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Colon v. Metro-North Commuter Railroad Co.

United States District Court, D. Connecticut

March 13, 2017




         The cities of New Haven and New York have long been connected by a busy railroad line. For many decades this stretch of railroad tracks has also featured “catenary” towers that carry high-voltage electric lines high above the tracks below. The catenary towers are metal, and they are easily climbable with an “X”-like latticework design.

         Plaintiff Milton Omar Colon was severely injured after he foolishly climbed up one of these catenary towers. As he ascended quite high upon the tower, he was suddenly victim of an “arc” electric shock that likely jumped from one of the nearby high voltage wires. He then fell helplessly on top of electrical wires beneath him, where he continued to be agonizingly electrocuted until he was quite miraculously rescued. Plaintiff's injuries include burns over most of his body and the forced amputation of both his legs.

         Plaintiff has now sued defendants Metro-North Commuter Railroad Company (Metro-North) and the Metropolitan Transportation Authority (MTA). He claims that they were negligent (Count One) and that they otherwise engaged in willful, wanton, and reckless misconduct (Count Two).[1] Defendants have filed a cross-claim against third-party defendant United Illuminating (UI). All parties have moved for summary judgment, and some of them have moved for sanctions relating to alleged discovery misconduct.

         For the reasons set forth below, I will deny the cross-motions for summary judgment as to plaintiff's negligence claim, but will grant Metro-North and MTA's motion for summary judgment as to plaintiff's claim for willful, wanton, and reckless misconduct. I will deny UI's motion for summary judgment on the count for contractual indemnification, but will grant it as to the rest of the counts in UI's third-party complaint. Finally, because no party has been irreparably disadvantaged by any other party's discovery misconduct, I will largely deny all motions for sanctions and/or adverse inferences.


         On the morning of March 17, 2011, plaintiff walked up a footpath near the railroad tracks in New Haven, Connecticut. He went up a hill and then into a field, ending at a large circular track where people often ride dirtbikes. Doc. #147, Ex. H. He spotted a family of deer that allegedly piqued his interest, and when the deer fled, plaintiff walked down the hill towards the railroad tracks to try to find them.

         The railroad tracks that plaintiff approached lie in a railroad right-of-way which leads to and encircles the base of Tower #1043, one of many catenary towers along the railroad line. Doc. #181-20 at 28. The State of Connecticut (not a party to this action) owns the tracks, the right-of-way, and the catenary equipment used to power trains on those tracks. Metro-North operates the railroad pursuant to a contract it has with the Connecticut Department of Transportation (CT DOT), and the MTA. Metro-North controls the right-of-way, and it maintains the equipment on the tracks including the towers. The MTA provides a police presence to patrol the right-of-way.

         Plaintiff allegedly had never been on the path leading to the dirtbike tracks, had never been that close to railroad tracks, did not know whether trains actively passed along these tracks, and had never climbed a catenary tower before. But once plaintiff reached the right-of-way, he decided to climb Tower #1043, pictured below, in an attempt to regain sight of the deer.

         (IMAGE OMITTED)

See Doc. #179-1 at 7. The base of the tower had one completely illegible and graffiti-covered warning sign, see Doc. #147, Ex. BB, which plaintiff did not see. Plaintiff looked up at the tower and saw the electrical apparatus, but it was unfamiliar to him. Although plaintiff was 26 years old on the date of his injury, he had a pre-injury IQ of 72, placing him into the category of having a mild intellectual disability and a “functional mental age” of a 14- to 15-year-old teenager.

         To ascend the tower, plaintiff climbed the inherently climbable “X”-like lattice structure. See Doc. #181-20 at 36. Once he got around 20 feet high, he climbed up the truss, which had 3 distinct footholds. He then continued up the lattice structure to a total height of about 45 feet. At that height, he tried to turn around to look for the deer. But an arc flash jumped off the wires near him, and he was electrocuted and lost consciousness. His leg got caught in part of the tower, leaving him dangling backwards over the live wires below him until he was rescued.

         Officer Russell, a representative of the MTA, testified in his deposition that the MTA is aware that people-and especially teenagers-frequent the private dirtbike track on the hill near Tower #1043, that people trespass along the right-of-way east and west of Tower #1043, and that the MTA actively arrests or gives warnings to trespassers in the area and uses extra patrols and enforcement to try to prevent trespassing near Tower #1043.

