IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN, et al., : CIVIL ACTION

Plaintiffs :

:

v. : NO. 04-955

:

NATIONAL RAILROAD :

PASSENGER CORP., et al., :

Defendants :

MEMORANDUM

STENGEL, J. October 12, 2006

On August 10, 2002, Jeffrey Klein and Brett Birdwell climbed on top of a laddered

freight car owned by defendant Norfolk Southern Corporation (“Norfolk Southern”)

while it was parked for the weekend on a tail track owned by defendant National Railroad

Passenger Corporation (“Amtrak”) in Lancaster, Pennsylvania. Once atop the railcar, the

two juveniles were severely burned by arcing electricity emanating from an energized

catenary wire which ran long the tail track.

In preparation of the forthcoming jury trial, the parties filed several motions in

limine. Two such motions require a thorough analysis. Defendants request that I

preclude the plaintiffs from offering any evidence of prior trespasser electrical contacts,

and that I limit the plaintiffs to offering only evidence of juvenile trespassers who

trespassed within 150 yards of the site of the plaintiffs’ accident. For the following

reasons, I will deny both motions. 

The admissibility of evidence ultimately turns on a balancing of its probative value

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versus its prejudicial effect. Fed. R. Evid. 401, 402, 403. Under the rules, subject to

certain limitations, all evidence is admissible if it is relevant, i.e., if it tends to make the

existence or nonexistence of a disputed material fact more probable than it would be

without that evidence. See Fed. R. Evid. 401, 402. A district court may nonetheless

exclude relevant evidence if the probative value of the evidence is “substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403. However, “there is a strong presumption that

relevant evidence should be admitted, and thus for exclusion under Rule 403 to be

justified, the probative value of evidence must be ‘substantially outweighed’ by the

problems in admitting it.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-1344 (3d

Cir. 2002).

Defendants argue that the fact that others had trespassed in the past on various

parts of Amtrak’s property has no tendency to prove that defendants realized and

disregarded the imminent danger to the plaintiffs in this case. Further, defendants cite

testimony from witnesses who have never seen juveniles near where the plaintiffs were

injured: a four-year resident of an apartment overlooking the site of the accident had

never seen young men on the tracks or on the railcars; and a number of Lancaster area

emergency personnel had never seen juveniles trespassing at the site of this accident. 

Thus, defendants contend, such evidence is irrelevant. 

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“Wanton misconduct” occurs when an actor has intentionally done an act of an 1

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. See

Evans v. Philadelphia Transportation Co., 212 A.2d 440, 443 (Pa. 1964) 

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Defendants are correct that in order to be admissible other incidents would have to

be similar to the incident here. However, during discovery, plaintiffs obtained from

Amtrak’s police department reports of trespasser sightings on or around the tracks within

less than a mile in either direction of where plaintiffs were injured during the three-year

period before the accident. There were 69 incidents and 33 of them involved 78

juveniles. Three reports of juveniles were within four-tenths of a mile of where plaintiffs

were injured with at least one of them within one-tenth of a mile. Plaintiffs also cite

testimony from firefighters and detectives who are aware of incidents involving kids in

the vicinity of the incident.

Proof of trespassers is relevant to show wanton conduct, i.e., Amtrak is liable if it

intentionally disregarded a known risk despite the high probability of harm. The Third

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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); see also Evans, 212 A.2d at 443-44. Thus, for

plaintiffs to prove liability, it is enough that defendants should have realized that putting

the laddered Norfolk Southern car under the energized catenary line, in a densely

populated mixed residential-commercial-industrial area, was an unreasonable act in

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disregard of a known risk that would likely put someone in grave peril. Though a high

burden at trial, plaintiffs should be given the opportunity to present evidence that the

defendants had notice of previous trespassers on Amtrak’s property, which defendants are

free to counter. 

Thus, I find that evidence of similar prior trespasser electrical contacts are relevant

here, and that the probative value of such evidence is not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury. Defendants’

motion to preclude the plaintiffs from offering any evidence of prior trespasser electrical

contacts will be denied. 

Next, limiting the plaintiffs to offering only evidence of juvenile trespassers who

trespassed within 150 yards of the site of the plaintiffs’ accident unfairly reduces the

holding of a thirty-year-old decision of the Superior Court of Pennsylvania to arithmetic. 

In Whigham v. Pyle, 302 A.2d 498 (Pa. Super. 1973), the defendant owned a 45 acre tract

of undeveloped land where children played with defendant’s knowledge and without his

objection. The activity was usually contained to the same field. One day, a child went

150 yards beyond the field and was injured on a steel rod. In finding the defendant not

liable for the injury, the Superior Court of Pennsylvania held, “Where the undisputed evidence

indicates that the area of the artificial condition was some 150 yards from the area of usual child

trespass and where there was no evidence of even an occasional past childish frolic into the area

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Section 339 of the Restatement (Second) of Torts is an exception to the general 2

rule that no duty is owed to trespassers but to refrain from willful and wanton misconduct. 

It provides:

A possessor of land is subject to liability for physical harm to children

trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the

possessor knows or has reason to know that children are likely

to trespass, and

(b) the condition is one of which the possessor knows or has

reason to know and which he realizes or should realize will

involve an unreasonable risk of death or serious bodily harm

to such children, and

(c) the children because of their youth do not discover the

condition or realize the risk involved in intermeddling with it

or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition

and the burden of eliminating the danger are slight as

compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate

the danger or otherwise to protect the children.

Restatement (Second) of Torts § 339 (1965).

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in question, the requirements of Section 339 of the Restatement have not been met.” Id. at 501. 

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This holding was clearly not intended to be the general proposition for all future trespass

actions. In Whigham, the artificial condition happened to be 150 yards from the field

where the children usually played with the landowner’s knowledge. The precise

arithmetical distance from the known area of trespass to the location of the injury is not

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controlling. The court reasoned that a child who is permitted to enter one part of a parcel

of land becomes a trespasser if he enters another part of that land, and in that instance the

possessor of land owes no higher duty to a child trespasser than he owes to an adult

trespasser. Id. 

Thus, contrary to the defendants’ assertion, under § 339(a), the plaintiffs must

prove that the place where the condition exists is one upon which the possessor of land

knows or has reason to know that children are likely to trespass. According to the

Comments to the Restatement, the possessor of land is under no duty to make any

investigation or inquiry as to whether children are trespassing, or are likely to trespass,

until he is notified, or otherwise receives information, which would lead a reasonable man

to that conclusion. See Comment (g) to the Restatement (Second) of Torts § 339 (1965). 

Thus, defendants’ motion to limit the plaintiffs to offering evidence of only

juvenile trespassers who trespassed within 150 yards of the site of plaintiffs’ accident will

be denied. 

An appropriate Order follows. 

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