On August 25,1981, TheresaM. Lajeunesse, almost sixteen, and Peter Gage, eighteen, were struck and killed by a Consolidated Rail Corporation (Conrail) freight train. A diagram indicating the area within the city of Westfield (Westfield) where the accident happened appears at the end of this opinion.
1. The Cases Against the City of Westfield Under G. L. c. 258, § 1, the Massachusetts Tort Claims Act.
The uncontroverted facts before the motion judge relevant to the cases against Westfield were the following. On the afternoon of the day of the accident, the two decedents were among a group of teenagers drinking at the Whitney Playground, a city-owned facility that was a popular location for teenagers to congregate. The playground is located along the south side of the Westfield River. On its south, the playground is bounded by a city-owned dike; on its west by other city property; and on its east by property owned by Westfield and used by its gas and electric department. Public ways were located at both the easterly and westerly ends of the playground. No fences or barriers separated the playground from the other city property or separated the city property being used by the gas and electric department from Conrail’s property just to its east.
Approximately 400 feet east of the playground, a relatively unused spur track owned by Conrail runs from Conrail’s property on the south side of the river across a trestle bridge to other railroad property on the river’s northerly bank where two actively-used railroad tracks run along the river in an east-west direction. The spur tracks intersect with the east-west tracks on an area of railroad property known, because of its shape, as
For many years, teenagers, and sometimes adults, used the trestle bridge as a shortcut from the south side of the river to Pochassic Street. A path was beaten into the ground along this route from such use. No barriers prevented pedestrian use of the trestle bridge, and no signs on or about it warned of any danger. A person using the shortcut to reach Pochassic Street would have to cross the east-west railroad tracks at the “diamond”. No planking or other device facilitated travel across the tracks, and there was no public or private crossing nearby.
The two youths left the playground mid-afternoon, crossed the trestle bridge, entered the diamond, and then walked onto the tracks, where they were struck by an eastbound Conrail freight train.
The complaints, seeking recovery under G. L. c. 258, the Massachusetts Tort Claims Act, allege that the city, as owner of the playground and adjacent property, acted negligently by failing to erect fences or barriers preventing access to the railroad trestle, to place warning signs on its property, orto provide more effective police patrol of the area. The judge ruled that, even assuming the city had a duty to take one or more of these steps, it was not liable because the duty was one owed to the public at large. Alternatively, the judge ruled that the decision whether to take any of the various safety measures urged was discretionary in nature and fell, therefore, within the discretionary function exception (G. L. c. 258, § 10 [¿>]) to liability under the Massachusetts Tort Claims Act. The plaintiffs contend on appeal that their claims relate to the city’s failure, as a landowner, to maintain its property in a reasonably safe condition and warn of known dangers and, for that reason,
General Laws c. 258, § 2, as appearing in St. 1978, c. 512, § 15, provides in relevant part that “[pjublic employers shall be liable for injury or loss of property or personal injury or death ... in the same manner and to the same extent as a private individual under like circumstances . . .” We agree with the plaintiffs that in some situations a landowner’s duty to exercise reasonable care does not terminate abruptly at the borders of his property but may extend to include a duty to take safety measures related to known dangers on adjacent property.
S&e Polak v. Whitney,
We agree with the motion judge that one or more of the recognized Massachusetts Tort Claims Act exceptions applies and exempts the city from liability. It is certainly true, as the appellants contend, that if the plaintiffs’ claims had to do with the physical condition of the city-owned premises, the city’s reliance on the public duty exception, if not also the discretionary function exception, would be misplaced. See
Doherty
v.
Belmont, 396
Mass. at 273-274. The plaintiffs’ claims, however, differ significantly from the claim made in the
Doherty
case, which related to a defect in a municipal parking lot. In the present case, the potential danger, located on property owned by a different entity, across a river, and a considerable
General Laws c. 258, § 10(6), as appearing in St. 1978, c. 512, 15, provides that a municipality is not liable for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused.” Given the judgment involved in weighing alternatives and making policy choices as to what safety measures to take, even if there was a duty on the part of the city to take some safety measures, we think the discretionary function exception was applicable. See
Patrazza
v.
Commonwealth,
In
Irwin
v.
Ware,
recovery for injuries and death had been allowed against a town for the negligent failure of police officers to remove an intoxicated driver from the highway who later injured a member of the public. We agree with the motion judge that the present case is more like
Appleton
v.
Hudson
than
Irwin
v.
