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1 This defendant was erroneously sued as “California

Amtrak.”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JOSHUA WARD, and FONDA WARD,

NO. CIV. S-04-0678 FCD PAN

Plaintiffs,

MEMORANDUM AND ORDER

v.

CALIFORNIA DEPARTMENT OF

TRANSPORTATION/CALTRANS;

CALIFORNIA AMTRAK; STATE OF

CALIFORNIA; JACOB KEATING;

COUNTY OF SACRAMENTO; COUNTY

OF YOLO; CITY OF WEST

SACRAMENTO; UNION PACIFIC

RAILROAD, a business

organization of unknown

status; and DOES 1-50,

inclusive,

Defendants.

_____________________________/

----oo0oo----

This matter is before the court on motion by defendants

National Railroad Passenger Corporation1 (“AMTRAK”) and Union

Pacific Railroad Corporation (“Union Pacific”)(collectively

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2 The motion was originally schedule for hearing on May

27, 2005. Prior to the hearing on the motion, the parties filed

a stipulation to continue the hearing on the motion until July

22, 2005. 

3 Because oral argument will not be of material

assistance, the court orders the matter submitted on the briefs. 

E.D. Cal. Local Rule 78-230.

2

referred to as “defendants”), for summary judgment pursuant to

Fed. R. Civ. P. 56(c).2 Plaintiffs, Joshua and Fonda Ward

(“plaintiffs”), oppose the motion. For the reasons stated

herein, defendants’ motion is GRANTED in part and DENIED in

part.3

BACKGROUND

Following are the facts construed in the light most

favorable to the plaintiffs. Plaintiffs Joshua and Fonda Ward,

who were in the process of relocating from Georgia to Oregon,

arrived in Sacramento on or about March 6, 2003. (Dep. of Joshua

Ward (“Ward Dep.”) at 12:13-25, Ex. D to Dec. of An H. Nguyen in

Supp. Summ. J.) The couple made a camp on the outskirts of

Riverwalk Park in West Sacramento. (Ward Dep. at 13:11-24.) The

city of West Sacramento is separated from the city of Sacramento,

immediately to the east, by the Sacramento River. 

The I-Street Bridge, which is owned and maintained by Union

Pacific, is a two-level bridge located just west of the Union

Pacific passenger station platform. (Resp. UF ¶¶ 12, 13; Dec. of

Brian P. Heikkila (“Heikkila Dec.”) ¶ 13.) The upper level of

the bridge contains a street for motor vehicle traffic and a

sidewalk for pedestrian traffic. (Ward Dep. at 19:11-17; Heikilla

Dec.¶ 13.) The lower level of the bridge contains two sets of

mainline train tracks. (Resp. UF ¶ 13.) Between the two sets of

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4 According to Mr. Ward, he was returning to the minimarket in West Sacramento because it sells “Rollings” for “only

1.59 a packet.” (Ward Dep. at 31:5-7.)

3

tracks runs what plaintiffs describe as a “catwalk”, which is

“wire grate that you can walk on.” ((Dep. of Kenneth Lothridge

(“Lothridge Dep.”) at 121:22-24, Ex. J to Resp. UF; Resp UF ¶

13.) The catwalk is utilized by Union Pacific employees for

maintenance and to investigate train malfunctions. (Dep. of

Steven B. Strickland (“Strickland Dep.”) at 40:13-41:7, Ex. E to

Resp. UF.) It also is used frequently by trespassers. 

(Strickland Dep. at 44:9-12.) During the two days prior to the

accident, while the Wards were camping in West Sacramento, Mr.

Ward crossed the river eight to ten times, from West Sacramento

to Sacramento and back, using the lower level if the I-Street

Bridge. (Pls.’ Statement of Issues and Disp. Material Facts in

Opp’n Summ.J. (“Resp. UF”) ¶ 22.) During a previous trip to

Sacramento a year earlier, Mr. Ward also crossed the bridge’s

lower level on several occasions. 

On the morning of March 9, 2003, Mr. and Mrs. Ward were

preparing to depart Sacramento and continue their journey to

Oregon. (Ward Dep. at 30:16-22.) They packed their belongings

and walked east across the lower level of the I-Street Bridge to

the Shell Station on Richards Boulevard in Sacramento. (Id. at

30:22-31:4.) At this point, Mr. Ward decided to return to West

Sacramento to purchase cigarettes at a mini-market located

approximately one block from the west end of the bridge.4 (Id. at

31:2-10.) He left his wife at the Shell Station and began the

walk back over the lower level of the bridge. (Id.) When Mr.

