Boyd v. National Railroad Passenger Corporation
| Decision Date | 20 January 2005 |
| Docket Number | No. 03-P-312.,03-P-312. |
| Citation | 62 Mass. App. Ct. 783,821 NE 2d 95 |
| Parties | J. MICHAEL BOYD, administrator, v. NATIONAL RAILROAD PASSENGER CORPORATION & others. |
| Court | Appeals Court of Massachusetts |
Present: GRASSO, DREBEN, & SMITH, JJ.
John B. Flemming (Joseph P. Musacchio with him) for the plaintiff.
David T. Mitrou for the defendants.
On June 24, 1998, fifteen year old Kelly Ann Boyd was struck and instantly killed by a train at the Pine Street grade crossing in Abington. On September 13, 1999, Kelly's father, J. Michael Boyd (the plaintiff), commenced a wrongful death action in Superior Court against the National Railroad Passenger Corporation (Amtrak), the Massachusetts Bay Transportation Authority (MBTA), and the train's engineer, Richard Prone. Specifically, the complaint alleged (1) wrongful death claims predicated on negligence against Amtrak, the MBTA, and Prone; (2) wrongful death claims predicated on statutory violations against Amtrak and the MBTA; and (3) wrongful death claims predicated on gross negligence and wilful, wanton, or reckless conduct against Amtrak and the MBTA.
After discovery by both sides, the defendants filed a motion for summary judgment which was allowed by a Superior Court judge on May 24, 2002. In the judge's extensive and well-reasoned decision, she concluded that Kelly was on the rail tracks at the Pine Street crossing "contrary to law," as that phrase is interpreted under G. L. c. 229, § 2, precluding the plaintiff from recovering under a negligence theory. The judge also ruled that Kelly was on the tracks "in violation of the law" under G. L. c. 160, § 218, barring the plaintiff from recovery under G. L. c. 160, §§ 138 and 232. Furthermore, the judge dismissed the plaintiff's wrongful death claims predicated on wilful, wanton, or reckless conduct. Judgment entered for the defendants on May 29, 2002.
On appeal, the plaintiff claims the motion judge erred in holding that Kelly was on the tracks "contrary to law" and "in violation of the law." He also argues that the judge erroneously ruled that certain of the plaintiff's claims were preempted, that certain evidence would be inadmissible at trial, and that the remaining evidence was insufficient as matter of law to establish wilful, wanton, or reckless conduct.
Facts. The materials before the judge, viewed in the light most favorable to the plaintiff, established the following material facts.
The MBTA contracts with Amtrak to operate the Old Colony railroad line. Commuter rail service on the line resumed in September of 1997 after approximately thirty-eight years of nonuse. In rebuilding the Old Colony line, the MBTA applied for and received federal funds, and the line was rebuilt in compliance with the design and construction requirements of the Federal Railroad Administration. In rebuilding the Old Colony line, the MBTA recognized that the public was not accustomed to high-speed trains traveling through their communities and that grade crossings presented safety issues. In 1996, the Legislature enacted St. 1996, c. 151, § 648, which provides: "All grade crossings to be constructed on the Old Colony line shall be guarded by two drop gates on each side of the tracks sufficient to prevent automobile traffic from crossing the tracks when the gates are down."
Before reopening the Old Colony line, the MBTA did not install the legislatively mandated four-quadrant gates, in which two automatic entrance gates serve as a barrier for approach lanes and two additional automatic exit gates serve as a barrier to vehicles trying to circumvent the primary entrance gates. Instead, after the line began operating, the MBTA used a Federal grant to contract with LS Transit Systems to conduct a corridor analysis of the forty-four grade crossings along the line. The purpose of the corridor analysis was to evaluate safety enhancements for the crossings, including a study of the use of four-quadrant gates. As part of the study, surveillance cameras were installed in May of 1998 at crossings in Kingston and Halifax, and at the Wales Street crossing in Abington, to observe the existing warning and safety systems and the public's behavior at the crossings. Between May 26 and June 8, 1998, the surveillance tape at the Wales Street crossing showed four incidents of bicyclists and one incident of a pedestrian passing around lowered gates when the warning systems were activated.
