2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/466NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-2041

CL IN T R OB ER T L AU RIE , SR ., INDI VIDUAL LY AND AS ADMI NIS TRATOR O F THE E STATE OF BARBARA ANN L AURI E, DECEAS ED, AND BARBARA A NN BEATT Y, Ap pellan ts
v. NAT IONAL PASSEN GER R AILRO AD C ORPO RATIO N, a/k/ a Amtrak; CS X T RA NS CO RP .; SO UT HE AS TE RN PE NN SY LV AN IA T RA NS PO RT AT ION AU TH OR ITY ; *MULT IHERM CO RP.; * HAVE RTOW N PARTN ERSHIP;

HELEN C. JACOBS; ROBERT H. JACOBS; THOMAS L. J ACOBS

(*Dismiss ed See Court' s Order 1/12/ 04)

On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania D.C. CivilAction No. 01-cv- 06145 (Hon or abl e J ohn P. Ful la m)
Submitte d Pursuant to Third Circ uit LAR 34.1(a)

May 25, 2004 Be for e: S CIR ICA , Chief Judge , RE ND EL L a nd A LA RC ÓN *, Circuit Judges
*The Honorable Arthur L. Alarcón, United States Circui t Judge for the Ninth J udicia l Circuit , si tti ng by des ignati on.2 (Fil ed: Jul y 23, 2004)
OPINI ON OF THE COURT
SC IRI CA , Chief Judge
. At issue i s whether the District Court erred i n granti ng summary j udgment for defe ndan ts, the N ationa l Railro ad P assen ger C orpo ration (“ Am trak”) a nd o ther en tities, in this w rong ful de ath/sur vival a ction. W e w ill affirm the jud gm ent of the D istrict Co urt. I. On Novem ber 24, 1999, the decedent , si xteen-y ear-ol d Barbara Ann Laurie, was struck and k illed by an Am trak train . On that da y, the dece dent a nd h er fifte en-year-o ld brother celebr ated her

sixt eenth bi rthdayby skipping schoolto go to Phi ladel phia for t he day. To get to and fr om Philadel phia, theyproceeded acr oss the mai n line of defendant Amtrak’s railr oad trac ks. The acci dent occurred on their return trip, whil e in the Borough of Colwyn. In the vi cinit

y of t he accident , the re are no publ ic st reets or vehicul ar thoroughfares that

cross t he trac ks. Pl ainti ffs all eged that pedestrians fr equentl y cr ossed the tr acks in t

his ar ea and that

Amtrak had documented at least 176 inst ances of unautho rized activity in this area of the tracks du ring the fou r year period befo re decedent’ s death. Around 1977, Amtrak erec ted a fence a long the Phi ladel phia si de of the rai lroad, but at t

he time of t

he accident , the fence was in a st ate of di srepai r with an3

ope ni ng i n the fe nc e thr oug h wh ic h the de ce de ntan d he r b ro th eren te re d the pr ope rty . O n the Colwyn s ide of the trac ks, Amtrak had e recte d “No Trespassi ng” signs at the e dge of a park ing lot. At the acci dent si te, there are four par alle l rai lroad t racks. At the point

where the accident occurred, the tr acks are s everal feet hi gher than t he adjacent

land on the Ph ila de lp hi a s id e o f th e r ail ro ad bu t ap pr ox im ate ly le ve l w ith th e la nd on th e C ol w yn Borough side of t

he trac ks. To get

to the r ailroad trac ks, the decedent a nd her brother walked along a rubble-s trewn areabehind a commerci al proper ty occupied bya beer dist ribut or. Fr om that poi nt, t hey pr oceeded along anarrow but di scerni ble path through thick unde rbrush t o the edge of t he bank of ball ast suppor ting t he railroad tr acks. They then cl imbed up the embankment a nd proceeded on a di agonal path across t he trac ks tow ard their des tinat ion , wh ich w as th e pa rkin g lo t on the C olw yn sid e of the r ailro ad. When the accident

occurred, the decedent was proceeding be tween the r ails of the firs t set of trac ks she encount ered. The t rain approached her fr om an S curve configuration t

hat preve nted her f

rom seeing t

he trai n untilit was cl ose. When she became aware of the oncomi ng trai n, she has tened t o move from its path. Thi nking the trai n was approaching on t he trac k she was occupy ing, s he moved to her l eft, to the
seco nd se t of trac ks, into th e path of the onco ming train. Th e train w as trav eling a t a spe ed b etw een 90 a nd 1 00 m iles p er h our .4

