J-A32021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DESTINY GRESART, A MINOR, BY AND               IN THE SUPERIOR COURT OF
THROUGH HER MOTHER DEDRA                             PENNSYLVANIA
GRESART, HER NATURAL PARENT AND
GUARDIAN, AND DEDRA GRESART,
INDIVIDUALLY, IN HER OWN RIGHT

                        Appellants

                   v.

BUFFALO & PITTSBURGH RAILROAD,
INC., A DELAWARE CORPORATION;
GENESEE & WYOMING, INC., A
DELAWARE CORPORATION; AND JAMES
MURDOCK, AN INDIVIDUAL

                        Appellees                   No. 11 WDA 2015


              Appeal from the Order Entered December 8, 2014
                In the Court of Common Pleas of Elk County
                       Civil Division at No(s): 2007-114


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 1, 2016

     Destiny Gresart (“Destiny”), a minor, by and through her mother,

Dedra Gresart, her natural parent and guardian, and Dedra Gresart,

individually, in her own right, (collectively, “Gresart”), appeal the order

entered December 8, 2014, in the Elk County Court of Common Pleas,

granting the motion for summary judgment filed by Buffalo & Pittsburgh

Railroad, a Delaware Corporation, Genesee & Wyoming, Inc., a Delaware

Corporation (collectively, “Railroad”), and James Murdock, an individual

(“Murdock”), in this negligence action following a train accident. On appeal,
J-A32021-15



Gresart argues the trial court erred (1) in denying her motion for leave to

file a third amended complaint raising allegations of willful 1 and wanton

behavior, and (2) in granting Railroad and Murdock’s motion for summary

judgment when there existed a genuine issue of material fact.           For the

reasons the follow, we affirm.

       On August 18, 2004, then seven-year-old Destiny was home with her

two teenaged sisters while her mother was at work. While her oldest sister

was sleeping, Destiny snuck out of the house to find her other sister who

had gone to a store with a friend. The store was located on the other side of

railroad tracks located near the Grant Street crossing in Johnsonburg,

Pennsylvania. At approximately 1:20 p.m., Destiny was struck by the snow

plow of Railroad’s train, operated by engineer, Murdock, as she walked on

the tracks. The facts leading up to the accident are summarized by the trial

court as follows:

       At the time of the accident, the [Railroad’s] train operated by
       Murdock was traveling north at or below 25 miles per hour and
       was therefore not exceeding the speed limit of 25 miles per hour
       when approaching the Grant Street crossing in Johnsonburg.
       Upon approaching the crossing, the train was slowing down and
       sounded its horn. The crossing’s flashing lights were operative
       and active when the train passed through the crossing, which
       was marked with “no trespassing” signs. As the train passed
       through the crossing, the train crew observed [Destiny]
       approximately 250 feet ahead, walking on the west side of the
____________________________________________


1
  We recognize that “willful” can also be spelled “wilful,” and is referred to as
such in much of the older case law. However, for our purposes, we will use
the modern spelling of the word, as that was also used by the trial court.



                                           -2-
J-A32021-15


       railroad ties and toward the train. The crew, consisting of
       engineer [] Murdock and conductor Harry Wachob, blew the train
       horn and applied the emergency brake, and Wachob exited the
       cab of the train onto the front of the locomotive and yelled at
       [Destiny]. At approximately … 253 feet west of the Grant Street
       crossing, [Destiny] was struck by the [Railroad’s] locomotive.

Trial Court Opinion, 12/5/2014, at 5-6 (record citations omitted).2 Destiny

suffered severe injuries as a result of the accident.

       On August 16, 2006, Gresart commenced an action against Railroad by

writ of summons in Allegheny County. A complaint was filed, and the case

was later transferred to Elk County.           Gresart filed an amended complaint,

and, after preliminary objections were sustained in part, a second amended

complaint on July 30, 2008.             The second amended complaint alleged

negligence on the part of both Railroad and Murdock, and claimed the tracks

presented an attractive nuisance.3

____________________________________________


2
  As the court notes in its opinion, these facts were admitted by Gresart in
her answer to Railroad’s motion for summary judgment. See Trial Court
Opinion, 12/5/2014, at 5. Further, Gresart admitted Destiny was “walking
toward the train with her head down and her hands over her ears.” Motion
for Summary Judgment, 8/29/2013, at ¶ 32; Amended Response to Motion
for Summary Judgment, 9/18/2013, at ¶ 32.
3
  The attractive nuisance claim was based upon Gresart’s allegation that
there was a “frog pool” located in close proximity to the railroad tracks,
which enticed children to walk along the tracks. See Second Amended
Complaint, 7/30/2008, at ¶ 10.         However, in response to Railroad’s
summary judgment motion, Gresart admitted that there was no evidence of
record supporting this claim.       See Motion for Summary Judgment,
8/29/2013, at ¶¶ 41-44; Amended Response to Motion for Summary
Judgment, 9/18/2013, at ¶¶ 41-44.         The “attractive nuisance” claim,
therefore, is not before us on appeal.




