Silva v. Union Pacific Railroad Co.

• Decision Date: 28 December 2000
• Docket Number: No. A088552.,A088552.
• Citation: 102 Cal.Rptr.2d 668,85 Cal.App.4th 1024
• Court: California Court of Appeals Court of Appeals
• Parties: Jose SILVA et al., Plaintiffs and Appellants, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

102 Cal.Rptr.2d 668

85 Cal.App.4th 1024

Jose SILVA et al., Plaintiffs and Appellants, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

No. A088552.

Court of Appeal, First District, Division 4.

December 28, 2000.

Certified for Partial Publication.^*

Perry S. Dobson, Hayward, Counsel for Appellants.

Barry & Randolph, William C. Barry, Thomas A. Cregger, Michelle J. Drees, Sacramento, Counsel for Respondent.

WOOLARD, J.^**

Teenager Lucas Silva was killed when he was hit by a train owned and operated by defendant Union Pacific Railroad Company (Union Pacific). His parents, plaintiffs Jose and Lupe Silva, filed a wrongful death action. Identified in the complaint as "significant factors in the death of [the] deceased" were "negligent operation" of the train and the failure "to maintain fences protecting the public from the train tracks [sic ]."

The heart of Union Pacific's litigation strategy has been the preemption of state common law liability by virtue of the extensive federal regulation of the railroad industry. The key to that strategy has been to establish that the train that killed Lucas Silva was traveling within a federally-authorized speed limit. Union Pacific obtained a summary judgment on the ground that it had established that the train had been operating within that speed limit. That judgment was reversed because the evidentiary showing establishing the speed limit was insufficient. (Silva v. Union Pacific Railroad Company (Sep. 30, 1997, A076412) [nonpub. opn.].)

When the cause was returned to the superior court and called for trial, both sides made a number of competing in limine motions. The first category of motions concerned whether Union Pacific should or should not be precluded from offering evidence that it had no duty to fence its right-of-way at the accident site. The second category involved motions relating to the preemption issue and ancillary matters such as speed, brakes, and track classification. After hearing extensive argument on the motions, the trial court ruled that Union Pacific had no duty to fence. At the conclusion of an evidentiary hearing the court ruled that Union Pacific had established federal preemption. After plaintiffs advised the court that they were "unable to proceed, solely because of the rulings on [the] motions in limine," the parties stipulated to a judgment for Union Pacific that would allow plaintiffs to obtain appellate review of those rulings. Following entry of that judgment, plaintiffs perfected this timely appeal.

REVIEW

I

Plaintiffs' attack on the first ruling— that Union Pacific had no duty to fence off the right-of-way through which Lucas Silva entered upon the tracks—concedes that the issue has previously been decided in favor of railroads, but plaintiffs argue the issue is ripe for reexamination in light of an intervening decision by our Supreme Court.

Up until 1968 it was generally settled throughout the country that railroads had no duty to fence access to their tracks in order to prevent injury to unauthorized entrants, particularly children. (See, e.g., Holland v. Baltimore & O.R. Co. (App. D.C.1981) 431 A.2d 597, 603, fn. 11, and decisions cited; Annot., Duty of Railroad to Fence Track as against Children (1922) 16 A.L.R. 944.) California analyzed the issue as one involving attractive nuisance as defined by section 339 of the Restatement of Torts. The leading California decision had this to say: "Many miles of railroad track run on or along streets and roads in California. To fence rights-of-way on public streets would be impractical if not an unlawful obstruction of public thoroughfares. . . . [¶] The problem presents other ramifications which must be considered. It seems more reasonable to expect children to play on an open right-of-way running through a residential or a suburban area than on a city street used for vehicular traffic. Thus, were the attractive nuisance doctrine applied in the case of a train traveling on a street, and on those facts alone, it would be equally applicable to trains traversing populated areas. Dwellings flank hundreds of miles of right-of-way in California and the sight of children playing on a right-of-way is not uncommon. To hold that railways must install childproof fences . . . in order to prevent children from being attracted to moving trains, would place an unreasonable if not intolerable burden upon the possessor maintaining the condition." (Joslin v. Southern Pac, Co. (1961) 189 Cal.App.2d 382, 387-388, 11 Cal.Rptr. 267; accord, Durham v. City of Los Angeles (1979) 91 Cal.App.3d 567, 574, 154 Cal. Rptr. 243; see also Herrera v. Southern Pacific Ry. Co. (1961) 188 Cal.App.2d 441, 450,10 Cal.Rptr. 575.)

Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 is the celebrated decision abolishing distinctions in the duty of care owed by a landowner to trespassers, licensees, or invitees. "Under Rowland v. Christian, the liability of a possessor of property to trespassing children is no longer limited by the conditions set out in Restatement Second Torts, § 339 [citations], or by the terms of other special doctrines and theories created as exceptions to a general rule barring trespassers from recovery for negligence, but is governed by Civil Code, sec[t]ion 1714, which imposes general liability on every person for injuries occasioned to others by want of ordinary care in the management of his property. The status of a claimant at the time of his injury no longer affects the general duty of the possessor of property to exercise ordinary care with respect to reasonable foreseeable risks of personal injury to persons coming on the property. The possessor's duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers. [Citation.] The former gradations of degree in the possessor's duty of care, which varied with the status of persons on the property, have been superseded by a generic duty owed to all persons on the property based on the reasonable foreseeability of harm to them. Under Rowland v. Christian the extent of a possessor's duty is controlled by the foreseeability of the risk and not by the status of the person injured." (Beard v. Atchison, Topeka & Santa Fe Ry. Co. (1970) 4 Cal. App.3d 129, 135-136, 84 Cal.Rptr. 449.)¹

Rowland listed a number of factors to be considered in determining whether to allow an exception to the general principle that a person is liable for injury caused by the failure to exercise reasonable care—"the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian, supra, 69 Cal.2d 108, 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.)

"The sine qua non of any negligence action is, of course, the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member. [Citations.] Although the determination of duty is primarily a question of law, its existence may frequently rest upon the foreseeability of the risk of harm. [Citations.] Foreseeability may be decided as a question of law only if, under the undisputed facts, there is no room for a reasonable difference of opinion." (Gregorian v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 948, 220 Cal.Rptr. 302.) We have found no authority subsequent to Rowland holding that a railroad has no duty as a matter of law to fence its tracks. An unusual complication in our assaying this inquiry is the unusual manner in which the issue comes to us.

Our Supreme Court has decided issues of duty in three contexts: (1) by demurrer, which takes facts as alleged in the complaint (e.g., Ballard v Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624; Hedlund v. Superior Court (1983) 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41); (2) on summary judgment granted on the basis of evidentiary showings by the parties (e.g., Kentucky Fried Chicken of Cat, Inc. v. Superior Court (1997) 14 Cal.4th 814, 59 Cal.Rptr.2d 756, 927 P.2d 1260; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207; Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561); or (3) after a full trial (e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36). In each of these contexts the court has an established factual universe, contradicted or not. That is what is lacking here.

The trial court appears to have made its ruling that "there's no duty to fence" solely on the basis of the moving papers of the parties' respective in limine motions and argument from counsel. Although both sides made evidence-related or factual references in those papers, neither provided much in the nature of a factual context. Plaintiffs' counsel made what would ordinarily look like an offer of proof,² but there is no indication whether it played any part in the trial court's ruling. In neither the parties' papers nor the reporter's transcript of the arguments on those motions is there any discussion of the Rowland factors quoted above. To judge by the remarks of plaintiffs' counsel, the issue of foreseeability would figure prominently in the analysis of those factors. (See fn. 2, ante.) With the basis of the facts used in determining foreseeability thus...