Bell v. Union Pacific Railroad Company
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 2/17/2021. (RJE)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 20-cv-1393 (WMW/KMM)
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
Union Pacific Railroad Company,
This matter is before the Court on Defendant Union Pacific Railroad Company’s
(Union Pacific) motion to dismiss Plaintiff Nicolas Bell’s complaint for failure to state a
claim on which relief can be granted. (Dkt. 9.) For the reasons addressed below, the
motion is granted and the complaint is dismissed without prejudice.
Nicolas Bell alleges that, on or about June 12, 2014, he was injured by a Union
Pacific train in Fridley, Minnesota. Bell was a minor at that time, although the complaint
does not specify Bell’s precise age. The complaint provides few details about how Bell
sustained his injuries or the nature of those injuries, but Bell alleges generally that “a
collision occurred” and he “sustained injuries to his right foot leading to amputation.”
The complaint also includes few details about the location of the alleged collision, but
Bell alleges generally that the collision occurred “near the 6500th block of Main Street
Northeast . . . near parks and churches, where children are known to frequent.” At the
time and place of the alleged collision, no fencing prevented pedestrians from entering
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the train tracks or the areas surrounding the train tracks, and no signs warned of the
danger posed by the unguarded train tracks.
Bell commenced this personal-injury action on June 10, 2020, in Anoka County
District Court, Tenth Judicial District. Union Pacific removed the case to federal court
based on diversity jurisdiction. Bell’s complaint alleges that his injuries are the result of
Union Pacific’s negligence and that Union Pacific is strictly liable for Bell’s injuries
based on its failure to warn. Union Pacific moves to dismiss the complaint in its entirety
for failure to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
If a complaint fails to state a claim on which relief can be granted, dismissal is
warranted. See Fed. R. Civ. P. 12(b)(6). When determining whether a complaint states a
facially plausible claim, a district court accepts the factual allegations in the complaint as
true and draws all reasonable inferences in the plaintiff’s favor. Blankenship v. USA
Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). Factual allegations must be sufficient to
“raise a right to relief above the speculative level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Legal
conclusions couched as factual allegations may be disregarded. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
On a motion to dismiss, a district court may consider the complaint, exhibits
attached to the complaint, and documents that are necessarily embraced by the complaint,
without converting the motion into one for summary judgment. Mattes v. ABC Plastics,
Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). Here, Union Pacific attached an employee
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affidavit and multiple exhibits to its memoranda of law in support of its motion to
dismiss, and Bell attached an exhibit to his memorandum of law in opposition to Union
Pacific’s motion to dismiss. In addition to being improperly filed in violation of the
Local Rules,1 none of these documents is attached to or necessarily embraced by Bell’s
complaint. Because these documents are outside the scope of the pleadings, the Court
has no basis to consider these documents when evaluating Union Pacific’s motion to
Bell’s complaint does not correctly label or clearly define the scope of his legal
claims. The complaint, however, appears to present two distinct causes of action: a childtrespasser negligence claim and a failure-to-warn claim. The Court addresses each claim
Child-Trespasser Negligence Claim
Union Pacific argues that Bell fails to state a negligence claim because Union
Pacific owed no duty of care to Bell. Bell counters that Union Pacific owed him a duty
of care because he was injured on property that appeared to be owned, controlled, or
possessed by Union Pacific. As such, the parties dispute the legal and factual basis for
Union Pacific’s alleged duty of care.
To state a negligence claim under Minnesota law, a plaintiff must allege four
elements: “(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and
(4) the breach of duty being the proximate cause of the injury.” Senogles v. Carlson, 902
Local Rule 7.1(l) unequivocally provides: “Parties must not file affidavits or
exhibits as attachments to a memorandum that they support. Instead, such affidavits and
exhibits must be filed separately.”
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N.W.2d 38, 42 (Minn. 2017).
Minnesota recognizes “the general principle that a
possessor of land owes no duty to trespassers.”
Croaker ex rel. Croaker v.
Mackenhausen, 592 N.W.2d 857, 860 (Minn. 1999). But Minnesota also recognizes
limited exceptions to this general principle for child trespassers. Id.; Fear v. Indep. Sch.
Dist. 911, 634 N.W.2d 204, 213–14 (Minn. Ct. App. 2001).
Although Bell labels his first cause of action “ATTRACTIVE NUISANCE,” it has
long been the case that the attractive-nuisance doctrine is not recognized in Minnesota.
See Hocking v. Duluth, Missabe & Iron Range Ry. Co., 117 N.W.2d 304, 489 (Minn.
