# Holland v. Baltimore & Ohio Railroad

> District of Columbia Court of Appeals · May 29, 1981 · 431 A.2d 597

URL: https://www.frixlaw.com/law-library/cases/9763782

## Case

- **Full name:** Frances HOLLAND, Et Al., Appellants, v. BALTIMORE & OHIO RAILROAD COMPANY, Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 29, 1981
- **Citations:** 431 A.2d 597; 1981 D.C. App. LEXIS 305
- **Precedential status:** Published
- **Opinion:** Dissent by Ferren
- **Judges:** Newman, Kelly, Kern, Nebeker, Harris, MacK, Ferren, Pryor, Gallagher
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763782

## How later opinions describe it (automated extraction)

- affirming Firfer with respect to trespasser cases but noting that we ―adopted a reasonable care standard as to plaintiffs viewed as invitees or licensees‖
- noting that a trespasser may recover only for "intentional, wanton or willful injury” (citation and internal quotation marks omitted)

## Opinion text

*604 FERREN, Associate Judge,
with whom KELLY and MACK, Associate Judges, concur, dissenting.
The majority opinion can be summarized in one sentence: Because all children should know better than to go near trains, and because the costs of more carefully safeguarding a right-of-way in any location will always be too great to impose on a railroad, no child trespasser can ever recover for injuries caused by a moving train in the District of Columbia (absent willful, wanton, or reckless conduct by the railroad). That is an extreme holding. I strongly disagree.
I.
It may be true that most trespassing children hit by moving trains should have known better than to get in the way. The majority, however, forges that statistical likelihood into an absolute rule: every child “allowed at large,” ante at 603, should be deemed as a matter of law to “realize the risk involved in intermeddling with ... or coming within the area made dangerous by” a moving train. Restatement (Second) of Torts § 339 (c) (1965). That is nonsense.
Not every child at large, to a certainty, will appreciate the danger of a train in every setting. See Beard v. Atchison, Topeka and Santa Fe Railway Co., 4 Cal. App.3d 129, 130, 139 , 84 Cal.Rptr. 449, 456 (1970). There are obvious differences between the perceptions of six-year-olds, see Luck v. Baltimore & Ohio Railroad Co., 116 U.S.App.D.C. 283 , 284, 510 F.2d 663, 664 (1975), and 14-year-olds. See Gutirrez v. Southern Pacific Company, 174 Cal.App.2d 866, 870 , 345 P.2d 326, 328 (1959). There also are relevant differences in mental capacity. Compare Gutirrez, supra (14-year-old boy of apparently average intelligence should have appreciated the risk) with Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co., 73 Ill.App.2d 5, 21-22 , 220 N.E.2d 43, 49-50 (1965) (I.Q. test admissible to show 14-year-old boy was of below average intelligence and therefore had less capacity to appreciate danger), aff’d, 42 Ill.2d 103 , 245 N.E.2d 762 (1969). Finally, “slow moving trains might well appear safe to a child, where the same child would be aware of the dangers of a fast moving train.” Dickeson, supra at 24, 220 N.E.2d at 51 . The majority, therefore, is altogether arbitrary in holding, as a matter of law, that “a moving train is a danger so obvious that any nine-year-old child allowed at large would readily discover it and realize the risk involved in coming within the area made dangerous by it.” Ante at 603.
The majority also states that allegations of a railroad’s failure “to erect fences or maintain other safeguards ... do not satisfy the requirements of the restatement rule,” meaning, I assume § 339(d). Ante at 603 n.11. Again, the majority states an absolute: Whatever the location along the right-of-way, “the risk to the children involved,” Restatement, supra § 339(d), can never outweigh the cost to the railroad of providing additional protection against injury from oncoming trains.
It may be true that in many if not most locations the addition of warning signals or fences — or even patrols by railroad personnel — would do little to cut down the risks while costing a prohibitive sum. See, e. g., Nolley v. Chicago, M., St. P. & P.R. Co., 183 F.2d 566, 569-70 (8th Cir.1950) (applying Minnesota law) (fences or patrols), cert, denied, 340 U.S. 913 , 71 S.Ct. 284 , 95 L.Ed. 660 (1951); Dugan v. Pennsylvania R.R. Co., 387 Pa. 25, 38 , 127 A.2d 343, 349 (1956) (patrols), cert. denied, 353 U.S. 946 , 77 S.Ct. 825 , 1 L.Ed.2d 856 (1957). But there are still other locations where the value of additional safeguards might outweigh the costs of installing them. For example children can stand “on the railroad tracks near their home in a congested area of Northeast Washington.” Luck, supra 166 U.S.App. D.C. at 284, 510 F.2d at 664 ; see Dickeson, supra 73 Ill.App.2d at 23 , 220 N.E.2d at 51 (“children habitually were on the tracks. This was a congested area with few recreational facilities.”). The majority is much too rigid in refusing to admit there may be certain locations where, at minimal cost, the railroad significantly can reduce the risk to children — or even locations where a substantial cost may be warranted in view of a particularly high risk.
