Opinion
CIVIL ACTION FILE No. 1:19-CV-01446-SCJ
2022-09-06
Jacob OHL, James Ohl and Katina Cook as Natural Parents of Jacob Ohl, Plaintiffs, v. CSX TRANSPORTATION, INC., Defendant.
John Chapman Bell, Jr., The Bell Firm, Augusta, GA, Cale Howard Conley, James Thomas Cox, Conley Griggs Partin, LLP, Atlanta, GA, for Plaintiffs. Daryl Glenn Clarida, Hilary H. Adams, Hall, Bloch, Garland & Meyer, LLP, Atlanta, GA, Richard B. North, Jr., Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, James Raymond Carnes, Shumaker, Loop & Kendrick, LLP, Toledo, OH, for Defendant.
John Chapman Bell, Jr., The Bell Firm, Augusta, GA, Cale Howard Conley, James Thomas Cox, Conley Griggs Partin, LLP, Atlanta, GA, for Plaintiffs. Daryl Glenn Clarida, Hilary H. Adams, Hall, Bloch, Garland & Meyer, LLP, Atlanta, GA, Richard B. North, Jr., Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, James Raymond Carnes, Shumaker, Loop & Kendrick, LLP, Toledo, OH, for Defendant. ORDER STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This matter appears before the Court on Defendant's Motion for Summary Judgment (Doc. No. [112]). Plaintiffs responded in opposition (Doc. No. [127]), Defendant replied (Doc. No. [133]), and Plaintiffs filed a sur-reply brief with leave of the Court (Doc. Nos. [137]; [138]). This matter is now ripe for review, and the Court rules as follows.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
This lawsuit arose out of an incident in which a train owned and operated by Defendant struck and injured Plaintiff Jacob Ohl ("Jacob"). See Doc. No. [1-1]. The Parties dispute precisely how certain aspects of the underlying events unfolded. For purposes of framing the Motion for Summary Judgment, the Court recites the following facts, drawn primarily from Defendant's Statement of Undisputed Facts (Doc. No. [112-2]) ("DSOUF") and Plaintiffs' Statement of Material Facts (Doc. No. [127-2]) ("PSOMF").
The Court also relied on other factual submissions (Doc. Nos. [127-1]; [134]) and the record. Pursuant to Local Rule 56.1(B), when a fact is material and undisputed, the Court includes the fact. For disputed facts, the Court reviews the record to determine if a material dispute exists. Where the other party's response reflects the record cited more accurately, the Court modifies the proposed fact and cites the record. The Court also rules on objections to proposed facts and excludes immaterial facts, those stated as an issue or legal conclusion, those not supported by a citation to evidence, or those that the record citation fails to support. To that end, the Court notes that it did not adopt several of Plaintiffs' proposed facts that were framed as speculative and/or legal conclusions. See, e.g., PSOMF ¶ 11 (hypothesizing that if the train's "horn had been blown a very few seconds sooner, maybe just one second sooner, Jacob Ohl's feet would have cleared the rail, and they would not have been severed") & ¶ 13 (concluding that Defendant's employees "were negligent in failing to keep a proper lookout and by not blowing the horn immediately"). Finally, where appropriate, the Court includes facts drawn from its review of the record.
In March of 2017, Jacob was seventeen years old and a high school senior. DSOUF ¶¶ 1-2. Jacob's biological parents divorced when he was very young, and his mother remarried when he was around four years old. DSOUF ¶¶ 3-4. In December of 2016, Jacob's mother and stepfather divorced. DSOUF ¶ 5. Jacob, his mother, and his half-brother moved several times in 2016 and early 2017 due to the divorce. DSOUF ¶ 6. In early 2017, Jacob was "very stressed out" by school assignments, the divorce, and having to spend time helping his mother with the moves and her business. Doc. No. [118] (Jacob Dep. Tr.), Tr. 38:3-40:25. Due to these pressures, Jacob began skipping school on February 28, 2017. DSOUF ¶ 15.
For three days in a row, Jacob would leave home in the morning as though he were going to school, but he would instead drive himself to the Lilburn City Park. DSOUF ¶ 16. He was familiar with this park because he had taken guitar lessons nearby and had spent time there with acquaintances. DSOUF ¶¶ 17-18. In his days spent at the park while skipping school, Jacob passed the time on his phone and walking in the park. DSOUF ¶ 19.
On March 2, the third day of his truancy, Jacob became bored. DSOUF ¶ 20. While wandering around, he came upon a property neighboring the park that he later described as a "big concrete area that look[ed] abandoned." DSOUF ¶ 21. Intrigued, Jacob left the park, went to the concrete area, and walked around it for some time. DSOUF ¶¶ 22-23. He then decided to enter the adjacent railroad property and began walking along the tracks. DSOUF ¶¶ 23, 34. He had never been on the railroad property before that day. DSOUF ¶ 24. Although this area was Defendant's property, Jacob did not seek Defendant's permission to enter it. DSOUF ¶ 35. After Jacob entered the property, he began walking east on the tracks and intended to walk long enough that his trip there and back would have "wasted enough time [for him to] go back home." DSOUF ¶ 25.
Jacob knew that the railroad tracks were active because he had heard trains going down them both when he had taken guitar lessons nearby and over the previous two days when he was at the park to skip school. DSOUF ¶¶ 29-30. Although Jacob knew that the tracks were live and that there was a risk of trains approaching, he walked directly on the tracks wearing noise-canceling earbuds. DSOUF ¶¶ 26-28, 33. He likely was listening to a podcast or music, although he later could not recall what he was listening to at the time of the incident. DSOUF ¶¶ 27, 53. He walked east on the tracks for about an hour, looking only in the direction he was walking and not behind him to check for trains. See DSOUF ¶¶ 25, 37-38.
Jacob knew that there was room for him to walk alongside the tracks, but he chose to walk on the tracks—a choice he later stated he regretted. See DSOUF ¶¶ 31-32.
As Jacob was walking along these tracks, a train owned and operated by Defendant was also on the tracks, heading in the same direction as Jacob and approaching him from behind. See DSOUF ¶ 11. That train weighed around 17.8 million pounds. DSOUF ¶ 7. Inside the lead locomotive of that train were two employees of Defendant. DSOUF ¶ 8. Engineer Derrick Marshall ("Marshall") sat on the right side of the cabin, while Conductor Clifton Martin ("Martin") sat on the left side of the cabin. DSOUF ¶ 8. The speed limit for the tracks in this area was fifty miles per hour, and the train was at that time traveling at approximately forty-five miles per hour. DSOUF ¶¶ 9-10, 40.
Before Jacob became visible to Marshall and Martin, the train rounded a curve in a wooded area. See DSOUF ¶¶ 12-13, 39. After the train rounded that curve, Jacob was in the conductor's line of sight for 695 feet, or a little over ten seconds before impact. DSOUF ¶ 48; PSOMF ¶ 1. Around when the train came around that curve and approached Jacob, Marshall was looking at the locomotive screens to check speed and braking. DSOUF ¶ 42. Martin, however, saw an object on the tracks, which he reported to the engineer. DSOUF ¶ 43. Martin realized a couple of seconds later that what he saw was a person. DSOUF ¶ 43.