                                           -3-
J-A32021-15



      Railroad filed a motion for summary judgment on August 29, 2013,

claiming, inter alia, Destiny was a trespasser to whom the Railroad owed

only a duty to refrain from willful and wanton misconduct. While that motion

was pending, on October 7, 2013, Gresart filed a third amended complaint

without leave of court.   On October 17, 2013, Railroad filed preliminary

objections.   Thereafter, on October 22, 2013, Gresart filed a motion for

leave to file a third amended complaint.        Although argument on the

summary judgment motion was scheduled for October 22, 2013, the court

determined the matter was not ripe until Gresart’s motion to file a third

amended complaint was considered.

      On December 4, 2013, the court heard argument on Gresart’s motion

to file a third amended complaint.    At the conclusion of the hearing, the

court directed Gresart, within 10 days, to provide specific record facts

supporting her claim that Railroad acted with willful or wanton disregard of

the risk to her. See N.T., 12/4/2013, at 14 (trial court questioning Gresart’s

counsel, “But where does it say that Mr. Murdock saw [Gresart], in the

record, and failed to take any action?     How much time did he have?”).

Gresart complied and filed a supplemental brief on December 16, 2013, and

Railroad filed a timely response. Thereafter, on January 9, 2014, the court

denied Gresart’s motion to file a third amended complaint.




                                     -4-
J-A32021-15



       The court subsequently conducted argument on Railroad’s motion for

summary judgment, and, on December 5, 2014, granted the motion. 4 This

timely appeal follows.5

       In her first issue, Gresart argues the trial court erred as a matter of

law when it denied her motion for leave to file a third amended complaint.

Our standard of review of such claims is well-settled:

       Our standard of review of a trial court’s order denying a plaintiff
       leave to amend its complaint, … permits us to overturn the order
       only if the trial court erred as a matter of law or abused its
       discretion. The trial court enjoys “broad discretion” to grant or
       deny a petition to amend. Amendment of pleadings is governed
       by Pa.R.C.P. 1033, which provides: “A party, either by filed
       consent of the adverse party or by leave of court, may at any
       time change the form of action, correct the name of a party or
       amend his pleading.”

The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-927 (Pa.

Super. 2004) (internal citations omitted).         Further, the Pennsylvania

Supreme Court has held “the right to amend should be liberally granted at
____________________________________________


4
  Senior Judge Michael E. Dunlavey was originally assigned to the case, and
decided the motion to file a third amended complaint. However, President
Judge Richard A. Masson presided over the summary judgment proceedings,
and entered the order granting Railroad’s motion for summary judgment.
5
  On February 11, 2015, the trial court ordered Gresart to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Gresart complied with the court’s directive, and filed a concise statement on
February 26, 2015. Thereafter, the court issued a Rule 1925(a) opinion
relying on (1) the transcript of the December 4, 2013, argument on
Gresart’s motion to file a third amended complaint, and (2) the December 5,
2014, opinion, filed in conjunction with the order granting Railroad’s motion
for summary judgment. See Pa.R.A.P. 1925(a) Opinion, 3/26/2015, at 3.




                                           -5-
J-A32021-15



any stage of the proceedings unless there is an error of law or resulting

prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338

(Pa. 1996), quoting Connor v. Allegheny General Hospital, 461 A.2d

600, 602 (Pa. 1983).       However, “where a party will be unable to state a

claim on which relief could be granted, leave to amend should be denied.”

The Brickman Grp., supra, 865 A.2d at 927.

     Gresart asserts the trial court erred in denying her leave to file a third

amended complaint for several reasons.        First, she contends the proposed

amendment did not add any new causes of action, but “simply amplified the

existing negligence claims.” Gresart’s Brief at 21. Gresart notes her second

amended complaint “contained general allegations of willful and wanton

conduct to support punitive damages[,]” and the proposed amendment

“would have ensured that the evidence adduced at trial would comport with

allegations in the complaint[.]”        Id. at 22-23.    She also argues the

amendment would not have prejudiced Railroad because (1) the statute of

limitations had not expired, (2) a trial date had not been scheduled, and (3)

the amendment was based upon information gleaned from her expert

reports, which were authored after the second amended complaint was filed.

Id. at 24, 27-28.    Lastly, Gresart claims the trial court’s reliance on a

decision of the Lackawanna County Court of Common Pleas, Millan v.

PAWC, 25 Pa. D.&C. 5th 181 (2012), is misplaced. Id. at 26.

