Filed: Oct. 24, 2012
Latest Update: Feb. 12, 2020
Summary: complaint.it turned out, crossing active railroad tracks.Menard v. CSX Transp., 3, Moreover, the plaintiff in Miller was a minor (age 12), 397, N.E.2d at 342, and Massachusetts law establishes that landowners, owe a higher duty of care to foreseeable child trespassers than to, adult trespassers.
United States Court of Appeals
For the First Circuit
No. 12-1155
MARK MENARD and CAROL E. MENARD,
Plaintiffs, Appellants,
v.
CSX TRANSPORTATION, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Thomas J. O'Connor, Jr. with whom S. Thomas Martinelli was on
brief for appellants.
Andrew E. Tauber with whom Brian J. Wong and Mayer Brown LLP
were on brief for appellee.
October 24, 2012
BOUDIN, Circuit Judge. Mark Menard and Carol Menard
appeal from a district court order dismissing their complaint for
failure to state a claim and denying their motion to amend the
complaint. Mark Menard, whom we refer to as "Menard," was
permanently injured while crossing through a railroad freight yard;
the district court ruled that his complaint against CSX
Transportation, Inc. ("CSX") failed to assert sufficient facts to
overcome his status as a "trespasser" and thereby state a claim
under Massachusetts law.
Menard's version of the accident, which we accept as
true for purposes of the motion to dismiss, is to be taken from his
complaint and, in this regard, we include any elaboration set forth
in his proposed amendment. Bos. & Me. Corp. v. Town of Hampton,
987 F.2d 855, 868 (1st Cir. 1993). The amended complaint was
disallowed only because it was deemed futile; and, as we assume it
would otherwise have been allowed since it was the first attempted
amendment, its added factual allegations will also be taken as
true.
In July 2008 Menard lived in West Springfield,
Massachusetts, near a rail freight yard owned and operated by CSX,
and he regularly walked across the rail yard on his way to and from
his home, as did others who lived in the area. This included, as
it turned out, crossing active railroad tracks. Heading home on
July 30, 2008, Menard entered the rail yard; he says that at least
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three CSX employees saw him enter, he made eye contact with some
and none told him to leave. Menard says that signs did not clearly
warn him of the dangers of entering the yard but does not deny
knowing that it was railroad property used to switch and store
trains.
Once inside the rail yard, Menard saw several trains on
different tracks, including one train on the track nearest to him
that was moving very slowly under the control of an engineer and
the guidance of a conductor on the ground. Menard made eye contact
with both. Neither warned him to leave although the conductor
waved his right arm, apparently to indicate that Menard should move
in one direction. Menard continued to walk across the rail yard
until, at some point, his right foot was pinned as an activated
rail switch moved a segment of track.
With his foot crushed and in great pain, Menard freed
himself and staggered about 30 feet, where he was struck by an
oncoming train. Grabbing the train to prevent being dragged under
it, he nevertheless ultimately fell under the train and his left
leg was severed, his left arm was badly damaged in the encounter
and his right foot was later amputated. In May 2011, just under
three years after the accident, Menard and his mother, Carol
Menard, filed a complaint in Massachusetts state court against CSX,
which the latter removed to federal court based on diversity.
-3-
One count of the complaint asserted both a recklessness
claim and a negligence claim on Menard's behalf; the other count,
for Carol Menard, is for loss of consortium and, having been
abandoned on the appeal, needs no discussion here. CSX answered
and moved to dismiss for failure to state a claim. Menard moved to
amend the complaint, adding more detail and separating his own
prior count into two: a negligence claim and a separate claim
charging "willful and wanton conduct" by CSX.
Thereafter, the district court ruled that Menard was
indisputably a trespasser in the rail yard so that the only duty
that CSX owed to Menard under Massachusetts law was a duty to
refrain from willful, wanton or reckless conduct--with one
qualification, namely, that state law imposes a duty of reasonable
care on the property owner where a trespasser is in a position of
"peril" inside the property and his presence is known to the owner.
Menard v. CSX Transp., Inc., 840 F. Supp. 2d 421, 424 (D. Mass.
2012).