         Officer Russell also testified that he is aware that Tower #1043 and surrounding towers have graffiti-covered bases and graffiti-covered warning signs, but noted that the MTA had not placed any “no trespassing” signs in the area. Much of the graffiti on the towers is at ground-level-that is, applied by trespassers who did not climb the towers. But a nearby tower-Tower #1041-has graffiti painted as high as 25 feet. See Doc. #181-20 at 21-22.

         Defendants produced reports in discovery of trespasser arrests and other accidents that occurred along the right-of-way over the years. Additionally, in the past 25 years, at least seven non-employees (including plaintiff) have been shocked by catenary towers in Connecticut. Defendants acknowledge that many people do not know that high voltage energy in the power lines can extend out beyond the wires, charging the air around the lines and causing an arc flash that can electrocute a person despite that person's having no contact with the wires. Even the tower itself can hold electric energy that causes electrocution.

         Plaintiff and his wife brought suit against defendants for negligence, wilful and wanton misconduct, and loss of consortium, and defendants, in turn, filed a third-party complaint against UI for apportionment under Conn. Gen. Stat. § 52-572h(o), common-law indemnification, and contractual indemnification. All parties have moved for summary judgment.


         The principles governing a motion for summary judgment are well established. Summary judgment may be granted only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of material fact exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The evidence adduced at the summary judgment stage must be viewed in the light most favorable to the non-moving party and with all ambiguities and reasonable inferences drawn against the moving party. See, e.g., Tolan, 134 S.Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). All in all, “a ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan, 134 S.Ct. at 1866 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

         The parties' cross-motions for summary judgment depend on an assessment of what duty, if any, defendants owed to plaintiff. “The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property.” Salaman v. City of Waterbury, 246 Conn. 298, 304-05 (1998); see also Eichelberg v. Nat'l R.R. Pass. Corp., 57 F.3d 1179, 1183 (2d Cir. 1995) (same); McPheters v. Loomis, 125 Conn. 526, 533 (1939) (noting same principles apply not only to the landowner but “with equal force to one who, though not the owner of the land, is using it under a grant or license from the owner”).

         Although plaintiff claims that he was a licensee or invitee, he does not point to any evidence to create a genuine issue of fact about his status. Not a shred of evidence suggests that anyone invited or licensed him expressly or by implication to be on defendants' land, much less to climb any catenary towers. Plaintiff was unquestionably trespassing upon defendants' land and particularly upon Tower #1043 when he climbed it. I will now discuss each count of plaintiff's complaint in view of his status as a trespasser.

         Count Two - Willful, Wanton, and Reckless Misconduct

         Landowners have certain duties of care even to intruders or trespassers. To begin, a landowner may not intentionally or wantonly try to harm a trespasser. “It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by ‘willful, wanton or reckless conduct.'” Maffucci v. Royal Park Ltd. P'ship, 243 Conn. 552, 558 (1998).

         No reasonable jury could conclude that Metro-North or the MTA intended to or wanted to harm plaintiff. No evidence has been presented about any plan or “design to injure” him or trespassers in general. Dubay v. Irish, 207 Conn. 518, 533 (1988); Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) (homeowner may not set spring gun trap against trespasser). The most that can be said here is that Metro-North and the MTA failed to post warning signs around the towers or otherwise to take more steps to prevent plaintiff from climbing Tower #1043. These omissions fall well short of establishing intentional, willful, wanton, or even reckless conduct. See Dubay, 207 Conn. at 533 (noting that “[w]hile we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing” and that these terms require “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent”); cf. Kurisoo v. Providence & Worcester R. Co., 68 F.3d 591, 596 (2d Cir. 1995) (failure to post “no trespassing” signs not willful or malicious misconduct under Connecticut recreational use law in the absence of intended injury or a “substantial certainty”-not merely a foreseeable risk or even a strong probability-that injuries would result from that failure). Accordingly, because there is no genuine fact issue to suggest that defendants engaged in willful, wanton, or reckless conduct by not taking greater precautions to deter trespassers from climbing catenary towers, I will grant defendants' motion for summary judgment as to plaintiff's claim in Count Two of willful, wanton, and reckless misconduct.

         Count One - Negligence

         As to plaintiff's negligence claim, the law of Connecticut allows for a landowner to be liable even to a trespasser under certain circumstances and even in the absence of willful, wanton, or reckless conduct. ...

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