     Railroad   asserts,     however,    Gresart’s   proposed   third   amended

complaint did not simply “amplify” existing claims, but rather, sought to

                                        -6-
J-A32021-15



include factual allegations that were not supported by the record. Railroad’s

Brief at 27. Railroad further contends that although the trial court permitted

Gresart to submit factual evidence to support the new claims, none of the

evidence submitted supported the proposed amendment. Id. at 34-35.

       Upon our review of the record, we agree with Gresart that her motion

was not time-barred.         Because Destiny was a minor at the time of the

accident, the statute of limitations had not expired on her claims. See 42

Pa.C.S. § 5533(b)(1)(i) (“If an individual entitled to bring a civil action is an

unemancipated minor at the time the cause of action accrues, the period of

minority shall not be deemed a portion of the time period within which the

action must be commenced.”).             Moreover, a trial date had not yet been

scheduled.

       We also agree Gresart was not attempting to add a new cause of

action to her complaint, but rather sought to amplify her existing negligence

claims with allegations of willful and wanton misconduct to support an award

of punitive damages.6 See Archibald v. Kemble, 971 A.2d 513, 519 (Pa.

____________________________________________


6
 The proposed new paragraphs in Gresart’s third amended complaint did not
so much assert new facts or evidence to support her claim of willful and
wanton misconduct, as they simply alleged that Railroad and Murdock’s
actions constituted willful, wanton and reckless misconduct.   The new
paragraphs in the proposed complaint were as follows:

       20. [Railroad and Murdock] did nothing to warn pedestrians of
       oncoming trains, which resulted in catastrophic collision with
       minor plaintiff.
(Footnote Continued Next Page)


                                           -7-
J-A32021-15


                       _______________________
(Footnote Continued)

      21. [Railroad and Murdock] are, and were at the time of the
      collision, well aware of the extreme danger posed to pedestrians
      traversing property adjacent to unmarked, unguarded and
      otherwise dangerous railroad crossings.

      22. [Railroad and Murdock] had a subjective appreciation of the
      risk of harm to which [Destiny] was exposed, including but not
      limited to, the unguarded and unmarked nature of the at issue
      section of the railroad, and the potentially catastrophic nature of
      locomotive versus pedestrian collisions, yet they failed to take
      any steps to ensure the safety of the public, including [Destiny],
      in conscious disregard of that risk.

      23. The risk of an unmarked and unguarded railroad crossing is
      so obvious that [Railroad and Murdock] must be taken to have
      been aware of it, and so great as to make it highly probable that
      harm would follow. To consciously disregard this risk shows a
      deliberate indifference by [Railroad and Murdock] to the lives
      and safety of the public and [Destiny].

                                          ****

      28. [Gresart’s] injuries and damages, as set forth above, were a
      direct and proximate result of [Railroad and Murdock’s]
      negligence, willfulness, wantonness and recklessness in the
      following particulars: …

          n. In althogether … failing to guard or warn those
          traversing the property against a dangerous condition, use
          or activity.

      29. Further, [Railroad] is vicariously liable for the tortious
      conduct of [] Murdock alleged hereafter.

                                          ****

      40.   [Gresart’s] injuries and damages were a direct and
      proximate result of [] Murdock’s negligence, willfulness,
      wantonness and recklessness in the following particulars: …

          h.    In deliberately, willfully, wantonly, recklessly and
          outrageously failing and refusing to engage the emergency
          brake until far after impact with [Destiny], in a calculated
          effort to minimize train interruption, operation and track
(Footnote Continued Next Page)


                                            -8-
J-A32021-15



Super. 2009) (finding that, although injured hockey player was required to

demonstrate defendant was reckless, and recklessness was not pled in initial

complaint, he was not precluded from proving that degree of care despite

the fact the statute of limitations had expired; “merely determining the

degree of care is recklessness does not give rise to a separate tort that must

have been pled within the applicable statute of limitations[,]” and trial court

should have concluded the cause of action was “subsumed within the

negligence count pled in their Complaint.”), appeal denied, 989 A.2d 914

(Pa. 2010).

      Nevertheless, we conclude the trial court did not abuse its discretion

when it denied Gresart’s motion to amend the complaint because, as will be


                       _______________________
(Footnote Continued)

          expenses, maximize profits for [Railroad] and meet his
          railroad and personal schedules, in conscious, reckless and
          outrageous disregard for [Destiny’s] life, health, safety and
          welfare, even after [Destiny] came into [] Murdock’s line of
          sight;

          i. In deliberately failing to sound the horn for the required
          amount of time or in the prescribed cadence of a
          succession of short sounds, in reckless disregard of the
          consequences and life, health, safety and welfare of
          [Destiny];

                                          ****

          k. In otherwise failing to guard or warn those traversing
          the property against a dangerous condition, use or activity.

Third Amended Complaint, 10/22/2013, at ¶¶ 20-23, 28-29, 40.