Given this legal framework, the district court held that
the initial complaint failed to state a claim and that the facts
alleged in the proposed amended complaint, accepted as true, also
failed to do so: they did not allege that any employee knew that
Menard was in the vicinity of the switch or otherwise in a position
of peril; and, even if a CSX employee did see Menard staggering
across the rail yard after he freed himself from the switched
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rails, Menard alleged no facts to suggest that any reasonable steps
were available to CSX to protect Menard from being struck or
falling under the train. Id. at 424-28.
On Menard's appeal, this court reviews the dismissal de
novo, accepting allegations of fact but not "conclusory legal
allegations (which need not be credited)." Morales-Cruz v. Univ.
of P.R.,
676 F.3d 220, 224 (1st Cir. 2012). The district court
correctly stated Massachusetts law: a trespasser is generally
protected only against willful, wanton or reckless conduct by the
owner save that an owner, if aware of a trespasser who is in a
position of peril, must take reasonable steps to avert injury to
the trespasser.1
The qualification, of some importance here, is more
precisely reflected in one of the earlier cases, Pridgen v. Boston
Housing Authority, 308 N.E.2d 467 (Mass. 1974); there the court
held that the trial judge correctly instructed jury that
1
Schofield v. Merrill, 435 N.E.2d 339, 340-341 & n.2 (Mass.
1982) ("trespasser is entitled to no greater duty of care
from . . . the landowner . . . than that he refrain from wilful,
wanton or reckless disregard for the trespasser's safety," although
"reasonable care" is owed to trespassers who are known to be in a
"position of peril" and (by statute) to "certain foreseeable child
trespassers"); accord Boyd v. Nat'l R.R. Passenger Corp., 845
N.E.2d 356, 362 (Mass. 2006) (railroad not liable for negligence in
causing the death of a trespasser but "can be held liable for
damages if the conduct of its agents that caused such death was
wilful, wanton, or reckless"); McDonald v. Consol. Rail Corp.,
502
N.E.2d 521, 523-25 (Mass. 1987) (general rule is that landowner's
only duty to adult trespasser is to refrain from willful, wanton
and reckless conduct).
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although an owner or occupier of land owes a
trespasser only the duty to refrain from
wilful, wanton or reckless conduct, where a
trespasser is in a position of peril or in a
helpless situation and his presence becomes
known, the owner then has a duty to use
reasonable care to avoid injuring him.
Id. at 474.
The common law rule limiting liability to trespassers,
Restatement (Second) of Torts § 333 (1965), has been modified in
some jurisdictions to require landowners to exercise "reasonable
care under all the circumstances in the maintenance and operation
of their property," e.g., Ouellette v. Blanchard,
364 A.2d 631, 634
(N.H. 1976); accord Rowland v. Christian,
443 P.2d 561, 566 (Cal.
1968), superseded in part by Cal. Civ. Code § 847 (West 2012), or
reasonable care when the landowner "know[s] that the presence of
trespassers is to be expected," e.g., Eichelberg v. Nat'l R.R.
Passenger Corp.,
57 F.3d 1179, 1183-84 (2d Cir. 1995) (Calabresi,
J.) (citation omitted) (stating Connecticut law).
Indeed, the Restatement itself softens the common law
rule by yet another variation, creating liability for failure to
exercise "reasonable care" for the safety of trespassers when a
landowner "knows" or "should know" that "trespassers constantly
intrude upon a limited area" of his property. Restatement (Second)
of Torts § 334. But in Schofield, the Supreme Judicial Court,
finding the arguments for abolishing the common law rule to be
"unconvincing," squarely rebuffed a proposal by the dissenters to
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extend the duty of reasonable care to known or likely trespassers.
Compare 435 N.E.2d at 344 (majority opinion), with
id. at 345-47
(Liacos, J., dissenting).
Menard's broadest position is that railroad employees
were aware that he had entered the rail yard and, knowing that such
a yard is a place of danger, they acted both negligently and
willfully, wantonly and recklessly in failing to warn him off the
property. As to danger there can be no doubt: an active railroad
yard hosts a number of interconnected track segments and multiple
trains are liable to be moving at the same time. Menard himself
can hardly have been ignorant of these hazards since his complaint
alleges that he crossed through the yard with some regularity.
