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Although the “attractive nuisance” theory of liability is most often applied to young children who suffer injuries while trespassing, a federal judge has ruled that it may also be used by two 17-year-old boys who suffered serious burns from catenary wires when they climbed atop a parked railroad car. In his 25-page opinion in Klein v. National Railroad Passenger Corp., U.S. District Judge Lawrence F. Stengel found that Pennsylvania courts have recognized the attractive nuisance theory – outlined in Section 339 of the Restatement (Second) of Torts – as a valid exception to the general liability standard for trespassers, and that no Pennsylvania court has ever set an arbitrary age limit. “The plaintiffs have presented some evidence that 17-year-old males generally do not have fully mature brains, and as such cannot fully control their impulses or appreciate some risks,” Stengel wrote. The ruling is a victory for attorneys Joseph F. Roda and Jennifer Susan Snyder of Roda & Nast in Lancaster, who filed the suit on behalf of Jeffery Klein and Brett Birdwell. According to the suit, the two were skateboarding in Lancaster, parking lots on Aug. 10, 2002, when they decided to climb to the top of a parked railroad car. Both suffered serious burns when Klein came within a few inches of a set of 12,000-volt catenary wires – the electric wires that provide power to train engines. Klein sustained third-degree burns over 75 percent of his body and spent more than two months in the hospital. Birdwell suffered flash burns and some third-degree burns over 10 percent of his body and was hospitalized for nearly two weeks. Amtrak’s lawyers had urged Stengel to dismiss the suit, arguing that “an extensive search of Pennsylvania case law has failed to produce a case where Section 339 was successfully applied to a 16- or 17-year-old plaintiff.” In their motion, attorneys Paul F.V. Gallagher and Geoffrey H. Baskerville of Gallagher Rowan & Egbert noted that the two plaintiffs were both close to the age of 18 at the time of the accident. Klein was just 48 days shy of his 18th birthday, they noted, and Birdwell was 100 days shy. By filing suit, Amtrak argued, the plaintiffs were asking the court “to apply Section 339 to two able-minded 17-year-old young men.” Gallagher and Baskerville argued that “many other jurisdictions have declined to apply Section 339 to young adults 17 and younger finding, by that age, there is the requisite capacity for appreciation.” But Stengel refused, saying the defense lawyers were asking for too strict a reading of Pennsylvania’s law on negligence, and that a jury should decide whether the plaintiffs were legally children at the time of the accident. Under Pennsylvania law, Stengel noted, minors under the age of 7 are “presumptively incapable of negligence,” while those between the ages of 7 and 14 “are presumed incapable of negligence, but such a presumption is rebuttable and grows weaker with each year until the 14th year is reached.” For minors over the age of 14, Stengel noted, Pennsylvania law holds that they are “presumptively capable of negligence.” With those standards in mind, Stengel found that “a plausible argument can be made as to why the court should set an arbitrary age limit on the applicability of Section 339.” But Stengel found that no Pennsylvania court has yet established such a limit, and said it would be wrong for a federal court to do so. “I find that it would be an inappropriate reading of the case law, and an unprecedented legal jump not warranted at the summary judgment stage of a case, to bar plaintiffs’ use of Section 339 as a matter of law,” Stengel wrote. Instead, Stengel concluded that the plaintiffs “have shown they were minors, or children in the eyes of the law, at the time of the trespass, and as such, the defendants have failed to meet their burden of proving that Section 339 cannot apply.” Having concluded that Section 339 may be invoked by 17-year-old plaintiffs, Stengel went on to analyze whether the plaintiffs had sufficient proof to satisfy all five elements of the attractive nuisance theory. Defense lawyers argued that the plaintiffs could not meet three of the five elements since they could not prove there was a “likelihood” that children would trespass at the scene of the accident; that the plaintiffs failed to discover the dangerous condition or failed to appreciate the risks; or that Amtrak had failed to exercise reasonable care to eliminate the danger. But plaintiffs lawyers argued that Amtrak was on notice that children were trespassing in the area due to the presence of graffiti and numerous police reports of trespassers. Stengel agreed, saying “I find the plaintiffs have met their scintilla of evidence threshold and have shown, through the graffiti and Amtrak’s police reports regarding children trespassers, a genuine issue of material fact whether Amtrak had reason to know that children trespassers have frequented the area of the accident.” Roda and Snyder also argued that the risks posed by catenary wires is not obvious, and that Amtrak was clearly aware of that fact because it regularly trains its own employees to recognize the danger of “arcing” – a phenomenon in which electricity from one source “jumps” to another. Stengel agreed, saying “although both plaintiffs knew the risks involved in intermeddling with electricity, neither knew the risk associated with arcing, nor did they realize the electricity connected to the freight train remained on.” As a result, Stengel concluded that “it is for a jury to decide whether the plaintiffs failed to appreciate the risks because of their youth.” Stengel also found that a reasonable jury could agree with the plaintiffs’ argument that Amtrak failed to exercise reasonable care to eliminate the danger since it could have parked the railroad cars in a different location, placed warning signs or de-energized the lines while the cars were parked. The evidence, Stengel found, was also sufficient to show that Amtrak may have engaged in “wanton misconduct.” “It is enough if Amtrak should have realized that putting the laddered . . . car under the energized catenary line, in a residential area, was an unreasonable act in disregard of a known risk that would likely put someone in grave peril,” Stengel wrote. Finally, Stengel concluded that the plaintiffs should be allowed to pursue punitive damages. “I find the plaintiffs have raised a genuine issue of material fact regarding whether the defendants’ allegedly wanton conduct qualifies as the type of outrageous conduct necessary for punitive damages,” Stengel wrote. (Copies of the 25-page opinion in Klein v. National Railroad Passenger Corp., PICS No. 06-0476, are available from The Legal Intelligencer . Please refer to the order form on page 12.)

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