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Wednesday, August 21, 2019

Connecticut trial pits trespasser against taxpayer-owned railroad

By Daniel Fisher | Aug 16, 2017

NEW HAVEN, Conn. (Legal Newsline) – The facts in Colon v. Metro-North Commuter Railroad are as clear as a jolt from a high-tension power line: Plaintiff Omar Milton Colon trespassed on a railroad right-of-way and illegally climbed high on an electrical pole, where he suffered a shock that left him badly burned and with the loss of both legs below the knees.

Creative pleading and helpful rulings from a federal judge helped Colon and his wife get their case to trial, now in its second week, where a jury may well order taxpayer-owned Metro-North to pay them the $20 million they are seeking.

The case shows how a judge can nudge litigation in a plaintiff’s favor by rejecting common-sense defenses that in most other nations – and some U.S. courts -- would end such a case immediately.

Even U.S. District Judge Jeffrey Meyer acknowledged Colon’s actions were foolish and the plaintiff was “unquestionably trespassing.”

 In a motion for summary judgment, Metro-North also says Colon had received a dose of methadone and purchased marijuana before wandering nearly 1,000 feet into a former dump site to climb the tower. Colon said in a deposition he was trying to get a better view of some deer – a claim that matches with his lawyer’s unexplained description of the former dump site as a “wildlife area.”

Metro-North cited a number of precedents in Connecticut courts and elsewhere to argue it can’t be held liable for Colon’s injuries, because he was an illegal trespasser who assumed the risk of climbing a tower bristling with high-voltage electrical lines.

But Judge Meyer rejected most of Metro-North’s arguments, finding narrow exceptions to allow the case to go to jury.  Meyer’s March 13 ruling provides a concise tour through U.S. tort law and its many innovations designed to allow plaintiffs to find deep pockets – usually a property owner’s insurance policy -- to pay for their injuries.

Meyer, in his ruling, agreed “not a shred of evidence suggests anyone invited or licensed” Colon to trespass on Metro-North’s property. So he dismissed Colon’s claim that Metro-North and local utility United Illuminating engaged in “willful, wanton or reckless conduct.”

But judges long ago eroded the distinction between so-called “invitees” and trespassers when it comes to tort liability.

Under Section 337 of the Restatement of Torts, a property owner can still be liable for a trespasser’s injuries if the property contains an “artificial condition which involves a risk of death or

serious bodily harm,” and the owner knows or should have known that trespassers made a “constant intrusion” upon the land. Property owners also can be liable for the injuries of children who are assumed to be less aware of trespassing laws and risk.

Colon scored on both counts with Judge Meyer. The Metro-North towers holding catenary lines to power its trains were an “artificial condition” with the hidden risk of a high-voltage arc that could zap someone who climbed them, Meyer ruled. He rejected the argument that any reasonable person knows electrical wires are dangerous, saying the arc risk was more like a swimming pool full of hydrochloric acid that a trespasser dives into, thinking it is water.

The judge also allowed the plaintiffs to proceed with a theory of “child liability” even though he was 26 at the time of the accident, citing evidence Colon had “the mental development of a 14- or 15-year-old child.” Connecticut applies child liability up to age 16.

Metro-North argued, unsuccessfully, that there was no evidence of “constant intrusion” on Tower 1043, the one Colon climbed, which was located on an isolated stretch of the railroad next to a filled-in dump. The plaintiffs cited garbage on the ground and graffiti painted on the tower’s warning signs as evidence other trespassers had been in the area and even had climbed the tower. But the Connecticut Supreme Court rejected similar evidence in another case involving a trespasser who electrocuted himself, Metro-North said, where the plaintiff tried to use snipped padlocks to prove the owner should have taken greater measures to protect him from breaking into an electrical cabinet to steal copper wire.

The Third Circuit Court of Appeals, in a 1999 decision, also rejected claims remarkably similar to Colon’s. In Zimmerman v. SEPTA, the court upheld the dismissal of the case of a trespasser who climbed a railroad catenary tower and electrocuted himself, saying neither the “constant intrusion” nor child trespasser exclusions applied. Simply because trespassers entered the area did not impose on the railroad the duty to prevent Zimmerman from climbing 30 feet into a tower and electrocuting himself, the court ruled.

Judge Meyer cited Zimmerman, but only in reference to the child-trespassing claim, saying the Third Circuit decision “runs contrary to plaintiff’s position.” He rejected the idea Metro-North was protected against liability merely because there was evidence some trespassers had intruded onto its right-of-way in the past.

“A reasonable jury could conclude that defendants had reason to believe that the risks of an arc flash created by the electrical wires would not be known to or discovered by trespassers who were known to climb these very towers,” the judge wrote. “A jury should decide whether plaintiff can prove the requisites of liability under the `constant intrusion’ exception.”

That’s exactly what a jury in New Haven is now poised to do. But it’s not clear what a decision against Metro-North will accomplish, aside from compensating Colon and costing taxpayers millions of dollars.

The plaintiff lawyers, in their complaint, say Tower 1043’s diagonal lattice structure was a “ladder system” that presented an unreasonable risk that needed additional safety measures to “prevent uncontrolled access.” There’s no explanation, in the lawyer’s telling of events or the judge’s ruling allowing the case to proceed, of how a railroad could erect physical barriers along its more than 300 miles of track to prevent future trespassers from climbing one of its towers and getting shocked.

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Connecticut Supreme Court U.S. District Court for the District of Connecticut