LIN v. NATIONAL RAILROAD PASSENGER CORP., No. CV 99 0431868 (Jan. 2, 2004)

ARNOLD, JUDGE.

This is a wrongful death action by the plaintiff, the administrator of Yan Yan Zhang, against the defendants, National Railroad Passenger Corporation (Amtrak) and Metro-North Commuter Railroad Company (Metro-North). The case was withdrawn as to the defendant National Railroad Passenger Corporation on December 10, 2003. The matter is scheduled for a jury trial, which will commence on January 5, 2004. The parties presented oral argument to the trial court on December 22, 2003 and have each filed a memorandum of law.

The following short summary of facts is relevant for the purposes of this motion in limine. On October 17, 1998, the decedent Zhang was gathering crabs along the banks of the Indian River in Milford, Connecticut. Zhang, along with another person, decided to move from the north bank of the river to the south bank. To accomplish this, Zhang proceeded across a nearby railroad trestle in a westerly direction. She was struck and killed by a train, allegedly managed and owned by the defendants, moving in an easterly direction across the trestle.

The defendants have filed this motion pursuant to Practice Book § 15-3, to preclude the plaintiff from introducing testimony, evidence or argument that the defendants should or could have erected a pedestrian walkway or a "place of refuge" on the railway trestle on which the plaintiff's decedent was killed. The defendants assert that they were under no duty to make the trestle safe for use by the decedent, and as such, it would be impermissible for the court to permit such evidence. Testimony or argument, "which would simply confuse the jury with impermissible and immaterial evidence." CT Page 764

The defendants argue that they had no duty to provide a safe area for trespassers to walk across the trestle. The essential elements of a cause of action require a duty, a breach of the duty, causation and actual injury. Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 871 (2002). The defendants submit that the decedent was a trespasser upon the trestle, who entered upon the land without the consent of the owner. Thus, if the jury agrees, the defendants owed no duty to keep the land reasonably safe, as the only duty owed to a trespasser is "to refrain from causing injury . . . intentionally, or by wilful, wanton or reckless conduct." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 522, 558 (1998). It is noted that the plaintiff has not alleged that the defendants acted intentionally or recklessly to harm Zhang, the decedent.

The defendants continue that even if the defendants had previous knowledge or actual or constructive notice that trespassers regularly used the defendants' property and crossed the trestle and tracks, they still would not have any duty to make the premises safe for her.

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespasser and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

The possessor of land does not ordinarily owe a duty to licensees to keep the land safe for their use because a licensee must take the premises as he finds . . ." Salaman v. Waterbury, 246 Conn. 298, 305 (1998). Thus the defendants conclude that under no scenario regarding the present decedent's status on the trestle and tracks, do they have any duty to erect walkways or places of refuge alongside the trestle. CT Page 765

The plaintiff argues that evidence regarding pedestrian walkways is always relevant to the issue of a breach of duty, and that the defendants misstate the law on duty to trespassers. The plaintiff cites Carlson v. Connecticut Co., 95 Conn. 724, 112 A. 646 (1921), which held that a trolley company had a duty to keep a reasonable lookout for the presence of trespassers on the tracks and to "take such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest." Id. at 649. In Carlson, the plaintiff was drunk and asleep on the tracks. The trolley company had notice that drunken men were likely to be found on the tracks at night. Therefore, the defendants should have a duty to watch for people on its trestle in an area where people have been fishing and crabbing for years.

In Mocarski v. Palmer, 132 Conn. 349, 44 A.2d 64 (1945), the court found that the railroad should have known that persons were likely to come on the track because of the "long existence and general use of pathways" nearby as evidenced by the well-worn paths leading up to the tracks. Id. at 353. There will be evidence of well-worn pathways in the present case.

Similarly, with respect to activities highly dangerous to constant trespassers, the rule as stated in Carlson v. Connecticut Co., supra, 730, follows the rule of the Restatement (Second) of Torts 334: "A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety." Morin v. Bell Court Condominium Ass'n, Inc., 223 Conn. 323, 612 A.2d 1197 (1992). Even Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 552, cited in the defendants' argument notes that there is an equally well-established exception to the general rule that the only duty to a trespasser is to refrain from causing injury intentionally or by willful, wanton or reckless conduct. Id. at 558. Maffucci also notes that if the owner has reason to expect the presence of trespassers, he must take reasonable precautions against injuring trespassers. Id. at 558 (quoting Carlson v. Connecticut Co., supra 95 Conn. 730.

The defendants argue that the decedent was a trespasser, but, in fact that is an issue for the jury to decide. "Ordinarily, the status of one who sustains an injury while upon the property of another is a question of fact." Roberts v. Rosenblatt, CT Page 766 146 Conn. 110, 112, 148 A.2d 142 (1959). If the jury was to determine that the decedent was a licensee, the defendants may owe the decedent an even higher duty. The property owner can owe a licensee a duty of reasonable care to keep the property safe and to warn of danger. See, e.g. Morin v. Bell Court Condominium Ass'n, supra, 224 Conn. 323; Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693 (1951); Deacy v. McDonnell, 131 Conn. 101, 38 A.2d 181 (1944); Olderman v. Bridgeport City Trust, Co., 125 Conn. 177, 4 A.2d 646 (1939).

The court agrees with the plaintiff that if a jury finds that the defendants should have known to expect trespassers or licensees on its tracks, the law imposes duties on the defendants. The jury must find that the duty was breached and that the breach was the cause of the decedent's death. A jury could find that the lack of a walkway or place of refuge was a breach of the defendants' duty. The plaintiff is entitled to point out failures and omissions by the defendants and what the defendants should have done, but did not do. See, Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349 (1945).

The plaintiff is entitled to present evidence and argument that a walkway could have been a practical means available to the defendants to improve safety on its tracks; especially if they had advance notice and knowledge that persons crossed the tracks and the trestle to gain access to fishing and crabbing areas. It is possible that the defendants did have a duty to provide for the reasonable safety of the decedent and those similarly situated upon the defendants' tracks and trestle. Whether walkway areas or places of refuge of some type or design are the reasonable alternatives is up to the jury to decide.

Accordingly, the defendants' motion in limine to preclude evidence pertaining to walkways and places of refuge is hereby denied.

THE COURT

BY ARNOLD, JUDGE. CT Page 767