1962) (observing that “the attractive nuisance doctrine was discarded in this state” in
1935). In place of the attractive-nuisance doctrine, Minnesota has “specifically adopted
Restatement (Second) of Torts § 339 (Am. Law. Inst. 1965), regarding child trespassers
attracted to nuisances.” Senogles, 902 N.W.2d at 46; accord Fear, 634 N.W.2d at 214.
As such, the Court construes Bell’s attractive-nuisance claim as a child-trespasser
Under Minnesota law, a land possessor’s duty of care to a child trespasser may be
established as follows:
A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition
upon the land if
In its motion to dismiss, Union Pacific construes Bell’s complaint as alleging
“separate counts of Premises Liability” and “Attractive Nuisance.” As addressed herein,
Bell’s mislabeled negligence allegations do not appear to reflect separate counts; instead,
they reflect a single count alleging negligence by a land possessor resulting in physical
harm to a child trespasser.
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(a) the place where the condition exists is one upon
which the possessor knows or has reason to know that
children are likely to trespass, and
(b) the condition is one of which the possessor knows
or has reason to know and which [the possessor]
realizes or should realize will involve an unreasonable
risk of death or serious bodily harm to such children,
(c) the children because of their youth do not discover
the condition or realize the risk involved in
intermeddling with it or in coming within the area
made dangerous by it, and
(d) the utility to the possessor of maintaining the
condition and the burden of eliminating the danger are
slight as compared with the risk to children involved,
(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the
Fear, 634 N.W.2d at 214 (quoting Restatement (Second) of Torts § 339). Because each
element must be proven to establish liability, the failure to meet the requirements of any
element is fatal to a plaintiff’s claim. Croaker, 592 N.W.2d at 860.
According to Union Pacific, Bell fails to state a claim because he does not allege
that Union Pacific owned, possessed, or controlled the premises on which Bell alleges he
was injured. Actual ownership is not required to establish that a duty of care is owed to a
child trespasser. Rather, the “possessor of land is subject to liability” with respect to
child trespassers. Fear, 634 N.W.2d at 214 (emphasis added) (quoting Restatement
(Second) of Torts § 339). The Restatement defines a possessor of land as “a person who
is in occupation of the land with intent to control it.” Isler v. Burman, 232 N.W.2d 818,
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821 (Minn. 1975) (quoting Restatement (Second) of Torts § 328E). The commentary
following Section 328E provides that a possessor need not be the “true owner” of the
property because an occupant “is a possessor from the moment his occupation begins.”
Restatement (Second) of Torts § 328E cmt. a. Union Pacific’s arguments as to actual
ownership are, therefore, irrelevant. Instead, at issue here is whether the complaint
plausibly alleges that Union Pacific possessed the property on which Bell’s injuries
occurred by occupying that property with the intent to control it.
As Union Pacific correctly observes, Bell’s complaint does not expressly allege
that Union Pacific possessed the railroad tracks on which Bell’s injuries occurred. But
when evaluating a motion to dismiss, a district court must draw all reasonable inferences
in the plaintiff’s favor. Blankenship, 601 F.3d at 853. Bell alleges that he was injured on
railroad tracks by a collision involving Union Pacific’s “train that was traveling on or
near the 6500th block of Main Street Northeast.”
From this allegation, it can be
reasonably inferred that, at the time of the alleged collision, Union Pacific’s train
physically occupied the railroad tracks near the 6500th block of Main Street Northeast in
To be a “possessor of land,” however, mere occupation of the property is
insufficient. Union Pacific also must have had the “intent to control” the property. Isler,
232 N.W.2d at 821 (quoting Restatement (Second) of Torts § 328E). Under Minnesota
law, “[i]t is generally recognized that . . . one in control of the premises is under the same
duty as the owner to keep the premises in safe condition.” Ironwood Springs Christian
Ranch, Inc. v. Walk to Emmaus, 801 N.W.2d 193, 197–98 (Minn. Ct. App. 2011)
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(quoting Dishington v. A.W. Kuettel & Sons, Inc., 96 N.W.2d 684, 688 (Minn. 1959)).
Whether a temporary occupant of property intends to control a dangerous condition on
the property depends on whether that occupant assumed the property owner’s duties with
respect to inspecting, maintaining, remedying, or otherwise undertaking precautions with
respect to the dangerous condition. Compare Isler, 232 N.W.2d at 821 (concluding that a
church group that planned a snowmobile party on a farmer’s property “had assumed the
duty of inspecting the land to determine if it was free from hazards”) with Ironwood
Springs, 801 N.W.2d at 198 (distinguishing Isler and concluding that temporary
occupants of a retreat facility did not assume the property owner’s duties to perform
maintenance as to ice-covered walkways on the property).