On No vem ber 1 6, 200 1, plain tiffs filed this w rong ful de ath su it again st Am trak in the Phil adelphi a County Court of Common Pleas. Amtrak removed t o the Unite d States Distri ct Court f

or the Eastern District

of Pennsy lvania . After di scovery , Amtrak fi led a
mo tion fo r sum mary jud gm ent, co ntend ing the dece dent w as a tres passe r wh o w as w ell aware of the obvi ous dangers of walking on a railr oad trac k. Plai ntiff s responded, contendi ng the decedent was a lice nsee who was struck at a permi ssive c rossi ng and that Am trak br each ed its du ty of care by not fe ncing or pa trolling th e area of the accid ent, wh ich w as kn ow n to b e dan gero us. Pla intiffs a lso filed a sup plem ental o ppo sition to Am trak ’s m otio n. On M arch 3, 2003, the schedul ed tri al dat e, the District Court heard oralargument on Amtrak’s moti on. In r esponse t o a questi on from the Court , pla inti ffs’ attorney ackn ow ledge d that p laintiffs we re no t assertin g a cla im tha t the en ginee r wa s neg ligent in operati ng the tr ain. Postponing t he tri al, the Dist

rict Court permit

ted furt her bri efing on whether the accident

sit e could be cons idered a permissi ve crossi ng when Am trak had erect ed a fence to ke ep people off t he trac ks, and whether

Amtrak had breached a duty of care, assuming a permissi ve crossi ng existed. Pla inti ffs submitted a suppl emental respo nse in wh ich the y alleged the A mtrak engin eer w as ne gligen t beca use h e blew his horn onlyafter

he saw the decedent , ins tead of bl owing it bef ore he came to a

permissi ve crossi ng.5

The Distri ct Court gr anted the motion for summary j udgment and entered jud gm ent in fav or o f A mtra k an d th e oth er d efe nda nts. Laurie v. Amtrak , 2003 U.S . Dist. LE XIS 491 0, *9 ( E.D . Pa. M ar. 11, 2 003 ). The Distric t Cou rt stated it w as “d oub tful” that t he evidence s upported a f inding of a

“permiss ive cros sing” but decli ned to rul e on the matter bec ause it was a “factual issue” inapprop riate for resolution at the su mm ary jud gm ent s tage and bec aus e it w as n ot n ece ssar y to do so f or re solu tion of th e ca se. Id. at *5-6. The Dist

rict Court held t

hat even i f the acci dent si te were a permissi ve crossi ng, the evidence was not

suffici ent to prove wanton reckl essness or ordi nary neglige nce under Pen nsylv ania law
. Id. at *6. The Court stated plainti ffs had not al leged that “anyacti on or inact ion by those oper ating t he trai n . . . was negligent .” Id. The Court found, i nstead, that pl ainti ffs all eged that Amtrak should have f

enced and poli ced the area to pre vent
cro ssin gs. Id. at *7. U nder Pen nsylvan ia law , the C ourt h eld A mtrak had n o du ty to fen ce o r pa trol th e are a. Id. at *7-8. Th e Cou rt also held A mtrak ha d no du ty to warn dec ede nt o f da nge rou s co ndi tion s of wh ich s he h ad r eas on t o be aw are. Id. at *8. Plaintif fs filed a mo tion fo r recon sidera tion, claim ing the Distric t Cou rt failed to consider their supplementa l res ponse before gr anting s ummary judgment . The District Court denie d the moti on, st ating i t had “spec ific ally considered the suppl emental argu men ts subm itted by Pla intiffs b efore issuing the O rder g ranting sum mary jud gm ent to1 The Distri ct Court ha d juri sdiction under 28 U.S. C. §§ 1331, 1349 becaus e the action

