United States District Court, D. New Hampshire
Heather Butler-Tessier et al.
National Railroad Passenger Corporation. Opinion No. 2016 DNH 047
N. LaPLANTE, District Judge.
negligence action that conjures the shade of Mrs. Palsgraf,
plaintiff Heather Butler-Tessier was injured after falling
from a moving train operated by the defendant, the National
Railroad Passenger Corporation, commonly known as Amtrak.
Butler-Tessier, a resident of Hopkinton, New Hampshire, sued
Amtrak in Merrimack County Superior Court, asserting one
count of negligence. Her husband and co-plaintiff,
Christopher Tessier, claims loss of consortium. Amtrak
removed the action to this court, which has jurisdiction
under 28 U.S.C. §§ 1331 and 1349 because Amtrak was
incorporated by an Act of Congress and the United States owns
more than one-half of its capital stock. See Rail Passenger
Service Act of 1970, 84 Stat. 1327 (1970) (codified as
amended at 49 U.S.C. §§ 24101 et. seq.); Fed.
Intermediate Credit Bank of Columbia, S.C., v. Mitchell,
277 U.S. 213, 214 (1928) ("A suit by or against a
corporation created under an act of Congress is one arising
under the laws of the United States.").
moves for summary judgment, see Fed.R.Civ.P. 56, arguing that
Butler-Tessier cannot prove that any breach of a duty owed to
her by Amtrak caused her injuries. Butler-Tessier counters
that Amtrak breached one or more of several duties and that
her injury resulted from those breaches. For the reasons
discussed more fully below, the court concludes that
significant questions of material fact preclude summary
judgment, including whether the train was moving with one of
its doors open and just how Butler-Tessier exited the moving
Applicable legal standard
judgment is appropriate where "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."
Fed.R.Civ.P. 56(a). A dispute is "genuine" if it
could reasonably be resolved in either party's favor at
trial, and "material" if it could sway the outcome
under applicable law. See Estrada v. Rhode Island,
594 F.3d 56, 62 (1st Cir. 2010). In analyzing a summary
judgment motion, the court "views all facts and draws
all reasonable inferences in the light most favorable to the
non-moving" parties. Id.
following summary views the facts and draws the inferences as
described above. On the morning of November 6, 2013,
Butler-Tessier drove her parents to the Route 128 station in
Westwood, Massachusetts, to catch a train operated by the
defendant. When the train arrived at the station, she helped
her parents and their luggage aboard. She did not have a
ticket. After depositing their luggage near the door, she
helped her parents find a seat. Then the train began to move.
Realizing this, Butler-Tessier left her parents and walked
forward, passing through the doors that connected her
parents' car to the cafe car. One of the doors on the
side of the cafe car, which the parties term a
"vestibule door, " was ajar. Butler-Tessier exited
the moving train, though the parties disagree precisely how:
Amtrak contends that she jumped; Butler-Tessier, that she did
not. They do agree that the injured Butler-Tessier was
eventually found beside the tracks west of the Route 128
station and subsequently airlifted to Boston Medical Center
succeed on a negligence claim, a plaintiff must
"establish that the defendant owed a duty to the
plaintiff, breached that duty, and that the breach
proximately caused the claimed injury." Estate of
Joshua T. v. State, 150 N.H. 405, 407 (2003) (quotations
and citations omitted). Rather appropriately to this case,
the law in New Hampshire "derive[s] [its] concepts of
duty and foreseeability from Chief Justice Cardozo's
majority opinion in Palsgraf v. Long Island Railroad
Co., 248 N.Y. 339 (1928)." Manchenton v. Auto
Leasing Corp., 135 N.H. 298, 304 (1992).
prove the proximate cause element, which Amtrak argues that
Butler-Tessier cannot, the plaintiff must prove both
causein-fact and legal cause. To accomplish the former, she
"must produce evidence sufficient to warrant a
reasonable juror's conclusion that the causal link
between the negligence and the injury probably existed."
