Date: 01-16-2007

Case Style: Jeffrey Klein and Brett Birdwell v. National Railroad Passenger Corporation (Amtrak) and Norfolk Southern Corporation

Case Number: 04CV955

Judge: Lawrence Stengel

Court: United States District Court for the Eastern District of Pennsylvania, Philadelphia County

Plaintiff's Attorney:

Joseph F. Roda and Jennifer S. Snyder, RodaNast, Lancaster, Pennsylvania and

Defendant's Attorney:

Paul F.X. Gallagher, Gallagher and Rowan, Philadelphia, Pennsylvania

Description:

Plaintiffs Jeffrey Klein and Brett Birdwell lived in Stroudsburg, Pennsylvania, and were visiting Klein's mother and stepfather in Lancaster. On August 10, 2002, they went skateboarding in the neighborhood, and at about 10:00 p.m. came to the parking lot of a former convenience store, at an intersection in a mixed residential/commercial area in Lancaster City. About fifty feet behind the parking lot was a side track of Amtrak, where Norfolk Southern had parked a 29-car train the day before. Amtrak leased the track to Norfolk Southern to park trains there when Norfolk Southern's train yard was full.

The evidence showed that the boys saw the train parked behind the store, that one of the cars had ladders on each corner and a catwalk around the top, and that the boys decided to climb up and see what the view was of the city. There were no drugs, alcohol or vandalism involved.

Unknown to the boys was the presence of a fully energized, 12,500-volt catenary electrical wire just six feet above the boxcars. There were no signs of any kind warning of high voltage or electricity, nor even a readily visible "No Trespassing" sign on Amtrak's right of way. Within minutes of the boys' reaching the top of one of the boxcars, an arc of electricity struck Jeffrey Klein, inflicting second and third degree burns over 75% of his body. Brett Birdwell, who was walking behind Klein on the catwalk, went to Klein's rescue, pulling Klein's burning clothes off him, and received second degree burns over 12% of his body.

Klein and Birdwell sued Amtrak and Norfolk Southern for unnecessarily creating a highly dangerous risk to the public, especially teenage boys. Specifically, Plaintiffs alleged Amtrak was liable under Section 339 of the Restatement (Second) of Torts, which governs a landowner's liability to trespassing juveniles. Alternatively, Plaintiffs alleged Amtrak was liable for wanton conduct under the liability standard applicable to adult trespassers. Plaintiffs alleged Norfolk Southern was liable under Section 386 of the Restatement (Second) of Torts, which governs liability of a non-landowner for creating a dangerous condition on the land. Amtrak alleged that Section 339 did not apply because the boys were almost 18 and that it did not violate the limited duty that a landowner owes to trespassers. Norfolk Southern argued that it was not liable under Section 386 because it did not "control" the railcars after they were parked, since Amtrak then had control of them.

At trial, the boys' attorney, Joseph F. Roda, of RodaNast, P.C., Lancaster, argued that the catenary wire should not have been left energized while the train was parked under it and that, at a minimum, there should have been signs warning of the high voltage danger. The train was pulled onto the tracks with a diesel, and no other train could use the tracks, or needed the power from the catenary, while the 29-car train was parked there.

Plaintiffs introduced evidence that both Amtrak and Norfolk Southern know that the dangers of catenary lines are not generally known or obvious to the public, and that both companies, and railroad companies generally, have long required all employees who work in electrified territory to take annual training and tests on the dangers of catenary wires. The training warns them that the catenary lines have dangerous high voltage, that the voltage in the catenary lines is strong enough to "arc" into someone without the person's touching the wire, and that a person should never get onto the top of a boxcar parked under such a line unless the line has been deenergized and grounded.

Evidence was also introduced that the Federal Railroad Administration, in a report to Congress in 1971, warned that the general public was not aware of the dangers of catenary wires, that juveniles in particular were at risk of danger from them, and that the railroad industry should adopt the use of signs (such as with lightning bolts and stickmen) alerting the public to catenary wire dangers. In addition, Plaintiffs introduced evidence that Amtrak used "Danger-Live Wire" signs on two railcars permanently parked underneath a catenary line at Lancaster Train Station.

Plaintiffs also showed the jury internal Amtrak memoranda, as well as testimony from Amtrak officers in federal court in the mid-1980's, which showed Amtrak's awareness of the risk to the public from the combination of parked trains under live catenary wires in urban areas. Testimony at trial revealed that Norfolk Southern had previously removed catenary wires from its train yard, where the railcars would have been stored had there been sufficient area to store them.

*Other details:

-Klein spent 75 days in Temple University's Burn Care Unit, underwent twelve surgeries, and has permanent, severe scars over his burn and graft donor sites, as well as permanent disability from injuries to his left hand and back. Birdwell spent twelve days at Crozier-Chester Medical Center's Burn Unit, and a year recovering. He is now serving in the armed forces in Afghanistan.

Outcome: After an eleven day trial, the jury found Amtrak 70% responsible for the boys’ injuries and Norfolk Southern 30% responsible.

Jeffrey Klein: Past Medical: $340,909.53 Future Medical: $197,981.00 Lost Earning Capacity: $1,600,000.00 Past and Future Non-economic Loss: $9,000,000.00

Punitive Damages – Amtrak: $4,375,000.00 Punitive Damages – Norfolk Southern: $1,875,000.00

Brett Birdwell:

Past Medical: $288,545.27 Past and Future Non-economic Loss: $300,000.00

Punitive Damages – Amtrak: $4,375,000.00 Punitive Damages – Norfolk Southern: $1,875,000.00

Plaintiff's Experts: Liability: Richard Gill, Ph.D., CHFP, CXLT Safety, Warnings and Human Factors Expert Applied Cognitive Sciences Spokane, WA Ruben C. Gur, Ph.D. Expert on Adolescent Brain Development and Traumatic Memory Loss Brain Behavior Laboratory Department of Psychiatry University of Pennsylvania Philadelphia, PA Damages: Jacqueline Fenicle, RN, MSN Burn Care Expert Director of Patient Care Services Lehigh Valley Hospital Allentown, PA Robert P. Wolf, Ed.D., MBA Diplomate, American Board of Vocational Experts Certified Rehabilitation Economist Licensed Rehabilitation Counselor Cherry Hill, NJ

Defendant's Experts: None

Comments: -LENGTH OF TRIAL 11 days -COMPOSITION OF JURY (e.g., gender, race) Gender: 5 female, 3 male Race: 6 Caucasian, 2 African-American

Daniel T. Desmond, Legal Assistant, Roda Nast, P.C., 801 Estelle Drive, Lancaster, PA 17601, Ph: 717-892-3000, Fax: 717-892-1200, ddesmond@rodanast.com

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