Penardo et al v. National Railroad Passenger Corporation et al
Filing
8
MEMORANDUM AND ORDER granting 5 Motion for Judgment on the Pleadings - So Ordered by Chief Judge William E. Smith on 2/5/2018 (Barletta, Barbara)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
_____
)
CAROLINA PENARDO, in her capacity )
as Administrator of the Estate of )
Andrea Lynn Penardo; CAROLINA
)
PENARDO, individually; MICHAEL
)
PENARDO; and ELIZABETH PENARDO,
)
)
Plaintiffs,
)
)
v.
)
C.A. No. 17-287 WES
)
NATIONAL RAILROAD PASSENGER
)
CORPORATION; and JOHN DOES
)
1 through 10,
)
)
Defendants.
)
)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is a Motion for Judgment on the Pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure filed
by Defendant National Railroad Passenger Corporation (“Amtrak”).
(ECF No. 5.)
For the reasons set forth below, Defendant’s motion is
GRANTED.
I.
Background
On October 16, 2016, sixteen-year-old Andrea Lynn Penardo, 1 and
her sister, seventeen-year-old Elizabeth Penardo, travelled to East
Greenwich, Rhode Island to take pictures of the East Greenwich
waterfront.
1
(Compl. ¶¶ 39–40, ECF No. 1-1.)
Andrea and Elizabeth
In the interest of clarity, the Court refers to members of
the Penardo family by their first names. No disrespect is intended.
were
raised
in
West
Warwick
and,
while
they
had
visited
East
Greenwich before, they were unfamiliar with the area between Main
Street and the waterfront.
(Id. ¶¶ 36, 39.)
To access the
waterfront from Main Street, Andrea and Elizabeth walked along King
Street, where they encountered the King Street bridge.
41.)
The King Street bridge is an old stone bridge, built in 1837,
with narrow traffic tunnels and graffiti on the side.
41.)
(Id. ¶¶ 40-
(Id. ¶¶ 12,
Elizabeth took a photograph of the King Street bridge from the
King Street median.
(Id. ¶ 41.)
Andrea and Elizabeth, their
curiosity piqued, decided to see what was on top of the bridge.
(Id.
¶¶ 41–42.)
Andrea and Elizabeth walked up a well-worn path that began at
the King Street sidewalk and ran up the hill to the top of the
bridge.
(Id. ¶ 42.)
nearby.
(Id.)
There was litter along the way and a cut tree
There was a fence with an unlocked gate at the top
of the path, but the area otherwise lacked any signs or warnings.
(Id. ¶¶ 42-43.)
On the opposite side of the fence were railroad
tracks and more litter, but there was no fence on the other side of
the railroad tracks.
(Id. ¶ 43.)
Andrea and Elizabeth had never
lived near railroad tracks, nor had they ever ridden on high-speed
trains.
(Id. ¶ 36.)
In light of their unfamiliarity with trains
and the age of the King Street bridge, Andrea and Elizabeth believed
the
railroad
abandoned.
tracks
passing
over
(Id. ¶¶ 36, 39, 44.)
2
the
King
Street
bridge
were
Thinking that the bridge would
offer a good vantage point to take photographs of the waterfront,
they passed through the unlocked gate and sat down on the King Street
bridge with their legs dangling off the side.
(Id. ¶ 45.)
Amtrak owns, operates, and maintains the railroad tracks that
pass over the King Street bridge.
(Id. ¶ 11.)
Located in a densely
populated area of East Greenwich, the King Street bridge is a narrow
bridge, barely wide enough for the two sets of railroad tracks that
pass over it, and lacks catwalks or handrails on either side.
¶¶ 10, 13, 16.)
(Id.
The railroad tracks that approach and leave the
King Street bridge are curved.
(Id. ¶ 11.)
Amtrak’s southbound
trains approach the King Street bridge from around a corner, at high
speed, with little audibility, and without giving a warning.
(Id.
¶ 32.)
As of October 2016, Amtrak had placed fencing along almost all
of its railroad tracks in East Greenwich, with gates secured by a
lock and chain. (Id. ¶¶ 25-26.) Moreover, warning signs were placed
in close proximity to these gates.
(Id. ¶ 29.)
The unlocked gate
that Andrea and Elizabeth used to access the railroad tracks on the
King Street bridge only had one warning sign nearby, which faced
away from those entering through the gate.
(Id. ¶ 35.)
This sign
was written in railroad industry language that the public would not
easily understand.