*605 I therefore dissent for one, simple reason: I do not understand why each case concerning a child trespasser and a railroad should not be decided on its facts under Restatement, supra § 339, just like every other personal injury case, leaving it to the trial court to grant summary judgment, direct a verdict, or enter judgment notwithstanding the verdict whenever the facts assuredly favor the railroad. See, e. g., Nolley, supra at 569 (citing § 339(d), the court affirmed a directed verdict where “no fence, other than a wholly insurmountable one, like a castle wall, would have served to keep plaintiff off the right-of-way,” for already he had crawled over guarding fences); Alston v. Baltimore & Ohio Railroad Co., 433 F.Supp. 553 (D.D.C.1977) (citing § 339(c), the court granted judgment n.o.v. when the facts showed conclusively that the child had hopped trains on numerous occasions and therefore fully appreciated the risk).
It is interesting to note that the American Law Institute comments amplifying § 339 do not call for an automatic railroad exemption. To the contrary, injuries from trains require an ad hoc analysis.
Under some circumstances, a warning to the children is all that can be expected of a reasonable man in the defendant’s position. There are some conditions, such as those of moving cars in a railroad yard, as to which no really effective precautions can be taken to make the condition itself safe, and the most that can be done as a practical matter is to warn trespassing children, and so far as is reasonably possible to exclude them. If the children are of sufficient age to understand a warning, it may often reasonably be expected that they will heed it, and will avoid the danger. Where, however, the child is too young to be expected to understand or heed the warning, something more may be required. [Restatement, supra § 339, Comment o.]
II
What has happened, I think, is this:
1.My colleagues have collected primarily two categories of cases: (a) older ones which say that moving trains cannot be attractive nuisances (these either predate or ignore § 339), and (b) newer ones which carefully apply § 339 to the facts.
2. They have noted that the railroads usually win.
3. They then have decided that this statistical success rate should be generalized into an absolute rule of law, apparently to save the railroads and the courts the trouble of dealing with claims which the majority believe have little chance to prevail.
4. They have rationalized this absolutism by relying primarily on pre-§ 1339 cases for the proposition that a child trespasser on a train track can never satisfy § 339(c) and (d) —despite the fact that the authors of the Restatement, supra, as well as the courts relying on it, have said that § 339 applies case by case, criterion by criterion, to all “artificial conditions” upon the land “highly dangerous to trespassing children,” id. § 339, including trains.
The majority result is therefore a policy decision about the liability of a particular industry — a legislative decision — in derogation of the court’s traditional responsibility to apply common law doctrine to the facts of each case. It is obviously proper for a court to acknowledge or adopt general standards of liability, such as the “willful-wanton-reckless” standard generally applicable to trespassers. It is also perfectly proper for the court to refine the standards applicable to traditional subclasses, such as the § 339 exception for child trespassers. I have considerable difficulty, however, in understanding the creation of a railroad exemption from the general applicability of a standard of tort law. It would be more candid for the majority to say that § 339 applies to all artificial conditions upon land except moving trains, which this court exempts by reference to older law for policy reasons. This, after all, is what the majority is doing.
It may be true, based on cases cited by the majority, that § 339, when applied to *606 the facts of particular cases, will yield few plaintiffs’ verdicts against the railroads. But this very likelihood demonstrates that § 339 generally works the way the majority thinks it should; it is no excuse for taking away the cause of action absolutely (absent willful, wanton, or reckless conduct). A decision of that sort — if desirable — is for the District Council. 1
The District of Columbia is a densely populated jurisdiction; railroads can anticipate children near rights-of-way in a number of places. See Luck, supra. Given the fact that § 339 already affords substantial protection to the railroads, 2 it is a serious mistake for this court, in its extreme ruling today, to create a disincentive for even minimal safeguards along the rights-of-way. Accordingly, I would hold that the trial court improperly granted B & O’s motion to dismiss. I would reverse and remand that case for further proceedings. 3
. The California legislature did just that.. In 1971 it enacted legislation protecting railroads against liability to trespassers upon trains. See Cal.Civ.Code, § 1714.7 (West); cf. Durham v. City of Los Angeles, 91 Cal.App.3d 567, 573 , 154 Cal.Rptr. 243, 246 (1979) (upholding statute). See also Mass.Gen.Laws Ann. ch. 229, § 2 (West Cum.Supp.1980) (railroad not liable in wrongful death for negligence where decedent violated rules of carrier).