Ware.
The potential danger to youths using the trestle bridge as a shortcut to neighborhoods across the river had
2. The Cases Against Conrail Under the Wrongful Death Act, G. L. c. 229.
Additional facts relating to the cases against Conrail, viewed most favorably to the plaintiffs, include the following. The two youths proceeded from the city playground across the railroad trestle bridge and towards the more southerly of the east-west set of tracks. One of them was carrying a large radio or tape deck on his shoulder. As they entered the eastbound track, a train was approaching on the westbound track and was making a great deal of noise. They stood on the eastbound track waiting for the westbound train to go by. They did not know that an eastbound train was also approaching and that they were standing directly in its path until just before being struck by it. According to the train’s engineer, they turned at the last moment and looked at it in terror with “their eyes popping.”
The train which struck the youths had been travelling at forty-two miles per hour. The legal speed limit for the train in that location was forty miles per hour. As the train approached the area of the tracks known as the “diamond,” the engineer had a view in front of him extending about 600 feet. As he approached the “diamond,” the engineer saw a person (not one of the plaintiffs’ decedents) who had been standing on the south side of the tracks start to run toward the tracks. He sounded the train whistle but did not apply the brakes. When he looked back at the tracks, he saw two youths standing on the tracks directly in front of the train about three car lengths away. He immediately put on his emergency brake and continued to sound his whistle, but it was too late to avoid hitting the youths.
a.
Was the case within the exception in the Wrongful Death Act applicable to railroads?
The motion judge ruled that the railroad was not liable to the plaintiffs under the Wrongful Death Act, G. L. c. 229, § 2, as in effect prior to St. 1981, c. 493, § 1, for negligence because it had taken no action, such as putting down planking or constructing something along the tracks, which would have led members of the public to believe they had a right to cross the tracks at the location of the accident. Relying on
Mounsey
v.
Ellard,
The railroad’s liability to the plaintiffs for negligence in this case depends upon whether the two decedents were on the railroad tracks “contrary to law.” General Laws c. 160, § 218, as in effect prior to St. 1987, c. 501, § 3, provides, “Whoever without right knowingly stands or walks on a railroad track shall forfeit not less than five nor more than fifty dollars.” As the statute makes it a criminal offense to stand on railroad tracks, except, presumably, at a recognized public or private crossing, the decedents’ presence on the tracks at the time of the accident was “contrary to law.” Indeed, violation of G. L. c. 160, § 218, suffices in and of itself to bring the railroad exception of the Wrongful Death Act into play, even where the railroad has reason to anticipate that persons might be on the tracks at a particular location. See
Corrddo
v.
New York, N.H. & H. R.R.,
The parties call our attention to numerous cases against railroads predating the 1973 Mounsey v. Ellarddecision, supra, involving common law tort claims for nonfatal injuries caused by moving trains. As the question of liability in those cases turned on the injured party’s status as an invitee rather than either a licensee or trespasser, they shed no light on the relevant issue in this case. Furthermore, even the distinction between a trespasser and a nontrespasser may not be precisely the appropriate one in light of the cases cited interpreting language such as presently appears in § 2 of the Wrongful Death Act. As proof of a violation of G. L. c. 160, § 218, is enough to invoke the railroad exception, Conrail would not be liable to the plaintiffs for ordinary negligence.
Wilful conduct has been described as action intended to do harm, while conduct is wanton or reckless when “in the face of a known or obvious risk [one] intentionally persists] in conduct involving a high degree of probability that substantial harm would result to another.”
Desmond
v.
Boston Elev. Ry.,
We agree with the motion judge and the railroad that excess speed and inadvertence, by themselves, do not constitute recklessness. This would be so even assuming that railroad employees knew that people often crossed the tracks at the “diamond.” There is an indication of something more here, however, which may emerge at trial as a legitimate issue for the jury. We put aside for the moment the question of the eventual admissibility of some of the additional evidence.
There is evidence of radio communication between the operators of the two freight trains approaching the “diamond” from opposite directions. If the operator of the westbound train or the dispatcher warned the operator of the eastbound train of the presence of the two youths on the tracks in time to avoid the accident, and the eastbound train’s operator did not im
A finding of recklessness would be warranted, in our view, upon a showing that the operator of the eastbound train was aware of the presence of the two youths in the vicinity of the tracks in time to have stopped. There is no direct evidence from the westbound operator or the dispatcher in the materials
Everding’s statement to the parents would be admissible as an admission by Conrail if it was found to have been made within the scope of his authority and in the course of his émployment for Conrail. See
Ruszcyk
v.