                                            -9-
J-A32021-15



discussed infra, the record does not support a claim for punitive damages. 7

Indeed, a punitive damages claim requires proof that a defendant acted “in

reckless disregard of the safety of another[,]” which, as the Restatement

notes, “is often called ‘wanton or wilful misconduct[.]’” Archibald, supra,

971 A.2d at 519, quoting Restatement (Second) of Torts § 500. Because we

find Gresart was unable to demonstrate that either Railroad or Murdock

acted with willful or wanton disregard for the safety of Destiny, we conclude

the trial court did not abuse its discretion in denying Gresart’s motion to

amend her complaint to include the punitive damages’ allegations.

       Accordingly, we turn to Gresart’s second argument, namely, that the

trial court abused its discretion in granting Railroad and Murdock’s motion

for summary judgment.

       When reviewing a motion for summary judgment, we “may disturb the

order of the trial court only where it is established that the court committed

an error of law or abused its discretion.” Murphy v. Duquesne U. Of The

Holy Ghost, 777 A.2d 418, 429 (Pa. 2001), citing Capek v. Devito, 767

A.2d 1047, 1048, n.1 (Pa. 2001).

____________________________________________


7
  Contrary to Gresart’s characterization, the trial court did not rely upon the
facts of Millan, supra, an unprecedential Common Pleas Court decision, in
denying her motion, but rather, considered the law, set forth in Millan,
regarding punitive damages, and determined the facts of record did not
support a punitive damages’ claim. See N.T., 12/4/2013, at 18 (trial court
noting the Millan decision is “not precedential … but it is a great summary
of what the law is.”). Accordingly, we need not further address this claim.



                                          - 10 -
J-A32021-15


     As with all questions of law, our review is plenary. In evaluating
     the trial court’s decision to enter summary judgment, we focus
     on the legal standard articulated in Pa.R.C.P. 1035.2. The rule
     states that where there is no genuine issue of material fact and
     the moving party is entitled to relief as a matter of law,
     summary judgment may be entered. Where the nonmoving
     party bears the burden of proof on an issue, he may not merely
     rely on his pleadings or answers in order to survive summary
     judgment.

Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. 2011)

(internal citations omitted). See also Pa.R.C.P. 1035.2.

     Thus, our responsibility as an appellate court is to determine
     whether the record either establishes that the material facts are
     undisputed or contains insufficient evidence of facts to make out
     a prima facie cause of action, such that there is no issue to be
     decided by the fact-finder. If there is evidence that would allow
     a fact-finder to render a verdict in favor of the non-moving
     party, then summary judgment should be denied.

Jones v. Levin, 940 A.2d 451, 453-454 (Pa. Super. 2007) (internal

citations and footnote omitted). In making this determination, we will “view

the record in the light most favorable to the non-moving party, and all

doubts as to the existence of a genuine issue of material fact must be

resolved against the moving party.”   Keystone Freight Corp., supra, 31

A.3d at 971.

     Here, Gresart concedes Destiny was a trespasser at the time she was

struck by Railroad’s train, and acknowledges “[t]he legal obligation to

trespassers is the avoidance of willful or wanton misconduct.”     Gresart’s

Brief at 33, quoting Evans v. Philadelphia Transp. Co., 212 A.2d 440, 442

(Pa. 1965).    Nevertheless, she contends there was a genuine issue of

material fact as to whether Railroad and Murdock acted with reckless


                                   - 11 -
J-A32021-15



disregard of a known risk, and the trial court abused its discretion when it

viewed the evidence in the light most favorable to Railroad. For the reasons

that follow, we disagree.

      As noted above, Destiny was a trespasser on Railroad’s tracks;

therefore, in order to obtain relief, and survive summary judgment, Gresart

was required to establish the actions, or inactions, of Railroad and Murdock

constituted willful or wanton misconduct.     In Evans, supra, our Supreme

Court clarified the difference between willful misconduct and wanton

misconduct:

             It is true that in several instances this Court has described
      wilful misconduct as a reckless disregard for the trespasser’s
      safety after actual knowledge of his peril. However, these
      decisions have all erroneously equated wilful misconduct with
      wanton misconduct, used the terms interchangeably and ignored
      the patent difference. Correctly speaking, wilful misconduct
      means that the actor desired to bring about the result that
      followed, or at least that he was aware that it was
      substantially certain to ensue. This, of course, would
      necessarily entail actual prior knowledge of the
      trespasser’s peril. Wanton misconduct, on the other hand,
      ‘means that the actor has intentionally done an act of an
      unreasonable character, in disregard of a risk known to him or
      so obvious that he must be taken to have been aware of it, and
      so great as to make it highly probable that harm would follow. It
      usually is accompanied by a conscious indifference to the
      consequences * * *.’