The Pine Street grade crossing in Abington is a double-track crossing with a main track and a passing siding.4 The crossing is equipped with automatic safety gates, warning bells, and warning lights. The design and construction plans for the crossing, including the warning devices, were submitted to and approved by the Federal Department of Public Utilities/Department of Telecommunications and Energy in accordance with 23 C.F.R. § 646.214(b) (1996).
On June 24, 1998, at 1:48 P.M., Kelly was struck and killed by a commuter train operated by defendant Prone at the Pine Street grade crossing. According to a motorist who witnessed the accident while stopped at the grade crossing, Kelly was riding her bike in the same direction he was traveling. A southbound train went through the crossing on the east side of the track at a "slow" or "normal" rate of speed. After the train passed, Kelly rode her bicycle behind the witness's car, and then proceeded around the lowered safety gate. She looked to the right and the left down the tracks, and then began to cross the northbound track. The witness testified that the whistles were sounding on both trains constantly. A fast-moving northbound train struck Kelly as she reached the middle of the first track. The train's whistle, bell, and lights were found to be in working order, as was the remainder of train.
Prone gave somewhat inconsistent statements to Abington, State, and MBTA police officers, as well as to Amtrak investigators. The substance of his statements is that the train he was operating was proceeding northbound and had just passed a southbound train when he noticed a young girl coming from the west side of Pine Street traveling east. The safety gates were down and the lights were flashing. Prone claimed to have blown the horn for ten to fifteen seconds before impact, although Amtrak reported that Prone was not blowing the horn in the pattern required for the crossing area. Prone applied the emergency brakes before he hit Kelly. In his statements to Amtrak investigators and Abington police Officer Robert O'Keefe, Prone claimed to have initiated the emergency application of brakes about 300 feet before the point of impact, while in his statement to State police officers, he claimed to have applied the brakes 200 feet before the point of impact.
Records from the train's event recorder5 indicated that as the train approached the Pine Street crossing, Prone had been "feathering" the horn, which meant that the horn was not sounding very much, but the records also indicated that just before the accident, the train horn was sounding continuously for five to six seconds. According to Prone, there is a "W/MX" sign south of the Pine Street crossing which indicates to engineers that there are numerous crossings ahead and that the train's whistle should be sounded at each designated crossing. NORAC6 rules require a pattern of two long whistles, followed by a short whistle and a final long whistle, and provide that in accordance with a "W/MX" sign, an engine whistle or horn signal must be prolonged or repeated until the last of the multiple crossings is passed. Here, after passing through the Wales Street crossing in Abington, Prone stopped blowing the whistle for several seconds before sounding it again as he approached Pine Street.
Pursuant to 49 C.F.R. § 213.9(a) (1997), the maximum allowable speed for this type of train on this type of track is 80 miles per hour (mph), although the MBTA and Amtrak had set a more stringent maximum speed of 70 mph for the Old Colony line. Prone told State police officers that he had been operating the train at 70 mph, but the event recorder indicated that the train had been operating at speeds of up to 78 mph and that when Prone applied the emergency brakes, the train had been traveling at 75 mph. The event recorder also indicated that the train was traveling at approximately 78 mph for ten seconds before it approached the Pine Street crossing. According to an Amtrak supervisor, however, the actual speed of the train could have been over 80 mph. An outside expert, a consultant specializing in traffic and train accident reconstruction and highway safety, testified that where the event recorder showed a speed of 78 mph, the train's actual speed was 92 mph, and that where the event recorder showed a speed of 75 mph (when the emergency brakes were applied), the train's actual speed was 88 miles per hour.
According to an Amtrak report, Prone was exceeding the maximum authorized speed while operating the train, and the event recorder data revealed that at three crossings earlier that day, he had not sounded his engine whistle in compliance with NORAC rules. Prone was suspended for thirty days for these violations in accordance with his union contract.
Discussion. In ruling on a motion for summary judgment, Madsen v. Erwin, 395 Mass. 715, 719 (1985). "This burden need not be met by affirmative evidence negating an essential element of the plaintiff's case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial."...
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