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[quote]QUOTE: Originally posted by Overmod Now, hold on a minute -- LC, put your lawyer's hat on, and tell me 'what is the controversy' in this case, given the facts that we have. First: the proximate cause of this woman's injuries is that she was on railroad property -- I don't want to put a pejorative name on it, but seems to me the word "trespassing" clearly applies. The woman's claim, again interpreting the wording in the article, is that there were no signs 'at her point of entry' noting that the property was 'posted' or that there were particular dangers if she entered upon that property (illegally in Pennsylvania, I might add, and possibly Federally (e.g. under the Patriot Act?) because the property was a railroad. This is NOT a crossing-sign issue, right-of-way issue, etc., although I wonder whether attorney Smail expects to conflate that issue to establish his "case". A potential problem for NS is that I'm sure they have plenty of little 'no trespassing - railroad property' signs at "logical" places where the public might accidentally -- or intentionally -- enter onto railroad property. One presumes the site of this 'incident' was not so marked. LC: does the presence of a great preponderance of warning signs about trespassing incur any particular duty to put signs on EVERY location? (Compare the interpretation of the trademark laws that purported to hold that unless every use of the mark were accompanied with the "TM" or "circle-R" symbol as appropriate, it might pass into 'common usage' and become unprotected in any trade use... or the interpretation of 'working lights' under FRA stats which led SP to chuck their Gyra-Lites.) Of course, two other things come fairly quickly to mind. 1) If Smail's house is not prominently posted 'no trespassing', and he shoots somebody who breaks in, he would now be liable to charges of murder, by the logic he uses here; 2) I'd expect NS to file countersuit for trespassing -- the question then becoming at least in part whether Pennsylvania has 'posting' laws for property, and how they apply to railroads (for example, is there an applicable Federal statute which might apply under a (typically tortured?) interpretation of the Commerce Clause?) I think this case has little to do with trains or safety and everything to do with technicalities, loopholes, and (dare I say it) lawyers' quest to find a way to extract money from targets they or their clients perceive as having deep pockets and a certain incentive to settle even nuisance claims to save overall dollars... [/quote] OM- OK. Here goes. First, we don't have most of the facts in this case available. No legal matter can be described in a couple of paragraphs. The best that I or anyone can do without the facts is apply the rule of law to the facts we know. Anything more is pure speculation. Here are a few points: 1. Your proximate causation analysis is wrong. The proximate causes of this injury are a combination of the plaintiff's actions and those of the defendant. Under the laws of comparative negligence it is likely that the negligence will be apportioned between the two. 2. The plaintiff's trespassing is not a complete defense to her claim. The laws of real property provide that land owners and occupiers have an affirmative duty to make their property safe for others entering upon it, even trespassers. In the case of trespassers the duty is at the level of making the property safe for trespassers from known hazards. My supposition is that the plaintiff in this case is basing her claim on the NS not making its property safe by posting notice of the passage of trains which she claims to be a known danger. As to your numbered paragraphs: 1) No. There are completely different rules that govern home intrusion situations. Generally one has no obligation to retreat from their home before using force against an intruder. DON'T TRY THIS AT HOME. You could still end up in jail. 2) It will depend upon preemption by Federal Law and possibly what Pennsylvania statutes say. I can't answer this without research and I'd have to charge you for that...lol... Most lawsuits are about some transfer of wealth. In most personal injury cases there are few other effective remedies available. LC
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