United States District Court, D. Rhode Island
CAROLINA PENARDO, in her capacity as Administrator of the Estate of Andrea Lynn Penardo; CAROLINA PENARDO, individually; MICHAEL PENARDO; and ELIZABETH PENARDO, Plaintiffs,
NATIONAL RAILROAD PASSENGER CORPORATION; and JOHN DOES 1 through 10, Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
the Court is a Motion for Judgment on the Pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure filed
by Defendant National Railroad Passenger Corporation
(“Amtrak”). (ECF No. 5.) For the reasons set
forth below, Defendant's motion is GRANTED.
October 16, 2016, sixteen-year-old Andrea Lynn Penardo,
her sister, seventeen-year-old Elizabeth Penardo, travelled
to East Greenwich, Rhode Island to take pictures of the East
Greenwich waterfront. (Compl. ¶¶ 39-40, ECF No.
1-1.) Andrea and Elizabeth were raised in West Warwick and,
while they had visited East Greenwich before, they were
unfamiliar with the area between Main Street and the
waterfront. (Id. ¶¶ 36, 39.) To access the
waterfront from Main Street, Andrea and Elizabeth walked
along King Street, where they encountered the King Street
bridge. (Id. ¶¶ 40-41.) The King Street
bridge is an old stone bridge, built in 1837, with narrow
traffic tunnels and graffiti on the side. (Id.
¶¶ 12, 41.) Elizabeth took a photograph of the King
Street bridge from the King Street median. (Id.
¶ 41.) Andrea and Elizabeth, their curiosity piqued,
decided to see what was on top of the bridge. (Id.
and Elizabeth walked up a well-worn path that began at the
King Street sidewalk and ran up the hill to the top of the
bridge. (Id. ¶ 42.) There was litter along the
way and a cut tree nearby. (Id.) There was a fence
with an unlocked gate at the top of the path, but the area
otherwise lacked any signs or warnings. (Id.
¶¶ 42-43.) On the opposite side of the fence were
railroad tracks and more litter, but there was no fence on
the other side of the railroad tracks. (Id. ¶
43.) Andrea and Elizabeth had never lived near railroad
tracks, nor had they ever ridden on high-speed trains.
(Id. ¶ 36.) In light of their unfamiliarity
with trains and the age of the King Street bridge, Andrea and
Elizabeth believed the railroad tracks passing over the King
Street bridge were abandoned. (Id. ¶¶ 36,
39, 44.) Thinking that the bridge would offer a good vantage
point to take photographs of the waterfront, they passed
through the unlocked gate and sat down on the King Street
bridge with their legs dangling off the side. (Id.
owns, operates, and maintains the railroad tracks that pass
over the King Street bridge. (Id. ¶ 11.)
Located in a densely populated area of East Greenwich, the
King Street bridge is a narrow bridge, barely wide enough for
the two sets of railroad tracks that pass over it, and lacks
catwalks or handrails on either side. (Id.
¶¶ 10, 13, 16.) The railroad tracks that approach
and leave the King Street bridge are curved. (Id.
¶ 11.) Amtrak's southbound trains approach the King
Street bridge from around a corner, at high speed, with
little audibility, and without giving a warning.
(Id. ¶ 32.)
October 2016, Amtrak had placed fencing along almost all of
its railroad tracks in East Greenwich, with gates secured by
a lock and chain. (Id. ¶¶ 25-26.)
Moreover, warning signs were placed in close proximity to
these gates. (Id. ¶ 29.) The unlocked gate that
Andrea and Elizabeth used to access the railroad tracks on
the King Street bridge only had one warning sign nearby,
which faced away from those entering through the gate.
(Id. ¶ 35.) This sign was written in railroad
industry language that the public would not easily
understand. (Id.) The signs warned railroad workers
to contact train dispatchers to halt train traffic along the
King Street bridge before they entered onto the bridge.
and Elizabeth were not the first pedestrians to access the
tracks in the area around the King Street bridge;
Amtrak's train engineers and maintenance workers had
observed and met with people close to and on the tracks
before. (Id. ¶¶ 17-18.) Additionally,
suicide attempts, some fatal, had occurred on railroad tracks
in East Greenwich in the twenty years prior to October 2016.
(Id. ¶ 19.)
sitting on the King Street bridge for approximately a minute,
Elizabeth noticed a train round the corner approaching the
King Street bridge at approximately ninety-five miles per
hour. (Id. ¶¶ 46-47.) Elizabeth and Andrea
began to run from the oncoming train, with Andrea running
behind Elizabeth. (Id. ¶ 46.) Elizabeth managed
to clear the tracks at the end of the King Street bridge, but
Andrea was struck and killed by the train. (Id.
this tragic event, Andrea's parents, Carolina and Michael
Penardo, and Elizabeth filed a Complaint alleging the
following against Amtrak: intentional and willful conduct
causing wrongful death (Count I); intentional infliction of
emotional distress upon Andrea and Elizabeth (Counts II and
III); negligent conduct causing wrongful death (Count IV);
negligent infliction of emotional distress upon Andrea and
Elizabeth (Counts V and VI); and loss of society and
companionship by Carolina and Michael Penardo (Counts VII and
VIII). (See generally id. at 10-18.)
treats a motion for judgment on the pleadings much like a
Rule 12(b)(6) motion to dismiss. Pérez-Acevedo v.
Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing
Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir.
2007)). “[T]o survive a Rule 12(b)(6) motion (and, by
extension, a Rule 12(c) motion) a complaint must contain
factual allegations that ‘raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true . . . .'”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Because such
a motion calls for an assessment of the merits of the case at
an embryonic stage, the court must view the facts contained
in the pleadings in the light most favorable to the nonmovant
and draw all reasonable inferences therefrom to the
nonmovant's behoof.” R.G. Fin. Corp. v.
Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006)
(citations omitted). “There is no resolution of
contested facts in connection with a Rule 12(c) motion: a
court may enter judgment on the pleadings only if the
properly considered facts conclusively establish the
movant's point.” Id. (citing
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988)). Judgment on the pleadings is only appropriate
when “it appears beyond a doubt that the nonmoving
party can prove no set of facts in support of [his] claim
which would entitle [him] to relief.” Rezende v.
Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 (1st Cir.
2017) (quoting Feliciano v. Rhode Island, 160 F.3d
780, 788 (1st Cir. 1998)).
Rhode Island, “landowners owe a duty to
‘maintain the[ir] property in a reasonably safe
condition for the benefit of those persons who might come
upon the land.'” Bennett v. Napolitano,
746 A.2d 138, 141 (R.I. 2000) (alterations in original)
(quoting Brindamour v. City of Warwick, 697 A.2d
1075, 1077 (R.I. 1997)). “This duty does not extend to
trespassers, however.” Id. (citing
Brindamour, 697 A.2d at 1077). In the railroad
context, “[i]t is the generally accepted rule that a
railroad company owes no duty to a trespasser on its premises
except to abstain from willful and wanton injury to him
after he is discovered in a position of
peril.” Erenkrantz v. Palmer, 35 A.2d 224, 225
(R.I. 1944) (citing Boday v. New York, N.H. & H.R.
Co., 165 A. 448, 448 (R.I. 1933)). However, “a