            Other decisions of this Court have recognized that actual
      prior knowledge of the injured person’s peril need not be
      affirmatively established to constitute wanton misconduct.
      These cases, as well as the Restatement of Torts, clearly indicate
      that if the actor realizes or at least has knowledge of
      sufficient facts to cause a reasonable man to realize the
      existing peril for a sufficient period of time beforehand to
      give him a reasonable opportunity to take means to avoid

                                     - 12 -
J-A32021-15


       the accident, then he is guilty of wanton misconduct if the
       recklessly disregards the existing danger.

             Restatement, Torts § 500, defines ‘Reckless Disregard of
       Safety’ to exist if the actor ‘intentionally does an act or fails to
       do an act which it is his duty to the other to do, knowing or
       having reason to know of facts which would lead a reasonable
       man to realize that the actor's conduct not only creates an
       unreasonable risk of bodily harm to the other but also involves a
       high degree of probability that substantial harm will result to
       him.’ (Emphasis added.)

             Comment d thereto states that if the conduct involves a
       high degree of chance that serious harm will result, that fact,
       that he knows or has reason to know that others are within the
       range of its effect, is conclusive of his recklessness.

Evans, supra, 212 A.2d at 443-444 (internal citations and footnote

omitted; emphasis added).

       Furthermore, in Frederick v. Philadelphia Rapid Transit Co., 10

A.2d 576 (Pa. 1940), the Court explained:

       [I]t is not wanton negligence to fail to use care to discover the
       presence of an unanticipated trespasser, but it is wanton
       negligence, within the meaning of the law, to fail to use ordinary
       and reasonable care to avoid injury to a trespasser after his
       presence has been ascertained.

Id. at 578.8        See also Dudley v. USX Corp., 606 A.2d 916, 922 (Pa.

Super. 1992) (“Wanton misconduct is ordinarily accompanied by a conscious
____________________________________________


8
  In both Evans, supra, and Frederick, supra, the Supreme Court
determined there was sufficient evidence of the defendant’s willful or wanton
misconduct to allow the case to proceed to a jury trial.

       In Evans, supra, a jury returned a verdict for the personal
representative of the decedent, who was struck by the defendant’s train
after he fell onto the subway tracks. On appeal, the defendant asserted the
trial court erred in failing to grant judgment notwithstanding the verdict.
(Footnote Continued Next Page)


                                          - 13 -
J-A32021-15


                       _______________________
(Footnote Continued)

Evans, supra, 212 A.2d at 442. In affirming the decision of the trial court,
the Supreme Court considered the testimony of the train operator, who was
the only witness to the accident. Although the operator testified “he did not
realize there was a human being lying on the tracks until … [it was] too late
to stop the train in time to avoid the accident[,]” he also acknowledged he
had seen “‘an object’ lying between the rails” at a time when he could have
safely stopped the train before striking the decedent. Id. at 443. The
Supreme Court opined:

      [T]he jury would be warranted in finding that a reasonable man,
      operating this train, would have been more diligent in trying to
      ascertain the particular nature of the object which he knew to be
      within the range of his unchangeable path, and the failure to do
      so, especially in view of the contiguity of the passenger platform,
      was a reckless disregard for the safety of anyone who might be
      there. This, in our opinion, would constitute wilful misconduct.

Id.
       Similarly, in Frederick, supra, a jury returned a verdict for the
plaintiff, who had slipped from the subway platform and into the path of an
oncoming train. The trial court, however, granted the defendant’s motion
for judgment notwithstanding the verdict. In concluding the trial court
erred, the Supreme Court noted that while it was undisputed the plaintiff
could not be seen by the train operator after he fell on the tracks, there was
sufficient evidence that the operator was “put on notice that a person was
underneath the train” to present a jury question. Frederick, supra, 10
A.2d at 578. First, the train “came to an automatic stop caused by some
object-presumably plaintiff-coming in contact with the ‘tripper,’ … [which
caused] the emergency brakes to set whenever it struck anything in its
path.” Id. at 577. At that point, the operator conducted a cursory
investigation, but did not see the plaintiff. Id. However, in addition to that
evidence, the plaintiff presented a witness, who testified that he told the
operator there was a man on the tracks. Id. Although the operator denied
having been told this, the Supreme Court found this credibility determination
presented a jury question. The Court opined: “The emergency stop and the
information given by [the witness] cumulatively constituted, as the jury
evidently found, impressive warning as to the situation.” Id. at 578.

     As will be discussed supra, in the present case, there was no evidence
that Murdock saw Destiny on the tracks, or was altered to her possible
presence, until it was too late to avoid the accident.



                                           - 14 -
J-A32021-15



indifference to the consequences and only exists where the danger to

plaintiff is realized and is so recklessly disregarded that there is at least a

willingness to inflict injury, if not the actual intent to do same.”)

