The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
After drinking for nearly four hours at a bar/strip club in East Syracuse, New York, plaintiff's decedent husband walked on or near the railroad tracks directly behind the Syracuse China Factory on Court Street in the Town of Salina and was subsequently struck and killed by a westbound CSX train. Plaintiff commenced the instant litigation in New York State court alleging that defendants' negligence was the cause of her husband's death. Specifically, plaintiff alleged that the CSX crew failed to keep a proper lookout, failed to keep the train under proper control, failed to give sufficient warning of the train's approach, and that CSX failed to maintain proper signs, warnings and fences to keep persons away from dangerous areas on the property. Defendants removed the action to this Court in March 2006. Defendants have moved for summary judgment on the ground that there is no evidence that it was negligent in causing or contributing to decedent Leone's death. Plaintiff opposes defendants' motion.*fn2
The relevant facts in this case are as follows: On the date of his death, plaintiff 's decedent husband, Todd Leone, was 32 years old. He was employed by Production Products Company ("PPC") in East Syracuse and punched out of work on the date of the accident at 5:37 p.m..
Sometime after 6:00 p.m., Leone arrived at Diamond Dolls, a bar/strip club on Town Line Road in the Town of Salina. Leone remained at Diamond Dolls until at least 10:00 p.m.. There are no known eyewitnesses who observed Leone leave the bar or gain access to the railroad tracks in the vicinity of Diamond Dolls. However at approximately 10:55 p.m., the engineer and conductor of a CSX train observed an "obstruction" on Track #1 as they operated the train headed westbound toward Chicago. Seconds later, the CSX operators realized that the obstruction was a person and attempted to stop the train to no avail. At the time the CSX train struck him, Leone was lying motionless and face up next to Track #1 with one or both of his legs draped over the rail. The CSX operators notified emergency services immediately of the accident. Leone was pronounced dead at the scene after suffering partial amputation of his left leg, massive head trauma and other serious injuries.
The accident was subsequently investigated by the Onondaga County Sheriff's Department which concluded that Leone's death was accidental. The report of Detective D. R. Fahey, which is affirmed under penalty of perjury, indicates that the area where Leone was struck by the train is an "unlit area directly behind the Syracuse China Factory located on Court Street in the Town of Salina." According to Fahey, in this area, there are four sets of railroad tracks. Fahey determined that Leone was struck as he lay partially on the second set of tracks - known as "Track #1" by a CSX locomotive.
The police investigation of the incident included interviews with the involved CSX personnel. James Fulater, the CSX engineeer who was operating the train at the time of the accident told the Sheriff's investigator that the train was traveling at approximately 50 m.p.h. when he and the conductor, Richard Hayes, "approached a curve" and observed an obstruction on Track #1 approximately one quarter of a mile ahead.*fn3 Fulater testified that the "minute [he] saw the object, [he] blew [his] horn." According to Fulater, once the horn was engaged, the bell on the train was also automatically activated and the train's ditch lights would begin to flash. Fulater said that the "only illumination" of the railroad tracks in the area where the accident occurred was the train's headlight two ditch lights. Fulater did not immediately recognize that the obstruction on the track was a person, but when he was a "couple of hundred feet" from the "object," he "saw sneakers" and then "realized there was [sic] legs attached to them but there was no movement."
Fulater said that Hayes recognized a person was laying on the track before he did because at the same time that Fulater was realizing that the obstruction was a body, he heard his conductor say "dump it" which meant to "put the train in an emergency."
Richard Hayes told Detective Fahey that he and Fulater were operating the train on Track #1 at "approximately 30 m.p.h.." "[S]omewhere in the vicinity of mile marker QC289.0, [he] saw a body lying between tracks #1 and #2." According to Hayes, the body "appeared to have . . . its legs lying across the rail of track #1." "As soon as [Hayes] saw the body, [Fulater] engaged the train's emergency brakes to stop the train." Hayes estimated that "it took about 45 seconds" to stop the train. Prior to the collision, Hayes stated that he "did not see the body move at all." At his deposition, Hayes testified that he had been "looking forward" or "watching out the front of the train" since it left Albany at around 7:30 p.m.. Just before the accident, the train approached a curve when the headlight "picked up" an "obstruction" on the track ahead. Hayes estimated at that time he saw something on the track that the train was "about 300 feet" from the obstruction. Hayes said that he "immediately" recognized the object on the track was a person and told the engineer to "dump" the train or activate the emergency brakes.
However, defense counsel concedes that for the purpose of the present motion, the Court should assume the distance Fulater first viewed an obstruction on the track was one quarter of a mile.