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4

Ward was approximately three quarters of the way across, he was

struck by a train operated by Amtrak. Mr. Ward’s left leg was

severed below the knee, and he was thrown from the bridge onto

the dirt riverbank below.

STANDARD 

The Federal Rules of Civil Procedure provide for summary

adjudication when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of the rule is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

In considering a motion for summary judgment, the court must

examine all the evidence in the light most favorable to the

non-moving party. United States v. Diebold, Inc., 369 U.S. 654,

655 (1962). If the moving party does not bear the burden of

proof at trial, he or she may discharge his burden of showing

that no genuine issue of material fact remains by demonstrating

that “there is an absence of evidence to support the non-moving

party’s case.” Celotex, 477 U.S. at 325. Once the moving party

meets the requirements of Rule 56 by showing there is an absence

of evidence to support the non-moving party’s case, the burden

shifts to the party resisting the motion, who “must set forth

specific facts showing that there is a genuine issue for trial.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

Genuine factual issues must exist that “can be resolved only by a

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finder of fact, because they may reasonably be resolved in favor

of either party.” Id. at 250. In judging evidence at the

summary judgment stage, the court does not make credibility

determinations or weigh conflicting evidence. See T.W. Elec. v.

Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.

1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)). The evidence presented by the

parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory,

speculative testimony in affidavits and moving papers is

insufficient to raise genuine issues of fact and defeat summary

judgment. See Falls Riverway Realty, Inc. v. City of Niagara

Falls, 754 F.2d 49, 57 (2d Cir. 1985); Thornhill Publ’g Co., Inc.

v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

ANALYSIS

The moving defendants seek summary judgment of all claims 

asserted against them in plaintiffs’ complaint. 

A. Claims One and Two – Premises Liability and Nuisance against

Amtrak

The undisputed evidence demonstrates that Amtrak neither

owns nor operates the I-Street Bridge or adjacent land. (Resp.

UF ¶ 12.) To be subject to premises liability or liability for

nuisance, the defendant must be the owner or occupier of the

land. See Ruoff v. Harbor Creek Community Assn., 10 Cal. App.

4th 1624, 1628 (1992)(holding that an owner or occupier of real

property generally must exercise ordinary care in managing the

property.”)(citing Cal. Civ. Code § 1714(a)); Preston v. Goldman,

42 Cal. 3d 108, 114 (1986)(holding that former owners’ liability

for patent defects in pond ended with their transfer of

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28 5 Formerly codified at 45 U.S.C. § 434, et seq. 

6

possession and control of the property.) Plaintiffs put forth no

argument in opposition to summary judgment of these claims. As a

result, the court grants defendants’ motion for summary judgment

of Claims One and Two against defendant Amtrak. 

B. Claim Three - Negligent Operation of Train against Amtrak

Amtrak argues that plaintiffs’ claim for negligent operation

of the train is preempted by the Federal Rail Safety Act of 1970

(“FRSA”), 49 U.S.C. § 20101, et seq.5 Alternatively, Amtrak

asserts that plaintiffs’ claims fail on the element of causation.

1. Preemption

The FRSA was enacted “to promote safety in every area of

railroad operations and reduce railroad-related accidents and

incidents.” 49 U.S.C. § 20101. To give effect to this broad

mandate, the Secretary of Transportation is authorized to

“prescribe regulations and issue orders for every area of

railroad safety.” 49 U.S.C. § 20103. Pursuant to this

authority, the Secretary, by delegation to the Federal Railroad

Administration (“FRA”), promulgated regulations setting maximum

train speeds for various classes of train track. See 49 C.F.R. §

213.9. The track where the accident occurred is classified as

Class 2. (Resp. UF ¶ 15.) Under 49 C.F.R. § 213.9, the maximum

allowable operating speed for passenger trains on Class 2 tracks

is thirty miles per hour. It is undisputed that the train which

struck Mr. Ward was not exceeding this speed.

The preemptive effect of the FRSA and its implementing

regulations is governed by 49 U.S.C. § 20106, which contains

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6 Section 20106 provides in relevant part: 

Laws, regulations, and orders related to railroad

safety and laws, regulations, and orders related to

railroad security shall be nationally uniform to the

extent practicable. . . A State may adopt or continue

in force an additional or more stringent law,

regulation, or order related to railroad safety or

security when the law, regulation, or order--

(1) is necessary to eliminate or reduce an essentially

local safety or security hazard;

(2) is not incompatible with a law, regulation, or

order of the United States Government; and

(3) does not unreasonably burden interstate commerce. 

