PHILADELPHIA – A federal judge has dismissed with prejudice portions of a lawsuit predicated on the attractive nuisance doctrine or Amtrak and the Southeastern Pennsylvania Transportation Authority’s failure to erect, repair or maintain fencing or other barriers – in litigation from the sister of a man killed by a passing SEPTA train in Northeast Philadelphia over two years ago.
Lisa King (as Administratrix of the Estate of Paul Richard King) of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 5, 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 May 12, 2022, there was a gaping hole in the fencing protecting the track at the dead end of National Street near 6900 State Road in Philadelphia, Pennsylvania. On or about May 12, 2022, Mr. King walked through said hole onto the tracks,” the suit stated.
“It is common practice for individuals to walk through said hole in the fence adjacent to the railroad in order to gain access to a nearby residential area. On May 12, 2022, at approximately 8:15 a.m., Septa train No. 705 struck and killed Mr. King. It is alleged, and therefore averred that Amtrak knew or had reason to know that adults were likely to trespass on the train tracks in this area of its land because they erected fencing which would prevent trespassers from walking onto the tracks. Thus, trespassers were anticipated.”
The suit added that Amtrak, “as a possessor of the land on which the incident took place, owed Mr. King a duty of care to avoid serious bodily injury or death.”
“It is also alleged and therefore averred that Amtrak knew or should have known that a complete, well-maintained fence was necessary to prevent adults 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 adults. 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 adult trespassers from this danger. It is also alleged and therefore averred that was entirely foreseeable, at the time of the incident in question, that adult trespassers would walk through the hole in Amtrak's fence, onto the train tracks, owned and operated solely by Amtrak, because of the history of similar incidents and there was a lack of fencing or other barriers which would prevent adults from entering onto the tracks,” the suit said.
“As a direct and proximate result of the willful, wanton, negligent, careless and/or reckless conduct of Amtrak, Mr. King died at the scene of the incident, Mr. King’s daily activities and usual life’s pleasures were forever extinguished, Mr. King’s earning capacity and employment opportunities were terminated and the Estate of Paul Richard King incurred liability for emergency medical services, funeral and household expenses.”
Counsel for Amtrak filed a motion to dismiss the case for failure to state claims upon which relief could be granted, on Dec. 5. Amtrak argued that because the decedent was a trespasser, it had no duty under Pennsylvania law to construct and/or maintain protective fencing around its own tracks.
Furthermore, under Pennsylvania’s Railroad Civil Immunity statute, Amtrak said possessors of property “have no duty to trespassers except to refrain from causing injury through ‘willful’ or ‘wanton’ conduct.”
“Here, plaintiff alleges decedent 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 is not a basis of recovery for decedent’s incident, and plaintiff’s complaint should be dismissed,” according to the dismissal motion.
“Under Pennsylvania law, courts have consistently held for nearly a century that railroads do not have a legal duty to fence off their rights-of-way or to police and patrol same in order to prevent trespassers from entering upon or crossing the tracks.”
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert granted Amtrak’s motion and dismissed the suit without prejudice, in a Feb. 16 memorandum opinion and permitted the plaintiff to file an amended version by Feb. 26.
An amended complaint was filed on that date, now including SEPTA as a defendant, and both Amtrak and SEPTA subsequently filed motions to dismiss.
UPDATE
In a June 28 memorandum opinion, Pappert dismissed with prejudice portions of the complaint predicated on the attractive nuisance doctrine or the defendants’ failure to erect, maintain or repair fencing or other barriers in the area of the accident.
“King’s amended complaint also names the Southeastern Pennsylvania Transportation Authority as a defendant. She also alleges new theories of negligence, contending for example that the train engineer failed to observe Paul on the track until it was too late to stop the train or warn Paul. Additionally, King alleges Paul was a licensee rather than a trespasser because the accident occurred on a permissive crossing. A permissive crossing is ‘an express or implied license…to pass over the property of [a] railroad company,” Pappert said.
“King also alleges the hole in the fence created an attractive nuisance. Amtrak and SEPTA seek only to dismiss King’s claims based on the attractive nuisance doctrine and their alleged failure to properly fence or barricade the tracks. Neither Amtrak nor SEPTA move to dismiss King’s alternatively-pled allegations that it negligently operated the train that struck Paul. The defendants had no duty to erect or maintain fencing along the railroad track or otherwise barricade the crossing. Paul’s alleged licensee status does not change this outcome. To argue otherwise requires circular reasoning. King cannot ‘argue simultaneously that [Paul] had Amtrak’s permission to cross its property...but that Amtrak was negligent in not preventing [him] and other members of the public from crossing the tracks.”
According to Pappert, “King cannot circumvent this rule through the attractive nuisance doctrine, either” – and “fatally, this doctrine ‘is limited to instances in which children unlawfully enter or remain on land’, [and since] Paul is an adult, the doctrine does not apply to him.”
“Moreover, SEPTA is entitled to sovereign immunity from these claims. This immunity is waived when: ‘(1) The alleged act is a negligent act for which damages would be recoverable under the common law or by statute, and (2) The act falls within one of the specifically enumerated exceptions listed in 42 Pa. C.S. Section 8522(b),” Pappert stated.
“To satisfy the first prong of this test, plaintiffs ‘must prove the requisite elements of negligence,’ including ‘the defendant’s duty or obligation recognized by law.’ Because the defendants did not have a duty to erect, maintain or repair fencing or otherwise barricade the tracks, King cannot do so. The same goes for her attractive nuisance claim, since again, it does not apply to Paul. These claims are predicated on a legal duty neither defendant owed. Granting leave to amend would accordingly be futile, since even as amended the complaint ‘would fail to state a claim upon which relief could be granted.”
For counts of negligence, survival and wrongful death, the plaintiff is seeking compensatory damages in an amount to be determined at trial by a jury, punitive damages in an amount to be determined at trial, a trial by jury, pre-judgment and post-judgment interest, recovery of costs including attorney’s fees, and any and all relief to which the plaintiff may be entitled.
The plaintiff is represented by Emeka Igwe of The Igwe Firm, in Philadelphia.
The defendants are represented by Christopher Scott Sheldon and Yuri J. Brunetti of Landman Corsi Ballaine & Ford, plus Mark E. Gottlieb, Joshua D. Groff and Justine A. Baakman of Offit Kurman, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03883
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com