Marturello

MEMORANDUM *

We must decide whether an Amtrak engineer’s conduct could be found by a jury to have willfully or wantonly caused the death of two young girls. The families of Rachel Marturello and Zandra Lafley appeal the district court’s order granting *329 Amtrak summary judgment on appellants’ wrongful death claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand.

I

This case concerns the tragic death of two young girls who, while trespassing on a railroad trestle, were struck by a northbound Amtrak train on the afternoon of April 20, 2000, and died upon impact. The two girls, Rachel Marturello and Zandra Lafley, ages eleven and thirteen, were killed while they were walking on the Green River railroad trestle in Kent, Washington, near a bike trail and swimming hole frequented by adolescents. Rachel Marturello, Zandra Lafley, and Rachel’s older sister, Rebecca Marturello, had started across the river going north to south on the east side of the trestle. The two younger girls lagged behind Rebecca Marturello. When Rebecca first heard the train’s whistle and turned to see the train, she was only five feet from the trestle’s south end. But Rachel and…

concurring.

The dissent invites a brief comment on the malleability and context-dependence of the word “wanton.” In literature “wanton” can be found as a noun, and as an adjective with half a dozen meanings. In legal usage, it appears most often coupled with “willful” as a combined epithet carrying pejorative freight. Case law in the State of Washington sheds light on legal usage: willful or wanton conduct is either knowing and intentional, or it evinces a reckless disregard for the safety of the person injured. See, e.g., Sikking v. National Railroad Passenger Corp. 52 Wash. App. 246 , 758 P.2d 1008 1004 (1988).

*335 The Restatement (Second) of Torts § 500 (1965) (updated 2004) teaches that reckless disregard involves knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. The difficult question in this case is made somewhat more difficult because the facts require us to delete “willful” from the epithet. With volition removed, we are left with the…

dissenting.

The evidence in this case is undoubtedly affecting. 1 However, the legal standards are exceedingly stringent. The majority properly quotes those standards, but it then applies them in a way that effectively allows a negligence principle to control. As I see it, the district court correctly decided that the evidence submitted could not meet Washington’s often reiterated rules for deciding wantonness questions; it properly granted summary judgment. Thus, I respectfully dissent.

. As I see it the majority’s rendition of the evidence does not entirely account for the physics (time, velocity, distance, weight, etc.) of the situation, but nothing would be gained by belaboring that.