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LOPEZ v. UNION PACIFIC R. CO.2/25/1997
lroad with knowledge of the presence of the plaintiff and the circumstances under which the injury occurred were such that a reasonable person would believe that serious injury would probably result from the act of the owner or operator. Union Pacific argues that plaintiff cannot recover under that part of the statute because the train crew looked for persons who might be on or near the equipment but saw no one. When the cars began to move, the crew had no knowledge that plaintiff was on the equipment. Union Pacific further asserts that the statute does not alter, but merely codifies, the common law general rule that a trespasser cannot recover unless his presence is known to the landowner and the owner then willfully or recklessly injures him.
However, the common law recognized an exception to the general rule relied upon by Union Pacific. That exception is succinctly stated in the Restatement (Second) of Torts § 334 (1965):
A possessor of land who knows, or from the facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
This exception, which heightens the duty owed by an owner to a trespasser, has been explained by Prosser and Keeton as recognizing a balance of burden and benefit so that if the "burden is very slight, and the risk of harm to trespassers is correspondingly very great, there may be good reason to hold the defendant liable. This has been true first of all in the case of frequent trespass upon a limited area." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 58, at 395 (5th ed. 1984). The burden is decreased if "trespassers in substantial number" habitually enter the land at a particular point, with the knowledge of the occupier of the land, and traverse a small area. Id. at 395-96. In that case, "the burden of looking out for them is reduced, and the risk of harm perhaps increased, so that many courts have held that there is a duty of reasonable care" to discover and protect the habitual trespassers in their activities. Id. at 396. "The typical case is that of frequent use of a particular part of a railroad track. . . ." Id. Therefore, if, as Union Pacific contends, the statute was intended to codify the common law, then we must construe it not to require actual knowledge of this plaintiff's presence but to require only knowledge that persons habitually crossed over or between the cars
in traversing the area between the buildings and the parking lots.
This exception has always been part of the common law of this state. In Knutson v. Oregon Short Line Railway Co., 78 Utah 145, 2 P.2d 102 (1931), we observed that we had recognized the exception in a number of cases dating back to territorial times. There we wrote:
The adjudicated cases are not all in harmony as to the nature or extent of the duty which a railroad company owes toward persons who, for their own purposes and without invitation, enter upon its tracks or other premises. All of the cases are agreed that a railroad company may not willfully or wantonly injure persons who are trespassing upon its premises. In some jurisdictions, such is the limit and extent of the duty which a railroad company owes to trespassers. In other jurisdictions, the servants of a railroad company, when operating a moving train, are required to keep a constant lookout ahead for trespassers who may be upon the railroad track. In still other jurisdictions, the rule is recognized that the servants of a railroad company are not required to keep a lookou
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