7 Neither party provides the court with the language of

the speed restriction or a definition of a “Timetable

Restriction.” However, the court’s independent research reveals

that train timetables “govern[] regularly scheduled trains on a

specific route. It sets forth the route to be followed,

scheduled stops, speed limits or restrictions, superiority of

trains, and other necessary information for safe railroad

operations.” See 27 Am. Jur. 2d Proof of Facts § 471.

7

express preemption and savings clauses.6 It is well established

that common law negligence claims based on excessive train speed

are preempted under § 20106 and 49 C.F.R. § 213.9. CSX

Transportation, Inc. v. Easterwood, 507 U.S. 658, 670 (1993). 

Plaintiffs do not dispute this general rule, but argue that

the savings clause contained in § 20106 saves their claim from

preemption because a more stringent local ordinance was enacted

to “eliminate or reduce an essentially local safety or security

hazard.” Plaintiffs’ argument fails. First, the “ordinance”

cited by plaintiffs is not a “state law, regulation or order.” 

Rather, it appears to be Union Pacific’s internal “Timetable

Restriction” which sets a twenty mile-per-hour maximum speed for

the I-Street Bridge.7 (See Dec. of Leonard Sandoval in Supp.

Summ. J. ¶ 3.) Section 20106 permits a “state,” to adopt more

stringent laws and regulations that survive preemption in certain

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8 Some courts have determined that § 20106’s savings

clause does not apply to municipal ordinances. See e.g.,

Baltimore and Ohio Railroad Co. v. City of Piqua, 1986 WL 8254

(S.D. Ohio, June 30, 1986). However, as the Timetable

Restriction at issue here is not a local ordinance, the court

need not address this issue. 

8

contexts.8 The internal policies of Union Pacific, which is not

a governmental entity, are irrelevant to the preemption issue. 

See Michael v. Norfolk Southern Railway Co., 74 F.3d 271, 273

(noting that a “railroad’s own speed regulations may be evidence

of negligence in state tort claim for excessive speed; however,

such a state tort claim is preempted by federal law and the

internal railroad regulations would be irrelevant under federal

law.”) 

Moreover, even if Union Pacific’s Timetable Restriction was

a “state law, regulation or order,” it is not saved from

preemption by § 20106 because such a restriction is not

“necessary to eliminate or reduce an essentially local safety or

security hazard.” 49 U.S.C. § 20106. In Union Pacific Railroad

Co. v. California Public Utilities Comm’n, 346 F.3d 851 (9th Cir.

2003) (“Union Pacific v. CPUC”), the Ninth Circuit recently

addressed § 20106’s savings clause and concluded that an 

“essentially local safety hazard” is one “which is not adequately

encompassed within national uniform standards.” Id. at 860

(citations omitted). The court then determined that a ten-mile

segment of track, with an abnormally high derailment rate, a

sharp curve and steep grade, which was near an environmentally

sensitive water source, did not fall within the “essentially

local safety hazard” savings clause. Id. at 860-861. The court

reasoned that all steep grades and sharp curves increase the risk

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of derailment and that many areas of track in the United States

share similar characteristics, which can be encompassed within

national uniform standards. Since the FRA is aware of the

dangers presented by such areas they are not essentially local

safety hazards. Id. at 61. 

Here, plaintiffs provided little evidence or argument to

support their contention that the I-Street Bridge presents an

essentially local safety hazard. Rather they simply assert that

the “urban setting of the depot and bridge” creates a “localized

safety hazard.” (Pls.’ Mem. Opp’n Summ. J. at 11.) However,

presumably many train depots and bridges are located in urban

areas throughout California and the United States. Following the

reasoning of Union Pacific v. CPUC, this type of safety hazard

can be addressed at the federal level. Thus, plaintiffs’ common

law negligence claim for excessive speed is preempted by the

FRSA. 

Plaintiffs also argue that their negligent operation claim

is not limited to excessive speed. The pertinent language in the

complaint provides: 

Third Cause of Action Negligent Operation of Train . .

. Jacob Keating was the engineer of train 727 and was

either stopped or just leaving the Amtrak station . . .

when he noticed plaintiff Joshua Ward crossing the IStreet Bridge railroad tracks in front of him. Rather

than waiting until it was safe to proceed, defendant

Jacob Keating, then traveling at an excessive speed for

the conditions, struck and seriously injured plaintiff

Joshua Ward . . .. 

