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Boyd v. National Railroad Passenger Corp.1/20/2005
gates, at the forty-four grade crossings along the Old Colony line. To that end, surveillance cameras were installed to gather information on and evaluate the desirability and feasibility of utilizing four-quadrant gates at the crossings. The corridor analysis and four-quadrant gate project thus involved a highway safety construction improvement project within the meaning of the Federal aid statutes. The fact that the corridor analysis was funded under 49 U.S.C. § 5312(c)(2) (1994), a grant "for projects that will use innovative techniques and methods in managing and providing mass transportation," does not detract from its explicit safety improvement purpose. Because the installation of four-quadrant gates along the Old Colony line would be eligible for Federal funds, the data and reports compiled or collected for the corridor analysis and four-quadrant gate project are covered by § 409 and therefore protected from discovery and admissibility at trial.
The plaintiff also argues that the information is not protected by § 409 because it concerns crossings other than the Pine Street crossing. The surveillance tapes were compiled as part of a comprehensive analysis of whether four-quadrant gates should be installed at all grade crossings along the Old Colony line. The three locations (not the Pine Street crossing) were chosen as representative of the conditions grade crossings on the line generally, including the Pine Street crossing, and thus "address" the Pine Street crossing within the meaning of § 409. The plaintiff's claim has no merit.
The motion judge properly held that § 409 protects from discovery and admissibility at trial the various documents and testimony derived from the corridor analysis and the video surveillance tapes.
C. Sufficiency of Admissible Evidence
The sole remaining admissible evidence to support the plaintiff's theory of wilful, wanton, or reckless conduct by the defendants is that Prone failed to sound the train's horn in compliance with regulations, see G. L. c. 160, § 138, and that the speed of the train exceeded the Federal speed limit of 80 mph.
"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 intentionally persist in conduct involving a high degree of probability that substantial harm would result to another.' Desmond v. Boston Elev. Ry., 319 Mass. 13, 16 (1946), and cases cited. See also Siver v. Atlantic Union College, 338 Mass. 212, 216 (1958); Restatement (Second) of Torts § 500 comments (a) and (g) (1965)." Gage v. Westfield, 26 Mass. App. Ct. at 691. See Sandler v. Commonwealth, 419 Mass. 334, 335-337 (1995). In the case of a railroad accident, excess speed and inadvertence, by themselves, do not constitute recklessness. Gage v. Westfield, 26 Mass. App. Ct. at 691. This would be so even assuming that a defendant knew that people often crossed the tracks at a particular location. Ibid. See Beausoleil v. Massachusetts Bay Transp. Authy., 138 F. Supp. 2d at 199-200.
Violation of a statute, rule, or regulation, standing alone, is at best evidence of negligence and does not warrant a finding of wanton or reckless conduct. See Commonwealth v. Welansky, 316 Mass. 383, 403 (1944); Commonwealth v. Godin, 374 Mass. 120, 129 (1977), cert. denied, 436 U.S. 917 (1978). See also Restatement (Second) of Torts § 500 comment e (1965).
In Gage, we reversed the motion judge's decision to allow summary judgment on the wilful, wanton, or reckless claim because there was "an indication of something more." Gage v. Westfield, 26 Mass. App. Ct. at 691. Specifically, there was evidence of radio communication between t
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