                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2004

Laurie v. Natl RR Passenger
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2041




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-2041




                    CLINT ROBERT LAURIE, SR.,
       INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF
     BARBARA ANN LAURIE, DECEASED, AND BARBARA ANN BEATTY,
                                                       Appellants

                                           v.

     NATIONAL PASSENGER RAILROAD CORPORATION, a/k/a Amtrak;
                         CSX TRANS CORP.;
   SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY;
*MULTIHERM CORP.; *HAVERTOWN PARTNERSHIP;
       HELEN C. JACOBS; ROBERT H. JACOBS; THOMAS L. JACOBS

                        (*Dismissed See Court's Order 1/12/04)




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Civil Action No. 01-cv-06145
                             (Honorable John P. Fullam)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 25, 2004

     Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges


   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
                                   (Filed: July 23, 2004)


                                OPINION OF THE COURT


SCIRICA, Chief Judge.

       At issue is whether the District Court erred in granting summary judgment for

defendants, the National Railroad Passenger Corporation (“Amtrak”) and other entities, in

this wrongful death/survival action. We will affirm the judgment of the District Court.

                                              I.

       On November 24, 1999, the decedent, sixteen-year-old Barbara Ann Laurie, was

struck and killed by an Amtrak train. On that day, the decedent and her fifteen-year-old

brother celebrated her sixteenth birthday by skipping school to go to Philadelphia for the

day. To get to and from Philadelphia, they proceeded across the main line of defendant

Amtrak’s railroad tracks. The accident occurred on their return trip, while in the Borough

of Colwyn.

       In the vicinity of the accident, there are no public streets or vehicular

thoroughfares that cross the tracks. Plaintiffs alleged that pedestrians frequently crossed

the tracks in this area and that Amtrak had documented at least 176 instances of

unauthorized activity in this area of the tracks during the four year period before

decedent’s death. Around 1977, Amtrak erected a fence along the Philadelphia side of

the railroad, but at the time of the accident, the fence was in a state of disrepair with an


                                               2
opening in the fence through which the decedent and her brother entered the property. On

the Colwyn side of the tracks, Amtrak had erected “No Trespassing” signs at the edge of

a parking lot.

       At the accident site, there are four parallel railroad tracks. At the point where the

accident occurred, the tracks are several feet higher than the adjacent land on the

Philadelphia side of the railroad but approximately level with the land on the Colwyn

Borough side of the tracks. To get to the railroad tracks, the decedent and her brother

walked along a rubble-strewn area behind a commercial property occupied by a beer

distributor. From that point, they proceeded along a narrow but discernible path through

thick underbrush to the edge of the bank of ballast supporting the railroad tracks. They

then climbed up the embankment and proceeded on a diagonal path across the tracks

toward their destination, which was the parking lot on the Colwyn side of the railroad.

       When the accident occurred, the decedent was proceeding between the rails of the

first set of tracks she encountered. The train approached her from an S curve

configuration that prevented her from seeing the train until it was close. When she

became aware of the oncoming train, she hastened to move from its path. Thinking the

train was approaching on the track she was occupying, she moved to her left, to the

second set of tracks, into the path of the oncoming train. The train was traveling at a

speed between 90 and 100 miles per hour.




                                              3
       On November 16, 2001, plaintiffs filed this wrongful death suit against Amtrak in

the Philadelphia County Court of Common Pleas. Amtrak removed to the United States

District Court for the Eastern District of Pennsylvania. After discovery, Amtrak filed a

motion for summary judgment, contending the decedent was a trespasser who was well

aware of the obvious dangers of walking on a railroad track. Plaintiffs responded,

contending the decedent was a licensee who was struck at a permissive crossing and that

Amtrak breached its duty of care by not fencing or patrolling the area of the accident,

which was known to be dangerous. Plaintiffs also filed a supplemental opposition to

Amtrak’s motion.

