Edwards v. Consolidated Rail Corp.

• Decision Date: 07 July 1983
• Docket Number: Civ. A. No. 82-1874.
• Citation: 567 F. Supp. 1087
• Parties: Eldee EDWARDS, Jr., et al., Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

567 F. Supp. 1087

Eldee EDWARDS, Jr., et al., Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Defendant.

Civ. A. No. 82-1874.

United States District Court, District of Columbia.

July 7, 1983.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Van S. Powers, Hyattsville, Md., for plaintiffs.

Stephen A. Trimble, James B. Sarsfield, David M. Moore, Hamilton & Hamilton, Washington, D.C., for defendant.

MEMORANDUM ON SUMMARY JUDGMENT

OBERDORFER, District Judge.

I

On July 7, 1979, plaintiff Eldee Edwards, Jr. (hereinafter "plaintiff"), who was 11 years old at the time, climbed on top of one of defendant's trains and was seriously injured by exposure to a high-voltage electric wire ("catenary wire") that was suspended 18? feet above the tracks and supplies power to defendant's through trains. Invoking federal diversity jurisdiction, plaintiff and his father instituted this action through their guardian ad litem, plaintiff's grandfather. They seek $250,000 in special damages on behalf of the plaintiff's father, and $20 million in compensatory damages and $50 million in punitive damages on behalf of the child. Six months of discovery are now complete and the facts and law have been well developed in pretrial pleadings. Defendant now moves for a summary judgment that the undisputed material facts establish that it cannot be held liable in this case as a matter of law. Plaintiffs have opposed the motion, and a hearing on the motion was held on May 15, 1983.

Plaintiff suffered tragic and serious injuries when he was shocked by defendant's catenary wire. Nevertheless, as explained below, the accompanying Order will grant defendant's motion on the authority of ? 339 of the Restatement (Second) of Torts (1965), which is controlling in this jurisdiction under the en banc decision in Holland v. B & O R. Co., 431 A.2d 597 (D.C.Ct.App. 1981).¹ In brief, the following facts are undisputed:

(a) plaintiff trespassed onto the track area and train where he was injured;

(b) children trespassing by bicycle on the site where plaintiff was injured, including plaintiff, were not deterred by the "no authorized vehicle signs" posted along the only access road to the site or by "no trespassing" signs stencilled on each catenary wire pole;

(c) the wire which caused plaintiff's injury was suspended 18? feet above the tracks and was "ordinarily inaccessible." Plaintiff's Pretrial Brief (filed April 19, 1983) at 195;

(d) only "through trains" use the tracks where plaintiff was injured, and the only possible means of access to the catenary wire was by climbing onto one of defendant's through trains during the brief and random minutes when the trains must occasionally stop there for a signal;

(e) the Secretary of Transportation has plenary authority to require fencing and additional posting at such sites, but has conspicuously refrained from doing so; and

(f) defendant has voluntarily fenced its rail yards and tracks or "de-energized" its catenary wires at other urban sites where the catenary wires are more accessible to trespassing children.

Based on these undisputed facts, a rational jury could come to only certain conclusions under ? 339:

(1) that defendant neither knew nor had reason to know that the wire 18? feet above the tracks at the site where plaintiff was injured would be accessible or involved an "unreasonable risk" of harm to trespassing children (Restatement ? 339(b));

(2) that the utility of the catenary wire and the burden of "eliminating" the risk of injury from it are not "slight" compared with the risk that a through train would stop at that place long enough for a trespassing child to climb on top of the train and be injured by the wire (Restatement ? 339(c)); and that

(3) defendant had no statutory or common law duty under federal or District of Columbia law to fence, place guards, or post more signs at the site where plaintiff was injured to protect against a tragic incident such as the one at issue here, and was exercising "reasonable care" in its maintenance of the site (Restatement ? 339(e)).

I

A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). The undisputed facts and "inferences to be drawn" from those facts "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). "The court may not weigh or resolve issues of fact," Rodway v. United States Department of Agriculture, 482 F.2d 722, 727 (D.C. Cir.1973), and to support summary judgment the record "must demonstrate that the opponent `would not be entitled to prevail under any discernible circumstances.'" National Ass'n of Governmental Employees v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978) (quoting Semaan v. Mumford, 335 F.2d 704, 705 n. 2 (D.C.Cir.1964)). See also International Underwriters, Inc. v. Boyle, 365 A.2d 779, 782 (D.C.App.1976) (summary judgment standards in District of Columbia).

