The suit says also that city police failed to provide adequate patrols in the area near the tracks as a deterrence when they knew teenagers often hung out there. Residents had also complained to railroad and city officials about teenagers often crossing the tracks, the suit says.
Conrail, which owns the tracks, according to the city, did not return several calls for a comment.
"Conrail and its entities created an attractive nuisance. They knew [the railroad track] was being used by teens and kids," Hockfield, a Cherry Hill lawyer, said in an interview. "They were aware it represented an attractive nuisance and they did nothing to prevent it."
Maryann Liebrand, whose house abuts the track near the accident scene, said she had complained to Conrail and the city about the fence, which had been down for years.
"There would be no lawsuit if Michael Battersby climbed over a fence and in the face of trespassing signs was injured," Hockfield said.
The suit was filed last month in Superior Court in Camden County after talks to resolve the case with Conrail had broken down, Hockfield said. The train's conductor and engineer are also named as defendants.
Railroad tracks wind through the city, and residents can be seen crossing them.
City Solicitor John Kearney said that officials had sympathy for the family, but that the city did not have the resources to provide the sort of police presence "the complaint seems to say we should have."
"While I appreciate the plaintiff's attorney's novel legal theory . . . there is simply no responsibility on the part of the city for this tragic occurrence," he said.
The suit seeks unspecified damages for Battersby's pain and suffering, medical expenses, and potential future loss of income.
