68 F.3d 591 (2nd Cir. 1995), 1663, Kurisoo v. Providence & Worcester R. Co.

Docket Nº:1663, Docket 94-9303.
Citation:68 F.3d 591
Party Name:Manivald KURISOO, Plaintiff-Appellant, v. PROVIDENCE & WORCESTER RAILROAD COMPANY, Defendant-Appellee.
Case Date:October 17, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 591

68 F.3d 591 (2nd Cir. 1995)

Manivald KURISOO, Plaintiff-Appellant,



No. 1663, Docket 94-9303.

United States Court of Appeals, Second Circuit

October 17, 1995

Argued June 22, 1995.

Page 592

Carmine J. Giuliano, Hartford, CT (Candice Mulak, Fusco & Giuliano, on the brief), for Plaintiff-Appellant.

Howard E. Walker, Providence, RI (Thomas J. Shortell, Kerry R. Callahan, Jennifer A. Osowiecki, Updike, Kelly & Spellacy, Hartford, CT, Hinckley, Allen & Snyder, Providence, RI, on the brief), for Defendant-Appellee.

Before KEARSE, ALTIMARI, and PARKER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Manivald Kurisoo appeals from a judgment of the United States District Court for the District of Connecticut, Alfred V. Covello, Judge, dismissing Kurisoo's complaint seeking damages from defendant Providence & Worcester Railroad Company ("P & W") for personal injury resulting from P & W's alleged negligence in the maintenance of its property. The district court granted summary judgment dismissing Kurisoo's claims on the ground that P & W was immune from liability under Connecticut's "recreational use" statute, Conn.Gen.Stat. Secs. 52-557f to 52-557i (1991). On appeal, Kurisoo contends that there were genuine issues to be tried as to (a) whether the P & W-owned area where he was injured was "available to the public," a statutory prerequisite for recreational-use immunity, and (b) whether P & W's conduct was "wilful or malicious" and hence within a statutory exception from the grant of such immunity. For the reasons below, we reject Kurisoo's contentions and affirm the judgment of the district court.


P & W owns a railroad right-of-way extending for several miles along the Thames River between Groton and Norwich, Connecticut. On October 2, 1991, Kurisoo was fishing at a popular fishing area located on P & W property (the "P & W fishing area") when a passing train collided with a rock and caused the rock to strike Kurisoo, severely injuring his leg. Thereafter, Kurisoo underwent numerous surgical procedures, culminating in amputation below the knee. The pertinent facts with regard to P & W's operation of its right-of-way are not in dispute.

  1. The Circumstances Surrounding the Injury

    The P & W fishing area was widely known as an excellent location for fishing and had received publicity as such in at least two local newspapers. The public gained access to the right-of-way by crossing a parking lot near a state highway and following a steep path

    Page 593

    along the river bank. In his pretrial deposition, Kurisoo stated that the site of the accident was often crowded with fishermen and that "[e]verybody fish[ed] there." (Kurisoo Dep. at 6.)

    There were no signs prohibiting trespassing either at the parking lot or along the path Kurisoo and other fishermen used to reach the P & W fishing area. Nor were there any such signs at the fishing area. The "No Trespassing" signs nearest to the site of Kurisoo's accident were approximately 700 feet to the south of the access path, and approximately 750 feet south of the fishing area itself, near a cluster of private homes that abutted the right-of-way. In addition, "No Trespassing" signs were posted on a narrow railroad bridge one mile north of the P & W fishing area. While members of the public had been asked by P & W employees to leave the bridge, P & W had never made any attempt to restrict fishermen's access to the right-of-way generally or to the P & W fishing area.

    Kurisoo stated that after his retirement in 1986, he fished at the P & W fishing area about five times a week. During that time no one ever told him not to fish there; nor did he see anyone ejected from the area for any reason. He testified that about an hour before a train passed, a P & W employee customarily drove along the tracks in a specially equipped truck, warned anyone nearby of the train's approach, and indicated its current location and likely time of arrival. On no occasion did the employee either order fishermen to leave the property or indicate that fishing there was forbidden.

    Many fishermen at the site regularly propped their fishing poles against one of the railroad tracks, using a rock to lodge the pole against the rail. Kurisoo testified that he always gave the rocks a wide berth "[b]ecause you never know what happen [sic ]." (Kurisoo Dep. at 58.) Several P & W employees gave deposition testimony concerning P & W's knowledge that fishermen were using rocks to lodge their fishing poles against the railroad tracks. Under federal regulations, P & W was required to make weekly inspections of its tracks to keep them clear of debris, and on numerous occasions P & W inspectors and other employees removed rocks found on the tracks. Frank Benson, a P & W maintenance supervisor, stated that on several occasions over a ten-year period he had sent crews of between one and four men to clear away rocks near the tracks. Further, P & W track inspector Franklin Fifield stated that he had removed rocks from the tracks near the P & W fishing area more than 15 times in the previous several years, and that he had told fishermen not to leave rocks in the tracks "[f]or safety reasons."

    The record contains no evidence of any injuries or other accidents resulting from rocks laid on the tracks prior to Kurisoo's injury. One P & W employee, a trainman for 10 years, had no recollection of his train ever hitting a rock on the tracks; another employee, a track inspector, testified that he had never seen a train hit anything on the tracks. Kurisoo also testified that he had never seen a train hit a rock or injure any other fisherman.

  2. The Proceedings in the District Court

    Kurisoo commenced this diversity action in September 1993, contending that P & W and its agents had been negligent in, inter alia, operating the train that caused Kurisoo's injury and carrying out their duty to keep the track clear of debris. Discovery was conducted through interrogatories, document production, the depositions of five P & W employees, and the deposition of Kurisoo.

    Following the completion of discovery, P & W moved for summary judgment dismissing the complaint on the ground that Kurisoo's claims were barred under Sec. 52-557g of the Connecticut recreational-use statute. As discussed in Part II below, that statute provides that, subject to certain exceptions, to the extent that a landowner makes his land available to the public free of charge for recreational purposes, he owes no duty of care to recreational users. Kurisoo opposed summary judgment, contending that there were factual issues to be tried as to the applicability of the statutory immunity. First, pointing out that there were "No Trespassing" signs 700+ feet from the fishing area, he argued that P & W did not meet the statutory

    Page 594

    prerequisite for recreational-use immunity because it had not made the land available to the public. Second, stating that he had never been warned by any signs or any P & W employee of any danger, he argued that even if the fishing area was available to the public, P & W had no statutory immunity because Sec. 52-557h provides that Sec. 52-557g does not apply to conduct that is willful or malicious.

    In a Ruling on Defendant's Motion for Summary Judgment dated September 9, 1994 ("District Court Opinion"), the district court granted P & W's motion. The court noted that it was undisputed that (1) P & W had made no attempt to restrict the public's access to the fishing area, (2) there were no "No Trespassing" signs in the fishing area, nor...

To continue reading