       On March 3, 2003, the scheduled trial date, the District Court heard oral argument

on Amtrak’s motion. In response to a question from the Court, plaintiffs’ attorney

acknowledged that plaintiffs were not asserting a claim that the engineer was negligent in

operating the train. Postponing the trial, the District Court permitted further briefing on

whether the accident site could be considered a permissive crossing when Amtrak had

erected a fence to keep people off the tracks, and whether Amtrak had breached a duty of

care, assuming a permissive crossing existed. Plaintiffs submitted a supplemental

response in which they alleged the Amtrak engineer was negligent because he blew his

horn only after he saw the decedent, instead of blowing it before he came to a permissive

crossing.




                                              4
       The District Court granted the motion for summary judgment and entered

judgment in favor of Amtrak and the other defendants. Laurie v. Amtrak, 2003 U.S. Dist.

LEXIS 4910, *9 (E.D. Pa. Mar. 11, 2003). The District Court stated it was “doubtful”

that the evidence supported a finding of a “permissive crossing” but declined to rule on

the matter because it was a “factual issue” inappropriate for resolution at the summary

judgment stage and because it was not necessary to do so for resolution of the case. Id. at

*5-6. The District Court held that even if the accident site were a permissive crossing, the

evidence was not sufficient to prove wanton recklessness or ordinary negligence under

Pennsylvania law. Id. at *6. The Court stated plaintiffs had not alleged that “any action

or inaction by those operating the train . . . was negligent.” Id. The Court found, instead,

that plaintiffs alleged that Amtrak should have fenced and policed the area to prevent

crossings. Id. at *7. Under Pennsylvania law, the Court held Amtrak had no duty to

fence or patrol the area. Id. at *7-8. The Court also held Amtrak had no duty to warn

decedent of dangerous conditions of which she had reason to be aware. Id. at *8.

       Plaintiffs filed a motion for reconsideration, claiming the District Court failed to

consider their supplemental response before granting summary judgment. The District

Court denied the motion, stating it had “specifically considered the supplemental

arguments submitted by Plaintiffs before issuing the Order granting summary judgment to




                                              5
Defendants.” Laurie v. Amtrak, No. 01-6145 (E.D. Pa. filed May 1, 2003). Plaintiffs

timely appealed.1

                                             II.

       As stated, the parties disagree over whether the route traveled by the decedent was

a “permissive crossing.” In Henry v. Pennsylvania Railroad Co., 84 A.2d 675 (Pa. 1951),

the Pennsylvania Supreme Court defined “permissive crossing” as an expressed or

implied license to pass over the property of another. Id. at 677. In order to qualify as a

permissive crossing, “[i]t must be restricted to a well-defined location and must be shown

to be used frequently, continuously, and notoriously by the public.” Id.

       Whether a permissive crossing exists is a factual issue. See Gaul v. Consol. Rail

Corp., 556 A.2d 892, 894 (Pa. Super. 1989). We agree with the District Court “that the

evidence is not so completely one-sided as to permit resolution of that factual issue on a

motion for summary judgment.” Laurie, 2003 U.S. Dist. LEXIS 4910, at *6. But as the




   1
    The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1349 because the action
was filed against Amtrak, and the federal government owned more than half of Amtrak’s
Capital stock. See Foster v. Nat’l Fire, Marine & Inland Ins. Co., 986 F.2d 48, 51 (3d
Cir. 1993). We have jurisdiction under 28 U.S.C. § 1291.
       Our review of an order granting summary judgment is plenary. Estate of
Zimmerman v. Southeastern Penn. Transp. Auth., 168 F.3d 680, 684 (3d Cir. 1999). We
apply the same legal standard used by the District Court, which is a determination of
whether the evidence is such that a reasonable jury could return a verdict for the non-
moving party with all evidence being viewed in a light most favorable to the non-moving
party. Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir. 1994).

                                             6
District Court correctly found, the resolution of this matter does not depend upon whether

a permissive crossing existed at the accident location. Id.

       For summary judgment purposes, we will assume the decedent was a licensee with

implied permission to cross the tracks. Nonetheless, summary judgment was still proper.

