To SUE or not to SUE the railroad.

[Anonymous]

[?] If a person is ON railroad property taking photos or picking up old track spikes and this person gets hurt...... should they have the right to sue the railroad for damages or should they.................

Don't be shy...stand up and be counted..........OLD DAD[}:)]

[kwboehm]

If they are trespassing...breaking the law...why should they get rewarded?? I don't think they would have any right to sue. It was their own stupidity that got them hurt, not to mention that they were somewhere that they should not have been in the first place. unfortunately it is cost prohibitive to put fence along every inch of track in the country, and the same goes with the "No Trespassing" signs. If you slip. fall and split your head on a rail, too bad, so sad, it's your own damn fault...NOT the railroads. Just like the Darwin Award candidates that run around gates at grade crossings...their own stupidity led to their untimely demise. As was mentioned in another thread, a pair of 70MACs w/ 110 loaded coal gons at 50 mph can't stop on a dime. But you know some idiot is going to try it, and some pathetic judge is gonna award the *** some money. But then again it's just my opinion.

[Anonymous]

If you are on the railroad property without permission, and you get hurt, you can still sue the railroad. But i wish you good luck (and attorney) in winning your case. You'll really need it. Next time think twice before entering railroad's property.

[edblysard]

Hi Guys,
There is a presumption under the law that allows one to sue if, and you have to prove this, you were invited there, enticed, or were allowed to repeatedly tresspass with no prior warning.

Say a contractor came on property to fix the plumbing in the lunch room.
Under the current law, he is a invited guest, as a temporary employee or a contracter hired to perform a certain service.
As a contractor, he has the right to expect a "safe" work enviroment.
If he gets hurt, he has a clear "right" to sue the railroad.

Now, if the railroad has a big hole in its fence, or no fence around its yard at all, and has repeatedly had to arrest tresspassers who use the hole as a short cut to cross the yard to get home, and one of the tresspasser gets hit and hurt, then they can claim that the railroad knew there was a hole in the fence, or no fence at all, and the railroad had prior knowledge that tresspassers were using the shortcut, and did nothing to prevent it.

The claim of course, will be that by not doing anything to prevent them from tresspassing, they were enticed to do so.

If, on the other hand, the railroad keep patching the fence, and can prove they took measures to prevent people from using this short cut, or issued them a citation and or escorted them off property at least once,then no liability exsist.

But you have to prove the railroad had prior knowledge there was a problem, and took no action to prevent it from happening again.

Now, if a person has tresspassed several times, say, along a right of way that cant be fenced, and this person has been isued several citations and warnings or been arrested for tresspass, and then gets hurt, then that person has no case.

The law classifies people into four groups for legal purposes on this issue.

Employees.
Those who primary employeer is the railroad, in any capacity including contractors hired for a long term project, and those who perform service to the railroad in any capacity for pay.

Invited Guest.
Those allowed on property to perform a temporary job for the carrier or the railroad or perform service for the railroad, such as the plumber mentioned, but who are not directly employeed by the railroad.
This includes wreck removal crews, roadbed contractors, any one working under a tempoary contract for the railroad, or performing repairs to a public utility.

Uninvited guest.
This catagory includes ex employees who are visiting buddies, railfans who come on property repeatedly, with the carriers knowledge but without express written premission, wives or friends dropping off employees, anyone on property not performing service to the railroad and everyone else who dosnt fall within the other three groups.

Tresspassers.
Anyone on railroad property who is not an employee of the railroad, or its subsidaries, or in the direct employee of a invited guest.
Any person who has no legal reason to be on property.
Anyone on property who is not performing a service to the railroad.

As you can see, some of the groups overlap, but basicly, if you dont work for the railroad, or are performing a service for the railroad for pay, you are tresspassing.

The law also states that the railroad must make a reasonable effort to prevent you, the tresspasser, from tresspassing.

This can include posting no tresspassing signs, any warning sign, patroling of the property by railroad police, issuance of citations, things of that nature.