(emphasis added), appeal denied, 616 A.2d 985 (Pa. 1992).

      Here, Gresart asserts there were genuine issues of material fact

concerning Railroad and Murdock’s willful and wanton misconduct sufficient

to present the issue to the jury. First, relying on the report of her expert

witness, railway consultant Colon R. Fulk, Gresart claims “the evidence

suggests that Murdock and Wachob could have seen Destiny at a distance

of at least 600 feet if they had been attentive, which would have given them

ample time to stop the train.” Gresart’s Brief at 34 (emphasis added).

      Fulk opined the accident was the result of Murdock’s failure to apply

the train’s emergency brake in a timely manner.       Expert Report of Colon

Fulk, 5/15/2012, at 4. In doing so, he relied upon: (1) the train’s event

recorder data; (2) his own personal observation of the accident scene; and

(3) a handwritten statement by Railroad’s dispatcher, Randy Martin. See id.

at 4-7.

      Based on the train’s event recorder data, Fulk calculated that the train

stopped 580 feet after the emergency brakes were applied.           Id. at 7.

Despite the fact Murdock and Wachob both testified they first saw Destiny

when she was only 250 feet away, Fulk conducted his own inspection of the

accident scene and concluded “a person could been seen in excess of 600

feet looking from south to the north towards the point of impact.”         Id.

                                    - 15 -
J-A32021-15



Further, he also relied, in part, on a handwritten statement by Railroad’s

dispatcher, Randy Martin. Martin’s statement, completed on the date of the

accident, purportedly indicated that Murdock told Martin he applied the

service brake, rather than the emergency brake, when he first saw Destiny.

Id. Coupled with the event recorder data that the service brake was applied

approximately 633 feet before impact, Fulk opined “Destiny was seen by the

engineer at a point that would have allowed the train to stop short her

location.” Id. Fulk also stated a contributing factor to the accident was “the

train crew[’s] failure to sound normal and customary horn signals as

required by railroad operating rules.”         Id. at 8. Based upon Fulk’s expert

opinion, Gresart asserts “[t]he objective evidence suggests … Murdock saw

Destiny from more than 600 feet away and laid on his horn for 23 seconds,

right up until the point of impact, hoping she would move off the tracks.”

Gresart’s Brief at 35.

       Gresart also relies on the report of her second expert, Alan J.

Blackwell, who opined Railroad failed to provide adequate side clearance

between the tracks and a stone retaining wall,9 and failed to offer

____________________________________________


9
  According to Blackwell, industry regulations required a clearance of 12 feet
from the center line of the track, and the clearance at issue was only three
feet from the west rail to the retaining wall. Expert Report of Alan Blackwell,
10/31/2012, at 7, 9-10, citing 52 Pa. Code § 33.122(b). We note, however,
Railroad states the regulation in Section 33.122(b) “does not apply to tracks
constructed prior to 1974, including the tracks at issue.” Railroad’s Brief at
42. Regardless, as we will discuss infra, assuming, arguendo, the side
(Footnote Continued Next Page)


                                          - 16 -
J-A32021-15



community safety education programs. Id. at 35. Gresart argues “it is clear

[Railroad] made a conscious choice not to remedy the inadequate side

clearance or erect deterrents at the crossing when they knew of the danger

in not doing so.” Id. at 35.

      The trial court concluded, however, there was “no evidence that prior

to having observed [Destiny] some 250 feet ahead, the train crew had actual

prior knowledge of the presence of the minor plaintiff or had been put on

guard as to her presence on or near the train track in time to have stopped

the train and averted the accident.” Trial Court Opinion, 12/5/2014, at 6.

The court noted Gresart had admitted, in her response to Railroad’s

summary judgment motion, that the crew first saw Destiny only 250 feet

ahead, as the train passed through the Grant Street crossing, at which time

they “blew the horn, applied the emergency brake and Wachob yelled to the

child.”   Id.   Since Fulk estimated the train stopped 580 feet after the

emergency brake was applied, the court found “no material facts are at issue

that would have allowed [Railroad and Murdock] to stop the train within the

distance of 250 feet and avert the accident.” Id.

      Moreover, the trial court disregarded Fulk’s opinion that Murdock saw

or could have seen Destiny in sufficient time to stop the train because it was

“based on facts entirely lacking in foundation and unsupported by the

                       _______________________
(Footnote Continued)

clearance was inadequate, that fact does not constitute evidence of
Railroad’s willful and wanton misconduct.



                                           - 17 -
J-A32021-15



record.”    Id. at 7.   The court explained that Fulk relied, in part, on a

handwritten statement by Martin, which, as Gresart acknowledges, is not

included in the certified record.    Id.     See also Gresart’s Brief at 39.

Accordingly, the court found the facts underlying Fulk’s opinion were not

substantiated in the record.

