Bowen v. National R.R. Passenger Corp.

• Decision Date: 02 March 2005
• Docket Number: No. 1:02-CV-1237.,1:02-CV-1237.
• Citation: Bowen v. National R.R. Passenger Corp., 363 F.Supp.2d 370 (N.D. N.Y. 2005)
• Parties: Nobel BOWEN, Jr., Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION; and CSX Transportation, Inc., Defendants.
• Court: U.S. District Court — Northern District of New York

363 F.Supp.2d 370

Nobel BOWEN, Jr., Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION; and CSX Transportation, Inc., Defendants.

No. 1:02-CV-1237.

United States District Court, N.D. New York.

March 2, 2005.

E. Stewart Jones, PLLC, Troy, NY (George E. Lamarche, III, of counsel), for plaintiff.

Landman Corsi Ballaine & Ford P.C., New York, NY (James M. Woolsey, III, of counsel), for defendants.

MEMORANDUM-DECISION and ORDER

HURD, District Judge.

I. INTRODUCTION

Plaintiff Nobel Bowen ("Bowen" or "plaintiff") brought this tort action against defendants, National Railroad Passenger Corporation a/k/a Amtrak ("Amtrak" or the "railroad") and CSX Transportation, Inc. ("CSX" or "defendants") alleging that he sustained injuries due to their negligence. Defendants move for summary judgment pursuant to Rule 56. Plaintiff opposes. Oral argument was heard in Utica, New York on June 14, 2005. Decision was reserved.

II. FACTS

On July 14, 2001, Bowen attended a party at a friend's apartment in Castleton, New York. Castleton is small community on the Hudson River that is home to around 1,600 people.¹ Throughout the course of the evening Bowen and six friends consumed an undetermined amount of beer, played cards, and listened to music. After 9:00 plaintiff stepped out behind his friend's apartment and sat in the doorway facing two sets of railroad tracks with his feet on the steps. The tracks were approximately twenty feet away. N.Y. R.R. Law § 83 prohibits persons not associated with the railroad from walking on or along the tracks.

The tracks are owned by CSX which leases the right of way to Amtrak which operates trains over them. While the area was clearly not open to the public, neither were there signs, fences, or barricades announcing the danger of active tracks. Bowen was aware that the tracks were in use, however, as he had heard one pass by earlier in the evening.

While Bowen's memory of the events that followed is unclear, two of his friends testified as to how he came to be in the path of Amtrak Train No. 269. Christopher Soto ("Soto") and Doug June ("June") were out drinking beer with plaintiff near the rear entrance of the apartment when they heard a train approaching around 9:35 p.m. The train's bell was ringing and its headlight was functioning properly. According to procedure, as the train approached the vicinity of the men it sounded its horn in two long blasts, one short blast, and then a long blast.

The northbound train was traveling at 107-108 mph. (The maximum speed allowed there is 110 mph.) June testified that he was standing at the edge of the grass line or on the rocks bordering the tracks as the train approached. Soto testified that both he and Bowen told June to get away from the tracks. Perhaps inebriated, June did not move and plaintiff ran towards the tracks, grabbed June with his left arm, and pulled him away. Plaintiff was struck by the rear portion of the engine. His arm was severed in the accident. He also suffered damage to his left leg and hip, and must use a wheelchair.

The train engineer, saw three people run toward the tracks as the train passed the site, but was unaware that the train struck Bowen until arrived it at the next stop, Albany/Rensselaer Station.

III. DISCUSSION

A. Summary judgment standard

Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993).

A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). The Court is "to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative." Schwimmer v. Kaladjian, 988 F.Supp. 631, 638 (S.D.N.Y.1997) (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505).

B. Jurisdiction

Federal jurisdiction over this tort action is maintained pursuant to 42 U.S.C. § 1331 as it is applies to federally chartered corporations; and 42 U.S.C. § 1334 which limits that jurisdiction to those corporations in which the United States is the owner of more than one-half of its capital stock. Amtrak was created by an act of Congress and the United States owns more than one-half of its capital stock. See Eichelberg v. National R.R. Passenger Corp., 57 F.3d 1179, 1183 (2d Cir.1995); see also Union Pacific R. Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885).

C. Negligence

In order to prove negligence, plaintiff must demonstrate (1) the existence of a legal duty owed to the plaintiff; (2) a breach of that duty; and (3) injury to plaintiff proximately resulting from such a breach. Leiching v. CONRAIL, 858 F.Supp. 337, 339 (N.D.N.Y.1994) (citing Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 338, 441 N.Y.S.2d 644, 424 N.E.2d 531 (N.Y.1981)). Bowen alleges that defendants failed to take proper measures to prevent or alert pedestrians of the potential train hazard. Plaintiff argues that it is reasonably foreseeable that persons would get too close to the tracks at the accident site where there are no posted warning signs or erected fences. Defendants move for summary judgment on the grounds that they did not breach their duty to warn, and do not have a duty to fence the tracks. Defendants also argue that plaintiff's conduct precludes a finding that they were the proximate cause of his injuries.²

Where there is no legal duty, there can be no breach, and therefore no liability in negligence. Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (N.Y.1976). Thus, "a determination of negligence begins with consideration of the duty owed, which is a matter of policy, rather than with foreseeability." Sukljian v. Charles Ross & Son Company, Inc., 69 N.Y.2d 89, 97, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1989). The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the courts. McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997); Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994); Sanchez v. State, 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 (N.Y.2002). "Duty is essentially a legal term by which we express our conclusion that there can be liability. It tells us whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role." De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 (N.Y.1983) (citations omitted). As the Second Circuit explained,

[i]dentifying the scope of an alleged tortfeasor's duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. New York courts fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.

Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000) (citations and quotations omitted).

The role of policy and the balancing of competing interests is related in New York's standard of care imposed on landowners: "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (N.Y.1976) (quoting Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 100 (D.C.Cir.1972); Maheshwari v. City of New York, 2 N.Y.3d 288, 294, 778 N.Y.S.2d 442, 810 N.E.2d 894 (N.Y.2004)). These factors are considered concurrently with questions of foreseeability. Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868. The concepts of duty and foreseeability are often confused. "Foreseeability `is applicable to determine the scope of duty — only after it has been determined...