was f iled against A mtrak, and the federal g overnm ent ow ned m ore than ha lf of A mtrak’s Ca pital stoc k. See Foster v . Nat’l Fire, Marine & Inland Ins. Co. , 986 F.2d 48, 51 (3d Cir. 1993) . We have juri sdiction under 28 U.S. C. § 1291. Ou r rev iew of a n or der gra ntin g su mm ary jud gm ent is plen ary. Estate of Zimmerman v. Southeastern Penn. Trans p. Auth. , 16 8 F
. 3d 68 0, 68 4 ( 3d Ci r . 19 99 )
. We applythe same l egal st andard used bythe Dist rict Court, whic h is a determination of whether the evidence i s such that a rea sonable j ury could ret urn a verdi ct for t

he nonmoving party

with allevidence bei ng viewed in a l ight most favorabl e to the non-moving par ty. Hullett

v. Towers, Perrin, Forster & Crosby, I nc. , 38 F.3d 1 07, 111 (3 d Cir. 199 4). 6 Defendants. ” Laurie v. Amtrak , No. 01-6145 ( E.D. Pa. fi led May 1, 2003). Pl ainti ffs timel y appea led. 1 II. As state d, the parti es disa gree over whether the route tr aveled bythe decedent was a “permiss ive cros sing. ” In Henry v. Pennsylvania Rail road Co. , 84 A.2d 675 (Pa . 1951), the Pennsy lvania

Supreme Court defi ned “permiss ive cros sing” as an express ed or imp lied l icen se to pas s ov er th e pr ope rty of a not her
. Id. at 677. In order to quali fy as a pe rmi ss iv e c ro ss in g, “[ i] t m us t b e r es tric te d t o a wel l- de fi ne d l oc atio n a nd m us t b e s how n to be used frequentl y, continuous ly , and not oriousl y bythe publi c.” Id. W heth er a p erm issiv e cro ssin g ex ists is a fac tual i ssu e. See G aul v. C onso l. Rail Corp. , 556 A.2d 892, 894 (Pa. Super . 1989). We agree with the Distri ct Court “ that t he evidence i s not so compl etel y one- sided as to permit resol ution of t

hat fact ual is sue on a motion for s ummary judgment .” Lau rie , 2003 U.S. Dis t. LEXIS 4910, at *6. But as t

he7

Distri ct Court c orrectly found, the resol ution of t his matter does not

depend upon whether a pe rmis sive cro ssin g ex isted at the acc iden t loca tion
. Id. For s um mary jud gm ent pu rpose s, we will ass um e the d eced ent w as a lice nsee with imp lied p erm issio n to cro ss th e trac ks. N one thele ss, su mm ary jud gm ent w as sti ll pro per . At a permiss ive cros sing, a “rai lroad i s subjec t to a dut y of care comparable to that requir ed of it

at regul ar cros sings. ” Henry , 8 4 A. 2d at 6 77. But und erPen ns y lv an iala w, the e vid enc e he re ca nno t pro ve a bre ach of th e du ty of c are. Plaintiffs al leged Amtrak br eached it s dutyof care owed to dece dent as a l icensee at a p erm issiv e cro ssin g by n ot fe ncin g or patr ollin g th e are a w her e de ced ent w as k illed
. As the District Court

noted: “ [P]lai ntiff

s argue si multaneousl y that the decedent had Amtrak’s permissi on to cros s it s propert y . . . but that Amtrak was negligent in not preventi ng her and othe r members of the public f rom crossi ng the tr acks.” Lau rie , 2003 U.S. Dist . LEXIS 4910, at *7. Un der P enns ylvania law , Am trak ha s no d uty to erec t or ma intain f ence s on its rig ht -o f- w ay. Scar boro ugh v. Lew is , 565 A.2d 122, 126 (Pa. 1989) (“[I] t long has been held that a railroad h as no du ty to erect fences on its right-of-w ay to deter trespassers.”); Dugan v. Penn. R.R. Co. , 127 A.2d 343, 348 (Pa. 1956) (explai ning that requiring rai lroad companies t o erect

fences would be t oo great of a burden). Nor does Pennsy lvania law req uire a rail roa d to pos t gu ard s or to pol ice tr ack s to p rev ent tr esp assin g. Id. at 349 (“We have been refer