(Complaint ¶ 33.) According to plaintiffs, the above referenced

language alleges negligent conduct, in addition to excessive

speed. Specifically, they note that the complaint “clearly

refers to Keating’s actions, namely proceeding in an unsafe

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manner by not slowing down or otherwise stopping the train before

hitting plaintiff, as negligent. (Pls.’ Mem. Opp’n Summ. J. at

12.) Plaintiffs have simply repackaged their excessive speed

claim under the vague rubric of “proceeding in an unsafe manner.” 

However, the specific conduct plaintiff’s identify as “proceeding

in an unsafe manner” is Keating’s failure to slow down or stop. 

While presumably a person could fail to slow down or stop for

several reasons, plaintiffs have identified none except

“excessive speed for the conditions.” Consequently, plaintiffs’

negligent train operation claim is preempted by the FRA. 

C. Claims Four and Five - Premises Liability and Nuisance

against Union Pacific

In the complaint, plaintiffs allege that Union Pacific

“negligently and carelessly constructed, designed, maintained,

supervised, managed and/or controlled the vicinity of the

accident, the tracks, bridge and entries thereto, so as to fail

to adequately protect persons from entering the bridge or protect

persons such as [Mr. Ward] who were known to cross the bridge.”

(Pls.’ Comp. ¶ 40.) 

Union Pacific contends that summary judgment of plaintiffs’

premises liability and nuisance claims is warranted because it

had no duty to warn Mr. Ward regarding the danger posed by the

railroad tracks, which presented an open and obvious danger. 

Alternatively, Union Pacific contends that plaintiffs cannot

demonstrate the element of causation because “Mr. Ward’s

decisions and actions were the substantial factor in causing his

injury.” (Defs.’ Mem. Supp. Summ. J. (“Defs.’ Mem.”) at 21.) 

/ / / 

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1. Duty

Duty is a question of law for the court and can be properly

decided in the context of a summary judgment motion based upon

the evidentiary showings of the parties. Silva v. Union Pacific

Railroad Co., 85 Cal. App. 4th 1024, 1029-1030 (Cal. App. 2000)

In such context, the court has an “established factual universe”

to make the decision as to whether a legal duty exists. (Id. at

1030.) 

Under California law, “[e]veryone is responsible, not only

for the result of his or her willful acts, but also for an injury

occasioned to another by his or her want of ordinary care or

skill in the management of his or her property or person, except

so far as the latter has, willfully or by want of ordinary care,

brought the injury upon himself or herself.” Cal. Civ. Code §

1714(a). This duty of ordinary care extends to the owners and

occupiers of land. See Rowland v. Christian, 69 Cal. 2d 108,

112-119 (Cal. 1968)(rejecting common law status-based approach to

land-owner liability and adopting duty of ordinary care, absent

compelling policy reason not to impose duty). In certain

circumstances, where clearly supported by public policy, courts

will recognize an “exception to the general principle that a

person is liable for injury caused by the failure to exercise

reasonable care.” Silva, 85 Cal. App. 4th at 1028-1029; Rowland,

69 Cal. 2d at 112. The factors used to determine whether an

exception is warranted are: the foreseeability of harm to the

plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant’s

conduct and the injury suffered, the moral blame attached to the

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9 Plaintiffs’ request for judicial notice of the November

27, 2001 Sacramento Bee article and November 26, 2001 Office of

Emergency Services report is DENIED. These facts are not

properly subject to judicial notice. Fed. R. Evid. 201(b). 

(continued...)

12

defendant’s conduct, the policy of preventing future harm, the

extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting

liability for breach, and the availability, cost, and prevalence

of insurance for the risk involved. Rowland, 69 Cal. 2d at

112-113; Silva, 85 Cal. App. 4th at 1028-1029. 

 a. Foreseeability

In determining duty, the court does not decide “whether a

particular plaintiff’s injury was reasonably foreseeable in light

of a particular defendant’s conduct.” Brooks v. Eugene Burger

Management Corp., 215 Cal. App. 3d 1611, 1620 (1989). Rather,

the court “evaluate[s] more generally whether the category of

negligent conduct at issue is sufficiently likely to result in

the kind of harm experienced that liability may appropriately be

imposed on the negligent party.” Id. 

The court finds that the category of negligent conduct

alleged here - failing to prevent individuals from using the

walkway between the railroad tracks through fencing, warnings or

policing – was sufficiently likely to result in injury to

individuals who frequently cross the lower level of the bridge. 

