Colon et al v. Metro-North Commuter Railroad Company et al

Filing 292

RULING DENYING MOTION FOR CERTIFICATION TO APPEAL AND MOTION FOR RECONSIDERATION. For the reasons set forth in the attached ruling, defendants' motion for leave to certify an interlocutory appeal and for a stay of proceedings (Doc. # 276 ) is DENIED, and defendants' motion for reconsideration of the Court's discovery costs/fees order (Doc. # 278 ) is DENIED. It is so ordered. Signed by Judge Jeffrey A. Meyer on 4/10/2017. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MILTON OMAR COLON and ARLENE
DAVIS,
Plaintiffs,
v.
METRO-NORTH COMMUTER
RAILROAD COMPANY, and
METROPOLITAN TRANSPORTATION
AUTHORITY,
Defendants.
No. 3:13-cv-00325 (JAM)
METRO-NORTH COMMUTER
RAILROAD COMPANY and
METROPOLITAN TRANSPORTATION
AUTHORITY,
Third-Party Plaintiffs,
v.
UNITED ILLUMINATING COMPANY,
Third-Party Defendant.
RULING DENYING MOTION FOR CERTIFICATION TO APPEAL
AND MOTION FOR RECONSIDERATION
Defendants have moved pursuant to 28 U.S.C. § 1292(b) for leave to take an
interlocutory appeal of my ruling denying cross-motions for summary judgment. See Colon v.
Metro-North Commuter R.R. Co., 2017 WL 987844 (D. Conn. 2017). Defendants also move for
reconsideration of my decision requiring defendants to pay plaintiffs’ attorneys fees for
conducting an additional Rule 30(b)(6) deposition. For the reasons that follow, I will deny both
motions.

BACKGROUND
As discussed in my prior ruling, plaintiff Milton Omar Colon was severely injured after
climbing a catenary tower located along the railroad tracks in New Haven, Connecticut. I concluded
that a triable issue existed as to whether plaintiff was injured as a result of a hidden danger—an “arc”
electric shock from electrical wires that were near plaintiff on the tower—and that, notwithstanding
plaintiff’s status as a trespasser on railroad property, genuine fact issues remained to allow for a jury
verdict of liability against defendants under three different theories of potential liability: the
“constant intrusion” exception of the Restatement (Second) of Torts § 335, the “child trespasser”
exception of the Restatement (Second) of Torts § 339, and the “highly dangerous condition”
exception of the Restatement (Second) of Torts § 337.
I also found that defendants had not appropriately identified and produced a Rule 30(b)(6)
witness who was qualified to discuss “the inspection, repair and maintenance of the metal structure
of [the tower] and its warning signs.” I required defendants to disclose and make available such a
witness for deposition, and I further ordered that defendants shall pay for plaintiffs’ costs and
attorney’s fees to prepare for and attend the deposition. Following my ruling, defendants have
identified an additional Rule 30(b)(6) witness who will be subject to deposition on April 11, 2017.

DISCUSSION
Defendants have now moved pursuant to 28 U.S.C. § 1292(b) for leave to take an
interlocutory appeal of my summary judgment ruling and for a stay pending appeal. Defendants
have also moved for reconsideration of my decision to require them to pay the costs and
attorney’s fees for the deposition of their Rule 30(b)(6) witness.
Motion for Leave to Certify for Appeal
This Court may certify an otherwise non-appealable order for interlocutory review if the
order “[1] involves a controlling question of law as to which [2] there is substantial ground for
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difference of opinion” and “[3] an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (internal brackets added).
Certification is permitted “only when [the] three enumerated factors suggesting importance are
all present.” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1696 (2015). Even if a district court
certifies an order for appeal under § 1292(b), the party seeking review “still has the burden of
persuading the court of appeals” to take the appeal, and “[t]he appellate court may deny
the appeal for any reason, including docket congestion.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 475 (1978).
Defendants seek appellate review of the following four questions of law, namely (1)
whether the “child trespasser” exception applies to persons over the age of 18 years old; (2)
whether the “constant intrusion” or “child trespasser” exceptions apply where numerous risks are
obvious but where one or more other risks is hidden; (3) whether evidence of trespass in the
general area of a structure, or on other structures in the area, satisfies the requirements of the
“constant intrusion” exception; and (4) whether the “constant intrusion” exception can be proven
absent any evidence as to the date, of frequency of, or circumstances surrounding prior alleged
intrusions.
As to the first issue (the existence of a fixed age limit for the “child trespasser”
exception), even if I were to agree that there is a controlling question of law about which there is
a substantial difference of opinion, I do not agree that an interlocutory resolution of this issue
would materially advance the ultimate termination of this litigation. The “child trespasser”
exception is but one of three closely related theories of liability for which evidence will be
presented at trial, and the remaining two theories (“constant intrusion” and “highly dangerous
condition”) do not depend on plaintiff’s age. Defendants have not otherwise shown why