Rule 56 also requires that when a motion for summary judgment is filed that is adequate to support judgment, an opposing party must specifically defend against that motion. Rule 56(e) provides that, in such a case, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial." F.R.Civ.P. 56(e). As our Court of Appeals has stated, "in order to raise a material issue of fact ..., more is necessary than mere assertions in the pleadings." Bloomgarden v. Coyer, 479 F.2d 201, 208 (D.C.Cir.1973); cf. National Ass'n v. Campbell, supra, 593 F.2d at 1029. Summary judgment on issues that are more often left for a jury is generally appropriate "where the facts are undisputed and only one conclusion may reasonably be drawn from them." Flying Diamond Corp. v. Pennaluna & Co., Inc., 586 F.2d 707, 713 (9th Cir.1978); accord Bloomgarden v. Coyer, supra, 479 F.2d at 212 (summary judgment appropriate where there is "no basis on which a jury could rationally find" otherwise); Quinto v. Legal Times of Washington, 506 F.Supp. 554, 564 (D.D.C.1981) (summary judgment appropriate "where only one inference is possible from the evidence"). See pp. 1112-1114, infra.

In furtherance of Rule 56(e), this judicial district has enacted Local Rule 1-9(h), which provides as follows concerning the obligation to defend against summary judgment with specificity:

With each motion for summary judgment ... there shall be served and filed ... a statement of the material facts as to which the moving party contends there is no genuine issue.... A party opposing such a motion shall serve and file ... a concise "statement of genuine issues" setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, and shall include therein references to the parts of the record relied upon to support such statement. In determining a motion for summary judgment, the court may assume that the facts as claimed by the moving party in his statement of material facts are admitted to exist except as and to the extent that such facts are controverted in a statement filed in opposition to the motion.

(Emphasis supplied.) Plaintiffs' counsel has not filed the statement required by Rule 1-9(h), and his six-page opposition to defendant's comprehensive motion merely restates plaintiffs' legal contentions, without referring to any specific facts.

Our Court of Appeals has made it clear that "failure to file a proper Rule 1-9(h) Statement ... may be fatal to the delinquent party's position." Gardels v. Central Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir.1980). Yet when the Court called the failure to counsel's attention at the argument on the motion for summary judgment, he simply acknowledged his failure, stating that "we felt that perhaps we should refer, by incorporation, to other pleadings filed." Transcript at 46 (May 16, 1983). He has not subsequently designated specific facts that may exist in the record or in his 225-page Pretrial Brief to point out material issues which remain disputed and would preclude summary judgment. In Gardels, supra, our Court of Appeals stated that courts may require "strict compliance" with Rule 1-9(h), and that its "purposes clearly are not served when one party ... fails in his statement to specify the material facts upon which he relies and merely incorporates entire affidavits and other materials without reference to the particular facts recited therein which support his view." 637 F.2d at 773.

Were this case not so tragic and it was not an injured infant plaintiff who would suffer from counsel's failure, summary judgment could be granted for defendant on this procedural failure alone, as defendant's motion and 1-9(h) statement are more than adequate to justify such a ruling. Because of these special circumstances, however, the Court has conducted an independent and detailed review of the record, including the filed depositions, discovery responses, pleadings and plaintiffs' overlong and largely unhelpful Pretrial Brief.² The facts as presented below reflect the Court's best judgment as to the most favorable case that plaintiffs could draw from the record. See Habib v. Raytheon Co., 616 F.2d 1204, 1208 (D.C.Cir.1980). Evidence presented by defendant that has not been challenged is accepted as true, but the Court has disregarded any facts proffered by defendant for which a contest is factually suggested anywhere in the record. Even after this exhaustive review of the record, the Court is convinced that plaintiffs could not prevail were a jury to hear the undisputed facts, and that defendant must be granted judgment as a matter of the law governing in the District of Columbia.

FACTS

On the afternoon of July 7, 1979, the 11-year-old minor plainti...