Schorah v. Baltimore and Ohio R. Co.

• Decision Date: 19 October 1984
• Docket Number: Civ. A. No. 82-844 MMS.
• Citation: 596 F. Supp. 256
• Parties: Joseph James SCHORAH, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a corporation of the State of Maryland, Defendant.
• Court: U.S. District Court — District of Delaware

596 F. Supp. 256

Joseph James SCHORAH, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a corporation of the State of Maryland, Defendant.

Civ. A. No. 82-844 MMS.

United States District Court, D. Delaware.

October 19, 1984.

Ben T. Castle, and Donald Elihu Evans, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.

Robert G. Carey, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant.

OPINION

MURRAY M. SCHWARTZ, District Judge.

In this diversity action, plaintiff Joseph Schorah seeks to recover for injuries sustained in a motorcycle accident that occurred on defendant Baltimore and Ohio Railroad Co.'s (hereinafter "B & O") property. The defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Because there remain material issues of fact, defendant's motion will be denied.

The events which gave rise to this lawsuit took place on a dirt roadway on B & O property in the Elsmere, Wilmington, Delaware railroad yard. The roadway was primarily used by railroad maintenance workers for access to a railroad construction site, but was also subject to what has been described as "at times ... quite extensive" vehicular and pedestrian traffic.¹ Railroad employees were particularly aware of the frequent use of the area by local motorcyclists.² Indeed, plaintiff asserts that he had received permission from these workers to ride his motorcycle on the roadway so long as he did not do so after 5:00 p.m.³ The railroad denies consenting to such use and claims it had posted "no trespassing" signs to prevent these allegedly unwanted intrusions.⁴

In August, 1982, B & O erected a gate across the western end of the road to prevent outsiders from entering the railroad work area and to force vehicles to approach the area slowly. The two gateposts and the crossbar were initially constructed from spare steel rails. When the crossbar proved too heavy for railroad workers to maneuver, B & O promptly replaced it with a piece of gray galvanized pipe. Although the original gate had been painted yellow, the new crossbar was never similarly painted. There is conflicting testimony as to whether yellow streamers were hung from the pipe as a warning, but for purposes of this motion it must be assumed that the crossbar was nearly invisible to travelers. The record also reflects that the original crossrail was left on the ground next to the gate, perhaps signalling that the passage was clear. Plaintiff asserts that although he had traveled the roadway in the past, he was unaware the gate had been erected. One afternoon in October, 1982,⁵ as plaintiff was driving his motorcycle on the road, he collided with the gray crossbar, suffering severe injuries.

Plaintiff argues that the property was open to public use and that he was present on the premises as either a public invitee or a licensee. He urges defendant was negligent in failing either to warn of the existence of the crossbar or to ensure that it was visible. Moreover, plaintiff asserts that even if he was only a trespasser, his presence should have been known to defendant and a negligence standard must still apply. Defendant counters that Delaware law prescribes a like standard for trespassers and licensees — liability ensues only for the landowner's wilful or wanton misconduct, not for mere negligence — and that plaintiff could have been no more than a licensee as a matter of law.

The characterization of plaintiff's status on the property is crucial to the determination of defendant's motion for summary judgment. This Court, in exercising its diversity jurisdiction, must make such substantive determinations pursuant to Delaware law. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Until recently, Delaware had legislatively eliminated the distinction between the duty owed a trespasser and a licensee and obviated the need for the Delaware courts to differentiate between the two classes. See Delaware Premises Guest Statute, 25 Del.C. § 1501 (1974), amended by 62 Del. Laws ch. 322, § 1, effective July 8, 1980.⁶ A 1980 amendment to that statute has limited its application to "private residential or farm premises."⁷ As a result of the amendment the common law classifications have been resurrected with respect to occurrences on all other property. The hazardous task of this Court is to determine how the Supreme Court of Delaware would define trespasser, licensee, invitee, and the respective duties owed to each under the common law.