The I-Street Bridge is located in the heart of highly populated

area – downtown Sacramento. Most importantly, Union Pacific knew

trespassers frequently used the walkway on the lower level of the

bridge to cross the river to and from West Sacramento.9

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9(...continued)

Plaintiffs and defendants make numerous other evidentiary

objections to statements and exhibits submitted by the other

party. However, it is unnecessary to rule upon these objections

to dispose of defendants’ motion except as otherwise noted by the

court. 

13

(Strickland Dep. at 44:9-19; Dep. of John W. Allen (“Allen Dep.”)

at 89:5-24, Ex. F to Resp. UF.) Union Pacific employees made

contact with an average of 430 persons per year approaching or on

the lower level of the bridge. (Allen Dep. at 89:5-24.) It is

not difficult to foresee that such a known trespassing problem,

if left unchecked, could result in injury. 

The facts presented here are clearly distinguishable from

those in Abboud v. Union Pacific Railroad Co., No. 02-4140 (N.D.

Cal.), which is relied on by Union Pacific. In that case, the

district court found that the harm suffered by an individual

struck by a train on an open segment of track in Hayward,

California was not foreseeable. However, in that case, there was

no evidence that Union Pacific had knowledge that “trespassers

tended to cross the tracks at that particular location near

milepost 21 [where the plaintiff was injured].” Id., slip op. at

12. By contrast, here, plaintiffs have presented evidence, which

Union Pacific does not dispute, that it had knowledge that

trespassers routinely crossed the precise location where the

injury occurred, the lower span of the I-Street Bridge. 

Union Pacific also argues that it had no duty to fence, warn

or otherwise prevent individuals from accessing the walkway on

the lower section of the bridge because the railroad tracks were

an open and obvious danger. While train tracks generally do

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10 “Although duty is primarily a question of law, its

existence may frequently rest upon the foreseeability of the risk

of harm. Foreseeability may be decided as a question of law only

if, under the undisputed facts, there is no room for reasonable

difference of opinion.” Silva, 85 Cal. App. 4th at 1029. Here,

the facts submitted on which the court relies are undisputed and

thus it is appropriate to resolve the question of duty as a

matter of law. 

14

present an open and obvious danger, Mr. Ward testified that he

knew that the lower span of the bridge was used by members of the

public, that he himself had crossed the lower span on multiple

occasions without incident, that he had never seen a “No

Trespassing” sign, and had never actually seen a train cross the

bridge. Under such circumstances, a person could discount the

risk of using the walkway. 

Finally, Union Pacific contends that, although it knew

trespassers frequently used the walkway, it could not foresee the

harm to Mr. Ward because any such use was careless since there is

a safe route across the river on the upper level of the bridge. 

While there is an alternate route, this does not diminish the

fact that Union Pacific knew a significant number of individuals

continued to use the lower span.10 Moreover, the cases cited by

Union Pacific, Pineda v. Ennabe, 61 Cal. App. 4th 1403 (Cal. App.

1998) and Edwards v. State of California, 206 Cal. App. 3d 1284,

did not conclude that the injuries sustained in those cases were

unforeseeable due to the carelessness of the plaintiffs; rather

they concluded that no duty was owed, despite the foreseeability

of the risk, for policy reasons. See e.g., Pineda, 61 Cal. App.

4th at 1409 (“The purpose for requiring a duty . . . is to avoid

the extension of liability to every conceivably foreseeable

accident, without regard to common sense or good policy.”) More

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importantly, in neither of those cases were the defendants on

notice that individuals frequently engaged in the precise conduct

that caused the harm. See Pineda (noting that no similar

incidents had occurred in defendant’s building); Edwards, 206

Cal. App. 3d at 1286 (citing no evidence that other sports fans

had attempted to climb fence or been harmed as a result and

noting that no incidents were reported at the fence over twelveyear period). By contrast, here Union Pacific was well aware

that trespassers routinely crossed the lower level of the bridge. 

Thus, the court concludes that the type of harm suffered by Mr.