At a permissive crossing, a “railroad is subject to a duty of care comparable to that

required of it at regular crossings.” Henry, 84 A.2d at 677. But under Pennsylvania law,

the evidence here cannot prove a breach of the duty of care.

       Plaintiffs alleged Amtrak breached its duty of care owed to decedent as a licensee

at a permissive crossing by not fencing or patrolling the area where decedent was killed.

As the District Court noted: “[P]laintiffs argue simultaneously that the decedent had

Amtrak’s permission to cross its property . . . but that Amtrak was negligent in not

preventing her and other members of the public from crossing the tracks.” Laurie, 2003

U.S. Dist. LEXIS 4910, at *7.

       Under Pennsylvania law, Amtrak has no duty to erect or maintain fences on its

right-of-way. Scarborough v. Lewis, 565 A.2d 122, 126 (Pa. 1989) (“[I]t long has been

held that a railroad has no duty to erect fences on its right-of-way to deter trespassers.”);

Dugan v. Penn. R.R. Co., 127 A.2d 343, 348 (Pa. 1956) (explaining that requiring railroad

companies to erect fences would be too great of a burden). Nor does Pennsylvania law

require a railroad to post guards or to police tracks to prevent trespassing. Id. at 349

(“We have been referred to no case where a court has gone so far as to require a railroad



                                              7
company to patrol its tracks or police its trains with a sufficient number of guards to

prevent children from attempting to board them.”). Accordingly, the District Court did

not err in holding that Amtrak had no duty to fence or police the accident area.2

       Amtrak may have a duty to warn licensees about dangerous conditions of which

they are unaware. See Rossino v. Kovacs, 718 A.2d 755, 757 (Pa. 1998) (citing

Restatement (Second) of Torts § 342). But “[t]here is no duty to warn of that which is

obvious.” Di Marco v. Penn. R.R. Co., 183 A. 780, 781 (Pa. 1936). Record evidence

demonstrated that the sixteen-year-old decedent was aware that walking down an active

railroad used by high-speed trains was potentially hazardous. Her father testified that he

had told his children it was dangerous to cross the tracks and that his children “knew

better than to play on the tracks.” The decedent’s brother confirmed that his parents had

told them it was dangerous to cross the tracks.

                                            III.

       Plaintiffs also contend Amtrak breached its duty by failing to operate the train in a

safe fashion because the engineer allegedly violated Amtrak’s operating rules by failing




   2
    Plaintiffs also alleged that even if decedent were assumed to be a trespasser, Amtrak
breached its duty of care by acting willfully and wantonly toward trespassers on its right
of way. Plaintiffs detail Amtrak’s knowledge of pedestrians using that area of the track
as a shortcut. They contend Amtrak had notice of the obvious risk of injury to pedestrians
who crossed the tracks but continued to operate high speed trains without mending the
fence or policing the area. But as stated, Amtrak had no duty to take such measures.

                                              8
to sound the train’s horn before approaching a crossing. Defendants respond plaintiffs

added this new theory of liability too late in the proceedings.3

         Defendants contend plaintiffs’ Third Supplemental Response to Amtrak’s

summary judgment motion was the first time plaintiffs alleged the Amtrak engineer was

negligent in failing to sound the horn. Defendants note that at oral argument before the

District Court, plaintiffs disavowed any claim of negligence by the engineer.4

   3
     In granting the motion for summary judgment, the District Court stated: “Plaintiffs
have not alleged, and do not now contend, that any action or inaction by those operating
the train which struck the defendant was negligent.” Laurie, 2003 U.S. Dist. LEXIS
4910, at *7. But in their Third Supplemental Response, plaintiffs did contend the
engineer failed to sound the horn when the train approached a crossing. Regardless, in
the District Court’s denial of the motion for reconsideration, the District Court stated that
it had “specifically considered the supplemental arguments submitted by Plaintiffs before
issuing the Order granting summary judgment to Defendants.” Laurie v. Amtrak, No. 01-
6145 (E.D. Pa. filed May 1, 2003).
   4
       The relevant portion of the oral argument transcript follows:
         THE COURT: And you don’t have a claim here that the engineer was
         negligent, do you? You didn’t allege that.
         [PLAINTIFFS’ ATTY]: Well, the engineer has not been produced for
         deposition, despite - -
         THE COURT: I didn’t ask that. I asked if you made any claim that he was
         negligent. I don’t see anything in the complaint - -
         [PLAINTIFFS’ ATTY]: No.
         THE COURT: - - that says that.
         [PLAINTIFFS’ ATTY]: There’s nothing in the complaint, your Honor.
         THE COURT: The only negligence you’re alleging is the failure to fence
         the - - or failure to block off the crossing or - -
         [PLAINTIFFS’ ATTY]: And a failure to patrol the area, to keep trespassers
         off the property.