The few Delaware decisions issued prior to the enactment of the Premises Guest Statute comport with the principles of the Restatement (Second) of Torts with respect to the rights and liabilities of owners and users of land. See, e.g., Maher v. Voss, 48 Del. 45, 98 A.2d 499, 504 (1953) (landowner has duty to warn licensee of any known unappreciable risk); Villani v. Wilmington Housing Authority, 48 Del. 450, 106 A.2d 211, 213 (1954) (landowner need only refrain from wilful or wanton injury of a trespasser). In recent years, the Delaware Supreme Court has turned to the Restatement in this context. See, e.g., Malin v. Consolidated Rail Corp., 438 A.2d 1221, 1223 (Del.1981) (applying Restatement §§ 330, 332(2)); Acton v. Wilmington & Northern R.R., 407 A.2d 204, 205 (Del.1979) (applying Restatement § 329); Caine v. New Castle County, 379 A.2d 1112, 1114-15 (Del.1977) (applying Restatement §§ 329, 330, 332). Although these cases are not directly applicable to the case at bar, they are persuasive evidence that the Delaware Supreme Court would apply the Restatement in determining the status of landowners.

A trespasser is defined under the Restatement as one who "enters or remains upon the land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts § 329 (1965). Unless the landowner knows of the trespasser's presence on the premises, he or she is under no duty to make the property reasonably safe or to carry on activities so as not to endanger the trespasser. Id. § 333. In contrast, a licensee is defined as one who is "privileged to enter or remain on land only by virtue of the possessor's consent." Id. § 330. The landowner must warn a licensee of any known unreasonable risk which he or she may not discover or appreciate. Id. § 342. Finally, the Restatement defines a public invitee as anyone "invited to remain on land as a member of the public for a purpose for which the land is held open to the public." Id. § 332(2). A public invitee may hold the landowner liable for failure either to inspect the property or to exercise reasonable care to make it safe. Id. § 343.

In light of the above definitions, the Court rejects defendant's argument that the common law affords licensees only the identical minimal protection given to trespassers. Defendant's position is based on an application of the law derived under the Premises Guest Statute.⁸ That statute was in derogation of, not in accordance with, common law doctrine and has been rendered inapplicable to the parties at bar by virtue of the 1980 statutory amendment. Since this Court concludes that the standard of care varies with one's status on the property, the issue becomes whether under the Restatement plaintiff's status may be assessed as a matter of law.

Construing the facts in the light most favorable to the non-moving party as must be done in a motion for summary judgment, Space v. National Railroad Passenger Corp., 555 F.Supp. 163, 164 (D.Del.1983), there remains, on the basis of the present record, a question whether plaintiff was a public invitee, a licensee or a trespasser. The crucial difference between the protection afforded a public invitee and a licensee is the right of the former to recover for a landowner's failure to inspect the property for hazardous conditions, rather than only for a failure to warn against known hazards. Compare Restatement § 343 with § 342. The parties have not argued for purposes of this motion that the risk to which plaintiff was exposed — that of an allegedly invisible barrier blocking the roadway — was unknown to the defendant. Instead, the arguments have focused on whether plaintiff believed he was privileged to enter the property at all, and if so, what duty was owed him. Nevertheless, a factual question of defendant's knowledge of the risk has surfaced in the parties' briefs and is likely to arise again at trial. More specifically, defendant has asserted that yellow flags or streamers were hanging from the crossbar as a warning to travelers. Plaintiff's witness denies that such streamers were present at the time of the accident. Apart from the obvious question of credibility, this factual discrepancy suggests that perhaps the streamers were removed some time between defendant's last inspection of the premises and the day of plaintiff's accident. It is because of this factual question that the distinction between licensee and public invitee may be critical to the outcome of plaintiff's claim.

The concept of public invitee, though of only recent origin, has already taken root in Delaware's jurisprudence. See Malin v. Consolidated Rail Corp., 438 A.2d 1221, 1224 (Del.1981), and Caine v. New Castle County, supra, at 1115, both applying Restatement (Second) of Torts § 332(2). Defendant contends that public licensee status is precluded by Acton v. Wilmington & Northern Railroad, supra, and Brackin v. National Railroad Passenger Travel Co., No. 78C-MR-30, letter opinion (Del.Super. Jan. 16, 1980), which defendant alleges are factually indistinguishable from the case at bar. In both decisions plaintiffs were held to be licensees at best. Acton, Brackin, and the instant case are indeed similar, all involving accidents on railroad property either on or near the railroad tracks. Nevertheless, these Delaware decisions are not controlling. The private nature of the premises appears to have been fatal to the claim of public...