In any event, if Menard is deemed a trespasser, the duty
owed to him--unless and until a specific peril threatened him and
this became known to CSX--was only to avoid willful, wanton or
reckless conduct. Whatever the risk in crossing a railroad yard,
the dangers of injury in this case were apparently not so severe as
to prevent regular crossings of the yard by Menard and others like
him. Absent aggravating circumstances, the case law in
Massachusetts makes clear that an adult who chooses without
permission to trespass upon railroad tracks is not entitled to
recover.2
2
See, e.g., Montes v. Mass. Bay Transp. Auth., 843 N.E.2d 611,
616 (Mass. 2006) (plaintiff, a trespasser on defendant's tracks,
must show that "the risk of death or grave bodily injury to him was
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Neither in the district court nor on appeal does Menard
ever directly dispute that he was a trespasser or argue that he was
there by permission or as a licensee. Menard's proposed amended
complaint does allege the CSX "repeatedly and persistently
permitt[ed] individuals, including Mr. Menard, to cross the
Railroad Yard with regularity." But this appears to be aimed at
characterizing the failure to interdict him as reckless rather than
as a claim of permission or license.
In any event, about the closest Massachusetts case law
seems to come to a case of possible implied permission or license
to cross railroad tracks involved stronger facts: a crossing was
not merely used with regularity but appeared on the railroad's own
maps, was marked with a crossing sign, and was laid with planks.
Miller v. Bos. & Me. Corp., 397 N.E.2d 341, 342-43 (Mass. App. Ct.
1979).3 Menard nowhere alleges facts similar to those in Miller,
even if a licensee argument were not forfeit by failure expressly
to advance it in the lower court and in this one.
known or reasonably apparent" to the train operator and that the
operator "chose to run the risk rather than alter his conduct
or . . . failed reasonably to recognize the risk").
3
Moreover, the plaintiff in Miller was a minor (age 12), 397
N.E.2d at 342, and Massachusetts law establishes that landowners
owe a higher duty of care to foreseeable child trespassers than to
adult trespassers. See Mass. Gen. Laws Ann. ch. 231, § 85Q (West
2012); Soule v. Mass. Elec. Co.,
390 N.E.2d 716, 718-21 (Mass.
1979).
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Massachusetts law makes it a crime to walk across
railroad tracks anywhere except at established crossings, see Mass.
Gen. Laws Ann. ch. 160, § 218 (West 2012), and its courts have
taken this to refute any claim of an implied license to walk on any
other point along the tracks.4 A child who trespasses on train
tracks may yet be able to recover for injuries sustained provided
that the child's presence was "foreseeable" to the railroad and
that the child did not "realize the risk involved," McDonald v.
Consol. Rail Corp., 502 N.E.2d 521, 524 (Mass. 1987) (internal
quotation marks omitted), but Menard was no child.
Menard says that the conductor guiding the slow-moving
train on the track--the first track that Menard crossed on his
fateful walk cross the rail yard--waved his arm at Menard. This
confirms in some sense that a CSX employee knew Menard was in the
yard; but Menard makes no claim that the conductor was beckoning
him into the yard or across the track. The amended complaint
merely says that the conductor "waved his right arm as though to
direct Mr. Menard to move to his right."
To this point in his journey through the yard, Menard's
own version of events fails to state a claim but the answer might
be different as to what happened thereafter. In substance, Menard
4
See, e.g., Shattuck v. Trs. of Bos. Univ., No.
SUCV2006-03635-E, 27 Mass. L. Rep. 288, 2010 Mass. Super. LEXIS
225, at *7-8,
2010 WL 3232296, at *3 (Mass. Super. Ct. Aug. 3,
2010); see also Gage v. City of Westfield,
532 N.E.2d 62, 70 n.8
(Mass. App. Ct. 1988).
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says that after he continued on his way, his foot was trapped and
badly injured by the shifted track; that he then stumbled on about
30 feet after the injury; and that "[u]pon information and belief,
employees and/or agents of CSX knew that Mr. Menard had been
injured by the rail switch and had sufficient time to take action
to prevent further injury to him."
The quoted statement clearly aims to invoke the exception
to the trespasser rule for those perceived to be in peril, see
Pridgen, 308 N.E.2d at 476-77, but nothing in the complaint
provides any facts to support the general statement either that
Menard was seen by CSX workers after he was hit or, if seen, could
have been rescued by reasonable care. Menard says the allegation
is made on "information and belief"; but if he had any facts to
support this assertion, they should have been set forth.