The Parties do not dispute that Defendant's train struck Jacob. But they strongly dispute whether Jacob was lying on or walking along the tracks when he was struck. See Doc. No. [127-1], ¶ 41. Martin and Marshall both testified that when they saw Jacob, he was lying down with his legs across the track. DSOUF ¶¶ 43-45. Martin further testified that Jacob did not move or attempt to move from this lying position. DSOUF ¶ 46. Jacob, on the other hand, denied lying on the tracks and testified that he was walking on them. Jacob Dep. Tr. 58:9-23; see also PSOMF ¶¶ 20, 37 (stating that Jacob was "walking with his back" to the train and was not lying down on the tracks). Also, Plaintiffs contend that the manner in which Jacob's legs were severed shows that he dove to get clear of the train when its wheels rolled over his legs. PSOMF ¶¶ 8, 39; but see PSOMF ¶ 24 (stating that Jacob "never saw or heard [the] train before it hit him"). In any event, the train struck Jacob, severing his legs. See PSOMF ¶¶ 24, 39, 50.
In arguably contradictory testimony, however, Jacob also testified that he does not remember getting hit or the moments just before getting hit. Jacob Dep. Tr. 58:16-60:14. Jacob's testimony that he was not lying on the ground with his legs across the tracks appears to rely on his memory that before getting hit, he had been "just walking on the tracks" for about an hour. Id. Tr. 58:22-23.
Moments before the train struck Jacob, Martin alerted Marshall of the person in the train's path. DSOUF ¶ 44. Marshall triggered the train's horn, which sounded for about two seconds before impact. DSOUF ¶¶ 44, 50; PSOMF ¶¶ 2, 7. Plaintiffs and Defendant contest whether Marshall triggered the horn too late under Defendant's Operating Rules, which Plaintiffs contend requires train operators to sound the horn "immediately" upon observing someone on or near the tracks. See Doc. No. [134], ¶ 2. Jacob testified that he does not recall hearing the horn. DSOUF ¶ 54. Marshall applied the emergency brakes, and the train stopped after traveling another 3,175 feet. DSOUF ¶¶ 44, 49. Martin called his dispatcher and reported that the train had hit a person. DSOUF ¶ 47.
To be clear, however, Plaintiffs and Defendant do not dispute that the train horn sounded prior to the train striking Jacob. See DSOUF ¶¶ 44, 50; PSOMF ¶ 7.
Defendant claims that Martin said that they had hit a person who was lying on the tracks and "had his legs laying in the middle of the rail." DSOUF ¶ 47. Plaintiffs contest this fact, arguing that the quoted language is not clear due to a bad recording. Doc. No. [127-1], ¶ 47. For present purposes, the Court accepts only that Martin conveyed to his dispatcher that the train had hit someone.
After the incident, Trainmaster Josh Quillen was called to the scene and removed the train's hard drive that stored recordings from its "LocoCam," a frontfacing camera that should have recorded the incident. See PSOMF ¶¶ 43-44. Plaintiffs contend that Quillen removed this hard drive improperly, which corrupted any recordings on it. See PSOMF ¶¶ 45-44.
Martin testified that in his more than a decade working as a conductor for Defendant, he had not seen anyone walking in the immediate area of the railroad property where Jacob was struck. DSOUF ¶ 55. Marshall testified that he had regularly seen people on or near the tracks in and around Atlanta, at which times he would blow the train's horn to clear the tracks. PSOMF ¶ 17. Defendant keeps reports of trespassers, and it has no record of such reports in the area where Jacob was struck. DSOUF ¶ 56. Plaintiffs, however, contend that there is other evidence of pedestrians in that area, including well-worn paths, trash, and graffiti. PSOMF ¶¶ 15-16. Plaintiffs also contend that Defendant did not fence off this area, put up "No Trespassing" signs, or mark the boundaries of its right-of-way near the incident. PSOMF ¶ 31.
To be clear, Martin testified that he had seen "people at the park" near the railroad tracks, but he clarified that those people would have been standing far from the tracks. See Doc. No. [117] (Martin Dep. Tr.), Tr. 20:6-17.
Plaintiffs filed this action in the State Court of Gwinnett County, Georgia on March 1, 2019. Doc. No. [1-1]. In their Complaint, Plaintiffs brought claims against Defendant for strict liability and negligence. Id. ¶¶ 27-33. Defendant timely removed the action to this Court. Doc. No. [1]. After the end of a protracted discovery period, Defendant moved for summary judgment on all counts. Doc. No. [112]. With the benefit of full briefing, the Court rules as follows.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party's burden is discharged merely by " 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should resolve all reasonable doubts in the non-movant's favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). In addition, the court must "avoid weighing conflicting evidence or making credibility determinations." Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). When the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine dispute for trial. Fitzpatrick, 2 F.3d at 1115 (citations omitted).
III. ANALYSIS
To start, Defendant contends that it is entitled to summary judgment on Plaintiffs' strict liability claim for several reasons, including because no Georgia statute creates the claim that Plaintiffs seek to assert. Doc. No. [112-2], 23-25. In response, Plaintiffs state that they withdraw this claim. Doc. No. [127], 21. Accordingly, Defendant is entitled to summary judgment as to Plaintiffs' claim in Count I for strict liability.
Thus, only the Count II negligence claim remains. Doc. No. [1-1], ¶¶ 31-33. Defendant makes several arguments for why it is entitled to summary judgment on this claim. See Doc. No. [112-2], 5-23. The Court addresses those arguments separately below.
A. Summary Judgment Is Appropriate Because No Reasonable Jury Could Find That Defendant or Its Employees Displayed Willful or Wanton Misconduct
Defendant argues that Jacob was trespassing on its property at the time of the incident because he entered the property without permission. Doc. No. [112-2], 5-6. As such, Defendant contends that its only duty to Jacob was to refrain from willful or wanton misconduct. Id. at 6. Defendant argues that, for several reasons, the evidence does not allow for a finding of such misconduct. Id. at 6-13.
First, Defendant argues that its crew's application of the train's emergency brakes only after the train struck Jacob was not willful or wanton because the evidence does not show that the train could have stopped or slowed down in the time between Jacob becoming visible and the train striking him. Id. at 7-8.
Second, Defendant argues that the absence of fencing along the tracks was not willful or wanton misconduct because Defendant has no duty under Georgia law to erect such fencing and, in any event, such an omission is not the type of reckless or indifferent conduct that could allow for a finding of wantonness or willfulness. Id. at 8-9.
Third, Defendant contends that the train crew sounded the horn as soon as they saw Jacob, which precludes a finding of willful or wanton misconduct. Id. at 9-13. In making this argument, Defendant contends that the crew sounded the horn upon recognizing that the object they saw on the tracks was a person, at which point the train was only a few seconds away from striking Jacob. Id. at 9-10. As such, Defendant argues that the crew gave Jacob "some warning." Id. at 9. It contends that the crew's failure to give Jacob "more" warning, which is what Plaintiffs contend to be the relevant negligent failure, does not permit a finding of willful or wanton misconduct because the crew at least made some effort to warn Jacob. Id. at 9-10. Further, Defendant argues that whether Jacob was lying on or walking along the tracks is not material for this issue because, either way, the train crew did not know that Jacob was there until seconds before impact and thus could not have been acting willfully or wantonly. Id. at 10-13.
Plaintiffs respond that Defendant misstates the law. Doc. No. [127], 5-6. They contend that once the presence of a trespasser or licensee is known, the duty shifts to one of ordinary care. Id. at 6. Plaintiffs argue that Jacob was visible to Marshall and Martin for at least ten seconds in a populated area where they had a duty to anticipate pedestrians. Id. at 7. Thus, Plaintiffs argue, a "willful or wanton" standard should not apply. See id. at 6-7.
