1. The Order denied Amtrak’s Motion for Summary Judgment and was dated March 31,

2006. The Order was accompanied by a Memorandum also dated March 31, 2006. The Order

and Memorandum were not docketed until April 3, 2006.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN & BRETT BIRDWELL : CIVIL ACTION

Plaintiffs, : 

:

v. : 

:

NATIONAL RAILROAD PASSENGER :

CORPORATION :

Defendant. : NO. 04-955

MEMORANDUM

STENGEL, J. August 16, 2006

National Railroad Passenger Corporation (Amtrak) filed a Motion to Amend this

Court’s Order of April 3, 2006 to Include a Certification of a Portion of the Order for

Interlocutory Appeal. Amtrak makes this request under 28 U.S.C. §1292(b) and Federal Rule

of Appellate Procedure 5(a)(3).1 

Certification under §1292(b) is available in “exceptional cases where an immediate

appeal may avoid protracted and expensive litigation.” Citing Franklin Prescriptions, Inc.

v. New York Times, Inc., 267 F.Supp. 2d 425 (E.D. Pa. 2003). Certification rests in the

discretion of the District Court under §1292(b). Amtrak must establish “exceptional

circumstances” to justify the certification of an issue for interlocutory appeal.

Case 2:04-cv-00955-LS Document 72 Filed 08/17/06 Page 1 of 5
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This cases involves severe injuries sustained by the two plaintiffs when they climbed

on top of a railroad car and came in contact with catenary wires. The railroad car was owned

by Norfolk Southern and the wires owned by Amtrak. The plaintiffs contend that Amtrak

is liable for its “wanton” conduct. In denying Amtrak’s Motion for Summary Judgment, I

wrote in the March 31, 2006 Memorandum:

In this case, the evidence presented by the plaintiffs makes it clear that

catenary power lines present a grave danger to anyone who comes near them,

that the parked and laddered freight car made it possible for individuals to

come near the catenary line, and that the public in general is not likely to know

about the dangers involved with the catenary lines. I find this evidence is

sufficient to pose a genuine issue of material fact regarding whether Amtrak’s

actions were wanton in choosing to leave the freight cars under the energized

lines for an extended period of time. A reasonable jury may conclude that

Amtrak had sufficient warning of the possibility of the plaintiffs’ peril given

the frequency of trespassers reported in the area, and the prolonged time the

cars sat on the tracks. I will deny Amtrak’s Motion for Summary Judgment on

this issue.

Klein v. Amtrak, No. 04-00955, 2006 U.S. Dist. Lexis 15331, at *11 (E.D. Pa. Apr. 3, 2006).

For purposes of interlocutory appeal, Amtrak in its petition identifies the issue as

follows:

Whether this Court correctly decided that a possessor of land may be liable to

a trespasser for willful or wanton misconduct when the possessor lacks either

actual knowledge or reason to know of the impending peril to the particular

trespasser.

See National Railroad Passenger Corporation’s Motion to Amend and the accompanying

proposed Order 

The proposed issue for appeal, as framed by Amtrak, misstates my decision and is

inconsistent with existing Pennsylvania and Third Circuit law.

Case 2:04-cv-00955-LS Document 72 Filed 08/17/06 Page 2 of 5
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The Third Circuit has made clear that a finding of wanton conduct does not require

“actual prior knowledge of the particular injured person’s peril.” Micromanolis v. Wood

School, Inc., 989 F.2d 696, 701 (3d Cir. 1993). This issue had been addressed in an earlier

case by the Pennsylvania Supreme Court which held that a defendant did not have to have

“actual prior knowledge of the injured’s person’s peril” in Evans v. Philadelphia

Transportation Company, 212 A.2d 440 (Pa. 1964). Certainly this is not a new issue.

The defendant Amtrak argues that no possessor of land owes any duty to any

trespasser in any case under any circumstances and that, therefore, Amtrak cannot, as a

matter of law, be responsible for wanton conduct or any other conduct. While there are

elements of truth to aspects of Amtrak’s argument, the Court is not prepared, at this point,

to rule that there are no circumstances under which a reasonable jury may find Amtrak to

have been “wanton” with respect to the risk posed by the freight car parked near catenary

lines. Nor is the Court convinced by the apocalyptic statements by Amtrak’s counsel that

recognizing a possible basis for recovery in this action will completely change existing law

and endanger the availability of rail transportation throughout the northeast corridor of the

Amtrak system.

Simply put, while the plaintiffs may have a challenging task to meet the burden of

proof at trial, there is a question of fact as to whether Amtrak’s conduct was wanton under

these circumstances. The case is not so clear as to entitle the defendant Amtrak to judgment

as a matter of law on its motion. There is certainly no basis to ask the Court of Appeals to

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consider a question of law which the Court of Appeals has addressed in an earlier case, and

which, as framed by Amtrak, does not accurately state the decision of March 31, 2006 with

which Amtrak is unhappy. The Motion to Certify will be DENIED.

Case 2:04-cv-00955-LS Document 72 Filed 08/17/06 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN & BRETT BIRDWELL : CIVIL ACTION

Plaintiffs, : 

:

v. : 

:

NATIONAL RAILROAD PASSENGER :

CORPORATION :

Defendant. : NO. 04-955

ORDER

AND NOW, this 16th day of August, 2006, after oral argument on defendant’s

Motion to Amend this Court’s Order of April 3, 2006 to Include a Certification of a Portion

of the Order for Interlocutory Appeal (Doc. #62), and upon consideration of plaintiffs’

Memorandum in Opposition to the motion, it is hereby ORDERED that the motion is

DENIED.

BY THE COURT:

/s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

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