"Information and belief" does not mean pure speculation.5
As the district judge observed, neither the original
complaint nor the proposed amendment "allege that Mr. Menard saw
any employees in the vicinity of the railroad switch when he was
injured, that he called to anyone for help, or that any specific
person saw Mr. Menard's peril." Menard, 840 F. Supp. 2d at 428.
5
"Upon information and belief" signifies that "allegations are
'based on secondhand information that [the asserting party]
believes to be true.'" Pirelli Armstrong Tire Corp. Retiree Med.
Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011)
(quoting Black's Law Dictionary 783 (7th ed. 1999) (alterations
omitted)); see also Zuk v. E. Pa. Psychiatric Inst. of the Med.
Coll. of Pa.,
103 F.3d 294, 299 (3d Cir. 1996).
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Nor do the complaints "even allege how much time passed between Mr.
Menard's first and second injuries," let alone identify even
briefly what could have been done by CSX workers in the interval.
Id.
In years past general statements tracking the law were
often regarded as a passport to discovery or trial; but circuit
precedent had been tightening even before the Supreme Court made
clear in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that conclusory
statements must rest on pleaded facts. This is so not only of
legal boilerplate (e.g., "conspiracy," "willfully") but also of
assertions nominally cast in factual terms but so general and
conclusory as to amount merely to an assertion that unspecified
facts exist to conform to the legal blueprint.6
Nevertheless, "some latitude" may be appropriate where a
plausible claim may be indicated "based on what is known," at least
where, as here, "some of the information needed may be in the
control of [the] defendants." Pruell v. Caritas Christi, 678 F.3d
10, 15 (1st Cir.), cert. denied,
132 S. Ct. 1969 (2012). Here, one
6
See, e.g., Acosta v. U.S. Marshals Serv., 445 F.3d 509, 514
(1st Cir. 2006) ("conclusory assertion that [defendants] were
deliberately indifferent to his serious medical needs"); E. Food
Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass'n, 357 F.3d 1,
7-9 (1st Cir. 2004) (implausible assertions as to relevant market);
Resolution Trust Corp. v. Driscoll,
985 F.2d 44, 48 (1st Cir.
1993) (conclusory assertion that obligations were "assumed"
unsupported by any identified act or document).
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might not expect precise recollection from a man badly injured by
a switched track and shortly thereafter hit and dragged under the
train. By contrast, CSX likely made its own investigation which,
if not privileged, could easily reveal just what its employees saw
between the switch accident and the denouement.
Where modest discovery may provide the missing link, the
district court has discretion to allow limited discovery and, if
justified, a final amendment of the complaint. This court
suggested as much in Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d
592, 596-97 (1st Cir. 2011), indicating that where "discovery is
likely to reveal the identity of the correct defendant and good
faith investigative efforts to do so have already failed," the
"interests of justice" may warrant remand for limited discovery.7
If tempered by sound discretion, Twombly and Iqbal may produce the
best that can be expected in human affairs which is a sensible
compromise between competing legitimate interests.
In the end, the response to Twombly and Iqbal is still a
work in progress; and we think that a limited remand is appropriate
to allow Menard to explain to the district judge what basis he has
7
See also Loosier v. Unknown Med. Doctor, 435 F. App'x 302,
307 (5th Cir. 2010) (per curiam) ("remand for limited discovery"
regarding "facts peculiarly within the knowledge of defendants");
Morgan v. Hubert, 335 F. App'x 466, 473 (5th Cir. 2009) (per
curiam) (same); see also Swanson v. Citibank, N.A.,
614 F.3d 400,
412 (7th Cir. 2010) (Posner, J., dissenting in part) (judge may
allow "limited discovery" while deferring decision on motion to
dismiss).
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to believe that narrow discovery is warranted as to the brief
interval between the switch incident and Menard's fall under the
wheels of the train. If anything beyond speculation supports
Menard's "information and belief" allegation, that too can be
disclosed. After that, the matter is confided to the discretion of
the district judge.
The judgment is vacated and the matter remanded for
further proceedings consistent with this decision. If Menard on
remand offers no solid basis for the remaining peril-and-negligence
allegation and limited discovery is not shown to be promising, the
judgment should be reinstated. Each side shall bear its own costs
on this appeal.
It is so ordered.
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