In reply, Defendant reiterates that Jacob was a trespasser who was owed only a duty to refrain from causing willful or wanton injury. Doc. No. [133], 2-4 (citing and discussing O.C.G.A. § 51-3-3). Defendant contends that the evidence does not support a finding of willful or wanton conduct by its employees, who "sounded the horn upon recognizing [Jacob] was on the tracks." Id. at 4. It further argues that their failure to see Jacob at least ten seconds before the train struck him is not material because the failure of a train crew to discover a trespasser does not rise to the level of willful or wanton conduct. Id. at 4-5.
In surreply, Plaintiffs argue that O.C.G.A. § 51-3-3, which became law in 2014 and provides the standard of care a landowner owes to a trespasser, does not modify or abrogate earlier decisions of Georgia courts concerning the duty owed to "known trespassers." Doc. No. [138]. They quote legislative history that indicates that the passing of this law was intended to codify and preserve Georgia common law regarding the duties owed by possessors of land to trespassers. Id.
"[T]he duty owed by a landowner to one who enters upon his property depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser." Lipham v. Federated Dep't Stores, Inc., 263 Ga. 865, 865, 440 S.E.2d 193, 194 (1994). An invitee is one who, "by express or implied invitation, has been induced or led to come upon premises for any lawful purpose." Jones v. Barrow, 304 Ga. App. 337, 338, 696 S.E.2d 363, 365-66 (2010) (citation omitted). "A landowner owes a duty to an invitee to exercise ordinary care to keep the premises and approaches safe." Id. at 339, 696 S.E.2d at 366 (citing O.C.G.A. § 51-3-1). A licensee, on the other hand, "is one who is permitted, either expressly or impliedly, to go on the premises of another, but merely for his own interest, convenience, or gratification." Id. at 338, 696 S.E.2d at 366 (citation omitted). A landowner owes a duty to a licensee "not to injure the licensee wantonly or wilfully and arises after the owner becomes aware of or should anticipate the presence of the licensee near the peril." Id. at 339, 696 S.E.2d at 366 (citing O.C.G.A. § 51-3-2). And a "trespasser is one who, though peacefully or by mistake, wrongfully enters upon property owned or occupied by another." Id. at 338, 696 S.E.2d at 365. "A lawful possessor of land owes no duty of care to a trespasser except to refrain from causing a willful or wanton injury." O.C.G.A. § 51-3-3; see also Pressley v. Atlanta & W. Point R. Co., 48 Ga. App. 382, 172 S.E. 731, 732 (1934) ("[A] railroad company owes to a trespasser walking upon its tracks the duty not to injure him willfully or wantonly after his presence is known to its servants in charge of the train; but this duty is not active until his presence is actually known.").
Wanton and willful conduct differs from negligence. Martin v. Gaither, 219 Ga. App. 646, 652, 466 S.E.2d 621, 625 (1995). Willful conduct is done with "an actual intention to do harm or inflict injury," and "wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent." Chrysler Corp. v. Batten, 264 Ga. 723, 726, 450 S.E.2d 208, 212 (1994) (cleaned up). Thus, an element of intent, actual or imputed, in willful or wanton conduct removes such conduct from that which would be considered negligent. Martin, 219 Ga. App. at 652, 466 S.E.2d at 625 (citations omitted). As such, a "demonstration of mere negligence" is insufficient to show willful or wanton behavior. McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629, 462 S.E.2d 789, 790 (1995).
First, the Court must determine whether Jacob was an invitee, licensee, or trespasser. To that end, Plaintiffs do not mount a serious dispute about whether Jacob qualifies as a trespasser. They briefly contend that because there is evidence of pedestrians' use of Defendant's railroad property, there may have been "a permissive public easement to travel on the right-of-way or at least to transfer pedestrians from the status of trespasser to licensee." Doc. No. [127], 4-5. Plaintiffs make this assertion in the facts section of their brief and do not develop that argument further. As Defendant contends (Doc. No. [133], 2 n.1), Plaintiffs have all but abandoned this argument by failing to develop it. See Gold Cross EMS, Inc. v. Children's Hosp. of Alabama, 648 F. App'x 976, 979 (11th Cir. 2016) (finding and citing cases supporting the proposition that a party abandons an issue when it makes only passing reference to it and does not develop supporting arguments). In any event, this argument fails on the merits because the evidence in this case of pedestrians on or near Defendant's railroad property does not support a finding of an easement or implied invitation in the area where Jacob was struck. To be sure, Plaintiffs present evidence of paths near the tracks. But for a defendant railroad company to have any heightened duty, it must have known that well-worn paths were often used by pedestrians. See, e.g., S. Ry. Co. v. Waldrup, 76 Ga. App. 356, 359-60, 45 S.E.2d 775, 778-79 (1947) (stating that when a railroad company knows that pedestrians have "constantly used" a path across tracks "for a number of years," the company owes those pedestrians a duty of ordinary care); Shaw v. Georgia R.R., 127 Ga. 8, 55 S.E. 960, 960 (1906) (same). Such evidence is lacking here. Marshall testified that he had seen pedestrians on or near tracks "around Atlanta," not near where Jacob was struck. Doc. No. [116] (Marshall Dep. Tr.), Tr. 17:21-18:5. Evidence of pedestrians on railroad tracks "around Atlanta"—a large metropolitan area—does not support a finding of an implied easement or prior knowledge of pedestrians specifically where Jacob was struck. See W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 42 (1932) (stating that a railroad company owes pedestrians a duty of ordinary care when the company knows that pedestrians "habitually" walk on or cross tracks "at a given point"). Similarly, Martin's testimony that he had seen people at the nearby park but not on the tracks (Martin Dep. Tr. 20:6-17) does not support a theory that Defendant knew that pedestrians crossed or walked on the tracks near where Jacob was struck. The evidence of graffiti and trash in the area does not alter the Court's finding to that regard. Finally, because Jacob was walking on Defendant's tracks without permission to be there, the Court finds that he had "wrongfully enter[ed] upon" Defendant's property and was thus a trespasser. See, e.g., Fox v. Pollard, 52 Ga. App. 545, 183 S.E. 854, 855-56 (1936) (stating that plaintiff was a trespasser even when he was walking along the tracks "in a populous section of the city" and "at [a] point" where people regularly crossed the tracks, which the railroad company knew about and did not attempt to discourage). Thus, Defendant owed Jacob a duty not to cause willful or wanton injury.
Some authority, however, has held that even if a railroad company has permitted use of a pedestrian path over its tracks for years, one walking on such a path without the railroad company's express permission to do so qualifies as a trespasser and is owed only a duty not to be caused willful or wanton injury. E.g., Potts v. S. R. Co., 47 Ga. App. 268, 170 S.E. 319, 319 (1933). Under that authority, even if Defendant had known that pedestrians were using paths over or near the tracks where Jacob was struck, Jacob still would qualify as a trespasser, which would not alter the Court's analysis.
At the very least, the evidence does not support a finding that Jacob was an invitee because there is no evidence that Defendant or its employees invited or otherwise induced Jacob to enter the property for a lawful purpose. Moreover, the record lacks evidence that Defendant, Marshall, or Martin knew that Jacob was on Defendant's property until seconds before the train struck Jacob, which weighs in favor of finding, at best, licensee status. See Jones, 304 Ga. App. at 339, 696 S.E.2d at 366 (finding that individuals were licensees when there was no evidence that the landowner had known that the individuals were on the subject property). But even if Jacob had licensee status, Defendant still owed him only a duty not to cause willful or wanton injury. Id.
