Eichelberg v. National R.R. Passenger Corp.

• Decision Date: 22 June 1995
• Docket Number: No. 683,D,683
• Citation: 57 F.3d 1179
• Parties: Marvin EICHELBERG, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee. ocket 94-7598.
• Court: U.S. Court of Appeals — Second Circuit

Page 1179

57 F.3d 1179

Marvin EICHELBERG, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee.

No. 683, Docket 94-7598.

United States Court of Appeals Second Circuit.

Argued Jan. 17, 1995.

Decided June 22, 1995.

David M. Reilly, Jr., New Haven, CT (Thomas F. Brown, New Haven, CT, on the brief), for appellant Marvin Eichelberg.

William G. Ballaine, New York City (Lisa S. Rabinowitz, Siff Rosen, P.C., New York City, on the brief), for appellee National R.R. Passenger Corp.

Before: WALKER, JACOBS and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiff-appellant Marvin Eichelberg was fishing from a railroad trestle at Beebe Cove, Connecticut, when a train run by defendant-appellee National Railroad Passenger Corp. ("Amtrak"), apparently determined to put the trestle to its intended use, approached from the south. Eichelberg did not reach safety, the train struck him, and he was severely injured. Eichelberg's claim for damages was brought before the United States District Court for the District of Connecticut (Alfred V. Covello, J.). The district court granted Amtrak's motion for summary judgment, and Eichelberg now appeals. Because the district court erred in its application of Connecticut trespasser law and because issues of material fact may exist, we vacate the entry of summary judgment and remand.

I. BACKGROUND

On May 28, 1989, Marvin Eichelberg and his brother, James, decided to go fishing. They left their car at a marina in Noank, Connecticut, and, bypassing a fence, walked onto railroad tracks owned and operated by Amtrak. They followed the tracks to the point at which Beebe Cove met Long Island Sound. There, a trestle, approximately 140 feet in length, spanned the entry to the cove. Deciding that the south end of the trestle looked like a promising spot, the Eichelberg brothers began to fish. They were four to five feet from the railroad tracks.

A half hour's fishing failed to produce a catch. The brothers therefore thought to try their luck at the north end of the trestle. They went along the trestle until they reached the abutment at the north end, where they remained for another fifteen or twenty minutes. Still the fish refused to bite.

Eichelberg then decided to try another strategy. Climbing back onto the trestle, he cast his line and proceeded to walk slowly to the center of the trestle, casting, reeling in the line, and casting again as he went. Eichelberg later testified in his deposition that he knew trains ran over the tracks from which he was fishing, but that he believed he was exercising appropriate care:

I considered it to be safe in much the same way I would cross a busy street in the city; throwing caution over my shoulder and proceeding would be idiotic. I didn't do that. I watched for the train figuring I had a darn good--I could see for a mile in one direction and could see for hundreds of feet in the other, and with what you would say with calculated caution, I considered what I was doing as safe procedure.

Once he reached the center of the trestle, Eichelberg cast his line two or three times, and began slowly to make his way back toward the north end of the trestle, all the while continuing to fish. Eichelberg had only proceeded four or five feet to the north when he spotted a train approaching from the south.

George Craig, the engineer aboard the northbound Amtrak train, testified in his deposition that the train was traveling at about 60 to 65 miles per hour, under a "clear" signal, when it rounded a bend in the tracks and came within view of the trestle from which Eichelberg was fishing. When Craig spotted Eichelberg, he sounded one long blast on the train's whistle. Craig did not, however, immediately apply the brakes. He testified that it was Amtrak's policy for the engineer to blow the whistle whenever someone was on or very near railroad tracks when a train was approaching. He further testified that people usually had the presence of mind to get off the tracks when confronted with an oncoming locomotive, and that brakes generally would not be applied unless it appeared that the train would hit the trespasser on the tracks.

Eichelberg's and Craig's accounts of what happened next differ in some respects. Eichelberg testified that he saw the train even before it first sounded its whistle, and that he immediately began moving as quickly as he reasonably could toward the north end of the trestle, at a pace that he described as "a slow, calculated trot or an extremely fast walk." Eichelberg's progress was allegedly slowed by the need to ensure that his steps fell on the railroad ties that connected the tracks, and not into the gaps between the ties. Eichelberg undoubtedly was also slowed by the fact that he continued to keep hold of the fishing pole; indeed, although Eichelberg denied that he continued to fish once he saw the train, he testified that he may have been reeling in his line as he made his way to the northern end of the trestle. In Eichelberg's recollection, he heard three additional blasts of the train whistle just as he reached the northern end of the trestle and was preparing to jump from the tracks.