      Further, the court concluded Gresart’s “claims relating to the purported

failure to post warning signs and failure to erect a fence or other barrier to

inhibit entry onto the property are without substance necessary to develop a

basis for recovery of damages in this case.” Id. at 9. The court emphasized

there was “no evidence that signage in the area was inadequate and there

was clear evidence that Destiny was a trespasser.” Id. at 10.

      Our review of the record reveals no basis to disturb the trial court’s

ruling.    Gresart’s primary claim is that Murdock and Wachob could have

seen, and indeed, should have seen, Destiny from a distance of 600 feet

away. Gresart’s Brief at 34. With a stopping distance of 580 feet, Gresart

asserts that had Murdock immediately applied the emergency brake at that

distance, the train would have stopped in time to avoid the accident.

However, Gresart ignores the fact that Railroad and Murdock’s only duty to

Destiny, an admitted trespasser, was to refrain from willful or wanton

misconduct.

      First, Gresart presents no evidence to support her theory that Murdock

and Wachob actually saw Destiny in enough time to avoid the accident. In

other words, she failed to present a genuine issue of material fact that

                                    - 18 -
J-A32021-15



Murdock was guilty of willful misconduct, in that he purposefully took no

action to avoid an accident he was “substantially certain would ensue.”

Evans, supra, 212 A.2d at 443.       Moreover, she also failed to present a

genuine issue of material fact that Murdock was guilty of wanton

misconduct, in that he had “knowledge of sufficient facts” to realize the

“existing peril” to Destiny “for a sufficient period to time beforehand to give

him a reasonable opportunity to take means to avoid the accident,” but

failed to do so. Id. at 444.

      Fulk’s personal observation of the accident scene demonstrates only

that a conductor could have possibly seen a person on the tracks 600 feet

ahead. However, Gresart was required to demonstrate that Murdock did, in

fact, see Destiny in enough time to stop the train, and failed to do so, either

purposefully (willful misconduct) or with reckless disregard to the danger of

failing to take action (wanton misconduct).      Fulk’s personal observation

proves only that Murdock may have been inattentive, and, thus, negligent,

but does not demonstrate Murdock saw Destiny with sufficient time to avoid

the accident. See Frederick, supra, 10 A.2d at 578 (“[I]t is not wanton

negligence to fail to use care to discover the presence of an unanticipated

trespasser[.]”).

      Fulk also based his opinion on a handwritten statement by Railroad’s

dispatcher, Randy Martin. Fulk explained the significance of this statement

as follows:




                                    - 19 -
J-A32021-15


      Mr. Martin’s statement was written on the same date of the
      incident, he stated that engineer Murdock reported to him that
      first service was applied upon seeing Destiny. The locomotive
      event recorder shows the first service brake application was
      made approximately 633 feet before the emergency brakes were
      applied. It is my opinion, had engineer Murdock applied the
      trains’ emergency brake at that point, rather than the minimum
      first service braking, injury to Destiny would have been avoided
      or substantially reduced.

Expert Report of Colon Fulk, 5/15/2012, at 7. The trial court found Fulk’s

opinion was “entirely lacking in foundation” because, as noted earlier,

Martin’s handwritten note was not included in the certified record, and

therefore, is not in evidence. Trial Court Opinion, 12/5/2014, at 7; Gresart’s

Brief at 39. Nevertheless, Gresart asserts the trial court improperly rejected

Fulk’s expert opinion because (1) Murdock, himself, acknowledged the

existence of the note in his deposition testimony, and (2) Fulk relied on

other evidence “with which the Trial Court took no issue.” Gresart’s Brief at

39-40.

      We again find no abuse of discretion on the part of the trial court. As

Gresart points out, it is “not within the trial court’s province to attribute no

weight to the plaintiff’s expert report where it was adequately supported by

the summary judgment record.” Id. at 39, citing Thompson v. Ginkel, 95

A.3d 900, 906 (Pa. Super. 2014), appeal denied, 108 A.3d 36 (Pa. 2015).

Nonetheless, it is well-settled that:

      An expert cannot base his opinion upon facts which are not
      warranted by the record. No matter how skilled or experienced
      the witness may be, he will not be permitted to guess or to state
      a judgment based on mere conjecture.



                                        - 20 -
J-A32021-15



Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968).

        Here, Martin’s handwritten note is not in the certified record, and was

never presented to the trial court.        Although Gresart’s counsel asked

Murdock about the note during Murdock’s deposition, the note was not read

into the record. See Murdock’s Deposition, 3/20/2009, at 216-222. Rather,

counsel questioned Murdock about a line in the note, which purportedly

read:    “throttle position number one and first service applied upon seeing

the trespasser.” Id. at 218. However, when asked if he applied the service

brake as soon as he saw Destiny, Murdock replied, “No, it was before that.”