App. 241-42. Defendants also note there is no mention of that liability theory in plaintiffs’
interrogatory answers, the report of their railroad safety expert, or their first and second
responses to Amtrak’s summary judgment motion.

                                              9
       Plaintiffs respond that in their complaint in section 37, they pled:

       The injuries and resulting damages to the plaintiff’s decedent Barbara Ann
       Laurie, were caused as a direct and proximate result of the negligence and
       liability-producing conduct of defendant, AMTRAK, its agents, ostensible
       agents, servants, and/or employees, which include the following
       ...
       (d) Failure to enforce the existing laws regarding pedestrian cross over of
       the railroad tracks.
       ...
       (f) Failure to adequately warn the general population of the dangers of
       pedestrian cross over of the rail road tracks.

App. at 25-26. They claim these allegations fairly placed at issue the negligence of

Amtrak’s engineer in failing to sound the horn.

       Defendants respond that section 37 does not mention any negligence by the

engineer, let alone negligence involving a failure to sound a horn. For those reasons,

section 37 did not put them on notice that engineer negligence was at issue. We agree

that section 37 fails to encompass negligence by the engineer in failing to sound the horn

as the train approached a crossing. Accordingly, in plaintiffs’ Third Supplemental

Response alleging engineer negligence, they introduced a new theory of liability. In

doing so, they were essentially trying to amend their complaint.

       We review a district court’s refusal to allow plaintiffs to amend their complaint for

abuse of discretion. Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d

Cir. 2001). A district court may deny leave to amend a complaint if a plaintiff’s delay in

seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party.

Id. at 272-73. Courts have been reluctant to allow plaintiffs to add new theories of

                                             10
liability after summary judgment arguments have been completed. See Speziale v.

Bethlehem Area Sch. Dist., 266 F. Supp. 2d 366, 371 n.3 (E.D. Pa. 2003) (“Plaintiff’s

counsel cannot reasonably expect to amend the complaint after the close of discovery

merely by raising new arguments in the responsive papers” to a motion for summary

judgment.); OTA Ltd. P’ship v. Forcenergy, Inc., 237 F. Supp. 2d 558, 561 n.3 (E.D. Pa.

2002) (holding that a new claim that was first raised in opposition to a motion for

summary judgment was “too late”); Bulkoski v. Bacharach, Inc., 1 F. Supp. 2d 484, 487

(W.D. Pa. 1997) (holding that after a summary judgment argument, “[i]t is too late for

plaintiff to change his theory of the case”), aff’d, 149 F.3d 1163 (3d Cir. 1998) (table

decision).

       Here, earlier in the proceedings, plaintiffs had access to the decedent’s brother and

to other engineers on the train who could inform plaintiffs when the operating engineer

first sounded the horn. Accordingly, plaintiffs knew or should have known that the

engineer failed to sound his horn as he approached a crossing. Yet plaintiffs waited until

after the summary judgment hearing to allege engineer negligence. Moreover, an

amendment here would result in additional discovery, cost, and preparation to defend

against the new theory of engineer negligence. Amtrak defended the case in discovery

and prepared for the scheduled trial on the reasonable assumption that engineer

negligence was not at issue. Because of undue delay and prejudice, the District Court did




                                             11
not abuse its discretion in refusing to allow plaintiffs to assert their engineer negligence

theory of liability at such a late stage.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                              12