Besides making his way to the northern end of the trestle and leaving the tracks once he got there, Eichelberg had two possible options to avoid the oncoming train. First, he might have jumped from the trestle. Eichelberg testified, however, that this was not a realistic option. It was low tide, he explained, and instead of simply jumping into water he would have fallen a good distance onto rocks. ¹ Second, since the trestle had tracks running in each direction, separated by a narrow mezzanine, Eichelberg might have moved to the track that the train was not using, or at least to the mezzanine. Eichelberg testified that he did not consider these to be viable choices, either. He said that he did not know which track the train was on, because it was approaching on a curve. He added that it would have taken him some time to cross the tracks and get to the mezzanine area. And he stated that he also believed that there was no place on the trestle where he could stand safely while the train passed by (a belief supported by the deposition testimony of the train's engineer). In Eichelberg's judgment, therefore, it was better to try to get off the track at the northern end of the trestle. ²

Craig, in his deposition, described a rather different series of events. Craig testified that when he first blew the whistle, Eichelberg looked up at the train and began "moving very slowly, ... sauntering off of this bridge." Craig, becoming concerned, gave a series of blasts on the horn. Eichelberg responded with what Craig described as "a gesture of impatience" and continued moving slowly off the trestle. At this point, when he was approximately 600 or 700 feet from the bridge, Craig realized that Eichelberg was making no serious effort to get out of the way, and so he allegedly applied the emergency brake. As the train approached Eichelberg, Craig saw that Eichelberg was "reeling his line in and seemed more concerned with his fishing than he did with getting hit by a train." According to Craig, he applied the emergency brake as soon as he realized that Eichelberg was not making a serious effort to get off the trestle and thus was in a perilous situation.

Eichelberg's brother, James, provided a third perspective on the day's events. James testified that he initially heard the train sound its whistle when it was some distance away, and that it did not sound the whistle again until it was about 50 to 55 feet from the southern end of the trestle. James also testified that the train did not appear to be slowing down as it crossed the trestle, and that at no time did he hear the squeal of train brakes or observe sparks coming from the rails.

Although there is disagreement about the events leading up to impact, there appears to be no dispute about what happened next. Just as Eichelberg prepared to jump from the abutment at the end of the trestle, he was struck in the area of his left shoulder blade by a grab handle that protruded from the side of the train's engine car. Eichelberg was thrown into the air by the impact and landed on the rocks that lay below the abutment. Eichelberg alleges that, as a result of the accident, his left arm was partially severed. Although doctors were able to reattach it, his use of the arm is now limited, and he suffers persistent numbness and pain.

Eichelberg filed suit against Amtrak in Connecticut Superior Court, claiming that his injuries were caused by Amtrak's negligence. Amtrak, as a corporation created by Congress and owned by the federal government, removed the action to federal court pursuant to 28 U.S.C. Sec. 1441. Following discovery, Amtrak moved for summary judgment, which the district court granted. This appeal followed.

II. DISCUSSION

A. A landowner's duty to trespassers

Whether summary judgment is appropriate in this case turns in significant part on the nature of the duty that Amtrak, as an owner and occupier of land, owed to Eichelberg, a trespasser upon that land. Unlike many jurisdictions, which have abolished some or all of the common-law distinctions based on the status of individuals who enter onto land, see generally W. Page Keeton et al., Prosser and Keeton on The Law of Torts Sec. 62, at 432-33 (5th ed. 1984), Connecticut, whose law we apply, ³ continues to observe "an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." Morin v. Bell Ct. Condominium Ass'n, 223 Conn. 323, 327, 612 A.2d 1197, 1199 (1992). ⁴ As to trespassers, the general rule is that a landowner's duty is limited to the duty not to injure the trespasser intentionally or by willful, wanton, or reckless conduct. See Morin, 223 Conn. at 328, 612 A.2d at 1200; McPheters v. Loomis, 125 Conn. 526, 531, 7 A.2d 437, 440 (1...