Ward in this case was foreseeable. 

b. Degree of Certainty of Injury to Mr. Ward

Parties agree that the harm suffered by Mr. Ward satisfies

the element of certainty of injury in favor of finding a duty. 

c. Closeness of connection between Mr. Ward’s

Injuries and Union Pacific’s Conduct

In analyzing the closeness of connection, the court

evaluates whether the causal link between the injury and the

negligence of the defendant is so attenuated that liability

should not be imposed. Bryant v. Glastetter, 32 Cal. App. 4th

770, 781 (1995). The court finds that there is a close

connection between Mr. Ward’s injuries and Union Pacific’s

failure to prevent trespassers from using the lower span of the

bridge to cross the river. While Union Pacific offered

substantial evidence regarding its efforts to prevent trespassing

on the thousands of miles of track in the Oakland division, it

did not explain what measures were taken to prevent trespassing

on the lower span of I-Street Bridge, which is located in a

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highly-populated area and used routinely by trespassers to cross

the river. Plaintiff offered declarations from individuals who

“have crossed the lower part the [sic] I Street Bridge where the

trains run countless times,” and “have never been asked to leave

or told that [they] could not cross there.” (See Decls. of Bridge

Users.) More to the point, the individuals all testified that

the Union Pacific employees they met “simply said hello,” and did

not prevent them from crossing the bridge. (See id.) 

d. Moral Blameworthiness. 

The court also must evaluate whether Union Pacific’s conduct

is morally blameworthy. Rowland, 69 Cal. 2d at 113. The moral

blame attendant to the defendant’s ordinary negligence is

generally insufficient to find moral blameworthiness. Adams v.

City of Fremont, 68 Cal. App. 4th 243, 270 (1998). Courts

require a higher degree of culpability, such as where the

defendant (1) intended or planned the harmful result, (2) had

actual or constructive knowledge of the harmful consequences of

their behavior, (3) acted in bad faith or with a reckless

indifference to the results of their conduct, or (4) engaged in

inherently harmful acts. Id. (citations omitted). Here, there

is undisputed evidence that Union Pacific knew trespassers

routinely used the lower level of the I-Street Bridge. On the

other hand, there is no competent evidence that similar accidents

had occurred on the bridge. In addition, Union Pacific had some

programs in place to prevent trespassing – at least at a national

and/or regional level. While these programs may not have been

adequate to address the specific trespassing problem on the IStreet Bridge (this is a question for the trier of fact), it is

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clear that Union Pacific was not entirely indifferent to the risk

of harm. Thus, the court cannot conclude that Union Pacific’s

conduct was morally blameworthy. 

e. Policy of Preventing Future Harm and the Extent of

the Burden to Union Pacific and Consequences to

the Community of Imposing a Duty

The court next must determine whether imposition of

liability would further the policy of preventing future harm and

the extent of burden on the defendant and public in imposing such

a duty. As noted previously, Union Pacific was aware that

trespassers frequently crossed the lower span of the bridge. 

Public policy supports imposition of a duty to take reasonable

steps to prevent trespassing, through warnings, fencing or

policing, where the defendant is aware of trespassing over a

bridge in a highly-populated area. While the potential for

liability will impose burdens on Union Pacific, they are not as

great as Union Pacific contends. The trespassing situation

presented here is unique in that the trespassing occurred over a

railroad bridge, rather than on an open span of track, Union

Pacific knew that trespassers routinely crossed this precise

section of tracks, and the bridge is located in the center of an

urban area. Requiring Union Pacific to use ordinary care to

prevent trespassing in such circumstances will not expand

liability to injuries suffered by trespassers in remote areas

where it has no notice that routine trespassing occurs. See

Leslie G. v. Perry & Associates, 43 Cal. App. 4th 472, 480 (1996)

(noting that “[I]n cases where the burden of preventing future

harm is great, a high degree of foreseeability may be

required.....”) (quoting Ann M. v. Pacific Plaza Shopping Center,

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6 Cal.4th 666, 678-679 (1993). 

f. Availability, cost and prevalence of insurance

Both parties agree that this factor is irrelevant in this

case. 

In summary, the Union Pacific has not established that the

Rowland factors analyzed above support creating an exception to

the general rule that Union Pacific, as an owner/occupier of

land, owes a duty of ordinary care, as articulated in Cal. Civ.

Code § 1714. The court finds that Union Pacific owed such a

duty. 

2. Causation

Union Pacific asserts the same causation argument as Amtrak. 

See supra Section B. For the same reason, the court rejects

Union Pacific’s legal argument and finds that plaintiffs have

raised a triable issue as to causation. 

CONCLUSION 

For the foregoing reasons, the defendants’ motion for

summary judgment is granted in part and denied in part as

follows:

1. Defendants’ motion for summary judgment of Claims One

Two and Three against Amtrak is GRANTED.

2. Defendants’ motion for summary judgment of Claims Four

and Five against Union Pacific is DENIED. 

 IT IS SO ORDERED.

DATED: July 22, 2005

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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