UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TANAY D. ANDERSON; ROGER VANN
SMITH; HENRY VEAL, JR.;
GWENDOLYN IDELL SHAROFF; MICHAEL
SHAROFF; MARCUS A. ATKINSON, an
infant who sues by Kathleen
Atkinson, his next friend; JOHN W.
ATKINSON, JR.; TODD R. BACOTE;
LEROY S. BROWN; GUILLERMINA
CEDANO; FAJR CHESTNUT; HOLLY A.
CRENSHAW; TAMEA A. DUNN;
CHARLES A. DUNN, JR., an infant
who sues by Charles A. Dunn, Sr.,
his next friend; CHARLES A. DUNN,    No. 94-2509
SR.; RICHARD GRAVES; DORYEL
GREAVES; SERWAH GRIFFIN; GEORGE
HAYES; DEITRA HINES, an infant,
who sues by Gloria Forde, her next
friend; JOHNNIE M. JONES; RUBY C.
JONES; AHMID KANU, an infant, who
sues by Serwah Griffin, his next
friend; ALHAJI KANU, an infant who
sues by Serwah Griffin, his next
friend; CHRISTINA KANU, an infant
who sues by Serwah Griffin, her
next friend;
AMOS L. PERSAVED; FRANCES REEVES;
ERIC J. SCHORI; AJA SMITH, an
infant, who sues by Catherine
Smith, her next friend; CATHERINE
SMITH; JAN SMITH, an infant who
sues by Catherine Smith, her next
friend; MOLLIE B. SMITH; EULA M.
TYSON; SYLVIA VICK; LAUREN
WILLIAMS; MARY WITCHER; MICHELLE
D. WITCHER; an infant, who sues by
Mary Witcher, her next friend;
ANGELA YANKAH; SANDRA A.
YANKAH, an infant, who sues by
Angela Yankah, her next friend;
SARIAH A. YANKAH, an infant, who
sues by Angela Yankah, her next
friend; STEPHANIE A. YANKAH, an
infant, who sues by Angela Yankah,
her next friend; INA YEARWOOD;
TRACEY L. SOMERS; ANTOINETTE
ARCHER; JESSIE HARRIS; JAMES
JACOBSON; EMMA S. MANNS; MARY
V. MCCORMICK; KISHLA R. MOORE;
DOLORES SCOTT; ANN E. MACLEOD;
PEARLINE COULTMAN; JOSEPH S.
LEAK, JR.; JUNE R. SINCLAIR;
CATHERINE GILDEA; KIMBERLY
BYNUM; DELORES J. HOLLOWAY;
HELEN RICHARDSON; JOANN CHASE;
CHERYL WASHINGTON,
Plaintiffs-Appellants,

v.

NATIONAL RAILROAD PASSENGER
CORPORATION, d/b/a Amtrak; CSX
TRANSPORTATION, INCORPORATED,
Defendants-Appellees.

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Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert E. Payne, District Judge.
(CA-92-1040-2)

Argued: October 31, 1995

Decided: January 16, 1996

Before RUSSELL, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Edward Heretick, MOODY, STROPLE &
KLOEPPEL, LTD., Portsmouth, Virginia, for Appellants. William G.
Ballaine, SIFF, ROSEN, P.C., New York, New York, for Appellees.
ON BRIEF: Joseph T. McFadden, Jr., Raymond H. Strople,
MOODY, STROPLE & KLOEPPEL, LTD., Portsmouth, Virginia,
for Appellants. Stephen Jacobs, Kelly Reynolds Fogarty, SIFF,
ROSEN, P.C., New York, New York; David C. Bowen, Stephen R.
Jackson, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants filed the instant action after they were injured in the
derailment of a passenger train that was deliberately sabotaged by

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criminal third parties. The district court dismissed some of the plain-
tiffs' claims and granted summary judgment for defendants on the
remaining claims. Appellants challenge those rulings on three
grounds. First, they argue that, in light of the common law duty of
common carriers, the district court erred in dismissing their claim of
"crashworthiness." Second, they argue that the district court abused its
discretion in excluding the testimony of certain experts, and so it
erred in granting summary judgment for defendants on the claim that
the dispatch center was negligent in its response to the switch signal.
And, third, they argue that the district court abused its discretion in
excluding the testimony of a third expert, and so it erred in granting
summary judgment for defendants upon the claim that they were neg-
ligent in the security measures at the track, switch, and signal. Finding
no error, we affirm on the reasoning of the district court.

