The opinion of the court was delivered by: Gershon, United States District Judge
On April 18, 2002, Plutarco Gil and his mother Enedina Sosa commenced this action against defendant National Railroad Passenger Corporation ("Amtrak") in the Supreme Court of the State of New York, Queens County, to recover damages for personal injuries sustained when plaintiff Gil was electrocuted on September 8, 2001. On May 2, 2002, the action was removed to federal court.
On August 16, 2004, Magistrate Judge Marilyn D. Go granted permission to plaintiffs to amend the complaint to include defendant adjoining landowner Long Island Railroad ("LIRR"). On appeal, this court affirmed Magistrate Judge Go's decision on September 16, 2004. On September 24, 2004, defendants LIRR and Amtrak filed an answer to the complaint as amended. Discovery, which took place under the supervision of Magistrate Judge Go, was completed on January 30, 2006. Defendants Amtrak and LIRR now move for summary judgment on two grounds: (1) defendants breached no duty owed to plaintiff, and (2) plaintiff's own unlawful conduct was the proximate cause of his injuries . Additionally, defendant LIRR argues that, as an adjoining landowner, it owed no duty to plaintiff. For the reasons set forth below, defendants' motion for summary judgment is granted, and the complaint is dismissed.
Unless otherwise noted, the following facts are not in dispute. Plaintiff Gil ("plaintiff") was a seventeen year old high school student at the time of the accident. In the early evening on September 7, 2001, plaintiff left his house to play handball for two to three hours at Skillman Park in Queens. After sunset, he and two friends traveled by subway to Davis Street to go to the Phun Phactory ("Phactory"), a large warehouse on which they could paint "legal" graffiti. Although his two friends had been to the Phactory before, plaintiff had not.That night, the three of them spent approximately four hours at the Phactory.
After midnight, plaintiff and his friends decided to "venture" in order to observe graffiti on the Sunnyside Yards ("SSYD") railroad tracks near the Phactory. Plaintiff knew that graffiti was illegal on the streets, but he thought it was legal on railroad property. At SSYD, plaintiff hoped to "get ideas how to graffiti, how to get styles" and "learn." Prior to that night, plaintiff had seen SSYD when he had taken the subway, and he knew it to be a gathering location. Plaintiff also testified that he knew trains run on electricity,but that he thought that the SSYD tracks were abandoned. Although "No Trespassing" signs were posted at the outside parameter of SSYD, plaintiff testified that he did not see them.
Plaintiff and his friends gained access to SSYD by going around a fence that had no holes at the end of Davis Street. Although plaintiff did not testify as to his knowledge of what entities owned the property on which he was walking, it is not disputed that he passed over three sets of LIRR tracks and eventually traveled onto Amtrak property. There was no fence, barrier, or demarcation line that indicated where LIRR property ended and where Amtrak property began.
When plaintiff and his friends arrived that evening, approximately fifty people were hanging out, smoking, drinking, and spray-painting, in the SSYD area, which led plaintiff to believe that he was not trespassing. Although he needed to be home by 1:00 a.m. or 2:00 a.m., he stayed at SSYD because the night was "like one day of a lifetime."
Wanting an "adventure,"plaintiff and his friends explored the area for about an hour, walking through high brush and around a large mound of garbage, and following footpaths. Plaintiff then ventured by himself for about ten minutes ("[T]hey wanted to adventure, and I wanted to adventure, too. They took their way, and I took my way."). On his walk, although there were multiple warning signs throughout SSYD, plaintiff did not see any of them. Finally, plaintiff arrived at the Line 4 Tunnel, which is owned by Amtrak and was well lit.*fn1 Although plaintiff testified that he did not know whether or not trains ran through this tunnel, there were warning signs approximately fifty feet from the Tunnel area.Plaintiff climbed to the top of the Line 4 Tunnel, which was at least fifteen feet above the railroad tracks below, and leaned under a metal railing so that he could see graffiti inside the tunnel. As he stuck his head down into the tunnel, he dropped his keys. In an effort to recover them, he lost his balance and he grabbed a catenary wire overhead to stabilize himself.
When he came in contact with the wire, he was electrocuted and sustained serious bodily injury; over eighty percent of his body was burned. Although both LIRR and Amtrak operate trains out of the Line 4 Tunnel, only Amtrak uses catenary wires. Nonetheless, when the accident happened at 2:00 a.m., LIRR called to have the electricity shut off. The next morning, investigators arrived at the scene to investigate and found fresh graffiti at the Line 4 Tunnel and three cans of spray paint. Although plaintiff has been arrested for prior incidents of spray-painting graffiti, he has never been charged and also testified that he did not have any cans of spray paint that night.
In the three years prior to this accident, Amtrak employees had filled out eighty-two incident reports of trespassing at SSYD. However, none of the reports specified that the Line 4 Tunnel was an area that had been the subject of a trespass report. In fact, Robert D. Santini, an assistant division engineer at Amtrak whose responsibilities in 2001 included maintenance of the Line 4 Tunnel area, testified that he did not recall ever seeing evidence that people, other than Amtrak employees, had been at the Line 4 Tunnel area in the three years prior to the accident. Moreover, Louis Coiro, a criminal investigator employed by Amtrak for over eighteen years, testified that, prior to this accident, he had never dealt with any cases involving electrocution at SSYD.
Additionally, all of the Amtrak employees testified that they did not know that graffiti was at the Line 4 Tunnel area.For example, Mr. Coiro had never seen graffiti in the Line 4 Tunnel area until he responded to the scene of this accident. He noted that a person could not see the graffiti by merely passing by the Tunnel; that person would have to "go down to an active track, [go] past a third rail, [then go] past the catenary." However, during his deposition, Mr. Coiro testified that there was a significant amount of graffiti at the Line 4 Tunnel area on the morning of the accident, and, upon viewing photographs of the area, he testified that the graffiti appeared to be layered.
II. Standard for Summary Judgment
Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The standard for granting summary judgment mirrors the standard for a directed verdict under Rule 50(a), which permits the court to grant a motion for ...