(Id.)
The signs warned railroad workers to
contact train dispatchers to halt train traffic along the King Street
bridge before they entered onto the bridge.
3
(Id.)
Andrea and Elizabeth were not the first pedestrians to access
the tracks in the area around the King Street bridge; Amtrak’s train
engineers and maintenance workers had observed and met with people
close to and on the tracks before.
(Id. ¶¶ 17-18.)
Additionally,
suicide attempts, some fatal, had occurred on railroad tracks in
East Greenwich in the twenty years prior to October 2016.
(Id. ¶
19.)
After sitting on the King Street bridge for approximately a
minute, Elizabeth noticed a train round the corner approaching the
King Street bridge at approximately ninety-five miles per hour. (Id.
¶¶ 46-47.)
Elizabeth and Andrea began to run from the oncoming
train, with Andrea running behind Elizabeth.
(Id. ¶ 46.)
Elizabeth
managed to clear the tracks at the end of the King Street bridge,
but Andrea was struck and killed by the train.
(Id. ¶ 47.)
Following this tragic event, Andrea’s parents, Carolina and
Michael
Penardo,
and
Elizabeth
following against Amtrak:
wrongful
death
(Count
filed
a
Complaint
alleging
the
intentional and willful conduct causing
I);
intentional
infliction
of
emotional
distress upon Andrea and Elizabeth (Counts II and III); negligent
conduct causing wrongful death (Count IV); negligent infliction of
emotional distress upon Andrea and Elizabeth (Counts V and VI); and
loss of society and companionship by Carolina and Michael Penardo
(Counts VII and VIII).
(See generally id. at 10–18.)
4
II.
Legal Standard
A court treats a motion for judgment on the pleadings much like
a Rule 12(b)(6) motion to dismiss.
Pérez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins, 509 F.3d
36, 43–44 (1st Cir. 2007)).
“[T]o survive a Rule 12(b)(6) motion
(and, by extension, a Rule 12(c) motion) a complaint must contain
factual
allegations
that
‘raise
a
right
to
relief
above
the
speculative level, on the assumption that all the allegations in the
complaint are true . . . .’”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
“Because such a motion calls
for an assessment of the merits of the case at an embryonic stage,
the court must view the facts contained in the pleadings in the light
most favorable to the nonmovant and draw all reasonable inferences
therefrom to the nonmovant’s behoof.”
R.G. Fin. Corp. v. Vergara-
Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (citations omitted). “There
is no resolution of contested facts in connection with a Rule 12(c)
motion:
a court may enter judgment on the pleadings only if the
properly
considered
point.”
Id.
facts
conclusively
establish
the
movant’s
(citing Rivera–Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988)).
Judgment on the pleadings is only appropriate
when “it appears beyond a doubt that the nonmoving party can prove
no set of facts in support of [his] claim which would entitle [him]
to relief.”
Rezende v. Ocwen Loan Servicing, LLC, 869 F.3d 40, 42
5
(1st Cir. 2017) (quoting Feliciano v. Rhode Island, 160 F.3d 780,
788 (1st Cir. 1998)).
III.
Discussion
In Rhode Island, “landowners[] owe a duty to ‘maintain the[ir]
property in a reasonably safe condition for the benefit of those
persons who might come upon the land.’”
A.2d
138,
141
(R.I.
2000)
Bennett v. Napolitano, 746
(alterations
in
original)
(quoting
Brindamour v. City of Warwick, 697 A.2d 1075, 1077 (R.I. 1997)).
“This duty does not extend to trespassers, however.”
Brindamour, 697 A.2d at 1077).
Id. (citing
In the railroad context, “[i]t is
the generally accepted rule that a railroad company owes no duty to
a trespasser on its premises except to abstain from willful and
wanton injury to him after he is discovered in a position of peril.”
Erenkrantz v. Palmer, 35 A.2d 224, 225 (R.I. 1944) (citing Boday v.
New York, N.H. & H.R. Co., 165 A. 448, 448 (R.I. 1933)).
However,
“a railroad is under no duty to keep a lookout for trespassers.”
Wolf v. Nat’l R.R. Passenger Corp., 697 A.2d 1082, 1086 (R.I. 1997)
(quoting Zoubra v. New York, N.H. and H.R.R. Co., 150 A.2d 643, 645
(R.I. 1959)).
A.
Was Andrea a Trespasser?