Upon interviewing witnesses in connection with his investigation, Detective Fahey learned that Todd Leone did not own a car, that he often walked, rode a bicycle or got a ride to work, and that he frequently went to Diamond Dolls after his shift at PPC. A co-worker of Leone's told Fahey that Leone said he had "friends" at Diamond Dolls who "[didn't] charge him anything." Fahey interviewed Leone's friend, Shane Kingsberry, who said Leone called him on the night of the accident from Diamond Dolls and asked him to "come over" for a "few drinks," but Kingsberry declined. Kingsberry did tell Fahey, however, that Leone had a "severe drinking problem," that Leone drank "excessively" and was known to drink "so much that he [would] pass out."
Fahey also interviewed Shannon Lewis, a friend of Todd Leone's who said that in July 2003, Leone told her that to get back and forth to his job at PPC he "was used to walking the railroad tracks" since he had done so "as a kid." Lewis told Leone that "it was dangerous to walk the railroad tracks" and that he "should find some other means of walking to getting home." Lewis told Fahey that Leone "brushed off" her concerns and said "it was not at all dangerous to walk the railroad tracks as he had done it for years and nothing had ever happened to him." In her deposition, Lewis testified that Leone told her that taking the railroad tracks was a "shortcut way to go home." Lewis said she was "shocked" by his statement and told him "don't ever do it again." Lewis testified that Leone then said "You're right." Lewis told Leone that he could get caught for trespassing and that he should call her anytime of day for a ride in lieu of walking the tracks.
A toxicologist employed by the Onondaga County Medical Examiner's Office who analyzed a blood sample taken from Todd Leone determined in a sworn report that Leone's blood alcohol level at the time of his death was 0.22 g%. Detective Fahey affirmed in his report that the Medical Examiner had been unable to determine whether Leone was conscious or unconscious at the time of the collision. However, in concluding that Leone's death was accidental, it appears that Detective Fahey assumed from his investigation that Leone was lying unconscious with his left leg on Track #1 at the time of the accident. Indeed, neither Fulater nor Hayes had observed any movement of Leone's body prior to impact with the train.
In reaching his conclusions concerning how the accident happened, Detective Fahey returned to the scene of the collision and walked in an easterly direction from the point of impact. In a period of ten minutes, Detective Fahey affirmed that he arrived at an area of the tracks "directly behind the old GM plant on GM Circle." Fahey further observed "[s]tanding on the railroad tracks behind the GM plant, you are able to look north and see Diamond Dolls on Townline Road. It is conceivable that this would be a direct route for the victim to take." Fahey also noted that "if the victim was walking westbound along the tracks, the rise from the second set of tracks (the one that he was lying upon) from the first set is approximately eight to ten inches. Given that this is a dark area, it is possible that he was unable to see the difference in the elevation of the tracks."
Upon completion of his investigation Detective Fahey opined as follows:
It is the conclusion of this writer that upon completion of work at PPC the victim did, in fact, walk to Diamond Dolls where he stayed until somewhere around 10:00 p.m. at which point he walked from Diamond Dolls to the old GM plant on GM Circle. From there he walked behind the plant walking westbound along the railroad tracks, at some point behind the Syracuse China Factory attempting to cross the tracks heading southbound, stumbling across Track #1 and falling southwards to Track #2 with his left leg still on Track #1. There he laid unconscious and was struck by the westbound train. The victim's unconsciousness could be due, in part, to his high blood alcohol content along with him falling to the ground. It is also the conclusion of this writer that the engineer and conductor of the train did everything possible to avoid this accident. The victim's death is considered accidental.
Defendants have moved for summary adjudication of plaintiff's claims asserting that there is no evidence that negligence on the part of CSX or any of its employees caused or contributed to Todd Leone's death. Indeed, defendants argue that the plaintiff alone was responsible for his apparent intoxication, reckless behavior and decision to trespass on railroad property, all of which led to his death. Plaintiff counters that there is material question of fact whether the CSX engineer, Mr. Fulater, "in the exercise of reasonable care, should have properly perceived the 'obstruction' that was Todd Leone and taken appropriate action sooner." Plaintiff argues that had Fulater taken steps to immediately stop or slow the train upon seeing the obstruction, he might have avoided the accident or greatly reduced the injuries sustained by Leone. Plaintiff contends that it was negligent of Fulater to wait to take any action to stop the train until after he realized it was a pedestrian laying on the track ahead. Plaintiff also claims that it was negligent of CSX to have not erected fencing in the area where the accident occurred or "No trespassing" signs which would have prevented people from entering railroad property. Plaintiff claims that CSX had a duty to warn trespassers and prevent access since train/pedestrian accidents had occurred in the area previously.