Here, Bell does not allege that Union Pacific owned the railroad tracks where
Bell’s injuries occurred. Nor does Bell allege any facts that would demonstrate that
Union Pacific assumed from the property owner any responsibility for inspecting,
maintaining, or remedying any condition of the railroad tracks or the land surrounding
those tracks. At most, Bell’s complaint alleges temporary occupancy of the railroad
tracks. When “a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). The allegations in
Bell’s complaint are merely consistent with the possibility that Union Pacific intended to
control the property at issue. Because such allegations are insufficient to plausibly allege
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that Union Pacific had the requisite intent to control the property, Bell fails to state a
child-trespasser negligence claim.3
For these reasons, Union Pacific’s motion to dismiss Bell’s child-trespasser
negligence claim is granted.
Bell’s complaint also alleges that Union Pacific is strictly liable for Bell’s injuries
based on its failure to warn of an inherently dangerous condition. Union Pacific does not
separately address this claim. Instead, Union Pacific relies on the same arguments
A failure-to-warn claim “has three elements: ‘(1) whether there exists a duty to
warn about the risk in question; (2) whether the warning given was inadequate; and
(3) whether the lack of a warning was a cause of plaintiff’s injuries.’ ” Huggins v.
Union Pacific alternatively argues that it owed no duty to Bell because “a moving
train is an open and obvious danger.” Whether an alleged danger was “open and
obvious” is an affirmative defense to an allegation of negligence. Brockman v. Sun
Valley Resorts, Inc., 923 F. Supp. 1176, 1180 (D. Minn. 1996); Rinn v. Minn. State Agric.
Soc’y, 611 N.W.2d 361, 364 (Minn. Ct. App. 2000). An affirmative defense generally is
not a basis for a Rule 12(b)(6) motion to dismiss; instead, an affirmative defense
ordinarily must be pleaded and proved. United States v. Xcel Energy, Inc., 759 F. Supp.
2d 1106, 1118 (D. Minn. 2010). An affirmative defense may serve as a basis for a
motion to dismiss only if “the complaint clearly shows the existence of [the] defense.”
Id. (internal quotation marks and alteration omitted). That is not the circumstance here.
Indeed, whether an alleged danger was “open and obvious” often is a fact question
subject to dispute. See, e.g., Bundy v. Holmquist, 669 N.W.2d 627, 633 (Minn. Ct. App.
2003) (concluding that a factual dispute existed as to whether an alleged danger was
“open and obvious”); Rinn, 611 N.W.2d at 364 (same).
Although Bell labels his second cause of action “STRICT LIABILITY,” his
allegations appear, in substance, to assert a failure-to-warn claim based on a theory of
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Stryker Corp., 932 F. Supp. 2d 972, 986 (D. Minn. 2013) (quoting Seefeld v. Crown,
Cork & Seal Co., 779 F. Supp. 461, 464 (D. Minn. 1991)). “Failure to warn is a separate
cause of action and may be based on a theory of either strict liability or negligence.”
Seefeld, 779 F. Supp. at 464 (citing Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d
352 (Minn. Ct. App. 1991)). In a failure-to-warn case, the distinction between strict
liability and negligence is that knowledge of the dangerous condition and its associated
risks will be imputed to the defendant when establishing strict liability, whereas these
elements must be proven to establish negligence. Id. The duties that a land possessor
owes to a child trespasser may include a duty to warn of a dangerous condition. See, e.g.,
Hughes v. Quarve & Anderson, Co., 338 N.W.2d 422, 426–27 (Minn. 1983) (affirming
verdict involving child-trespasser negligence based in part on evidence that defendant
failed “to give warning in spite of its knowledge of” danger on the property).
Here, as addressed above, whether Union Pacific had a duty to warn about the
dangerousness of the railroad tracks depends on whether Union Pacific occupied with the
intent to control the property at issue. Because Bell has not plausibly alleged that Union
Pacific had the requisite intent to control the property, Bell fails to state a failure-to-warn
claim for the same reasons addressed in Part I of this Order.
Accordingly, Union Pacific’s motion to dismiss Bell’s failure-to-warn claim is
Based on the foregoing analysis and all the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
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Defendant Union Pacific Railroad Company’s motion to dismiss, (Dkt. 9),
Plaintiff Nicolas Bell’s complaint, (Dkt. 1), is DISMISSED WITHOUT
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 17, 2021
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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