Here, no reasonable jury could find that Defendant acted with willful or wanton misconduct. The evidence does not allow a reasonable finding of willful conduct because nothing shows that Defendant, Marshall, or Martin intended to harm Jacob. Thus, the Court must determine whether the evidence supports a finding of wanton conduct. It does not. To start, under the facts stated above, the lack of fencing in the area where Jacob was struck does not rise to the requisite level of recklessness to constitute wantonness. No facts show that Defendant had a duty to erect such a fence. Nor do the facts show that Defendant had notice of a reason to erect a fence in that area. The paths, trash, and graffiti in that general area do not show knowledge of such frequent pedestrian activity that Defendant could be considered to have been willful and wanton in failing to erect fences.
Further, the conduct of the train's crew does not allow for a finding of wantonness. Just before the accident, the train came around a curve, and Jacob was not in the train's line of sight until it was 695 feet away from him. Although the train's crew saw an object in the train's path after it rounded the curve, they did not recognize that the object was a person for a few seconds. Once the crew recognized that the object was a person, however, they sounded the train's horn. Plaintiffs argue that Marshall and Martin did not react "immediately" and instead delayed before sounding the horn. But that delay was only a matter of seconds. And, significantly, once Marshall and Martin recognized that a person was on the tracks, they attempted to warn Jacob. See Charleston & W.C. Ry. Co. v. Johnson, 1 Ga. App. 441, 57 S.E. 1064, 1065 (1907) (stating that a failure "to exercise ordinary care to prevent injuring a person whose peril is seen and known is almost necessarily willful or wanton" (emphasis added)). Under these facts, the evidence does not allow a reasonable finding that Defendant or the train crew acted so recklessly or indifferently as to be the equivalent in spirit to actual intent. Also, while the seconds-long delay could allow for a finding of negligence, mere negligence is insufficient to show willful or wanton behavior. Because Jacob was a trespasser when he was struck and was owed only a duty not to be caused willful or wanton injury, a jury could not reasonably find in favor of Plaintiffs.
The caselaw from Georgia supports this finding. In Pressley v. Atlanta & West Point Railroad Company, a pedestrian was struck by a train when she walked on railroad tracks without keeping a lookout behind her. 48 Ga. App. 382, 382, 172 S.E. 731, 732. The train's crew did not see the pedestrian until after the train came around a curve at "the usual speed" and approached the pedestrian from about 125 yards behind her. Id. At that point, the pedestrian walked off neighboring tracks and directly onto the oncoming train's tracks without looking behind her. Id. The crew sounded the train's whistle and applied the emergency brakes. Id. Despite these efforts to avoid a collision, the train struck and killed the pedestrian. Id., 172 S.E. at 733. Noting that the train's crew was unable to stop the train and attempted to warn the pedestrian, the court determined that no willful or wanton misconduct could be found. Id., 172 S.E. at 733-34; see also Pollard v. Todd, 62 Ga. App. 251, 8 S.E.2d 566, 571 (1940) (finding no willful or wanton misconduct when a train engineer was late in blowing a warning whistle before the train struck a pedestrian on the tracks, even if the delay in blowing the whistle was "insufficient and negligent"). Here, even if the train's crew arguably should have blown its warning horn earlier, the fact that they gave some warning once they recognized Jacob's peril precludes a finding of willful or wanton misconduct. By the same token, this case differs from those in which the court found that the plaintiff could show willful or wanton misconduct when a train's crew had time to give a warning yet failed to do so despite recognizing that a pedestrian was on the track and was unaware of the approaching train. See, e.g., Fox, 52 Ga. App. 545, 183 S.E. at 856; Humphries v. S. Ry. Co., 51 Ga. App. 585, 181 S.E. 135, 136-38 (1935) (finding jury question of willful or wanton misconduct when a pedestrian was walking on tracks in an area the railroad company knew was commonly used as a walkway, and the train's crew saw him from 1,000 feet away yet failed to warn him that the train was approaching); Cent. R. & B. Co. v. Denson, 84 Ga. 774, 11 S.E. 1039, 1040 (1890) (finding willful and wanton conduct when the train's crew saw the pedestrian on the tracks 400 yards before the train struck him yet never gave warning that the train was approaching).
Because no reasonable jury could find that Defendant acted with willful or wanton misconduct towards Jacob, who was a trespasser when he was struck, Defendant is entitled to summary judgment on Count II. To provide a thorough analysis of this matter, however, the Court continues to assess other arguments that the Parties presented.
B. The Last Clear Chance Doctrine Does Not Preclude Summary Judgment
In their response brief, Plaintiffs contend that the last clear chance doctrine should apply in this case. Doc. No. [127], 8-9. Plaintiffs argue that the evidence shows that Martin and Marshall could have seen Jacob ten seconds before impact. Id. at 8. By failing to blow the horn immediately, Plaintiffs argue, Martin and Marshall saw a person in danger but failed to take timely action. See id. Thus, Plaintiffs contend, Defendant's employees had the last clear chance to avoid the incident, which precludes summary judgment. See id. at 9.
Defendant argues that if the last clear chance doctrine applies, then it was Jacob—not the train crew—who had the last clear chance to avoid the accident because he voluntarily had his back to the train and thus was not in a position of peril from which he could not remove himself. Doc. No. [133], 7-8. Defendant also argues that the train crew had no similar options because they could not remove a hurtling train from the tracks to avoid Jacob. See id. at 8.
For the last clear chance doctrine to apply,
(1) party number one, by his own negligence, must have put himself in a position of peril from which he could not extricate himself (but the second party presumably could have extricated him) and (2) party number two must have knowledge and appreciation of the injured person's peril in time to avoid the injury.Fouts v. Builders Transp., Inc., 222 Ga. App. 568, 569-70, 474 S.E.2d 746, 751 (1996) (cleaned up); see also Shuman v. Mashburn, 137 Ga. App. 231, 235, 223 S.E.2d 268, 272 (1976) (stating that for the last clear chance doctrine to apply, "the injured person must have been in a position of actual and imminent peril from which he could not, by the exercise of reasonable care, extricate himself"). This doctrine does not apply when the plaintiff's negligence continues up to the injury and occurs concurrently with the defendant's negligence. Lovett v. Sandersville R. Co., 72 Ga. App. 692, 695, 34 S.E.2d 664, 666 (1945). This "doctrine cuts both ways and can be applied to prevent any recovery by a plaintiff who could have extricated himself from peril and failed to do so. [Thus, the doctrine] permits a negligent defendant to escape all liability for damages." Seaboard Coast Line R. Co. v. Daugherty, 118 Ga. App. 518, 522, 164 S.E.2d 269, 273 (1968).
Under the facts of this case, the last clear chance doctrine does not preclude summary judgment. To start, Jacob indeed negligently put himself in a position of peril when he chose to walk on live railroad tracks while listening to media with noise-canceling earbuds. But that fact does not mean that Plaintiffs satisfy the first element of the last clear chance doctrine. While Jacob was certainly in a position of peril, he was not in a position of peril from which he could not have extricated himself. Per his own testimony, Jacob was walking on the tracks. In other words, Jacob was ambulatory and thus physically able to remove himself from peril. That fact distinguishes this case from those where the injured party was physically unable to remove himself from the peril at hand. Compare Pressley, 48 Ga. App. 382, 172 S.E. at 733 (stating that the pedestrian could have prevented the accident because she could have moved off the track more quickly than it would have taken for the train to stop); with Miller v. Pennsylvania R. Co., 161 F. Supp. 633, 637-38, 640 (D.D. C 1958) (affirming instruction of last clear chance doctrine given where the plaintiff's bulldozer became stuck on railroad tracks and was hit by a train even though the train's crew was able to see the equipment from over 3,000 feet away); see also Thompson v. Porter, 21 Wash. 2d 449, 459, 151 P.2d 433, 438 (1944) (finding that last clear chance doctrine did not apply where a pedestrian was hit when walking on the wrong side of the road because even if the pedestrian had been "oblivious to his danger," he could have extricated himself from the peril, which differs from one who "has gotten his foot stuck in the road and is obviously physically unable to extricate it"). Moreover, the Court finds that Jacob did not exercise reasonable care because he was walking on active railroad tracks while looking only in one direction and listening to media with noise-canceling earbuds. As such, the Court finds that Jacob could have extricated himself from peril and failed to do so. Seaboard Coast Line R. Co., 118 Ga. App. at 522, 164 S.E.2d at 273.