I.

On August 12, 1992, the Amtrak "Colonial" passenger train
derailed, injuring some sixty passengers, the appellants in this case.
The train derailed due to the actions of two saboteurs, Raymond Gary
Loomis and Joseph Lee Bornman, who reversed a switch, directing
the train onto a side track while it was traveling at 79 miles per hour.

In order to reverse the switch, Loomis and Bornman had to possess
considerable ingenuity, strength, and knowledge of the exact design
of the switch and electronic signal mechanism. After devoting the bet-
ter portion of an hour to circumventing the various locks with indus-
trial bolt cutters, the two men carefully waited until the train was past
the last electronic checkpoint before throwing the switch, with the
train somewhere between a mile and a quarter mile away, thus leaving
a maximum of 46 seconds for the train, traveling at 79 miles per hour,
to stop before it reached the switch.

Appellants in this case, paying passengers who were injured in the
ensuing accident, filed suit against Amtrak, the owner and operator of
the train, and against CSX, the owner of the track and switching
equipment. The district court dismissed some of the causes of action
and granted summary judgment for defendants on the remaining
counts. Appellants herein appeal several of those rulings.

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II.

Virginia state law controls this case. In February 1994, the District
Court dismissed plaintiffs' claim that the Amtrak passenger cars were
unsafe in the case of an accident, e.g., that they had unpadded, hard
surfaces, seats that came loose, and inadequate luggage restraint sys-
tems. The district court characterized this as a claim of "crashworthi-
ness," a doctrine adopted by some courts to hold automobile
manufacturers liable for injuries caused by unsafe interior designs of
cars -- the "second impact" of a driver with the inside of his car after
an accident. The district court dismissed this cause of action on the
reasoning of (and adopting) Blizzard v. National Railroad Passenger
Corp., Civil Action No. 2:92cv428 (E.D. Va. June 18, 1993), which
dismissed a similar claim in an earlier Amtrak derailment case
because it determined that Virginia courts would not adopt the crash-
worthiness doctrine for passenger trains because railroad accident
injuries are so much more rare than auto accidents (and therefore less
foreseeable),1 and because there are no relevant federal regulations
concerning the interior design of a train, as there are for automobiles.
Since Blizzard, the Virginia Supreme Court has considered "crash-
worthiness" and rejected it. Slone v. General Motor Corp., 457 S.E.2d
51 (Va. 1995). Although the Virginia Supreme Court did hold that,
in the particular factual context it was then reviewing, there was a fac-
tual dispute over whether the possibility of truck rollover was a rea-
sonably foreseeable misuse, id. at 54, it nonetheless expressly rejected
the doctrine of crashworthiness, id. at 53.

Appellants argue that, regardless of this directly adverse precedent,
the crashworthiness line of cases is inapplicable to their claim because
those cases all involved product liability claims against vehicle manu-
facturers, whereas their claim is against a common carrier. They rely
upon a string of cases, mostly quite old, that establish that common
carriers
_________________________________________________________________

1 From 1978-82, out of 1.5 billion railroad passengers, only 10 fatalities
and 1,006 injuries occurred in railroad accidents, as compared to 46,900
fatalities and 1,700,000 serious injuries in automobile accidents in 1989
alone. Id. at 8.

                     5
          are bound to use the utmost care and diligence of very cau-
          tious persons; and they will be held liable for the slightest
          negligence which human care, skill and foresight could have
          foreseen and guarded against.

Chesapeake & Ohio Railway Co. v. Hibbs , 128 S.E. 538 (Va. 1925)
(emphasis added).

Plaintiffs argue that they were injured by the unsafe conditions of
the Amtrak car of which Amtrak had been on notice for several years.
However, Virginia law also provides that a "common carrier is not an
insurer of the safety of its passengers against all accidents, and is only
liable where the injury complained of was proximately caused by its
negligence," id. at 540, and "[u]tmost degree of care means no more
than every care which is practicable by common carriers engaged in
the business of transporting passengers," Shamblee v. Virginia Transit
Co., 132 S.E.2d 712, 714 (Va. 1963) (emphasis added).