Id. at 220. Indeed, Murdock had testified previously that he engaged the

brake about 20 car lengths before the Grant Street intersection “[t]o slow

down the train for a slow order” as directed by the Railroad. Id. at 63-64.

Therefore, Fulk erroneously relied upon this single statement, not included in

the record and taken out of context, to conclude (1) Murdock saw Destiny

earlier than both he and Wachob testified, and (2) Murdock applied the

service brake, rather than the emergency brake, in reckless disregard to the

consequences. We agree with the trial court that Fulk’s opinion is based on

mere conjecture.

        With regard to the other evidence upon which Fulk relied, we note Fulk

based his opinion on the event recorder data, as well as his personal

observation of the incident location.         However, as noted supra, this

“evidence” does not support a conclusion that Murdock acted with willful or

wanton negligence. Indeed, neither the data indicating when the brake was

                                     - 21 -
J-A32021-15



applied, nor Fulk’s observation of the accident site, demonstrate when

Murdock saw Destiny on the tracks.              Because Destiny was a trespasser,

Murdock’s duty did not arise until after he was alerted to her presence, or

potential presence, on the tracks.         See Frederick, supra; Evans, supra.

It was at that point he had a duty to refrain from willful or wanton

misconduct. Indeed, Gresart admitted, in her response to Railroad’s motion

for   summary      judgment,      Murdock      and   Wachob   “observed   [Destiny],

approximately 250 feet ahead[.]”               See Motion for Summary Judgment,

8/29/2013, at ¶ 31; Amended Response to Motion for Summary Judgment,

9/18/2013, at ¶ 31. Accordingly, we conclude the trial court did not abuse

its discretion in rejecting Fulk’s expert report as “lacking in foundation and

unsupported by the record.”10             Trial Court Opinion, 12/5/2014, at 7.
____________________________________________


10
   We note Fulk’s conclusion that Murdock’s “failure to sound normal and
customary horn signals as required by railroad operating rules” was also a
“contributing factor[]” to the accident similarly does not meet the standard
of willful or wanton misconduct.        See Expert Report of Colon Fulk,
5/15/2012, at 8. Indeed, there is no evidence Murdock’s failure to sound
the horn in the proper cadence contributed, in any way, to the accident, or
exemplified reckless disregard to the safety of trespassers.

      Similarly, Gresart’s reliance upon the deposition testimony of both
Roxanne Cherry and Kenneth Polaski to raise a genuine issue of material fact
is misplaced.

      Cherry, a neighbor of Gresart’s, testified she heard the train “lay on
[the] horn” before the accident, which was unusual. Deposition of Roxanne
Cherry, 9/14/2009, at 11. Although she did not see the accident, based
solely on the fact that the operator “never let up on that horn” before Cherry
heard the “wheels grinding to a stop,” she estimated the train operator
“probably saw [Destiny] a good 50 yards before he got to the crossing[.]”
(Footnote Continued Next Page)


                                          - 22 -
J-A32021-15



      Second, we agree with the trial court that Gresart’s additional

assertions concerning Railroad’s failure to (1) provide adequate clearance

between the tracks and a retaining wall, (2) erect barriers to deter

trespasser, and (3) offer community safety education programs, were also

are insufficient to survive summary judgment. As noted supra, Railroad’s

duty to Destiny was to refrain from willful or wanton misconduct. There is

simply no evidence that Railroad, or its employees, was aware of the

presence of trespassers on the tracks where the accident occurred, and the

peril that would ensue unless it took action, and “recklessly disregard[ed]

the existing danger” to them. Evans, supra, 212 A.2d at 444.

      Accordingly, we find no basis to disturb the trial court’s ruling that

Gresart failed to provide sufficient record evidence of either Railroad or

Murdock’s willful and wanton misconduct to survive summary judgment.

See Dudley, supra, 606 A.2d at 922 (“Absent [] factual allegations of


                       _______________________
(Footnote Continued)

Id. at 16. Cherry’s lay testimony concerning when the train operator may
have seen Destiny is insufficient to submit the issue to the jury.

      Moreover, Polaski testified in a deposition that his vehicle was stopped
at the Grant Street intersection at the time of the accident, and Wachob
looked over at him as the train entered the intersection. Deposition of
Kenneth Polaski, 9/9/2009, at 17.           Gresart asserts this testimony
demonstrates “Wachob, and perhaps Murdock, was inattentive upon their
approach to the crossing.” Gresart’s Brief at 29. Again, we reiterate Gresart
was required to demonstrate more than Murdock’s inattentiveness. Rather,
she was required to prove willful or wanton misconduct. Polaski’s testimony
does not support such a claim.



                                           - 23 -
J-A32021-15



willfulness or wantonness, appellant was unable to make out a prima facie

case against [defendant].”). Therefore, we affirm the order on appeal.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




                                   - 24 -