Similarly, the Court finds that because Jacob was walking on live tracks while listening to media with noise-canceling earbuds up to the time of the accident, he not only failed to exercise reasonable care but also was negligent concurrently with Defendant. That concurrent negligence precludes application of the last clear chance doctrine. See Lovett, 72 Ga. App. at 695, 34 S.E.2d at 666.
Finally, the evidence shows that Defendant did not have knowledge and appreciation of Jacob's peril in time to avoid the injury. The train and its crew could not have seen Jacob until it rounded a curve traveling around forty-five miles per hour. The evidence shows that even if the emergency brakes had been applied when Jacob came into view of the train, it would not have stopped in time to avoid hitting him. And, as Defendant points out, the train did not have Jacob's ability to depart from the fixed tracks. The only option was for the crew to blow the train's horn to warn Jacob, which they did—unfortunately to no avail. Under these facts, the last clear chance doctrine does not preclude summary judgment. Cf. Cent. of Georgia R. Co. v. Wooten, 163 Ga. App. 622, 623, 295 S.E.2d 369, 372 (1982) (finding that the trial court appropriately instructed the jury on the last clear chance doctrine when there was evidence that a train engineer could have avoided the accident at issue had he applied the emergency brake when he first was warned that a vehicle was on the train tracks); Shuman, 137 Ga. App. at 236, 223 S.E.2d at 272 (finding that last clear chance doctrine did not support the plaintiff's case when the evidence showed that "the defendant, even if he knew of the peril, could not have prevented the injury").
Relatedly, the Court notes that Plaintiffs' audiologist expert Dr. Thomas Thunder has opined that Jacob's earbuds would not have prevented Jacob from hearing the train horn had it been blown earlier. See PSOMF ¶ 26. But the Court also notes that Jacob testified that he did not hear the train horn that the record shows was blown at least two seconds prior to impact. PSOMF ¶ 24. Based on the record evidence, the Court has no reason to believe that if Jacob did not hear the horn when the train was two seconds away from him that he would have heard it when the train was farther away from him. Thus, the Court does not find that the timing of the horn being blown affects the analysis concerning the last clear chance doctrine.
C. Summary Judgment Is Proper Under the Doctrine of Avoidable Consequences
Next, Defendant argues that Plaintiffs' negligence claim is barred by the doctrine of avoidable consequences. Doc. No. [112-2], 13-16. It contends that even if Jacob were not a trespasser, his claim fails because he clearly was negligent in failing to exercise ordinary care to discover the danger of the train tracks and avoid getting hit by the train. See id. at 13-14. Defendant argues that Jacob knew that the tracks were active and that walking on them came with a risk of a train coming down the tracks, but he nevertheless opted to walk down the tracks without keeping a diligent lookout and while listening to music or a podcast with noise-canceling earbuds. See id. at 14-16. Thus, Defendant argues, Jacob was not using ordinary care where he could have avoided any negligence attributable to Defendant, which bars his claim. Id. at 16.
Plaintiffs respond that the doctrine of avoidable consequences does not apply. Doc. No. [127], 19-20. They contend that Defendant was negligent because its engineer and conductor did not maintain a constant lookout or immediately begin sounding the train's horn and braking upon seeing Jacob. Id. They argue that Jacob did not know and could not have known about this negligence in time to have avoided it. Id. at 20.
Under the doctrine of avoidable consequences, if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, the plaintiff is not entitled to recover. O.C.G.A. § 51-11-7. The plaintiff must exercise ordinary care for his own safety and must take such care to avoid the effect of the defendant's negligence once it becomes apparent to him or if he should have learned of such negligence through the exercise of ordinary care. Lowery's Tavern, Inc. v. Dudukovich, 234 Ga. App. 687, 690, 507 S.E.2d 851, 854 (1998). "Under this doctrine, the plaintiff's negligence in failing to avoid the consequences of the defendant's negligence is deemed the sole proximate cause of the injuries sustained and, therefore, is a complete bar to recovery, unless the defendant wilfully and wantonly inflicted the injuries." Weston v. Dun Transp., 304 Ga. App. 84, 87, 695 S.E.2d 279, 282 (2010) (citations omitted). The defendant has the burden to prove "that the plaintiff by ordinary care could have avoided the consequences to himself or herself caused by the defendant's negligence." Id. at 88, 695 S.E.2d at 282. This issue generally is reserved for a jury unless the plaintiff's knowledge of the risk is clear and palpable. Id.
Here, the facts show that had Jacob exercised ordinary care, he could have discovered any negligent conduct by Defendant and avoided the consequences of it. Namely, had Jacob exercised the minimal care required to turn his head and maintain a lookout as he walked down the tracks, he would have been able to apprehend the danger of an approaching train. Georgia courts have granted summary judgment under the doctrine of avoidable consequences when the plaintiff "failed to take those steps which an ordinarily prudent person would have taken to ascertain whether [he] faced the obvious danger posed by the presence of an oncoming train and to avoid such danger." See, e.g., Holcomb v. Norfolk S. Ry. Co., 295 Ga. App. 821, 823-25, 673 S.E.2d 268, 270-71 (2009). By walking along railroad tracks that he knew were live with impeded hearing and without maintaining a reasonable lookout, Jacob did not take ordinary care to avoid the obvious danger of an oncoming train. Accordingly, summary judgment is appropriate under the doctrine of avoidable consequences.
D. Jacob Assumed the Risk of Walking on Live Railroad Tracks
Next, Defendant argues that Plaintiffs' claim is barred because Jacob assumed the risk of the injury. Doc. No. [112-2], 16-17. Defendant contends that Jacob assumed the risk of being injured because he knew that a danger of walking on active train tracks was getting hit by a train, yet he voluntarily walked on the tracks without looking or listening for a train. Id. at 17. Thus, Defendant argues, the negligence claim fails under the assumption of the risk doctrine. Id.
Plaintiffs respond that while Jacob appreciated the general risk of walking on train tracks, he did not assume the risk here because he did not know that the train's crew "would ignore his presence on the track," fail to blow the horn once he came into view, and run a train into him. See Doc. No. [127], 17-18. Because Jacob was unaware of this "specific" risk of harm, Plaintiffs argue, summary judgment is not appropriate on an assumption of the risk theory. Id.
