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2008 Cases Pennsylvania: Railroad, Premises Liability

Pennsylvania electrical injuries: high voltage line, railroad car and track, premises liability, punitive damages.

In March, the United States District Court for the Eastern District of Pennsylvania issued an opinion in Klein v National Railroad Passenger Corp. [Amtrak], case no. 04-955.

Two boys had been skateboarding, and 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 Amtrak in Pennsylvania. Once on top of the railcar, the two boys were severely burned by arcing electricity from a high voltage catenary wire which ran along the tail track and above the cars.

The case against Amtrak was a premises liability claim, presented to the jury on two theories: (1) the duty of a landowner to a trespasser; and (2) whether the attractive nuisance doctrine applied.

Under Pennsylvania law, a landowner’s duty of care to one who enters upon the land depends upon whether that person is

a trespasser (no permission),
a licensee (permission to enter), or
an invitee (invited for the benefit of the landowner).

The boys were trespassers on land owned by Amtrak, since no one had given them permission to go onto the track or climb up on the rail car to look around. The duty generally owed by a landowner to a trespasser is to refrain from willful or wanton misconduct.

Amtrak should have realized that pulling the laddered Norfolk Southern car under the energized catenary line, in a densely populated mixed residential-commercial-industrial area, was an unreasonable act in disregard of a known risk that would likely put someone in grave peril.

To prove “wanton misconduct” it was necessary for the plaintiffs to show that Amtrak knew of the risk that led to their injuries. The jury was given information hat Amtrak appreciated the specific risk of harm to persons like the injured boys:

Evidence of pervasive graffiti in the area,
Reports of other trespassers,
The presence of numerous schools in the vicinity,
The urban setting suggesting that pedestrian traffic was well known, and
Amtrak’s long time awareness that teenage boys are inclined to climb parked boxcars.

Amtrak knew that trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars.

The presence of high voltage lines above a parked railroad car and the phenomenon of arcing electricity are not well known to the public. These dangers are not obvious and Amtrak provided evidence that the dangers are not obvious. Amtrak regularly educates, and re-educates, its experienced employees about the dangers of catenary wires. The dangers were under-appreciated so Amtrak provided on-going training to experienced employees.

Plaintiffs’ lawyer introduced a government report by the Federal Railroad Administration and the Federal Highway Administration:

“Catenaries are the overhead wiring systems used to carry energy to electric locomotives. Catenary accidents may or may not involve trains. All of the catenary accidents in the sample data involved juveniles and all resulted in serious injury or death. Minor catenary accidents are rare because all of them result in severe electric shock, and there is a strong probability that a fall from the top of a boxcar will follow. While there may be a general awareness of danger associated with catenary systems as with power lines, few people outside the railroad industry are aware that the electrical potential is so great that shocks can result without actual contacting of the wire.”

Amtrak claimed that the plaintiffs’ accident was unforeseeable. Whether Amtrak had reason to know that the catenary wires posed an “unreasonable” risk of bodily harm and the question of foreseeability were questions for the jury. Evidence supported the finding that Amtrak was aware of that risk:

Plaintiffs introduced evidence of Amtrak’s attorneys writing about similar accidents and anticipating that more accidents would occur again;
There was evidence of the federal government warning railroads about such risks; and
There was evidence of Amtrak’s renegotiating its liability agreement with Conrail to spread the risks of these boxcar catenary wire burn cases.

The jury heard testimony that neither plaintiff knew what catenary wires were or understood their risks, especially the risk of arcing. Their families had not discussed high voltage with the boys. Neither boy had been taught in school about catenary lines or high voltage.

The Jury awarded punitive damages that were upheld by the Judge. The opinion outlined the requirements for a punitive damages award under Pennsylvania law.

Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts and accompanying comments regarding the imposition of punitive damages:

“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others, in assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff, that the defendant caused or intended to cause and the wealth of the defendant. Restatement (Second) of Torts Section 908(2).”

Under the rule in the Restatement, punitive damages may be awarded when the defendant acted in an outrageous fashion due to either “the defendant’s evil motive or his reckless indifference to the rights of others.” Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1096 (Pa. 1985) (rev’d on other grounds). In Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), the Court found that punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in a fashion “so outrageous as to demonstrate willful, wanton or reckless conduct”).

A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. A showing of mere negligence, or even gross negligence, is not enough to prove that punitive damages should be awarded. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 705 (Pa. 1991).

Under these cases the Court held that the evidence supported a punitive damages award.

The Judge was not impressed with the defendant companies’ argument that the jury verdict should be disregarded, and he wrote

“Norfolk Southern obviously finds it necessary and proper to educate regularly its experienced workforce in the danger of catenary wires. To argue that the general public, or in this case, two teenage boys, should fully appreciate the dangers of getting close to a catenary wire is ridiculous. The jury heard the evidence on continual training by Norfolk Southern and Amtrak. The jury saw this defense for what it was: an attempt to hold these plaintiffs, and the public, to a standard that neither defendant applied to its own experienced and educated employees.”