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plaintiff’s mental condition would not be relevant and admissible at trial as to all three of the
potential theories of liability. Accordingly, even if an appeal were to rule out the “child
trespasser” theory of liability, the appeal would not materially advance the litigation because the
trial would go forward on essentially the same evidence on the two alternative theories of
liability. See Westwood Pharm., Inc. v. Nat’l Fuel Gas Distribution Corp., 964 F.2d 85, 87 (2d Cir.
1992) (interlocutory appeal does not materially advance termination of the litigation where “many of
the same factual issues relevant to that [issue] would still have to be litigated”).

As to the second stated ground for appeal (whether the “constant intrusion” or “child
trespasser” exceptions apply if numerous risks are obvious but one risk is hidden), I am not
convinced that there is a substantial ground for a difference of opinion on this issue. Defendants
have not identified any case authority stating as a matter of law that a landowner is immunized
from liability for an injury that results from a hidden danger on the property if the property also
happens to have other dangerous conditions that are not hidden. None of the cases cited by
defendants (Doc. #277 at 5–6) involve injury from “arc” electrical shock; instead, the cases cited
by defendants involve plaintiffs who were injured by dangers that were obvious or manifest.
As to the two remaining proffered grounds for appeal, both these issues as framed are
highly evidence-based and fact-bound. They concern the type and quantum of evidence
necessary to prove the “constant intrusion” exception (e.g., the geographical proximity of and
frequency of intrusion). Defendants have not identified any division among courts about these
very particular questions, and an appeal at this time would be premature in the absence of a full
evidentiary record as may be developed at trial.
Motion for Reconsideration
On August 5, 2014, I ordered defendants to

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identify at least one person who is responsible for [patrolling, inspecting, repairing,
maintaining the catenary structure and warning sign attached to the subject Tower
#1043], so a total of at least four people, who is responsible: the patrol person, the
inspection person, the repair person, and the maintaining person. Maybe it’s one person
who has dual roles there. That’s adequate to allow [plaintiffs’ counsel] to do a deposition
of that person, and he can ask who else does this.
Doc. #103 at 28–29. In the event “a single person . . . would be knowledgeable about each of
those areas,” one person would be sufficient. Id. at 29. As stated in my summary judgment
ruling, I found that defendants had not identified an appropriate Rule 30(b)(6) witness, and I
ruled that defendants must do so and are liable for the costs and attorney’s fees stemming from
their earlier failure to do so.
Defendants have not adduced any facts or law that were not already asserted in prior
motion papers or that I overlooked; nor have they shown any clear error or manifest injustice that
will result from adherence to the Court’s prior decision. See Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995); Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992).
Accordingly, I will deny defendants’ motion for reconsideration. To the extent that
defendants may dispute the amount of costs and attorney’s fees claimed by plaintiffs, defendants
may raise any such objection after plaintiffs’ counsel submits a request to defendants for
reimbursement of costs and fees incurred in connection with the deposition of defendants’ Rule
30(b)(6) witness. As I indicated in a teleconference with the parties today, this Rule 30(b)(6)
deposition shall be limited to not more than seven (7) hours. Any reimbursement request by
plaintiffs for costs and fees shall be limited to costs and fees that were reasonably necessary to
the substantive preparation for and conducting of this single deposition, rather than for any other
case-related activities or the time and costs incurred by plaintiffs’ counsel to litigate the scope of
this deposition and the recent filing of plaintiffs’ motion for court intervention (Doc. #286).
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CONCLUSION
For the foregoing reasons, defendants’ motion for leave to certify an interlocutory appeal
and for a stay of proceedings (Doc. #276) is DENIED, and defendants’ motion for
reconsideration of the Court’s discovery costs/fees order (Doc. #278) is DENIED.
It is so ordered.
Dated at New Haven, Connecticut, this 10th day of April 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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