red to no ca se where a court has gone so far

as to r equire a

railroad2 Plaintiffs al so all eged that even if decede nt were ass umed to be a trespasser , Amtrak breached i ts duty of care by ac ting wil lfull y and wantonly t oward tres passers on its right of way. Pl ainti ffs detai l Amtrak’s knowledge of pedest rians using that are a of the t rack as a shortcut. They cont end Amtrak had noti ce of the obvi ous ris k of injury t o pedestrians who crossed the tracks but conti nued to operate high s peed trains without mending the fence or policing the area. But as st ated, Amtrak had no duty to take such measures. 8 com pany to p atrol its trac ks or p olice its train s with a suf ficien t num ber o f gu ards to prev ent ch ildren f rom attem pting to boar d them .”). Ac cord ingly, the D istrict Co urt did not err in holdi ng that Amtrak had no dutyto fence or police the acci dent are a. 2 Amtrak may have a dut y t o warn lice nsees about dangerous condi tions of which they a re u naw are. See Rossino v. Kovacs , 718 A.2d 755, 757 (Pa. 1998) (citing Res tatem ent (S econ d) of Torts § 34 2). Bu t “[t]he re is no duty to w arn o f that w hich is obvious. ” Di Marco v. Penn. R.R. Co. , 183 A. 780, 781 (Pa. 1936) . Record evi dence demonstrated that

the si xteen-y ear-ol d decedent was aware t hat walki ng down an active railroad used by high-speed trains was potential ly hazardous. Her father testi fied that he had told hi s chil dren it

was dangerous t o cross t he trac ks and that

his chi ldren “knew bette r than t o playon the tr acks.” The dec edent’s brother confirmed that his parents had told them it was dangerous to cross the tr acks. III. Plaintiffs al so contend Amtrak breached it s dutyby fai ling to operate the tr ain in a safe fashi on because the engineer alle gedlyviolated Amtrak’s oper ating r ules byfail ing3 In granting the motion for s ummary judgment , the Distri ct Court s tate d: “Plai ntiff s have not al leged, and do not now contend, that any act ion or i nacti on by those operating the tr ain which st

ruck the de fendant was negl igent. ” Lau rie , 2003 U .S. Dist. LEX IS 4910, at *7. But i n their

Third Supplement al Response, plaint iffs di d contend the engin eer fa iled to so und the ho rn w hen th e train a ppro ache d a cro ssing. R egard less, in the Dist rict Court’s de nial of

the moti on for recons iderat ion, t he District Court

stated that it had “specifica lly considered the supp lemental argu ments su bmitted by Plaintiffs be fore issui ng the Order gr anting s ummary judgment to Defendants .” Laurie v. Amtrak , No. 01- 614 5 (E .D. P a. file d M ay 1, 2 003 ).
4 The relevant portion of the oral argument transcript follows: THE C OUR T: And you don’t have a clai m here that

the engi neer was neglig ent, do you? Y ou d idn’t alle ge tha t. [PLAINT IFFS’ ATTY]: Well, the engineer has not been pr oduced for deposition, desp ite - - THE C OUR T: I didn’ t ask t hat. I asked i f you made anyclai m that he was negligent. I don ’t see anything in the com plaint - - [PLAINT IFFS’ ATTY]: No. TH E C OU RT : - - that says tha t. [PLA INT IFFS’ A TTY ]: There’s no thing in the com plaint, your Hono r. THE C OUR T: The onlyneglige nce you’ re all eging is the fai lure to fence the - - or failure to block off the cro ssing or - - [PLA INT IFFS’ A TTY ]: And a failure to patrol the area , to keep trespasse rs of f th e p ro pe rty. App. 241-42. D efendants also note there is no mention of that l iabili ty t heory in plai ntiffs’ inter rogatory ans wers, the report of thei r rai lroad s afetyexpert, or thei r fir st and se cond responses to Amtrak’s summary j udgment motion. 9 to sound the trai n’s horn bef ore approac hing a cros sing. Defendants res pond plaint iffs added this new theory of liabil itytoo late in t he proceedings. 3 Defe ndants co ntend plaintiffs’ T hird Sup plemen tal Respon se to Am trak’s summary j udgment motion was the firs t ti me plaintiffs al leged the Amtrak engineer was neglige nt in fa ili ng to sound t he horn. Defendant s note t hat at oral argument before t

he District Cou rt, plaintiffs disavow ed any claim of negligenc e by the enginee r. 410

Plaintiffs r espond that

in their complai nt in s ecti on 37, the y pl ed: The injuries and r esulting damages t o the plainti ff’s decede nt Barbara Ann Laurie, were caused as a direct and proximateresul t of the neglige nce and liability-prod ucing cond uct of defe ndan t, AM TR AK , its agen ts, osten sible agents, servant s, and/or employ ees, which i nclude the foll owing

. . . (d) Fai lure t o enforce the existing laws r egarding pe destrian cros s over of the railroad tracks.