Estate of Joshua T., 150 N.H. at 407. And to carry
her burden on the latter, she must "establish that the
negligent conduct was a substantial factor in bringing about
the harm." Id . The question of "proximate
cause is generally for the trier of fact to resolve."
Carignan v. New Hampshire Int'l Speedway, Inc.,
151 N.H. 409, 414 (2004). The evidence here suggests that a
reasonable jury could resolve that question in
parties agree that Butler-Tessier left the train while it was
moving. Butler-Tessier has introduced evidence that the outer
door of the cafe car was open at the time. See, e.g.,
Plaintiffs' Ex. 13; Plaintiffs' Ex. 10 at 22, 26;
Plaintiffs' Ex. 14 at 65-66. She has also introduced
evidence that departing the station with an open door would
violate Amtrak's passenger safety policies, if not other
applicable standards. See, e.g., Plaintiffs' Ex. 12 at
45-47; Plaintiffs' Ex. 15 at 35-36; Plaintiffs' Ex.
5; Plaintiffs' Ex. 6. A reasonable jury could well find
as much, and that an open door on a moving train is a
"hazard... apparent to the eye of ordinary vigilance,
" Palsgraf, 248 N.Y. at 342, and a breach of a
railroad's duty to keep its passengers safe, cf.
Fifield v. N. R.R., 42 N.H. 225, 233 (1860)
("Railroads are bound to furnish sufficient and safe
machines and cars.").
counters that, even if the door was open, it did not cause
the plaintiff's injuries; her choice to jump from the
train did. But it is not clear from the evidence of record,
taken in the light most favorable to the plaintiff, that she
did jump. Direct evidence is scant at best. Butler-Tessier
herself cannot remember how she exited the train. Nobody
appears to have witnessed her exit the train. At best,
Amtrak is left with a contradictory medical record that
states both that the plaintiff "jumped off the
train" but also that her injuries "occurred by
fall, from train, " and a bevy of circumstantial
evidence. The plaintiff spins a different story: that,
discovering that the train had departed the station without
warning,  she hastened forward to seek help
getting off the train. See, e.g., Plaintiffs' Ex. 11 at
105-106. Along the way, she passed an open door. Though she
does not remember leaving the train, a reasonable jury could
conclude from this that she did not jump, but fell off the
train. Contrary to Amtrak's assertions, the absence of
clear direct evidence is not fatal to Butler-Tessier's
claim. Rather, in such cases, "the real question, then,
becomes whether the evidence would permit a jury reasonably
to find that plaintiff's theory of how [she] fell is more
probable than defendants' theory." Ricci v.
Alternative Energy Inc., 211 F.3d 157, 163 (1st Cir.
2000) Here, it would.
even if the jury concluded that Butler-Tessier did jump, it
could likely still find (a) that she would not have done so
but for the door being open, and (b) that the door being open
was a substantial factor contributing to her injuries. Thus,
Butler-Tessier has satisfied her burden of
"demonstrate[ing] that a trier of fact could reasonably
resolve [this] issue in her favor." Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.
2010). Amtrak has therefore not carried its burden of
demonstrating the absence of a genuine dispute of material
fact as to the element of causation.
offers two additional arguments in favor of summary judgment.
First, Amtrak posits that Butler-Tessier's injuries
resulted from an intervening event, to wit, her own decision
to jump off the train. See Maloney v. Badman, 156
N.H. 599, 938 A.2d 883, 886 (2007) (a deliberate, intentional
and intervening act on the part of the plaintiff, not
reasonably foreseeable to the defendant, may break the chain
of causation). Second, it contends that Butler-Tessier's
negligence outweighs its own as a matter of law - and thus
New Hampshire's comparative negligence statute bars her
recovery - because Butler-Tessier acted willfully, wantonly,
and recklessly when she jumped off the train. See N.H. Rev.
Stat. Ann. § 507:7-d. Both of these arguments assume it a
foregone conclusion that Butler-Tessier jumped, rather than
fell, from the moving train. But this, as discussed supra, is
instead a material fact in genuine dispute. Even if such a
conclusion were inevitable, it would unquestionably remain
for the jury to weigh the parties' comparative
negligence. See Bellacom ...