In reply, Defendant argues that Plaintiffs misstate the law in contending that Jacob did not assume the risk because he did not have actual knowledge of the dangers of a specific train hitting him. Doc. No. [133], 5. Defendant argues that the specific risk in Jacob walking on the tracks was him getting hit by a train, not by the specific train that ultimately hit him. See id. at 5-7
One who "voluntarily and knowingly takes a risk involving imminent danger" assumes the risk, and "he is precluded from recovery by reason of another's negligence." York v. Winn-Dixie Atlanta, Inc., 217 Ga. App. 839, 839, 459 S.E.2d 470, 471 (1995). "The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk." York, 217 Ga. App. at 839-40, 459 S.E.2d at 471. To have assumed the risk, the plaintiff must have had both actual and subjective knowledge of the specific and particular risk of harm associated with the activity that proximately causes the injury. Baker v. Harcon, Inc., 303 Ga. App. 749, 754, 694 S.E.2d 673, 678 (2010); see also Beringause v. Fogleman Truck Lines, Inc., 200 Ga. App. 822, 824, 409 S.E.2d 524, 526 (1991) ("Knowledge of the risk is the watchword of assumption of risk."). "Significantly, a plaintiff's comprehension or general understanding of nonspecific risks that might be associated with the activity at issue is not sufficient." Id. (citation omitted). An act of comparative negligence does not necessarily constitute an assumption of risk, and this "rule does not extend to assuming the risk of the negligent act of another." Newcomb v. Spring Creek Cooler Inc., 926 F.3d 709, 716 (11th Cir. 2019) (quoting Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79, 225 S.E.2d 475, 477 (1976)).
Summary judgment is appropriate under this theory. The specific danger of walking on live railroad tracks, of course, is getting hit by a train. Jacob testified that he knew the railroad tracks were active and that he appreciated the danger of walking on those tracks. The Court rejects Plaintiffs' argument that getting hit by a train is a non-specific risk of walking on live railroad tracks. Plaintiffs try to convince the Court that a pedestrian must appreciate the risk of a specific train's crew failing to recognize him for the pedestrian to have assumed the risk of getting hit by a train while walking on active railroad tracks. In other words, Plaintiffs contend that while Jacob may have appreciated the general dangers of walking on the active tracks, he did not appreciate the fact that, specifically, Marshall and Martin would not recognize him in time to warn him or stop their train. That interpretation narrows the scope of this doctrine far too narrowly. The applicable risk to be appreciated is not that of a particular train crew failing to recognize Jacob in time to stop the train but rather of trains operating on the tracks and being dangerous to pedestrians who are walking on the tracks. Jacob appreciated that danger, yet he walked on the tracks with impeded hearing and without looking behind him. In doing so, he assumed the risk.
Defendant analogizes the danger of walking down tracks to that of walking down a highway. Doc. No. [133], 6. This analogy is apt. If Jacob had been walking down a highway he knew to have been active while listening to media with noise-canceling earbuds and not maintaining a lookout, he would have been assuming the predictable and specific risk of getting hit by a car. He need not have known which driver and which car would be coming down the highway to have assumed that risk. Thus, here, he need not have known which specific train was coming down the tracks to have assumed the real risk of getting hit by a train while walking along live tracks. See Rayburn v. Georgia Power Co., 284 Ga. App. 131, 137, 643 S.E.2d 385, 390 (2007) ("A driver who chooses to drive on the wrong side of the road assumes the risk that an oncoming car will hit him, and it does not matter whether he appreciates the risk of the particular vehicle that hits him."). But see Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 113, 460 S.E.2d 800, 803 (1995) (quoting a secondary source for the proposition that a pedestrian crossing a street of speeding cars has not "consent[ed] that the drivers shall not use care to watch for him and avoid running him down" and "has not consented to relieve the defendant of any future duty to act with reasonable care").
The Court understands part of Plaintiffs' argument to be that, to the extent Marshall and Martin were negligent, Jacob could not have assumed the risk of their negligent acts. It is accurate under Georgia law to say that one who "voluntarily and knowingly takes a risk involving imminent danger [ ] is precluded from recovery by reason of another's negligence ," but it is also accurate to say that "the rule does not extend to assuming the risk of the negligent act of another ." See Newcomb, 926 F.3d at 716 (emphases added) (quoting decisions from the Court of Appeals of Georgia). Taken at face value, these statements of Georgia law are in tension with each other. One states that if an individual freely and knowingly takes an imminently dangerous risk, he cannot recover regardless of another's negligence. The other states that one undertaking a risk does not assume the risk of another's negligent act. As is often the case, however, a closer review of Georgia caselaw reveals distinctions in how courts have applied these statements of law.
On one hand, some Georgia courts have determined that even if a plaintiff knows of the risk of a certain type of harm, that plaintiff does not necessarily consent to the negligence of another party by exposing himself to that risk. For example, in one case, a plaintiff truck driver was injured by loose boxes that fell on him as they were being unloaded. Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 111, 460 S.E.2d 800, 801 (1995). The plaintiff sued separate defendants that were alleged to have negligently loaded and later unloaded the boxes. Id. The trial court denied a motion for directed verdict that had been premised on a theory that the plaintiff had assumed the risk of injury by walking close to the loose boxes despite knowing that they could have fallen on him. Id. at 113, 460 S.E.2d at 803. The Court of Appeals of Georgia affirmed, reasoning that although the plaintiff "knew of the type of harm posed by the loose boxes on top of the secure load," he did not consent to a defendant acting negligently in unloading the boxes. Id. at 114, 460 S.E.2d at 803-04. Nor did the plaintiff assume the risk of the boxes falling on him just by standing near them. Id. The court also found that although the plaintiff knew of the risk, the case was distinguishable from "a classic case of assumption of the risk such as trying to beat a rapidly approaching train across the crossing or participating in a drag race." Id.
The Court of Appeals of Georgia further discussed this issue in a lawsuit involving a law enforcement officer killed when a truck swerved out of its lane to hit the officer's vehicle as he was participating in a convoy. Beringause v. Fogleman Truck Lines, Inc., 200 Ga. App. 822, 823-24, 409 S.E.2d 524, 525-26 (1991). The appellate court determined that although the officer "exposed himself to the risk of future harm by" participating in the convoy, he had not consented to other drivers failing to use care to watch for him and avoid hitting his vehicle. Id. at 823, 409 S.E.2d at 526. The court reasoned that for the officer to have assumed the risk of being hit by the truck, there must have been evidence that after the truck swerved into his lane, he "made a conscious and voluntary decision to proceed and risk a head-on collision." Id. at 824, 409 S.E.2d at 526; see also Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 78, 225 S.E.2d 475, 477 (1976) (finding that assumption of the risk did not apply in a trucking accident case because the injured truck driver had not "made a voluntary and knowing choice to stop in the middle of the interstate so as to assume all risk of injury regardless of negligence on the part of any other person").
On the other hand, when an injured party assumes the risk by engaging in a clearly dangerous activity that the injured party knows is dangerous, courts tend not to factor in the negligence of another. For example, the Court of Appeals of Georgia affirmed a trial court that gave a jury instruction on assumption of the risk in a case in which the plaintiff was severely injured while riding on top of a moving car driven by her friend. Teems v. Bates, 300 Ga. App. 70, 684 S.E.2d 662 (2009). The appellate court agreed with the trial court that the evidence supported an assumption of the risk defense because the plaintiff was warned of the dangers of "car surfing," had nonetheless freely undertaken that obviously dangerous activity, and thus had "assumed the risks necessarily attendant to that activity." Id. at 72-74, 684 S.E.2d at 666-67. The court disagreed with the plaintiff's position that assumption of the risk did not apply because she had not consented to her friend driving negligently. Id. at 74, 684 S.E.2d at 667. The court reasoned that she had "assumed the risks of changes in speed and direction associated with car surfing, including the risk that she would fall off of the moving vehicle." Id. Also, the court rejected plaintiff's argument that she could have assumed the risk only if she had "specifically consented to [the defendant] driving in a negligent or reckless manner." Id. at 74-75, 684 S.E.2d at 667. The court stated that even if the defendant acted negligently in a way that contributed to the plaintiff's injuries, "[Georgia] law does not require that [she] must have consented to any individual acts of negligence committed by [the defendant], but rather that she consented to the known and obvious risks arising from her choosing to car surf, including the risk of falling from the car as the result of changes in speed and direction." Id. at 75, 684 S.E.2d at 668. The court rejected the plaintiff's reliance on Little Rapids for the proposition that she had not assumed the risk that the defendant would drive negligently. Id. at 76, 684 S.E.2d at 668. The court distinguished Little Rapids because that case involved a plaintiff not "engaged in an inherently dangerous activity," whereas the plaintiff in Teems had "engaged in the inherently dangerous activity of car surfing in which the risk of falling was obvious, and there was testimony that [she was] aware of the danger prior to [ ] engag[ing] in the activity." Id. Thus, the appellate court affirmed the trial court's decision to charge the jury on the assumption of the risk doctrine. Id. at 77, 684 S.E.2d at 669.