The Court must first determine whether, viewing the pleadings
in the light most favorable to Plaintiffs, Andrea was a trespasser
at the time of the accident.
In Rhode Island, a “trespasser is
‘[o]ne who intentionally and without consent or privilege enters
6
another’s property.’”
Bennett, 746 A.2d at 141 (quoting Ferreira v.
Strack, 652 A.2d 965, 969 (R.I. 1995)).
The Rhode Island Supreme
Court has “explained that a trespasser ‘enters upon the property of
another without any right, lawful authority, or express or implied
invitation, permission, or license, not in performance of any duties
to
the
owner,
convenience.’”
but
merely
for
his
own
purpose,
pleasure
or
Id. (quoting Ferreira, 652 A.2d at 969).
The Rhode Island Supreme Court has consistently held that people
walking
on
train
trespassers.
bridges
in
factually
analogous
cases
are
In Wolf v. National Railroad Passenger Corporation,
twelve-year-old Brendan Houle (“Brendan”), was walking along a train
bridge at night with his father and older brother, when he was struck
and killed by an oncoming train.
697 A.2d at 1083–84.
The bridge
spanned water, was open to the air, and had only a four-foot divider
between the tracks.
Id.
The group traversed a steep embankment
with a well-worn path to access the bridge.
Id. at 1084.
The path
had no warning signs about the danger of oncoming trains and no fence
to impede their access.
Id.
An oncoming train rounded a blind bend
at about seventy-five miles per hour approximately 1000 feet from
the end of the bridge.
Id.
Brendan ran on the bridge away from the
train, but was unable to escape before being struck and killed by
the train.
Id.
The court deemed Brendan a trespasser.
Id. at 1085;
see also Zoubra, 150 A.2d at 644 (holding plaintiff was a trespasser
where he walked on a well-marked path that crossed railroad tracks,
7
with
no
warning
signs,
barriers,
notices,
or
other
forms
of
prohibition to public use); Boday, 165 A. at 448-49 (holding deceased
was a trespasser where he had committed a misdemeanor by walking on
the railroad bridge, which was open, spanned a river, had no footway
or railing, and had no signs expressly prohibiting pedestrians).
Viewing the pleadings in the light most favorable to Plaintiffs,
the Rhode Island Supreme Court’s clear, albeit harsh, precedent
plainly renders Andrea a trespasser under these facts.
Despite the
well-worn path leading from King Street to the King Street bridge,
and other indications of public use, such as litter and a cut tree,
Andrea was trespassing on the King Street Bridge.
See Wolf, 697
A.2d at 1086 (“Even assuming the existence of a well-worn path
leading up to the [bridge] (presumably indicative of some usage of
the [bridge] as a pedestrian crossing) . . . Brendan was still
trespassing on Amtrak’s [bridge] at the time of the accident.”)
(citing Zoubra, 150 A.2d at 645); see also Boday, 165 A. at 449 (“The
mere fact that a number of persons are in the habit of using a
certain place as a crossing where there is no public right of passage
does not constitute such place a public crossing or generally confer
upon
such
persons
a
character
or
right
other
than
trespassers.”) (citation omitted); (Compl. ¶¶ 41-43).
that
of
Nor does
Amtrak’s failure to secure the fence with a locked gate and post
adequate warning signs change her status from that of a trespasser.
See Wolf, 697 A.2d at 1083, 1086 (holding decedent was trespasser
8
despite no fence to impede access or warning signs); see also Zoubra,
150 A.2d at 644-45 (holding decedent was trespasser despite no
impediments to public access or warning signs); Boday, 165 A. at 448
(declaring
decedent
trespasser
despite
no
impediment
to
public
access); (Compl. ¶ 42-43).
Plaintiffs argue that, for Andrea to be a trespasser, Amtrak
must demonstrate that it did not give Andrea implied consent to enter
the bridge.
(Pls.’ Mem. of Law in Opp’n to Def.’s Mot. for J. on
the Pleadings (“Pls.’ Mem.”) 2-4, ECF No. 6-1.)
They contend that
a jury could find implied consent from the indications of public
access, the unlocked gate, and Amtrak’s indifference to prior access
by the public.
(Id. at 4.)
But, as noted, Rhode Island law is clear
that indications of prior public access do not change a trespasser’s
status on a non-public railroad right of way.
See, e.g., Wolf, 697
A.2d at 1084, 1086; Zoubra, 150 A.2d at 644; Boday, 165 A. at 44849.
