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

* Section 339 of the Restatement (Second) of Torts is an exception to the general
tule 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
Teason 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).

5


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


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.


Lowy
( [U4
a“ IN THE UNITED STATES DISTRICT COURT { /
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN, et al., : CIVIL ACTION
Plaintiffs :
v. : NO. 04-955 Fe { L E D
NATIONAL RAILROAD : ;
PASSENGER CORP. , et al., : OCT 1A 2006
Defendants : MICHAg& E. KUNZ, Clerk
by vA a Z Dep. Clerk
MEMORANDUM
STENGEL, J. October j] , 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 bumed 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


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY KLEIN, et al., : CIVIL ACTION
Plaintiffs :

v. NO. 04-955
NATIONAL PASSENGER : FY L E D

RAILROAD CORPORATION, a/k/a
AMTRAK, et al., : OCT 14 2006

Defendants : im
By Hal enue, Clerk
ORDER 7 ep. Clerk
STENGEL, J.
b
AND NOW, this | | day of October, 2006, upon consideration of

defendants’ motion in limine to preclude plaintiffs from offering any evidence regarding, or
making reference to, prior trespasser electrical contacts (Document #88), and plaintiffs’ response
thereto (Document #1 00), it is hereby ORDERED that the motion is DENIED.

IT IS FURTHER ORDERED that defendants’ motion in limine to limit plaintiffs to
offering evidence of only juvenile trespassers who trespassed within 150 yards of the site of

plaintiffs’ accident (Document #85) is DENIED.

BY THE COURT:
y
f Su f Ad
pone’ LAWRENCE F. STENGEL, J,
A ees “le o ioe
. an
. f ) i
Of vod / aera
a i { r iLaiefe i
“y J


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.


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
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

ee

'“Wanton misconduct” occurs when an 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. See
Evans v. Philadelphia Transportation Co., 212 A.2d 440, 443 (Pa. 1964)

3