Two men injured while trespassing at a railyard were awarded $24.2 million in damages by a jury that found Amtrak and Norfolk Southern Corp. liable for failing to warn of the dangers of overhead power lines.

Under the “attractive nuisance” theory of premises liability, a property owner can be held liable for injuries to trespassing children when the owner “fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” The theory usually applies to children not more than twelve years old.

The negligence case of Jeffrey Klein and Brett Birdwell was a bit of a stretch because they were 17 when they were shocked in August 2002 by an electrified catenary wire above a Norfolk Southern freight car at the Amtrak yard in Lancaster, Pa. They had climbed onto the roof of the car to admire the view of the city.

“[A]n extensive search of Pennsylvania case law has failed to produce a case where [attractive nuisance] was successfully applied to a 16- or 17-year-old plaintiff,” Amtrak lawyers argued.

But a federal jury awarded $17.4 million to Klein, who was burned over 75 percent of his body, and $6.8 million to Birdwell, who suffered burns to 10 to 19 percent of his body. Amtrak was found 70 percent liable and Norfolk Southern 30 percent liable.

The plaintiffs “had no idea there was an uninsulated 12,500-volt wire, which was totally unnecessary to be charged [at that time],” their attorney, Joseph F. Roda, told the Lancaster Intelligencer Journal. “Both Amtrak and Norfolk Southern knew a lethal danger existed but failed to post any warning signs.”

According to a plaintiffs' expert, catenary wires, which power locomotives, are a “hidden killer” because they can inflict a lethal shock due to “arcing” whereby voltage jumps from the source to a grounded object. Klein was shocked without touching the wire and Birdwell was injured trying to help his friend.

Federal regulations require that only the railroad owner's identifying mark and the freight car's number and manufacturing date be permanently stenciled on each side of the car. But Roda claimed the defendants could have put temporary signs either adjacent to or on the cars parked in the yard.

U.S. District Judge Lawrence F. Stengel denied a defense motion for summary judgment in March, finding, among other things, a triable issue as to whether the plaintiffs' youth excused their failure to recognize the risk of the overhead power line.

“The plaintiffs have presented some evidence that seventeen year-old males generally do not have fully mature brains, and as such can not fully control their impulses or appreciate some risks,” he noted in his opinion.

The reaction of some Intelligencer Journal readers to the verdict was scathing. “You break the law, get burned, and get millions because there was a hazard on the property on which you trespassed?” fumed one. “What kind of message does THIS send?”

But “attractive nuisance” is a clear and established exception to the general rule that a landowner owes no duty to a trespasser.

The verdict breaks down as follows:

By Matthew Heller
11/7/06