. It is important to keep in mind that ad hoc application of § 339 is not equivalent to evaluating child trespasser cases under the standard of “reasonable care to be exercised under all the circumstances,” Blumenthal v. Cairo Hotel Corp., D.C.App., 256 A.2d 400, 402 (1969), which this court applies to invitees. See D.C. Transit System, Inc. v. Carney, D.C.App., 254 A.2d 402 (1969). Because of Firfer v. United States, 93 U.S.App.D.C. 216, 219 , 208 F.2d 524, 528 (1953), there is a presumption that a trespasser assumes the risk of coming onto the property. That presumption, of course, is conclusive as to an adult, whereas it is rebuttable by a child. A child, however, has the burden to prove under § 339(c) that he did not appreciate (and thus assume) the risk in coming onto the property. Beard, supra, 4 Cal.App.3d at 136 , 84 Cal.Rptr. at 454 . Similarly, the child has the burden under § 339(d) and (e) to prove the feasibility of eliminating the danger or otherwise protecting children. Id. Accordingly, even though a child trespasser is not automatically barred from recovery, he must, because of Firfer, supra, carry a burden of proof which an invitee would not.
The situation would be different, of course, if we were to abandon Firfer, supra, in favor of a single standard of reasonable care under the circumstances. See Blumenthal, supra at 402 ; Carney, supra, at 403 ; Smith v. Arbaugh’s Restaurant, Inc., 152 U.S.App.D.C. 86 , 96, 469 F.2d 97, 107 (1972), cert, denied, 412 U.S. 939 , 93 S.Ct. 2774 , 37 L.Ed.2d 399 (1973); Rowland v. Christian, 69 Cal.2d 108, 117 , 70 Cal.Rptr. 97, 104 , 443 P.2d 561, 568 (1968) (en banc); Mile High Fence Co. v. Radovich, 175 Colo. 537, 548 , 489 P.2d 308, 314 (1971) (en banc); Pickard v. City & County of Honolulu, 51 Haw. 134, 135 , 452 P.2d 445, 446 (1969); Ouellette v. Blanchard, 116 N.H. 552, 557 , 364 A.2d 631, 634 (1976); Basso v. Miller, 40 N.Y.2d 233, 241 , 386 N.Y.S.2d 564 -568, 352 N.E.2d 868, 872 (1976); Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 307 , 333 A.2d 127, 133 (1975). See generally Comment, The Common Law Tort Liability of Owners and Occupiers of Land: A Trap for the Unwary, 36 Md.L.Rev. 816 (1977).
I am reluctant to reconsider Firfer, supra, until we are presented a more typical case, perhaps involving an adult trespasser. See Soule v. Massachusetts Electric Co., Mass., 390 N.E.2d 716, 721 (1979).
. Penn Central’s situation is different. I would affirm the grant of summary judgment. Appellants did not file a Rule 12-I(k) statement controverting Penn Central’s statement of material facts or setting forth any other genuine issue of material fact. It is therefore undisputed that appellant’s injury occurred on the B & O right-of-way and was not caused by a Penn Central train. Thus, the only possible basis for Penn Central liability would be a breach of duty to help protect child trespassers against injury from a B & O train (or any other train) on B & O property contiguous to Penn Central tracks where appellant may have been playing.
Given six contiguous, parallel tracks — three B & O, then three Penn Central — it would be logical to conclude that any duty to child trespassers should be the railroads’ joint responsibility. Absent a barrier between parallel track properties, it is arguably as foreseeable that a child with easy access to Penn Central tracks will be injured by a B & O train a few yards away as it is that a Penn Central train will strike the child. On the other hand, the law is well established, at least in other contexts, that a possessor of land does not have a duty to protect someone on his property against a dangerous condition on adjacent property — for example, by fencing. Cousins v. Yaeger, 394 F.Supp. 595, 604-05 (E.D.Pa.1975); Villani v. Wilmington Housing Authority, 48 Del. 450, 453 , 106 A.2d 211, 213 (1954); Corcoran v. City of San Mateo, 122 Cal.App.2d 355, 358 , 265 P.2d 102, 104 (1953); see Jones v. United States, 241 F.2d 26, 28-29 (4th Cir.1957). A California appellate court, in fact, has acknowl *607 edged this rule in the present context, though without much elaboration, noting that a railroad did not have a duty to protect against injury on the nearby track of another. Gutirrez, supra 174 Cal.App.2d at 870-71 , 345 P.2d at 328 .
I would not find such a duty here, for it would require standards especially difficult to formulate and apply. In the first place, assuming a potential joint duty, it is not clear how to define and evaluate whether the two railroads’ tracks are physically so close to one another that one railroad could not, as a practical matter, be expected to bear responsibility alone for protecting wayward children against entry. Second, the implications of one railroad’s refusing to cooperate are unclear. Third, proximate cause problems would be compounded by the possibility that one railroad would face liability for injury to a child by another railroad on the other’s own right-of-way.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763782. Public record. Not legal advice.