Anderson v. Green Bay & W. R. R.
| Decision Date | 11 November 1980 |
| Docket Number | No. 80-040,80-040 |
| Citation | 99 Wis.2d 514,299 N.W.2d 615 |
| Parties | Barbara J. ANDERSON, Appellant, v. GREEN BAY & WESTERN RAILROAD, Respondent. * |
| Court | Wisconsin Court of Appeals |
Olson, Kulkoski, Galloway & Olson, S. C., Green Bay, on brief; Thomas L. Olson, Green Bay, for appellant.
Trowbridge, Planert & Schaefer, S. C., Green Bay, on brief; Thomas L. Schober, Green Bay, for respondent.
Before DONLIN, P. J., and FOLEY and DEAN, JJ.
Barbara Anderson alleges that the Green Bay & Western Railroad's negligent operation of its train and its failure to have fenced the location of an accident caused her serious injuries. The railroad argues that because Anderson was an undiscovered trespasser, it had no duty to exercise ordinary care toward her. Rather, its only duty was to refrain from willfully and intentionally injuring her. Because we conclude that the railroad breached no duty to Anderson, and that Anderson is not a member of the class intended to be protected by the fencing statute, 1 we affirm the trial court's grant of summary judgment to the railroad.
At approximately 3 a. m., Anderson attempted to cross the railroad tracks by crawling under the couplings between two freight cars. Both Anderson and her companion testified that they had not heard or seen any locomotive, bells, or lights connected with the stationary train. Anderson was under the couplings when an engine began its switching operations, moving the cars and severing her legs. The engineer rang a bell when the engine began to move, but not before.
An appellate court reviewing a grant of summary judgment employs the same standard as applied by trial courts. 2 Anderson alleges that the railroad was negligent in its switching operations by failing to exercise a lookout for any persons crossing over the tracks and between the cars. Before the failure to exercise a lookout will constitute negligence, a duty to conduct such a lookout must exist. Whether a duty exists is a question of law. 3
Before a cause of action for negligence can be successfully alleged, there must exist a duty of care on the part of the defendant, a breach of that duty, a causal connection between the conduct and the injury, and an actual loss or damage as a result of the injury. 4 A defendant's duty is established when a reasonable person could foresee that an act or omission to act may cause harm to someone. 5
Anderson argues that the railroad was negligent in failing to check for persons between and around the cars and along the length of the train before beginning its switching operations. If the railroad were to check between and around all cars prior to the instant the train began its switching operation, an extremely large crew would be required. Conversely, if the railroad were to maintain a reasonably sized crew, the provision of a lookout during switching operations would be of very little use. Since a trespasser could easily crawl between the cars after a guard checked between one pair of cars but before all the cars were checked, the utility of exercising a lookout would be severely diminished.
If the duty that the plaintiff alleges the defendant has breached would not reasonably prevent the injury, no duty exists. 6 When a railroad conducts switching operations within the switching grounds area, providing a guard or lookout to prevent individuals from crawling between or around the cars would only protect against the mere possibility rather than the probability of an injury. Therefore, we conclude that the railroad has no duty to continuously exercise a lookout for individuals between or along the cars when it is performing its switching operations.
Furthermore, under existing law, Anderson is definitely a trespasser. The Wisconsin Supreme Court has defined conduct, such as Anderson's, as trespassing.
If respondent had attempted to go between the cars by going over the coupling or to have crawled upon the car to get over, he would have been a trespasser.... While respondent could properly be a licensee in using this footpath for the purpose of crossing the track when no train was upon it, it cannot be said that he was a licensee when he attempted to crawl under the train. (Citations omitted.) 7
Based upon this definition, when Anderson attempted to crawl between the cars and under the couplings, she became a trespasser.
A land occupier does not owe a duty of ordinary care to a trespasser. The occupier must only refrain from willfully and intentionally injuring the trespasser. 8 If the trespasser is discovered and in danger, the land occupier has a duty to warn, but the occupier has no duty to maintain a lookout for trespassers. 9 Since the railroad was unaware of Anderson's presence, its only duty was to refrain from willfully and intentionally injuring her. Because Anderson does not allege such an injury, the trial court's grant of summary judgment to the railroad could be considered proper under this theory as well.
Anderson argues that distinctions between the duties that a land occupier owes to entrants, based upon the entrant's status, are outdated. A number of jurisdictions have abrogated all such distinctions. 10 When the distinction between an invitee and licensee was abolished, the abolition of the lower duty of care owed to a trespasser was also addressed.
Nevertheless, the trespasser's status is entirely different than that of either a licensee or an invitee, both of whom enter the property with knowledge and consent of the landowner. While a convincing argument can be made to demonstrate that the numerous exceptions to the trespasser rule vitiate its effect and warrant an abrogation of the rule and the substitution therefor of a duty of ordinary care that recognizes the peculiar circumstances surrounding the trespass, we conclude that the distinction is so great between that legal status and that of the licensee-invitee that we ought not consider now the abrogation of the rule in regard to trespassers. 11
While the supreme court may now wish to consider the trespasser rule archaic and its abrogation proper, we decline to address the issue when the trespasser's special legal status has been so recently reiterated.
In enacting sec. 192.32, Stats., the legislature has also recognized the special status of the trespasser as compared to a licensee. This section provides that "(n)o person, other than a licensee or authorized newspaper reporters or those connected with or employed upon the railroad, shall walk, loiter or be upon or along the track of any railroad." It imposes a fine for such a violation.
Section 192.32(1) has been interpreted as preventing the extension of a railroad's duty to trespassers beyond that established at common law.
This statute expresses a clear legislative intent to prohibit the general public from traveling upon a railway right of way. The purpose of this statute was to curtail the appalling loss of life that results from the use of railway tracks by pedestrians. The statute has for its purpose not only the protection of the lives of pedestrians, but also the lives of those who operate railway trains and of those who are passengers on such trains.... This law should be construed so as to permit it to accomplish its benevolent purpose, rather than to give it a construction that will lead to the sacrifice of human life, even if it may seem to work a hardship to the individual pedestrian who is injured while upon the railway right of way. 12
This application of the statute may need to be reconsidered in light of Wisconsin's...
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