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Silva v. Union Pacific Railroad Co.12/28/2000
CERTIFIED FOR PARTIAL PUBLICATION *
Teenager Lucas Silva was killed when he was hit by a train owned and operated by defendant Union Pacific Railroad Company (Union Pacific). His parents, plaintiffs Jose and Lupe Silva, filed a wrongful death action. Identified in the complaint as "significant factors in the death of deceased" were "negligent operation" of the train and the failure "to maintain fences protecting the public from the train tracks ."
The heart of Union Pacific's litigation strategy has been the preemption of state common law liability by virtue of the extensive federal regulation of the railroad industry. The key to that strategy has been to establish that the train which killed Lucas Silva was traveling within a federally-authorized speed limit. Union Pacific obtained a summary judgment on the ground that it had established that the train had been operating within that speed limit. That judgment was reversed because the evidentiary showing establishing the speed limit was insufficient. (Silva v. Union Pacific Railroad Company (Sep. 30, 1997, A076412) [nonpub. opn.].)
When the cause was returned to the superior court and called for trial, both sides made a number of competing in limine motions. The first category of motions concerned whether Union Pacific should or should not be precluded from offering evidence that it had no duty to fence its right- of-way at the accident site. The second category involved motions relating to the preemption issue and ancillary matters such as speed, brakes, and track classification. After hearing extensive argument on the motions, the trial court ruled that Union Pacific had no duty to fence. At the conclusion of an evidentiary hearing the court ruled that Union Pacific had established federal preemption. After plaintiffs advised the court that they were "unable to proceed, solely because of the rulings on motions in limine," the parties stipulated to a judgment for Union Pacific that would allow plaintiffs to obtain appellate review of those rulings. Following entry of that judgment, plaintiffs perfected this timely appeal.
REVIEW
I.
Plaintiffs' attack on the first ruling-that Union Pacific had no duty to fence off the right-of-way through which Lucas Silva entered upon the tracks-concedes that the issue has previously been decided in favor of railroads, but plaintiffs argue the issue is ripe for reexamination in light of an intervening decision by our Supreme Court.
Up until 1968 it was generally settled throughout the country that railroads had no duty to fence access to their tracks in order to prevent injury to unauthorized entrants, particularly children. (See, e.g., Holland v. Baltimore & O. R. Co. (D.C.App. 1981) 431 A.2d 597, 603, fn. 11 and decisions cited; Annot., Duty of Railroad to Fence Track as against Children (1922) 16 A.L.R. 944.) California analyzed the issue as one involving attractive nuisance as defined by section 339 of the Restatement of Torts. The leading California decision had this to say: "Many miles of railroad track run on or along streets and roads in California. To fence rights-of-way on public streets would be impractical if not an unlawful obstruction of public thoroughfares. . . . [ ] The problem presents other ramifications which must be considered. It seems more reasonable to expect children to play on an open right-of-way running through a residential or a suburban area than on a city street used for vehicular traffic. Thus, were the attractive nuisance doctrine applied in the case of a train traveling on a street, and on those facts alone, it would be equally applicable to trains traversing populated areas. Dwellings flank hund
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