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A federal judge has refused to overturn a jury’s award of more than $24.2 million to two Lancaster men who suffered serious burns from a 12,000-volt catenary wire when they climbed atop a parked railroad car. Both men were 17 years old at the time of the August 2002 incident. In his 60-page opinion in Klein v. Amtrak, U.S. District Judge Lawrence F. Stengel rejected a slew of arguments that challenged his pretrial rulings, his jury instructions and the size of both the compensatory and punitive damage awards. Stengel found that the jury’s conclusions were supported by clear evidence that “Amtrak had every reason to know trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars.” In the October 2006 trial, plaintiffs attorney Joseph F. Roda of Roda & Nast in Lancaster told the jury that catenary wires pose a grave danger because they can inflict a lethal shock even if the victim doesn’t come in direct contact with them due to the phenomenon of “arcing” in which the electricity “jumps” from the source to any grounded object. Roda said the two defendants – Amtrak, which owned the property, and Norfolk Southern Corp., which owned the parked boxcar – were aware of the dangers, and also knew that parked boxcars with ladders on the side that make it possible to climb atop them are attractive to teenage boys. Amtrak was also aware that trespassers were common in its railyard, Roda said, due to pervasive graffiti. But despite regularly training their own employees about the risks of electrocution, Roda said, the defendants did nothing to prevent injuries to trespassers. Since the boxcars were parked for four days, Roda said, Amtrak could have turned off the power to the catenary lines or at least posted warning signs that labeled the boxcars as a high-voltage area. The 11-day trial was bifurcated, and the jury found in its first verdict that Amtrak was both negligent and “wanton,” and that Norfolk Southern was negligent. It also found that Amtrak was 70 percent responsible; that Norfolk Southern was 30 percent responsible; and that the two plaintiffs were zero percent responsible. Following a brief trial on the issue of damages, the jury awarded a total of $24,227,435 to plaintiffs Jeffrey Klein and Brett Birdwell. Klein, who suffered burns over 75 percent of his body and was hospitalized for nearly 11 weeks, was awarded more than $11 million in compensatory damages. Birdwell, who was burned over 18 percent of his body, was awarded more than $588,000. The jury also awarded $12.5 million in punitive damages – $8.75 million against Amtrak and $3.75 million against Norfolk Southern Railroad – to be split equally by the two plaintiffs. Lead defense attorney Paul F.X. Gallagher of Gallagher & Rowan had urged the jury to exonerate both defendants, arguing that the boys were both nearly 18 years old at the time of the incident and should have appreciated the obvious danger of the catenary wire. But Roda presented an expert witness in railroad safety, Richard Gill, who told the jury that catenary wires are a “hidden killer” whose danger is not appreciated by ordinary citizens who see birds sitting on them without being harmed. In its post-trial motions, Amtrak argued that Stengel had erred by allowing the jury to hear a claim under Section 339 of the Restatement (Second) of Torts, commonly known as the “attractive nuisance” doctrine. Amtrak argued that Section 339 was never intended to apply to plaintiffs such as Klein and Birdwell, who were both nearly 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.) But Stengel blasted the defense team, saying its arguments on the issue of Section 339 included “malicious rhetoric about the court’s rulings and the jury’s findings,” and amounted to a “tirade” that “presents a screen of smoke and fire over an essentially lukewarm legal position.” Although both plaintiffs were “almost” 18 years old, Stengel said, they were “actually 17 and under Pennsylvania law are minors or children.” Amtrak argued in its brief that the “overwhelming majority” of cases applying Section 339 have denied recovery to teenagers even as old as 15 or 16, especially for an electrical contact injury. But Stengel found that many of the electricity cases cited by Amtrak involved a plaintiff who was injured after climbing high voltage towers. “To the public, the dangers of these structures are more obvious than are the dangers of railroad cars parked under catenary lines,” Stengel wrote. Stengel said Amtrak had conceded that, although the plaintiffs were aware of the risk of climbing on boxcars and the dangers of electricity, they may have not realized the precise danger of “arcing.” In its brief, Amtrak said the plaintiffs had climbed atop the boxcar anyway “in a spirit of bravado and recklessness.” Stengel rejected that characterization, saying “Amtrak’s suggestion that these were two daredevils on top of the train seems far from the truth of this case. Jeffrey Klein and Brett Birdwell were two boys on a visit to Lancaster exploring the neighborhood on their skateboards. We do not really know their motivation, but Amtrak’s picture of two swashbuckling boys acting in a spirit of ‘bravado and recklessness’ rings hollow.” Instead, Stengel said, it was more likely that the plaintiffs “were curious trespassers who climbed an unguarded, very accessible ladder to the top of a boxcar to take a look around. These were careless acts to be sure, but there is no suggestion that they had any clue of any danger more than possibly falling off the ladder or the boxcar.” The jury, Stengel said, heard testimony that showed “neither plaintiff knew what catenary wires were or understood their risks, especially the risk of arcing.” And an expert witness for the plaintiffs, psychologist Ruben Gur, testified that the brains of adolescent males continue to develop into their early 20s. Stengel found that Gur’s testimony was enough to allow the jury to treat both plaintiffs like children who did not appreciate the risks of their actions. “This evidence directly addressed the capacity of a late teenage male to make responsible decisions. In essence, Dr. Gur offered an expert opinion that the late teenage male brain is not fully developed. By inference, the jury could conclude that boys the age of the plaintiffs were in fact ‘young’ in their ability to assess risk,” Stengel wrote. As a result, Stengel said, “the jury was presented with credible and convincing evidence that the plaintiffs were not aware of the risk involved in climbing the parked railroad car because of their youth.” Stengel noted that Gur’s testimony was “uncontroverted” and that the defendants “produced no evidence to dispute Dr. Gur’s opinion.” As a result, Stengel found “the jury was free to accept or reject this evidence in their evaluation of what Klein and Birdwell perceived and understood.” Stengel also rejected Amtrak’s argument that the compensatory award of more than $11 million to Klein was excessive. “The evidence of Jeffrey Klein’s pain and suffering, loss of enjoyment of life, disfigurement and humiliation was compelling. There was strong and persuasive evidence of his horrific injuries and of the long and painful treatment he has endured,” Stengel wrote. Because an expert witness estimated that Klein will live 58 years beyond the accident, Stengel said, Klein’s award for pain and suffering will likely amount to about $155,000 per year – a sum that Stengel said is “not so grossly excessive as to shock the judicial conscience.” Gallagher declined to comment on the ruling except to say that both defendants intend to appeal. Gallagher was joined in the post-trial motions by attorneys Nancy Winkelman, Ralph G. Wellington and Jennifer DuFault James of Schnader Harrison Segal & Lewis. (Copies of the 60-page opinion in Klein v. Amtrak , PICS No. 08-0536, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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