In the first 6 months of 2008, there were a few other reported cases of interest involving electrical accidents. Over the next few weeks these will be commented upon here.

Beyond Workers Comp – Additional Claims

By ElecLaw

Electrical accidents on the job

A construction site can be dangerous. One contractor may set up a dangerous situation and a worker can be injured or killed by electrocution. If the person injured or killed was on the job, then he will be covered by workers compensation. The advantage of a workers compensation claim is that the injury is covered with no need to show that anyone was at fault or negligent, and the worker is covered even if the worker was negligent. The disadvantage is that the amount paid out is low, and the statute is a bar to any additional claim against the employer.

There can be additional claims, beyond the workers comp claim, against other companies in the case of a job site injury.

For example, the injury could have been caused by dangerous equipment. This is called a products liability claim.

In addition, there can be an Employers Liability Act claim (sometimes called an Employers Liability Law claim). Oregon law provides that the ELA law applies generally as follows.

Before Employer’s Liability Act can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situation where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situation in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing activity is performed. Miller v. Georgia-Pacific, 294 Or 750, 662 P2d 718 (1983)

Here is the general provision requiring every care, even when expensive:

Oregon Revised Statutes 654.305 Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.

In applying the ORS 654.305 requirements, “Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998).

All owners and companies involved must comply with the ELA safety requirements:

Oregon Revised Statutes 654.310 Places of employment; compliance with applicable orders, rules. All owners, contractors, subcontractors, or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.
Oregon Revised Statutes 654.315 Persons in charge of work to see that ORS 654.305 to 654.336 are complied with. The owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, shall see that the requirements of ORS 654.305 to 654.336 are complied with.
Oregon Revised Statutes 654.320 Who considered agent of owner. The manager, superintendent, foreman or other person in charge or control of all or part of the construction, works or operation shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.

The law is well established that there are 3 ways a company can have liability for an injury on the job: To recover under Employer’s Liability Act against person other than injured worker’s employer, injured worker must establish that defendant had

actual charge of plaintiff’s work; or
had right to control manner in which plaintiff performed that work; or
that defendant and plaintiff’s employer were engaged in work on common enterprise.

Torres v. US National Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construction Co., 202 Or App 577, 123 P3d 338 (2005).

If you or a loved one had a serious injury or death on the job, you should consider whether additional companies, beyond the employer, have liability. If a free consultation would help you evaluate additional claims, see the contact page.

Aluminum extension ladders should Not be sold

By ElecLaw

Aluminum ladders up to 40 feet extended are sold at home improvement stores. These are 20 feet long when not extended. A 32 foot aluminum ladder costs about $320 while a 32 foot fiberglass ladder is heavier and costs $30 more, about $350. Aluminum ladders conduct electricity. Fiberglass ladders are much safer.

The minimum clearance from a high voltage power line to the ground is 18.5 feet under the National Electrical Safety Code. See rules 232 and 234. If the installer makes a mistake, the power company lines can be too close. See for example the official findings after a Kentucky electrical accident: www.psc.state.ky.us/order_vault/Orders_1989/198900258_09191989.pdf

Also, tree growth can hide power lines. See National Electrical Safety Code Rule 218 on tree trimming.

As a consequence of the cheaper cost (and lighter weight) of aluminum ladders, several workers are killed by electrocution every year in the United States.

A government study pointed out, “Ladder contacts with power lines usually occurred during erection, lowering, or relocation of the ladder.” A typical case: the power lines are obscured by nearby trees, the wind is blowing, someone is painting a small apartment building and needs to move the ladder. To work quickly, the ladder is left extended while moving it. The ladder tilts or is blown, and touches the power line. The electric shock instantly kills or maims the worker.

In a North Carolina accident,

“The victim and his coworkers were painting several two-story townhouses. While the worker was repositioning his 28-foot metal extension ladder (which was extended to 26 feet), the ladder contacted the overhead power line located approximately 16 feet from the painting operation … . Several seconds later, the foreman heard a buzzing sound and saw the victim gripping his ladder before falling to the ground. The victim was pronounced dead in the hospital emergency room.”

Under the laws of some states and some Federal laws, the employer and those engaged in a common enterprise have a duty to use safe equipment. Can anyone believe that aluminum ladders near high voltage lines are safe, just because there is a warning? One government study recommends

“Employers, workers, general contractors, and ladder manufacturers should take the steps outlined in the following sections to protect workers while working around overhead power lines. Many of these steps are required or suggested by Occupational Safety and Health Administration (OSHA) regulations. … Eliminate the use of metal ladders near energized overhead power lines.”

Even a 28 foot aluminum ladder is long enough to contact a power line sagging to 18.5 feet off the ground. It seems to me that the aluminum extension ladders should never be sold, because they will end up being used in the wrong place. If you buy a ladder, please buy a fiberglass ladder whether it is a fiberglass extension ladder or a fiberglass stepladder and ensure that your ladder will never be part of a devastating accident.