Alderman v. Baltimore & Ohio R. Company

United States District Court for the Northern District of West Virginia · 1953 · Civil Procedure

113 F. Supp. 881 (1953)

Updated July 29, 2026

Civil ProcedureSummary JudgmentCommon Carrier LiabilityFree Pass ReleaseRule 56free passrelease of liabilitygratuitous passenger

Facts

Plaintiff, a West Virginia citizen, was injured when defendant railroad's train derailed near Adrian, West Virginia, while she was traveling on a free trip pass rather than as a fare-paying passenger. The pass stated that in consideration of the free pass, she assumed all risk of personal injury and released the company from liability. It was undisputed that the derailment was caused by a rail break due to a transverse fissure inside the cap of the rail, that such a fissure was not visible on inspection, and that the rail had in fact been visually inspected the day before the accident without the defect being discovered. Plaintiff contended defendant used old and obsolescent rails and was willing to risk derailments because replacement cost more.

Issue

Whether, under West Virginia law, a railroad that issued a free pass containing a release of liability owed plaintiff any duty beyond refraining from wilful or wanton injury, and whether plaintiff's allegations and the summary judgment record created a genuine issue that defendant acted wilfully or wantonly in causing the derailment.

Rule

Under the facts of this case, a carrier that issues a free pass containing a release from liability may contract against liability for negligence but not for wilful or wanton acts. Wilful or wanton conduct requires a showing that the defendant was conscious of its conduct, conscious from knowledge of existing conditions that injury would likely or probably result, and with reckless indifference consciously and intentionally did a wrongful act or omitted a known duty that produced the injury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel accepted a free intercity bus pass from Lakefront Transit Lines for travel from Charleston to Huntington, both in West Virginia. The pass stated that in exchange for free transportation, she assumed all risk of personal injury and released the company from liability. She was injured when a tire failed, and the record shows only that the company had delayed replacing aging tires to save money.

If Nina sues and the company moves for summary judgment, which is the strongest basis for granting the motion under the governing rule?

Explanation. A free-pass release may relieve a carrier from liability for negligence, but not for wilful or wanton injury. Wilful or wanton conduct requires consciousness of the conduct, knowledge of existing conditions making injury likely or probable, and reckless indifference in intentionally doing a wrongful act or omitting a known duty. Evidence that the carrier kept aging equipment to save money supports negligence at most unless there is proof it knew of the particular defect or dangerous condition likely to cause the injury.