Crimes on the Rails (part 2)

A case out of Pennsylvania bookends with the case of R v Harding (2018) about which I wrote the other day.

Image from here

On 12 May 2015 Brandon Bostian was the engineer on a train from Washington to New York.  The train entered a bend in the line at 106 mph (170 kph).  This was more than double the speed limit.  The train derailed, injuring 150 passengers and killing eight.  A government investigation found that Bostian was not affected by alcohol or drugs and was not using a cellphone.  It concluded that he had lost his bearings while distracted by operational radio communications.

The family of one of the deceased brought a private prosecution against Bostian for (inter alia) involuntary manslaughter.  Pennsylvania law states that

A person is guilty of involuntary manslaughter when as a direct result of … the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

The charges were dismissed by the Philadelphia Municipal Court.  The Attorney-General appealed to the Court of Common Pleas.  On 6 February 2018 Lewis J reversed the Municipal Court’s decision, finding that there was sufficient evidence for Bostian to be presented for trial.  It appears a trial date has not yet been set.

Commonwealth v Bostian (2018), Philadelphia Inquirer, 6 February 2018 and Register Citizen (Torrington, CT), 6  February 2018.

Fractured and captured

In the leading English case of Bernstein v Skyviews & General Ltd, Griffiths J said “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height”*. The Superior Court of Pennsylvania seems to have gone in the opposite direction both spatially and jurisprudentially.

Rock Oil
Image from here

Briggs owned land in Susquehanna County, Pennsylvania. Southwestern Energy Production Co leased oil and gas rights on an adjoining parcel of land. The company extracted natural gas from below both properties using hydraulic fracturing (“fracking”). Briggs sued the company in the Court of Common Pleas for conversion of natural gas and trespass to land. The Company sought and was granted summary dismissal of the plaintiff’s claim based on the “rule of capture”. The rule of capture says that an owner (or lessee) may extract oil and gas from below ground even when doing so depletes a single reservoir of oil or gas beneath both their own and adjoining land**. The plaintiff appealed.

The Superior Court upheld the appeal and set aside summary judgment. It found that fracking was so different from conventional gas extraction that the rule of capture did not apply –

Traditionally, the rule of capture assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure. … Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature. … Shale gas does not merely “escape” to adjoining land absent the application of an external force. … Instead, the shale must be fractured through the process of hydraulic fracturing; only then may the natural gas contained in the shale move freely

It followed that fracking may be an actionable trespass where subsurface fractures and fracking substances entered the “subsurface estate” of a property and resulted in the extraction of natural gas.  Conceivably this trespass may extend to damage caused by earth tremors if they can be credibly linked to fracking.

Briggs v Southwestern Energy Production Co, 2018 PA Super 79

* [1978] Q.B. 479 at 487.
** Minard Run Oil Co v US Forest Service, 670 F. 3d 236 at 256 (3d Cir. 2011)

Pennsylvania v Gosselin (2004) H&FLR 2015-33

Commonwealth of Pennsylvania v Barbara Gosselin (2004) H&FLR 2015-33

Superior Court of Pennsylvania

5 November 2004

Coram: Hudock and Klein JJ; McEwen PJE

Appearing for the Prosecution: No appearance
Appearing for the Defendant: Dick Berger

Catchwords: Pennsylvania – pets – squirrel – wildlife – marking

Facts: The defendant was a resident of South Carolina in the early 1990s.  While a resident there she took into her care an injured squirrel which became the family pet.  In 1994 the defendant, her husband and the squirrel relocated to Pennsylvania, where the squirrel was housed in a room-sized enclosure.  In 2002 an officer of the Pennsylvania Game Commission became aware of this and requested that the squirrel be released into his charge on the basis that it was unlawful to keep it in this manner.  The defendant declined to release the squirrel and was charged with unlawfully possessing wildlife.

Section 2307 of the Pennsylvania Game and Wildlife Code (34 Pa CSA §2307) relevantly provides that –

(a) It is unlawful for any person to … possess … any … wildlife contrary to the provisions of this title.

(c) Nothing in this title shall prohibit the possession … of … wild animals lawfully taken outside of [Pennsylvania] which are tagged and marked in accordance with the laws of the state or nation where the … wild animals were taken. It is unlawful to … possess … wild animals from another state or nation which have been unlawfully taken, killed or exported.

