Opinion
No. CV 99 0431868
January 2, 2004
MEMORANDUM OF DECISION MOTION IN LIMINE TO PRECLUDE EVIDENCE PERTAINING TO FENCING
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 The case was withdrawn as to the defendant National Railroad Passenger Corporation on December 10, 2003. However, as the motion was filed by the "defendants," the court will address the motion accordingly. The matter is scheduled for a jury trial, which will commence on January 5, 2004. Oral argument on this motion was presented to the trial court on December 22, 2003 and the parties have 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, Metro-North Commuter Railroad Company and the National Railroad Passenger Corporation (Amtrak) have moved for an entry of an order precluding the plaintiff from introducing evidence, testimony or argument regarding the defendants' alleged negligence based on claims that (a) the defendants should have prevented access to railroad tracks by erecting some type of a fence; and (b) they are liable for failing to post "No Trespassing" signs in the area. The basis for the motion is that the defendants were not required to fence along the rail line, nor is there any common-law duty to prevent trespassing or otherwise inhibit access to the railroad tracks. According to the defendants, to allow such testimony, evidence or argument would be impermissible and would simply confuse the jury with impermissible and immaterial evidence.
The plaintiff in opposition to the motion argues that the lack of warning signs and fencing is relevant. If a duty to warn or fence does exist, the lack of a warning and fencing proves a breach of duty. Whether the defendants had a duty to warn or prevent the plaintiff's decedent access to the tracks is a mixed question of fact and law. If the jury finds that the defendants should have known of the presence of trespassers or licensees on the tracks and there is a dangerous activity or condition on those tracks that is not reasonably apparent, then the law imposes on the defendants a duty to warn and/or fence. The plaintiff argues that this applies whether the decedent was a trespasser or a licensee, and as to fencing, the defendant, while possibly not having any statutory duty to fence, may have a common-law duty to do so. The plaintiff argues that the issue of whether the common-law duty of care requires fencing is one that the jury should decide as the decedent's status on the property is a question of fact for the trier.
General Statutes § 13b-299 provides that "[e]ach [railroad] company shall erect and maintain fences, on the sides of the railroads operated by it, at such places and within such times as the Commissioner of Transportation directs." The defendants argue that neither of them have been directed to erect a fence by the Commissioner of Transportation in the area of the Indian River trestle, where the death of the decedent took place. Thus, the defendants contend that they had no statutory duty to erect a fence, and therefore, the plaintiff cannot pursue a negligence claim premised on a failure to erect a fence along the railroad tracks in the subject area. See Campbell v. New York New England Railroad Co, 50 Conn. 128, 130 (1882).
The defendants also argue that under common law, a party has no duty to prevent trespassers from entering onto its land "[I]t has long been held that a railroad has no duty to erect fences on its right-of-way to deter trespassers." Scarborough v. Lewis, 565 A.2d 122, 126 (Pa. 1988); McKinney v. Hartz Restle Realtors, Inc., 510 N.E.2d 386, 389 (Ohio, 1987); McCarthy v. New York, N.H and H.R. Co., 240 F. 602, 604 (2nd Cir., 1917).
Without determining that the decedent was a trespasser for the purposes of this motion, the court concludes that a genuine issue of material fact exists as to whether the defendants had actual or constructive notice as to the presence of trespassers on the property. The issue of actual or constructive notice directly relates to the duty of care owed by a landowner to trespassers. Maffucci v. Royal Pk. Ltd. Partner, 42 Conn. App. 563, 569, 680 A.2d 333 (1996).
"Ordinarily, the possessor of real estate owes no duty to trespassers . . . to keep the property in a reasonably safe condition for their use . . . Morin v. Bell Court Condominium Ass'n, Inc., 223 Conn. 323, 328, 612 A.2d 1197 (1992), quoting D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 110. The only duty a landowner owes to a trespasser whose presence is undiscovered is a duty not to injure intentionally Morin v. Bell Court Condominium Ass'n, Inc., supra, 328; see also W. Prosser W. Keeton, Torts (5th Ed.) § 60, p. 416. Our courts have, however, recognized a duty of greater care that applies when a landowner knows, or should know, that trespassers regularly come onto his or her property. In Lucier v. Meriden-Wallingford Sand Stone Co., 153 Conn. 422, 429, 216 A.2d 818 (1966), our Supreme Court cited with approval the doctrine established in § 335 of the 3 Restatement (Second), Torts. Section 335 provides: `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.'" Maffick v. Royal Pk. Ltd Partner, supra at 569-70 (internal quotation marks omitted). "Similarly, with respect to activities highly dangerous to constant trespassers, the rule as stated in Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921) (adult trespassing on trolley tracks), 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., supra, 223 Conn. 333.
A genuine issue of material fact also exists as to whether signs or other methods of warning that adequately warned entrants on the property of the dangers that existed should have been posted by the defendants. Even where a trial court finds that the evidence strongly favors one party, that court may not arrogate to itself the role of trier of fact and, thus, decide issues of material fact as a matter of law. "A party has the same right to submit a weak case [to the jury] as he has to submit a strong one." Rosick v. Equipment Maintenance Service, Inc., 33 Conn. App. 25, 36, 632 A.2d 1134 (1993), quoting Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). In viewing the evidence in the light most favorable to the plaintiff, we conclude that the issue of whether warnings should have been posted should be submitted to a jury as a question of fact. Maffucci v. Royal Pk. Ltd. Partner, supra, 42 Conn. App. 572-73; See also, Battistoni v. Weatherking Products, Inc., 41 Conn. App. 555, 564, 676 A.2d 890 (1996); Sharp v. Wyatt, Inc., 31 Conn. App. 824, 834, 627 A.2d 1347 (1993), aff'd., 230 Conn. 12, 644 A.2d 871 (1994).
The court recognizes that the defendants did not have a statutory obligation to fence the subject railroad trestle or tracks where the decedent was struck by the on-coming train. However, the issue is whether there may be "exceptional cases where something more than a literal compliance with the statutory provisions may be required," and that the common-law duty of reasonable care may require more. Pratt Read Co. v. New York, N.H. and H.R. Co., 102 Conn. 735, 130 A. 102 (1925).
In ruling that the motion in limine is denied, the court is aware of the conflicting claims regarding the decedent's status on the property. It is possible that the decedent is a trespasser. The cases cited by the parties in their legal briefs speak of trespassers and licensees and raise questions regarding the previous knowledge that a property owner must have that persons are in fact entering onto property, whether they be trespassers or licensees. The issues of duty of care, warning signals, signs and fencing are directly related to the property owner's prior actual or constructive knowledge and notice, as well as the decedent's status. The common-law duties owed to trespassers and licensees do not change simply because the defendants are in the railroad business. Where statutes regarding the duties of a railway company apply, they will be observed by the court. However, it is not for the court, at this time, to decide questions of common-law duties that are more properly left to the jury. The defendants have the tools of cross-examination and the presentation of their own evidence at their disposal, as well as their requests for jury instructions regarding these issues. They additionally have the opportunity to present motions during trial at the conclusion of the plaintiff's evidence and upon the completion of all evidence. To preclude evidence of a lack of fencing or a lack of warning signs or signals prior to trial would be premature.
Accordingly, the motion to preclude evidence pertaining to fencing is hereby denied.
THE COURT
BY ARNOLD, JUDGE.