Indeed, the Rhode Island Supreme Court has noted that, “to
conclude otherwise would be equivalent to holding that a landowner
who does not aggressively exclude a trespasser thereby assumes an
enhanced duty of care towards the trespasser . . . .”
Bennett, 746
A.2d at 142 (holding plaintiff did not have implied consent to walk
in a park, closed by city ordinance, where plaintiff had been
observed walking by local police officers and park rangers over the
prior decade).
Thus, drawing all reasonable inferences in favor of
9
Plaintiffs, Plaintiffs have not alleged facts that would allow a
jury to find implied consent, and Andrea was plainly a trespasser.
B.
Amtrak’s Duty to Andrea
“Whether a duty exists in a particular situation is a question
of law to be decided by the court.”
Ferreira v. Strack, 636 A.2d
682, 685 (R.I. 1994) (citing D’Ambra v. United States, 338 A.2d 524,
527 (R.I. 1975)).
In order “[t]o prevail on a negligence claim, a
plaintiff must show that the defendant owed the plaintiff a duty
. . . .”
Lamarque v. Centreville Sav. Bank, 22 A.3d 1136, 1140 (R.I.
2011) (citing Berman v. Sitrin, 991 A.2d 1038, 1047 (R.I. 2010)).
Amtrak has the duty to refrain from wantonly or willfully
injuring a trespasser only if and when it discovers her on railroad
tracks.
See Erenkrantz, 35 A.2d at 224–25.
Thus, whether Amtrak
had a duty vel non turns on whether Amtrak discovered Andrea before
the accident. Plaintiffs do not allege that Amtrak discovered Andrea
on the King Street bridge 2; such a failure to allege facts that the
railroad knew of the trespasser’s peril “is an indispensable averment
because the law does not impose upon the defendant any duty toward
the plaintiff as a trespasser . . . unless it has first discovered
her in a position of danger.”
2
Zoubra, 150 A.2d at 645.
Therefore,
Plaintiffs recognize that their claim fails if this Court
applies the trespasser rule, as set forth by the Rhode Island Supreme
Court; in their Opposition, they state that, if the trespasser rule
is applied in the instant case, “Defendant will not be responsible
for Andrea Penardo’s death even though she could not have gotten
onto the tracks had Defendant secured this gate as it did other gates
in the same area.” (Pls.’ Mem. 6.)
10
Plaintiffs fail to state a claim upon which relief may be granted,
and the Court need not address whether Amtrak’s conduct rose to the
level of willful or wanton injury.
Plaintiffs argue that, on the whole, their Complaint alleges
that Amtrak operates its trains in the King Street bridge area in
such a way as to never timely discover trespassers.
F.3d at 43; (Pls.’ Mem. 11-12).
advance Plaintiffs’ claims.
See Curran, 509
However, this theory does not
As harsh as it may be, under Rhode
Island law, railroads have no duty to keep lookout for trespassers
on their tracks.
See Wolf, 697 A.2d 1082, 1086.
Plaintiffs alternatively aver that Amtrak is liable because the
measures it employed to secure the area around the King Street bridge
flouted federal law. (Pls.’ Mem. 4–6; see also Railroad Trespassing,
Vandalism, and Highway-Rail Grade Crossing Warning Device Violation
Prevention Strategies 6, ECF No. 6-2).
However, Plaintiffs fail to
demonstrate that any failure to comply with federal law on Amtrak’s
part enhances the duty it has to trespassers or otherwise creates a
private cause of action.
Therefore, on the face of the pleadings,
and drawing all reasonable inferences in Plaintiffs’ favor, Amtrak
never owed Andrea a duty and, accordingly, cannot be found liable
for negligence as a matter of law.
C. Plaintiffs’ Discovery Request
Plaintiffs, in their Opposition, argue that the Motion should
be denied because they requested, but have not received, production
11
of the train’s event recorder and front-facing camera.
10-11.)
(Pls.’ Mem.
This information, they say, would shed light on “the train
engineer’s conduct after discovering” Andrea and Elizabeth.
10.)
(Id. at
In several separate paragraphs of their Complaint, however,
Plaintiffs state that Defendant “operated its train at such a high
rate of speed and without warning that it knew its engineers and
crew would have insufficient time to discover, warn or sufficiently
slow the train to avoid striking members of the public on or near
the bridge and railroad tracks.” (See, e.g., Compl. ¶¶ 50, 57, 63,
71, 77, 82.)