It was common ground that the squirrel was a wild animal and that South Carolina law allowed the taking and domestication of squirrels without requiring them to be tagged or marked.

The defendant was convicted of the charge and fined $100.00: Pennsylvania v Gosselin, Morning Call, 14 May 2003 (Orwigsburg Dist. Ct., Feb. 2003).  She appealed to the Court of Common Pleas which upheld the conviction: Pennsylvania v Gosselin, Morning Call, 28 November 2003 (Schuykill Co. Ct. Comm. Pleas, Nov. 2003).  She further appealed to the Superior Court.

Held: Allowing the appeal and dismissing the charge, that because South Carolina law did not require the squirrel to be tagged or marked, the absence of tagging or marking met the requirements of §2307(c).  Because it was agreed that the squirrel was lawfully taken in South Carolina, the exception in paragraph (c) was made out.


The Court’s judgment is available here.

Spady v Bethlehem Area School District (2014) H&FLR 2014-48

Mica Spady v Bethlehem Area School District and Ors (2014) H&FLR 2014-48

United States District Court (Eastern District of Pennsylvania)

30 July 2014

Coram: Slomsky J

Appearing for the Plaintiff: Richard J. Orloski and Steven C. Ameche (of Orloski Law Firm)
Appearing for the Defendants: Paul G. Lees (of Marshall, Dennehey, Warner, Coleman & Goggin)

Catchwords: Pennsylvania – school – physical education – death – constitutional violations – officials immunity – exceptions – training

Facts: Juanya Spady was a student at Liberty High School, operated by the defendant. On 2 December 2010 he attended a swimming class as part of Physical Education (PE). During the class he complained to the teacher of feeling unwell but finished the lesson. The evidence was conflicted as to whether the teacher compelled him to complete the lesson. During his next class (which was in a classroom) he collapsed and had difficulty breathing. First aid was administered, including CPR and use of an automated external defibrillator. An ambulance was called, but Master Spady died in hospital later that day. The cause of death was disputed, although one theory alleged toxicity caused by swimming pool chlorine.

The deceased’s mother commenced proceedings on behalf of his estate under 42 U.S. Code §1983, alleging breaches of the deceased’s constitutional rights to personal security, life, liberty and freedom from state-created dangers and unconscionable arbitrary government action. She also brought claims in State law for ‘wrongful death’ as well as a survival action on behalf of his estate. The defendants sought summary dismissal of the constitutional claims.

Held: Rejecting the defendant’s application, that –

1. The State may be liable where it has created or exacerbated a danger which causes a plaintiff to be deprived of their Fourteenth Amendment rights. For the claim to succeed, the plaintiff must show that the harm alleged caused was foreseeable and fairly direct, that a State officer was culpable to a degree that shocks the conscience, that the plaintiff (or a person in the plaintiff’s position) was a foreseeable victim of the defendant’s actions, and that the officer affirmatively used their authority so to endanger (or worsen the danger) to the plaintiff

Morrow v Balaski, 719 F.3d 160 (3d Cir. 2013)

2. Government officials are not liable for civil damages, unless the plaintiff can establish that the official violated a statutory or constitutional right which was clearly established at the time of the alleged wrongful act. For the immunity to be lost, the unlawfulness of the official’s actions should have been apparent to a reasonable official.

Wood v Moss, 572 US __ (2014); Halsey v Pfeiffer, No. 13-1549, 2014 WL 1622769 (3d Cir. Apr. 24, 2014)

3. The School district can be liable under §1983 where it had a policy or custom which lead to the alleged constitutional violation. Where the policy was a failure to train an employee, the failure must amount to deliberate indifference (in the form of disregarding a known or obvious consequence*) to the rights of people who will deal with the employee and also have in fact caused the violation.

Natale v Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003); Thomas v Cumberland County, 749 F.3d 217 (3d Cir. 2014)


The Court’s judgment is available here.
* Cf ‘gross negligence’: Stephen Tuck, ‘A Recent Decision of the Florida DCA on Gradations of Negligence‘, Amer. Bar Assoc. Commercial Transp. Litigation Comm. News 10 (Winter 2014).