In another case, the Court of Appeals of Georgia affirmed a trial court's decision at summary judgment that the plaintiff, an experienced ice skater, had assumed the risk of another skater crashing into and injuring him because the plaintiff had voluntarily skated on the defendant's ice rink despite knowing and appreciating that collisions were a risk of skating. Fowler v. Alpharetta Fam. Skate Ctr., LLC, 268 Ga. App. 329, 330-32, 601 S.E.2d 818, 819-21 (2004). The court affirmed that decision even though the plaintiff had alleged that negligent acts of the defendant had contributed to causing his collision and injury. Id. at 332, 601 S.E.2d at 820 ("[O]ur law does not require that [the plaintiff] must have consented to the individual acts of negligence, but that he consented to the known risks arising from his choosing to skate."). The appellate court expressly rejected the plaintiff's argument that he could not have "assume[d] the risk of another's negligence" because he was "found to have assumed the risks associated with ice skating, which he admitted were known to him." Id. at 332, 601 S.E.2d at 820-21; see also Munger v. Cent. of Georgia R. Co., 199 Ga. App. 301, 302, 404 S.E.2d 647, 649 (1991) (finding that a boy had assumed the obvious risk of getting hit by a train when he ascended an elevated train trestle and attempted to use a barrel stand as a place of safety when a train passed and fatally struck him).
More recently, the Court of Appeals of Georgia attempted to clarify the distinction between these lines of cases. Watson v. Reg'l First Care, Inc., 335 Ga. App. 740, 782 S.E.2d 822 (2016). There, the court reaffirmed that the assumption of the risk rule "does not extend to a plaintiff assuming the risk of the negligent act of another." Id. at 741, 782 S.E.2d at 823. But the court clarified that deciding whether a plaintiff assumed the risk requires assessing his subjective knowledge. Id. In Watson, the court emphasized that the plaintiff was subjectively aware of the risk that when he went to the hospital, he might pass out from coughing because he had done so multiple times in days prior to his hospital visit. Id. at 741-42, 782 S.E.2d at 823. Thus, the court found that the plaintiff had assumed the risk of sitting on an elevated table, rather than in nearby and unoccupied chairs, "regardless of any alleged negligence on the part of" a nurse on duty. Id.
Comparing similar cases may help further illustrate how to distinguish assumption of the risk cases. Both cases involved forklift accidents but reached different results. In Newcomb v. Spring Creek Cooler Inc., a truck driver was injured while standing on a loading dock next to his truck in the defendant's facility when a forklift collided into him. 926 F.3d 709, 711-12 (2019). The plaintiff had been standing next to his truck for about an hour as one of defendant's employees operated the forklift to transport and deposit pallets of corn into the plaintiff's truck. Id. at 712. The forklift completed four such trips without incident and without endangering the plaintiff. See id. But on the fifth trip, the forklift operator did not follow his prior paths into the truck and instead drove the forklift directly towards the plaintiff. Id. The plaintiff unsuccessfully attempted to evade collision and was struck. Id. He later sued the facility and its forklift driver for negligence. Id. The trial court ruled at summary judgment that the plaintiff knew of "and voluntarily remained in the path of the forklift," and thus he had "assume[d] the risk and dangers incident to the known condition." Id. The Eleventh Circuit reversed on appeal, finding that the evidence did not allow for a summary judgment ruling that the plaintiff had " 'voluntarily exposed himself' to the risk of being injured by the forklift or that he made a deliberate choice to pursue 'an obviously perilous course of conduct' with 'a full appreciation of the danger involved.' " Id. at 717. The court determined that the plaintiff had not clearly assumed the risk of getting struck by the forklift and could not have assumed the risk of the operator negligently driving the forklift. Id. Looking to the facts, the court emphasized that the plaintiff had safely been standing in the same position and outside the forklift's established path. Id. And because only an unexpected deviation from that path caused the plaintiff's injury, the court found that the plaintiff had not "consented to the forklift driver no longer exercising due care to avoid striking him." Id. In other words, the plaintiff's decision to stand in a place where he had not seen the forklift pass was not "a deliberate choice to pursue an obviously perilous course of conduct." Id. at 718. Accordingly, the Eleventh Circuit reversed. Id.
A separate forklift case, however, reached a different result. In Tennison v. Lowndes-Echols Association for Retarded Citizens, Inc., a truck driver sustained injuries when he helped unload a bundle of lumber. 209 Ga. App. 343, 343, 433 S.E.2d 344, 345 (1993). He had delivered the lumber to a defendant's facility, and after arriving he noticed that one of defendant's employees was having trouble lifting the pallets of lumber from the truck and onto a forklift. Id. The plaintiff then voluntarily climbed onto the truck and stood on top of the fourteen-foot bundle of lumber to help unload it. Id. The plaintiff grabbed a piece of wood and attempted to use it to move the lumber onto the forklift. Id. While the plaintiff was still on top of the bundle of lumber, the forklift operator "tilted the forks of the forklift upward, which caused the bundle of lumber to shift" and the forklift to overturn. Id. The plaintiff was thrown to the ground where the forklift and lumber fell on top of and injured him. Id. The plaintiff sued for negligence, and the trial court granted summary judgment under assumption of the risk. Id. The Court of Appeals of Georgia affirmed, noting that the plaintiff had conceded that he knew that the load of lumber could shift and fall, had seen the same forklift overturn under similar circumstances, and knew of the risk involved in climbing on the lumber. Id. Because the plaintiff knew of these dangers and yet voluntarily exposed himself to them, the court reasoned, summary judgment was appropriate under assumption of the risk. Id. at 344, 433 S.E.2d at 346. Importantly, the appellate court reached this decision while acknowledging that the forklift driver may have been negligent in operating the forklift. Id.
Notably, in cases not directly involving the negligent act of a defendant or third party, the analysis focuses heavily on whether the plaintiff fully knew of and appreciated the danger associated with his action. See, e.g., Hoose v. United States, 423 F. Supp. 3d 1376, 1380-82 (M.D. Ga. 2019), aff'd, 828 F. App'x 625 (11th Cir. 2020) (finding that a truck driver who was injured by a wind-blown gate arm that hit him had assumed the risk of danger in approaching that gate arm because he "undeniably knew and appreciated the precise risk" of the "swinging gate arm because he had previously seen the arms moving into the roadway, he knew that was a safety hazard, and he had reported the condition to his supervisor," and yet he freely "chose to encounter that risk").
