs may be entitled and a trial by jury.
The plaintiffs are represented by Emeka Igwe of The Igwe Firm, in Philadelphia.
The defendant is represented by Christopher Scott Sheldon and Yuri J. Brunetti of Landman Corsi Ballaine & Ford, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02884
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com