. . . (f) Fai lure t o adequatel y warn the generalpopulati on of the danger s of pedestrian cross over of the rai l road tracks. App. at 25-26. They cl aim thesealle gations fairl y pl aced at i ssue the neglige nce of Am trak ’s en gin eer in failin g to sou nd t he h orn . Defendants res pond that s ecti on 37 does not menti on any negl igence bythe engineer, let

alone negligence involving a failure to sound a horn. For those reasons, secti on 37 did not put

them on noti ce that

engineer neglige nce was at i ssue. We agree that section 37 f ails to encom pass neg ligence by the eng ineer in failing to sou nd the ho rn as the t rain appr oached a cros sing. Accordingly , in pl ainti ffs’ Third Supplemental Respo nse alleging en gineer neg ligence, they introduced a new theory of liability. In doi ng s o, th ey w ere e ssen tially trying to am end their com plain t. We review a dist

rict court’ s refusa l to al low plaint iffs t o amend their

complaint

for abu se o f dis creti on. Cureto n v. Nat’l C ollegiate Athletic Ass’n , 252 F.3d 267, 272 (3d Cir. 20 01). A district co urt ma y deny leav e to am end a com plaint if a plaintiff ’s dela y in
see kin g am end me nt is u ndu e, m otiv ated by ba d fa ith, o r pre jud icial to the o ppo sing par ty. Id. at 272-73. Courts have bee n reluct ant to a llow plai ntiff s to add new theories of11

liabi lity afte r sum ma ry judg me nt ar gum ents hav e be en c om plete d. See Spezial e v. Beth lehem Area Sch. D ist. , 266 F. Su pp. 2d 36 6, 371 n.3 (E .D. Pa. 200 3) (“Plaintiff’s
counse l cannot reaso nably expect to am end the co mplaint after the c lose of disco very merely by raising new argum ents in the respo nsive pap ers” to a mo tion for sum mary judg men t.); OTA Ltd. P’ship v. Forcenergy, Inc. , 237 F. Supp. 2d 558, 561 n.3 ( E.D. Pa. 2002) (hol ding that

a new claim that was fir st raised i n opposition to a motion for
sum mary jud gm ent w as “too late”); Bulkoskiv. Bacharach, Inc. , 1 F. Supp. 2d 484, 487 (W.D. Pa. 1997) (holdi ng that a fter asummary j udgment argument, “[i]t is t oo late for plain tiff to cha nge his th eor y of th e ca se” ), aff’d , 149 F .3d 11 63 (3 d C ir. 1998 ) (table decision). Here, earlier

in the proceedings, plaint iffs had ac cess t o the decedent ’s brot her and to other engineer s on the t

rain who could i nform plai ntiff s when the operat

ing engine er firs t sounded t

he horn. Accordi ngly , pla inti ffs knew or should ha ve known that the engin eer fa iled to so und his ho rn as h e app roach ed a c rossing . Yet p laintiffs wa ited un til after the summaryjudgment hearing to al lege engi neer negl igence. Moreover, an amendment here would re sult in addit ional di scovery , cost , and preparati on to defend against the new theory of engine er negligenc e. Am trak defen ded the ca se in discove ry and prepare d for the s cheduled t rialon the rea sonable as sumption t hat engi neer neglig ence wa s not a t issue. B ecau se of und ue de lay and p rejudic e, the D istrict Co urt did12

not abuse i ts di scretion in refusing t o allow plainti ffs to as sert their engineer neglige nce theoryof liabili ty at such a l ate st age. IV. For th e fore goin g reas ons, w e w ill affirm the jud gm ent of the D istrict Co urt.