The Complaint does not allege that the engineer ever
discovered the girls; to the contrary, it repeatedly alleges that
Amtrak operated its trains in such a way that an engineer would never
make such a discovery.
(See generally id.)
Thus, drawing all
reasonable inferences in favor of Plaintiffs, the Complaint fails to
state a claim upon which relief may be granted.
D. Whether To Certify Question to Rhode Island Supreme Court
Plaintiffs request that, if this Court deems Andrea a trespasser
on the King Street Bridge, the Court certify the question of whether
the trespasser rule applies to this case to the Rhode Island Supreme
Court.
(Pls.’ Mem. 6–7.)
The Rhode Island Supreme Court may answer
a certified question of law if “there are involved in any proceeding
before [this Court] questions of law of [Rhode Island] which may be
determinative of the cause then pending in [this Court] and as to
which it appears to [this Court] there is no controlling precedent
12
in the decisions of [the R.I. Supreme Court].”
Art. I, R. 6(a).
R.I. Sup. Ct. R.,
In pressing their argument, Plaintiffs aver that
the trespasser rule is harsh and illogical; Justice Flanders’s
concurrence and Justice Goldberg’s concurrence and dissent in Cain
v. Johnson, 755 A.2d 156 (R.I. 2000), show changing attitudes towards
the rule; The Restatement (Third) of Torts § 52 (Am. Law Inst. 2012)
classification of “flagrant” trespassers; and the instant case is
distinguishable
from
Rhode
Island
Supreme
Court
precedent,
in
particular because Andrea did not subjectively intend to trespass.
(Pls.’ Mem. 6–10.)
However, because Rhode Island precedent readily controls the
facts of this case, the Court finds no need to certify this question
to the Rhode Island Supreme Court.
6(a).
See R.I. Sup. Ct. R., Art. I, R.
In Mariorenzi v. DiPonte, Inc., 333 A.2d 127 (R.I. 1975), the
Rhode Island Supreme Court abolished the old common-law distinctions
of invitee, licensee, and trespasser, but in Tantimonico v. Allendale
Mut. Ins. Co., 637 A.2d 1056 (R.I. 1994), the court departed from
Mariorenzi and reestablished the old common-law rule for trespassers
(i.e., there is only a duty to not willfully or wantonly injure
trespassers when they are discovered).
See Tantimonico, 637 A.2d at
1057,
old
1062—63
(reestablishing
trespassers only).
the
common-law
rule
for
The court has not disturbed the trespasser rule
since Tantimonico, nor has it adopted the Third Restatement’s use of
the “flagrant” trespasser distinction.
13
Additionally, a close read
of Cain reveals that the majority opinion reaffirms the trespasser
rule under Rhode Island law, including its application in the
railroad context, and the concurrences and dissents do not, in fact,
lend much support to Plaintiffs’ argument.
See Cain, 755 A.2d at
161–62; see generally id. (Flanders, J., concurring); id. (Goldberg,
J., concurring and dissenting).
Finally,
Rhode
Island
Supreme
Court
precedent
clearly
establishes that Andrea’s lack of subjective intent and knowledge
about railroads are not factors for consideration.
In Wolf, the
court held that a train bridge is not an attractive nuisance.
Wolf,
697 A.2d at 1086 (“[B]ecause the risk of injury from an oncoming
train would be apparent to anyone who decides to walk along a train
[bridge], we hold that as a matter of law the [bridge] was not an
‘attractive nuisance.’” (citations omitted)).
The “obvious danger”
of the bridge in Wolf is the same danger presented by the King Street
bridge here.
There, the court deemed twelve-year-old children aware
of this danger; it is doubtful that the Rhode Island Supreme Court
would hold otherwise for sixteen-year-old Andrea.
¶
40).
Thus,
Andrea’s
lack
of
knowledge
See id.; (Compl.
about
railroads
and
subjective lack of intent to trespass are not germane to Amtrak’s
liability under Rhode Island law.
For these reasons, there is clearly controlling precedent on
the
issue
presented
by
the
facts
of
this
case,
and
thus,
certification of Plaintiffs’ question to the Rhode Island Supreme
14
Court is unwarranted.
While the result in this case undoubtedly is
harsh, the Court is bound by the Rhode Island Supreme Court’s
interpretation of Rhode Island law.
IV. Conclusion
For the reasons discussed above, Amtrak’s Motion for Judgment
on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure (ECF No. 5) is GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: February 5, 2018
15
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