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LEICHING v. CONRAIL

October 17, 1995

COREY L. LEICHING, Plaintiff, against CONSOLIDATED RAIL CORPORATION, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 Plaintiff, Corey Leiching, sustained severe injuries, rendering him a quadriplegic, when he was struck by a train owned by the defendant Consolidated Rail. The plaintiff claims that the defendant was willfully, wantonly, and recklessly negligent. In addition, the plaintiff claims that the defendant's negligence was based on its failure to warn and keep adequate watch. The defendant has moved for summary judgment arguing that there is no evidence that any of its actions, negligent or not, were the proximate cause of the accident. The plaintiff has cross-moved for summary judgment on the issue of liability for the alleged failure of the defendant to comply with the federal regulation relating to the illumination of headlights on locomotives.

 The Court notes, before reciting the relevant facts of this case, that after considerable discovery, documents were discovered by the defendant's counsel which may call into question or directly contradict the accuracy of a portion of the deposition testimony of the plaintiff, of Thomas Appa, and of certain assertions contained in other documents filed with this action, including the plaintiff's answers to interrogatories. The facts necessary for the determination of these summary judgment motions are not implicated by this new evidence, and thus, the Court will make a determination as to these motions. However, the Court finds that the documents recently discovered raise issues as to discovery, and directly affect the motions before the Court made subsequent to the summary judgment motions.

 On October 3, 1989, at approximately 2:00 a.m., the plaintiff was walking to his mother's home in Kingston, New York. The route chosen by the plaintiff took him through a retail store parking lot to a path leading to the Conrail north-south railroad tracks. *fn1" The plaintiff walked on the tracks intending to reach another path that led to an area near his mother's apartment.

 While on the tracks, the plaintiff fell and was knocked unconscious, chose to lay down to sleep, or passed out due to excessive consumption of alcohol and/or marijuana. *fn2" For whatever reason, the plaintiff was lying between the railroad ties on a curvature of the Conrail tracks, on a foggy night, and wearing dark clothing, when a train approached and ran over the plaintiff causing severe injuries.

 The plaintiff alleges that the defendant knew that the area of the accident was a problem area. The plaintiff also alleges that there were no warning signs or fences in this area to warn people of danger, or that they should not trespass. Plaintiff also alleges that the only illumination coming from the train was a single headlamp, allegedly emitting a below standard amount of light, in violation of federal regulations, such that the train conductor and brakeman could not see the plaintiff on the tracks in time to stop.

 The defendant, of course, disputes these facts. The defendant contends that there were two lamps switched to the "bright" position, and that the lights were fully and properly functional. In addition, the defendant contends that the plaintiff was lying on a curved section of track, and that it was a foggy night. Accordingly, the defendant claims that whether in compliance with the federal regulations or not, the defendant's employees could not have seen the plaintiff in time to stop. It is the defendant's contention on this motion that the plaintiff's own conduct was the proximate cause of his injuries, such that the defendant cannot be held liable.

 II. DISCUSSION

 A. Standard For Summary Judgment

 The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. R. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990), quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994) (quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil s 2721 at 40 (2d ed. 1983). However, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it may not properly grant summary judgment where the issue turns on the credibility of witnesses. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the Court on summary judgment. Id.; See, e.g., Fed.R.Civ.P. 56(e), 1963 Advisory Committee Note; Agosto v. Immigration & Naturalization Service, 436 U.S. 748, 756, 98 S. Ct. 2081, 2086-87, 56 L. Ed. 2d 677 (1978); Poller v. Columbia Broadcasting System, 368 U.S. 464, 472-73, 82 S. Ct. 486, 490-91, 7 L. Ed. 2d 458 (1962); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779, 782 (2d Cir. 1978); 6 Moore's Federal Practice P 56.02 at 56-45 (2d ed. 1993). "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). It is with the foregoing standards in mind that the Court turns to the issues presented.

 B. Proximate Cause

 The defendant seeks summary judgment dismissing the plaintiff's complaint on the basis that there is no evidence that the actions of the defendant were a proximate cause of the injuries ...


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