In light of Blizzard, Slone, and the common law practicability limi-
tations on the duties of common carriers, we hold that the district
court did not err in its dismissal of the crashworthiness claim.

III.

The district court also granted summary judgment for defendants
on plaintiffs' claim that the dispatch center was negligent in its
response to the signal indicating the thrown switch. 2 As support for
this claim, plaintiffs introduced the testimony of two experts, William
Pugh and Wallace Holl, who testified that the dispatcher could have
and should have acted quickly enough to prevent the collision.
Although both experts had considerable general experience in rail-
roads, the district court did not admit their opinions because they
lacked specific experience in dispatching. The district court further
held that, even if Pugh and Holl had met the requirements for giving
_________________________________________________________________
2 Importantly, plaintiffs do not allege that the dispatching system was
negligently designed so that it did not allow the dispatcher to respond
quickly enough to prevent the accident; rather, they allege that the dis-
patcher himself was negligent in his response (or lack thereof) to the
reversed switch.

                     6
expert testimony, their testimony was conclusory, speculative, and
lacked factual support because both experts ignored the enormous
causation problems with plaintiffs' theory and simply asserted that the
dispatcher could have acted quickly enough to prevent the accident.

Regardless of whether the experts had sufficient experience to tes-
tify, the district court certainly did not abuse its discretion in refusing
to admit the experts' testimony, because they provided no support for
the claim that the dispatcher could have been reasonably expected to
notice the signal, contact his supervisor (as required by CSX regula-
tions), contact the train, communicate the problem, and get the train
to stop -- all within the 46 seconds (at most) that elapsed between
when the saboteurs threw the switch and when the train derailed. And,
because there was no additional evidence that the dispatcher could
reasonably have prevented the accident, the district court did not err
in granting summary judgment for the defendants.

IV.

The district court also granted summary judgment for defendants
on the claim that they had been negligent in the security measures
taken to protect the switch, particularly in light of prior acts of van-
dalism on and around that switch. In support of this claim, plaintiffs
offered the testimony of Charles Penrod, a former security supervisor
for two major railroads. Although Penrod testified that the vandalism
was preventable through either switch point locks or spiking, the dis-
trict court rejected his testimony because there was no reliable evi-
dence that switch point locks had ever been used to prevent sabotage
and only limited evidence that spiking had been so used (only five
recorded instances in seventeen years, all involving either eminent
threats of sabotage from temporary labor strikes or recurrent juvenile
vandals reversing manually-operated switches). Likewise, the district
court rejected Penrod's testimony that, in light of previous acts of
switch vandalism, this vandalism was foreseeable; the district court
concluded that the earlier vandalism, simple destruction of property,
was not sufficiently similar to this act of sophisticated sabotage.

The district court did not abuse its discretion in excluding Penrod's
testimony because he did not testify to sufficiently similar conduct,
and it did not err in granting summary judgment for defendants on

                     7
this claim because there was no evidence to suggest that CSX or
Amtrak should have foreseen saboteurs as sophisticated as these, and
because CSX already had in place an advanced electronic system that
would have alerted the train to the reversed switch had the vandals not
known exactly how to circumvent it; therefore, the railroad cannot be
held liable for the unforeseeable criminal activity of third parties.

As the Virginia Supreme Court has held, in another case of a
reversed railroad switch causing derailment,

          if the act itself [of the vandal / saboteur] is an intervening,
          independent, efficient cause which is neither foreseen nor
          reasonably foreseeable by the defendant, it will break the
          causal connection between the defendant's negligence and
          the plaintiff's injury.

Baltimore & Ohio Railroad Co. v. Patterson, 129 S.E.2d 1, 4 (Va.
1963); see also Wright v. Webb, 362 S.E.2d 919 (Va. 1987) (holding
motel owner not liable for criminal assaults committed in his parking
lot by third parties, despite alleged "notice" from prior larcenies in the
parking lot, because the prior crimes were against property rather than
people and did not give rise to a sufficiently specific danger of assault
upon business invitees).

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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