IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN, : CIVIL ACTION

BRETT BIRDWELL, :

Plaintiffs :

:

v. : NO. 04-955

:

NATIONAL RAILROAD :

PASSENGER CORP., :

NORFOLK SOUTHERN CORP., :

Defendants :

 MEMORANDUM

STENGEL, J. July 13, 2006

On March 31, 2006, this court issued a Memorandum and Order denying

defendant National Railroad Passenger Corp.’s (“AMTRAK’s”) motion for summary

judgment while refraining from ruling upon defendant Norfolk Southern Corp.’s

(“Norfolk Southern’s”) similar motion. Now, for the reasons set forth below, I will grant

Norfolk Southern’s motion for summary judgment and dismiss all of plaintiffs’ claims

against it.

I. BACKGROUND

The facts and procedural history of this case remain the same as described in the

court’s March 31, 2006, Memorandum and Order. Klein v. AMTRAK, No. 04-cv-955,

2006 U.S. Dist. LEXIS 15331, at * 1-7 (E.D. Pa. 2006). 

Although that March 31, 2006, memorandum briefly addressed Norfolk Southern’s

summary judgment arguments, the court refrained from ruling upon the motion until after

Case 2:04-cv-00955-LS Document 64 Filed 07/13/06 Page 1 of 5
2

Norfolk responded to plaintiffs’ arguments regarding the applicability of § 386 of the

RESTATEMENT (SECOND) OF TORTS. Norfolk Southern has filed its response, and

consistent with its motion for summary judgment, continues to argue that it can not be

held liable for breaching a duty owed to trespassers because it did not own the land, or

under the attractive nuisance theory of § 339 of the RESTATEMENT (SECOND) TORTS. 

Furthermore, Norfolk argues § 386 of the RESTATEMENT (SECOND) TORTS only provides

liability against entities that retain control over the condition causing the injury.

II. DISCUSSION

Section 386 provides:

Persons Other Than Possessor, Members of His

Household, and Those Acting on His Behalf Who Create

Dangerous Condition

Any person, except the possessor of land or a member of his

household or one acting on his behalf, who creates or

maintains upon the land a structure or other artificial

condition which he should recognize as involving an

unreasonable risk of physical harm to others upon or outside

of the land, is subject to liability for physical harm thereby

caused to them, irrespective of whether they are lawfully upon

the land, by the consent of the possessor or otherwise, or are

trespassers as between themselves and the possessor.

RESTATEMENT (SECOND) OF TORTS § 386 (1965).

As applied to this case, the plaintiffs contend that the “person” referenced in the

statute is Norfolk Southern and the “structure” or “artificial condition” is the Norfolk

Southern laddered railcar. However, the plaintiffs do not explain how Norfolk Southern

Case 2:04-cv-00955-LS Document 64 Filed 07/13/06 Page 2 of 5
1Although, the Reichenvalder court applied the First Restatement, § 386 of the First and Second

Restatements are substantially similar. 

3

either “created” or “maintained” the dangerous condition. According to the evidence

presented, AMTRAK chose where to park the cars, controlled the catenary wires, and

decided when the trains would be moved. There is no genuine issue of material fact as to

which defendant maintained and controlled the artificial condition. The plaintiffs’ motion

cites two Pennsylvania cases applying § 386 to help solidify their arguments, neither is

applicable. 

In Reichenvalder v. Borough of Taylor, 185 A. 270 (Pa. 1936), the defendant’s

employees were doing road work on public roads with a road scrapper. This machine

fascinated the neighborhood children who followed the scrapper while it was being used. 

At the end of the work day, the defendant’s employees left the road scrapper in a vacant

lot close to the street. The court found that the employees were trespassing by leaving the

scrapper on the vacant lot as the lot owner neither knew of, nor consented to the

scrapper’s presence. Later that night, several of the children began to play on the

machine and the seven year old plaintiff was then injured when his hand got caught in one

of the scrapper’s cogs. The court found that the defendant alone was in control of the

dangerous condition while the owner of the land was not involved. Unlike in the present

case, in Reichenvalder the condition of the lot was not a factor, only the scrapper caused

the damage.1

Case 2:04-cv-00955-LS Document 64 Filed 07/13/06 Page 3 of 5
2As described in the court’s March 31, 2006, Memorandum, “under Pennsylvania law, the duty owed by a

possessor of land to a trespasser is to refrain from willfully and wantonly injuring the trespasser.” Klein, 2006 U.S.

Dist. LEXIS 15331, at * 9 (E.D. Pa. 2006) (citing Rossino v. Kovacs, 718 A.2d 755, 756 (Pa. 1998)). Furthermore,

§ 339 of the RESTATEMENT (SECOND) OF TORTS only applies to the possessor of land. Klein, 2006 U.S. Dist. LEXIS

15331 at * 15-16. In this case, Norfolk Southern was not the possessor of the land and therefore cannot be held

liable under either theory.

4

In McWhite v. Philadelphia Gas Works, 27 Phila. Co. Rptr. 1 (C.C.P. Phila. Co.

1993), a sixty-six year old woman was injured when she fell into a trench that had been

created when the City hired an excavator to resurface the area between 54th and Vine

Street. The excavator dug the trenches in the street and sidewalk and the water company

did some work underground. When the water company finished, the Philadelphia Gas

Works (“PGW”) ordered that the excavator backfill the trenches with dirt and delay

resurfacing until PGW completed its subsurface work. PGW then took over the site, set

up its truck and equipment, and put up signs and barriers in the street and on the

equipment before leaving for the day. The plaintiff was injured while walking home from

a store when she stepped on one of the sidewalk trenches and the ground gave way. The

court specifically found that PGW controlled the trench. 

In this case, plaintiffs have not shown a genuine issue of material fact regarding

who controlled either the freight car, or the catenary wires. I will therefore grant Norfolk

Southern’s motion for summary judgment as there are no genuine issues of material fact

holding them liable under the plaintiffs’ theories, i.e. a landowner’s duty to a trespasser, §

339, or § 386.2 An appropriate order follows. 

Case 2:04-cv-00955-LS Document 64 Filed 07/13/06 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN, : CIVIL ACTION

BRETT BIRDWELL, :

Plaintiffs :

:

v. : NO. 04-955

:

NATIONAL RAILROAD :

PASSENGER CORP., :

NORFOLK SOUTHERN CORP., :

Defendants :

 ORDER

AND NOW, this 13th day of July, 2006, it is hereby ORDERED that defendant

Norfolk Southern’s Motion for Summary Judgment (Document # 35) is GRANTED. 

Defendant Norfolk Southern is dismissed from this case.

BY THE COURT:

 s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

Case 2:04-cv-00955-LS Document 64 Filed 07/13/06 Page 5 of 5