Secretary of Pub. Safety,
Whether to permit the jury to draw an inference adverse to Conrail about the radio conversation between the two train engineers, based upon the absence of a tape recording of the conversation, would depend upon the development of facts about the tape and the circumstances of its disappearance.
The plaintiffs have produced evidence, possibly admissible, in opposition to Conrail’s motion for summary judgment, which would warrant a finding of recklessness, that is, persistence by the railroad in highly dangerous conduct in the face of a known risk. That showing is sufficient, in our view,- to overcome Conrail’s motion for summary judgment and to entitle the plaintiffs to proceed to trial, or, at least, to a preliminary hearing to determine the facts relevant to the evidentiary issues.
c.
Was there liability for conscious pain and
suffering? The railroad exception in the Wrongful Death Act does not apply to a claim under G. L. c. 229, § 6, for conscious pain and suffering. Such a claim is based upon common law tort principles and is a separate cause of action from any claim for wrongful death. See
Dermody
v.
Utley,
The motion judge based his ruling that the plaintiffs could not recover on a negligence theory for their decedents’ conscious pain and suffering based on the decedents’ status as trespassers upon the railroad tracks when they were struck. He ruled that common law tort principles preclude their recovery. The plaintiffs admitted that neither of the decedents was a child too immature to discover the dangerous condition or to realize the risk involved in his conduct. See
McDonald
v.
Consolidated Rail Corp.,
In his memorandum of decision, the motion judge questioned whether the plaintiffs could recover on the conscious pain and suffering claims where the only evidence was that any suffering preceded the actual collision. Most of the cases discussing the right to recover damages for conscious pain and suffering when death occurs refer to suffering which follows the injury but precedes death. See,
e.g., Royal Indem. Co.
v.
Pittsfield Elec. Co., 293
Mass.
4,
8 (1935);
Campbell
v.
Romanos,
Accordingly, the entry of summary judgments in favor of the defendants is affirmed as to all plaintiffs and as to all counts, except that the cases against the defendants Conrail and George Munger may stand for trial on the claims for
So ordered.
Notes
The parties malee no distinction in their briefs between the respective liabilities of Conrail and George Munger. Accordingly, we also make no such distinction.
The cases were also consolidated with claims by both plaintiffs against Whip City Spirits, Inc., which have been disposed of by settlement.
The motion judge ruled that if G. L. c. 229, § 2 (the railroad exception) applied, liability based on gross negligence was also precluded. The plaintiffs have not argued on appeal that that ruling was erroneous.
There is also evidence that Conrail’s policy required that an operator of a train inform the operator of an oncoming train of the presence of any persons seen in the vicinity of the oncoming train’s tracks. The operator of the westbound train was in a position to see and may have seen the two youths standing on the eastbound tracks as they waited for his train to pass. The operator of the westbound train ought reasonably to have known that the eastbound train operator’s view of the tracks might be obscured by the oncoming westbound train and that the individuals on or near the tracks would have difficulty hearing the approach of the eastbound train because of noise of the passing westbound train. He also ought reasonably to have known that the likely result of a train striking a person on the tracks would be that person’s death. If the westbound train’s operator, or, as a result of radio communications, the dispatcher, knew that the two youths were in serious danger of being killed and had the opportunity to, but did not, warn the eastbound train’s engineer in time for him to avoid the accident, it may be that a jury could find recklessness, on the part of the railroad. Because of the possibility of a further appeal should a jury find recklessness, it would be advisable for the trial judge to pose special jury questions focusing separately on the actions and knowledge of the two operators.
The parties in the Schofield case assumed that the plaintiff trespassed when, not seeing any barrier or warning signs, and aware that others were doing the same, he went to a quarry to swim. Id. at 425. The defendants in that case had made repeated efforts to prevent the public from entering the quarry site. Ibid. In the present case, by contrast, the railroad made no such efforts to keep the public away, and railroad employees knew of the public’s use of the property for a shortcut.
A trespasser has been defined as “a person who enters or remains upon land in the possession of another without a privilege to do so, created by the possessor’s consent or otherwise.” Restatement (Second) of Torts, § 329 (1965). The precise dividing line between a trespasser and a nontrespasser for common law tort liability purposes has not been defined in Massachusetts. See
Mounsey
v.
Ellard,