Bonney v. CANADIAN NAT. RY. CO.

• Decision Date: 18 July 1985
• Docket Number: Civ. No. 83-0039 P.
• Citation: 613 F. Supp. 997
• Parties: Cheryl D. BONNEY, Plaintiff, v. CANADIAN NATIONAL RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

613 F. Supp. 997

Cheryl D. BONNEY, Plaintiff, v. CANADIAN NATIONAL RAILWAY COMPANY, Defendant.

Civ. No. 83-0039 P.

United States District Court, D. Maine.

July 18, 1985.

COPYRIGHT MATERIAL OMITTED

Jack H. Simmons, William D. Robitzek, Berman, Simmons & Goldberg, Lewiston, Me., for plaintiff.

John H. Montgomery, Michael A. Nelson, Jensen, Baird, Gardner & Henry, Portland, Me., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION

GENE CARTER, District Judge.

I. Background

This is a tort action brought by Plaintiff Cheryl Bonney against Defendant Canadian National Railway. Plaintiff seeks damages for the death of her husband, Rodney Bonney, which resulted from his attempt to rescue a fifteen-year-old boy who fell from a railroad bridge under the control of Defendant.¹ Jurisdiction is founded upon diversity of citizenship; the parties agree that Maine law applies. The action was tried to the Court, without jury, on June 19 and 20, 1985. The parties have stipulated to the admission of numerous depositions and exhibits, and they have also stipulated to many of the material facts.²

The following narrative is in large part excerpted from the parties' Agreed Statement of Facts.

During the late afternoon hours of April 6, 1981, Jonathan Thibodeau, then fifteen years of age, left his home in Lewiston to join his mother, who was visiting a friend, Robert Goyette, in Auburn. The cities of Auburn and Lewiston are separated by the Androscoggin River; it is thus necessary to cross a bridge to get from one city to the other. The shortest route between Jonathan Thibodeau's home and his destination was a railroad bridge leased by Defendant Canadian National Railway (the railroad).

The bridge is a concrete and steel structure built early in this century as part of a spur which comes to an end a short distance after it crosses the river into Lewiston. The bridge is approximately 410 feet long, and the tracks are about fifty feet above the surface of the river. The tracks sit on railroad ties which are fastened to the steel superstructure several inches apart from one another. The ties extend approximately three feet on either side of the tracks. Apart from widely spaced vertical and diagonal steel supports, there is nothing on either side of the ties to prevent a pedestrian from falling off the bridge into the river below.

A bridge designed to accommodate automobiles and pedestrians is located a short distance downstream from the railroad bridge. Thibodeau, like many residents of the area, was in the habit, however, of crossing by means of the railroad bridge, which saved him about ten to fifteen minutes travel time.

Throughout the late afternoon and evening hours Jonathan Thibodeau was in the company of his friend, Mark Sheink. Thibodeau walked, and Sheink rode Thibodeau's bicycle, across the trestle in the middle of the tracks. They arrived at the Goyette residence in Auburn at dusk. In addition to his mother and Goyette, two of Thibodeau's brothers, Clay and Timothy, were present.

At some time after dark, Thibodeau decided to return to his home in Lewiston to feed his kitten. He asked his mother for a dollar with which to buy the cat food.

Mrs. Thibodeau had admonished her son against riding his bike across the trestle some months before. A school mate of Thibodeau's had died approximately eight months prior to Thibodeau's accident after falling off a Maine Central Railroad bridge while attempting to ride a bike across it. Thibodeau was aware of this accident. Clay and Timothy Thibodeau also warned Thibodeau not to cross the trestle on his bicycle.

Thibodeau and Sheink retraced their earlier route while heading home. Thibodeau rode the bicycle up to the entrance of the trestle, while Sheink walked alongside. The area was dark and unlit except for a single light at a nearby bottle redemption center. The light was so dim that Sheink could not see whether anything was written on the trestle. Upon reaching the trestle, Thibodeau mounted his bicycle and placed the tires outside the rails on the right (downriver) side.

Thibodeau told Sheink that he was going to ride the bicycle across the bridge, outside the tracks. Sheink warned him not to, saying, "You're fucking crazy if you do that.... You're going to fucking die." Deposition of Mark Sheink at 24. Ignoring Sheink's advice, Thibodeau rode off ahead. Sheink began walking across the trestle, his eyes cast downward to watch his footing so that he would not step into the spaces between the ties. Sheink then heard a "cathump" and, after a pause, a splash. He then heard Thibodeau's cries for help from the river below.

