dissenting.
I respectfully dissent. I believe that the record here contains ample evidence from which it can be determined, as a matter of law, that there are genuine issues of material fact as to the reasonable foreseeability of harm.
Under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq., a plaintiff must establish each of the elements of a common law negligence action, including reasonable foreseeability of harm. Davis v. Burlington Northern, Inc., 541 F.2d 182 (8th Cir.1976); Johnson v. National R.R. Passenger Corp., 989 P.2d 245 (Colo.App.1999). Generally, as long as a reasonable person should have foreseen that an injury might oecur from circumstances within the railroad's knowledge, the railroad may be liable even if it does not foresee the injury in the precise form in which it occurred. (Green v. River Terminal Ry., 763 F.2d 805 (6th Cir.1985). *1200When the rubric of the leading case on foreseeability under the FELA, Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), is considered, I think it is certain that here, as there, foreseeability is a question for the jury.
Here, the trial court had before it evidence of on-going eriminal activity occurring in and around the junction areas of the railroad tracks. There was media notice of violent attacks in the area both by transients and by gangs of people who apparently reside near the railroad tracks. Evidence showed that such people, unauthorized as they were, frequently boarded trains in that area of Pueblo. The evidence pointed out that railroad personnel were so aware of the dangers in that area that an armed special agent employed to patrol this area in Pueblo was frightened to confront the transients and those who lived nearby.
This evidence plainly presents a genuine issue of fact as to foreseeability of harm, under the entirety of the cireumstances. See Gallick v. Baltimore & Ohio R.R., supra.
Accordingly, I would reverse the judgment and remand the case for further proceedings on plaintiff's complaint.