A critical difference between those two cases was whether the evidence showed that the plaintiff recognized and appreciated the danger of the act in which they engaged. Both cases involved another person's negligent operation of a forklift, but whereas the plaintiff in Newcomb was not engaging in an act that he knew was obviously dangerous, the plaintiff in Tennison knew that he was undertaking a dangerous activity by climbing on top of a pile of lumber intended to be moved by a forklift. Similar differences in facts separate the cases discussed above, too. Thus, to the extent these lines cases can be intelligibly reconciled, this Court believes that while a plaintiff does not consent to another's negligent act, he can nevertheless engage in an act that he knows is so obviously dangerous that he assumes the risk even if another's negligence contributes to causing his injury. See Woolbright v. Six Flags Over Georgia, Inc., 172 Ga. App. 41, 41, 321 S.E.2d 787, 788 (1984) ("[W]here one voluntarily and knowingly takes a risk involving imminent danger[,] he is precluded from recovery by reason of another's negligence.").
Here, Jacob testified that he appreciated the fact that the railroad tracks were live. He had heard earlier trains on the tracks. He knew that there was a risk of a train approaching. That danger was obvious. Despite recognizing those facts, Jacob voluntarily walked along the tracks while wearing noise-canceling earbuds and not looking behind him for a train. One of the few truly predictable occurrences on active train tracks is the passing of a train. The passing of a train is obviously dangerous to a person walking on train tracks. Jacob knew of that specific risk for this specific set of tracks, yet he freely chose to walk along them. Thus, "[p]retermitting the issue of whether [the train operators were] negligent in [their] operation of the [train], [Plaintiff] knew of the danger of [walking on live train tracks], acknowledged the risk [thereof], and voluntarily exposed himself to that known risk of danger." See Tennison, 209 Ga. App. at 344, 433 S.E.2d at 346. For the above reasons, the Court finds that summary judgment is appropriate under the assumption of the risk theory.
The Court adds that the distinctly dangerous nature of railroad tracks distinguishes this case from others where a plaintiff was injured by a negligently operated vehicle or vessel. In Sutton v. Sumner, for instance, the court held that although a spectator in a pit area during a race had appreciated and assumed the general risk of getting hit by a theoretical racecar over which the driver lost control, he had no reason to anticipate the risk of getting hit by an improperly towed car because that was not a "normal, ordinary danger inherent in watching the race from the pit area." 224 Ga. App. 857, 859-860, 482 S.E.2d 486, 488-89 (1997). And in Trustees of Trinity College v. Ferris, the court found that although a rower who was injured in a collision with another boat was aware of the general risks inherent in rowing on a river, he was not aware of the specific risk that another boat would negligently ignore express traffic directions and proceed the wrong way in the river lane. 228 Ga. App. 476, 479, 491 S.E.2d 909, 913 (1997). Both of those cases involved a plaintiff in a space in which vehicles or vessels could operate in and traverse the space in a multitude of ways. As a result, the scope of potential dangers was great. Implicit in these courts' rulings was a recognition that one does not necessarily assume the risk of getting struck by a vehicle or vessel simply by being in the same space, especially when the risk of collision could manifest in limitless ways. In this Court's view, however, train tracks are different. Their scope of proper use is limited to channeling trains. And as compared to cars and boats, the trains themselves are peculiarly confined to the tracks. The number of ways for a race spectator or a rower to get struck is often too great for them to have assumed the risk in the general activities of spectating or rowing. On the other hand, there is not a similarly expansive range of potential dangers when one is walking on train tracks for an extended period (i.e., rather than simply crossing the tracks at a distinct point)—the danger is getting struck by a passing train that likely cannot avoid the collision. Thus, the Court finds that this case is distinguishable from the collision-related cases cited above.
E. Defendant Is Entitled to Summary Judgment Under a Theory of Comparative Negligence
Finally, Defendant argues it is entitled to summary judgment because no reasonable jury could find that Jacob's negligence was less than any negligence attributable to Defendant. Doc. No. [112-2], 22-23. It argues that Jacob admits that he bears fault for his injuries. Id. at 22. Defendant also argues that no reasonable jury could find that it was more negligent than Jacob because Jacob trespassed on its property, walked on active train tracks without looking or listening for a train, and chose to listen to music or a podcast with noise-canceling earbuds. Id. at 23. Because no reasonable jury could find that Defendant's negligence—if any—exceeds that of Jacob, Defendant argues it is entitled to summary judgment. Id.
Plaintiffs concede that comparative negligence will be a factor in this case, but they argue that a determination on comparative negligence is better left to a jury. See Doc. No. [127], 3-4.
Under Georgia law, comparative negligence operates to reduce the fault of a defendant by the amount of fault attributable to the plaintiff in proximately causing the plaintiff's injuries. See Garrett v. NationsBank, N.A. (S.), 228 Ga. App. 114, 118, 491 S.E.2d 158, 163 (1997). The comparative negligence doctrine results "in a bar of recovery when the negligence of the plaintiff is equal to or greater than that of the defendant." Id. Questions of comparative negligence typically are matters for the jury. Anderson v. Sears Roebuck & Co., 292 Ga. App. 603, 606, 664 S.E.2d 911, 914 (2008). But a court may rule on comparative negligence as a matter of law in "palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached." See Stegall v. Cent. Georgia Elec. Membership Corp., 221 Ga. App. 187, 190, 470 S.E.2d 782, 785 (1996).
Here, the Court determines that no reasonable jury could find that Jacob's negligence was not equal to or greater than that of Defendant. Jacob knew the tracks were live, yet he walked down them without looking behind him for trains and while listening to media with noise-canceling earbuds. The train's crew, on the other hand, had only around ten seconds to identify and warn Jacob that the train was approaching. At worst, the train's crew did not "immediately" sound the horn and apply the brakes, but the delay was one of a few seconds. Under these facts, no reasonable jury could find that Defendant's negligence was greater than that of Jacob.
The Court's finding is supported by Georgia cases barring recovery when pedestrians, who could not or did not hear trains approaching, chose to walk on railroad tracks without looking behind them for approaching trains. E.g., Pressley, 48 Ga. App. at 382, 172 S.E. at 732; Atl. Coast Line R. Co. v. Fulford, 159 Ga. 812, 127 S.E. 274, 275 (1925). For example, in Richardson v. Pollard, a pedestrian who was "a little hard of hearing" walked along railroad tracks and did not maintain a lookout behind him for approaching trains even though he "knew he was in a place of danger." 57 Ga. App. 777, 196 S.E. 199, 202 (1938). The court stated that he "should have exercised the faculty of sight by which he would have discovered that the train was approaching by merely turning his head." Id. The pedestrian's failure to exercise "the slightest degree of care," which "would have required him to look in the direction from which the danger might come," was such great negligence that the court found he was barred from recovery. Id. Here, Jacob exhibited a similarly great degree of negligence by walking on tracks he knew to be active, wearing noise-canceling earbuds, and failing to exercise "the slightest degree of care" to look behind him for approaching trains. Because no reasonable jury could find Jacob's negligence was less than that of Defendant, the Court finds that Defendant is entitled to summary judgment on a theory of comparative negligence. IV. CONCLUSION
Given these findings, the Court declines to address the Parties' arguments concerning ordinary negligence and whether the Federal Railroad Safety Act preempts Plaintiffs' negligence claim.
For the foregoing reasons, the Court GRANTS Defendant's Motion for Summary Judgment (Doc. No. [112]). Counts I and II are hereby DISMISSED with prejudice.
IT IS SO ORDERED this 6th day of September, 2022.