Sheink ran back to a nearby variety store to have the police called. He then ran back to the Goyette residence and alerted the Thibodeau family. Gladys Thibodeau, together with her sons Clay and Timothy, raced to the accident scene.

The variety store owner called the police. Several officers went to the site in response to a radio call. The first to arrive was Rodney Bonney, a uniformed patrolman with the Auburn Police Department. He was accompanied by Detective Michael Morin. Neither Officer Bonney's car nor any other police car which arrived on the scene contained a rope or any other water rescue equipment. Officer Bonney ran down the embankment to the base of the bridge. He there encountered Clay Thibodeau who had waded into the water in an attempt to save his brother. Unfortunately, Clay was unable to swim. Officer Bonney removed his gun belt and other equipment and dove into the water. He swam to Thibodeau.

Other Auburn police officers arrived at the scene, including Officer Perino. Realizing that Officer Bonney and Jonathan Thibodeau were in distress, Officer Perino, a trained lifeguard with considerable lifesaving experience, removed his equipment and dove into the water. Perino reached the area in the river where Officer Bonney and Thibodeau were. Officer Bonney then pushed Thibodeau to Perino, who attempted to bring the youth back to shore.

At some time when both Officers Perino and Bonney were in the water, the Auburn Fire Department arrived with search lights and a rope. Sheink ran back up the embankment in an attempt to hurry the firemen along. Grabbing the rope from the firemen, Sheink ran down the bank. Meanwhile, in the river, Officer Perino, fast losing his strength in the extremely cold water, struggled to get Thibodeau ashore. He lost his grip on him and Thibodeau was swept away. Officer Perino managed to grab the rope which the fire department had brought and, although blinded by the lights set up by the fire department, was able to reach the shore. Officer Bonney was unable to reach the river bank and was swept away. Both Officer Bonney and Jonathan Thibodeau were drowned. Their bodies were recovered the next morning.

II. Liability

The parties have agreed to most of the material facts in this case. Their dispute centers on the law to be applied to determining whether the railroad should be held liable for Bonney's death.

A. Status of Thibodeau

Plaintiff first argues that Thibodeau was a licensee to whom, under the case of Poulin v. Colby College, 402 A.2d 846 (Me.1979), the railroad owed a duty of ordinary care. Plaintiff correctly maintains that the Court did not directly address the question as to whether Thibodeau was a licensee, as distinguished from a trespasser, in its decision on Defendant's Motion for Summary Judgment. In his Recommended Decision on Defendant's Motion for Summary Judgment, adopted by this Court, the Magistrate stated:

I have concluded that Thibodeau was a trespasser or at most a bare licensee to whom the railroad owed no duty of care under Maine common law....

Report and Recommended Decision on Defendant's Motion to Dismiss or in the Alternative for Summary Judgment, at 14. This statement is incorrect to the extent that it declares that the railroad owed no duty of due care to a "bare licensee." This rule was abandoned by the Maine Supreme Judicial Court in Poulin, supra, in which the Court announced that a possessor of land owes the same duty to a licensee as to an invitee, that is, a duty of ordinary care.

A licensee differs from a trespasser in that he is lawfully on the premises by virtue of the possessor's express or implied consent. Restatement (Second) of Torts § 330 (1965). "`A licensee is a person who is neither a passenger, servant, nor trespasser, and not standing in any contractual relation with the owner of the premises, and is permitted to come upon the premises for his own interest, convenience, or gratification.'" Patten v. Bartlett, 111 Me. 409, 412, 89 A. 375 (1914) (quoting 29 Cyc., 451). The comment to section 530 of the Restatement of Torts, supra, explains:

A mere failure to object to another's entry may be a sufficient indication or manifestation of consent, if the possessor knows of the other's intention to enter, and has reason to believe that his objection is likely to be effective in preventing the other from coming. On the other hand, the fact that the possessor knows of the intention to enter and does not prevent it is not necessarily a manifestation of consent, and therefore is not necessarily permission. A failure to take burdensome and expensive precautions against intrusion manifests only an unwillingness to go to the trouble and expense of preventing others from trespassing on the land, and indicates only toleration of the practically unavoidable, rather than consent to the entry as licensee. Even a failure to post a notice warning the public not to trespass cannot reasonably be construed as an expression of consent to the intrusion of persons who habitually and notoriously disregard such notices.

Id., comment c. Dean Prosser has stated:

It is generally agreed that the mere toleration of continued intrusion where objection or interference would be burdensome or likely to be futile, as in the case of habitual trespasses on railroad tracks, is not in

...