If you can prove the railroad knew you were there, and did nothing, you win.

Of course, the railroad will show it patrols its property regularly, and show the court it issued X number of citations in the last year to tresspassers, things of that nature.

The law also reconizes that most people already know if they are somewhere they shouldnt be.
If the carrier can prove that you, as a reasonable person, knew that walking through a busy railroad yard or standing to close to a busy railroad track was dangerous, or that removing something from the property was illegal, then the you, the tresspasser, have no case.

But, in reality, what happens is that the amount most people, and their personal injury lawyer sue for, is below the cost the railroad would have to spend in attorney fees, lost time and wages to be paid for it employees to testify at a hearing, stuff like that.
So, of the amount isnt in the millions, or the hurt tresspasser will accept a amount the railroad feels is in it's benefit, then they almost always settle out of court.

Personal injury lawyers know this, and often, they have the "case" settled before the injured person is out of the hospital.

Lawyers, taste like crap when barbqued, but can be real fun to hunt!

Stay Frosty,
Ed[:D]

[Anonymous]

Ed, I'm not that sure that your premise holds true. Look at the outrageous awards given recently to smokers who have ignored all frequent warnings including on the cigarette packet itself that smoking can be hazardous to your health. What about the woman who got big bucks from McDonalds who got a cup of coffee from the drive up window and immediately spilled it on herself, sued and won.
Unfortunately, one of the things that seems to have been lost in this country is taking responsibility for your own actions. We have become a sue happy nation. What about all the obese people who recently sued the fast food industry claiming that was what made them fat. Forget they didn't exercise but ate and ate and got themselves fat. Luckily the courts threw that out. How do we end this exercise? I am sorry, I don't have the answer. Maybe if we turned out more doctors or engineers we wouldn't have this problem. I guess it has been this way for thousands of years for didn't Christ say [in the King James version] in the bible Luke 11 verse 52 "Woe unto ye, ye lawyers --"

[Anonymous]

SO, help me get this thing straight.....if I repeatedly cut through your front yard on my way to the hobby shop to pick-up the latest issue of "Trains" and you do nothing to to stop me...no fence, no round the clock security guards and no helicopter patrols flying overhead and I get hurt then I can sue your pants off because you were negligent....did I get it right?

If you use enough garlic when you cook 'em up lawyers taste just like chicken.

Yum Yum OLD DAD

[edblysard]

Yup, you can.
Tort reform is needed.
In Texas, you can sue anybody for just about anything.
Now, if I put a sign in my yard that states"Keep Out", and place it where you have no choice but to see it, then you lose.
Before we get all carried away, remember, my old boss, Attorney General, State of Texas, Dan Morales, has just been sentenced to four years in prison because he tried to send some of the money won in the tobacco law suit to some of his buddies for work on the case that was never performed.
Its all about the fast cash.
Sorry Old Dad, what I was quoting was case law and transcripts from a real law suite, filed the father or a tresspasser in Englewood yard against the SP.
His son repeatedly cut across a switching lead to get home from school, in sight of the hump tower, and ended up getting his shoulder broken when hit by a railcar.
He sued on behalf of his son, and won.
Because the injury lawyer correctly pointed out the tower operater had seen the young man do this several times, but never took steps to prevent it, the railroad would have been held accountable for the injuries.
They settled out of court for $250,000.00, of which the the plaintif took home less than $90,000.00, the rest went to the attorney for fees, investigation services, computer animation, things like that.
Funny world we live in, aint it?
SP offered it, they took it.
Ed

QUOTE: Originally posted by OLD DAD

SO, help me get this thing straight.....if I repeatedly cut through your front yard on my way to the hobby shop to pick-up the latest issue of "Trains" and you do nothing to to stop me...no fence, no round the clock security guards and no helicopter patrols flying overhead and I get hurt then I can sue your pants off because you were negligent....did I get it right?

If you use enough garlic when you cook 'em up lawyers taste just like chicken.

Yum Yum OLD DAD

[Anonymous]

Just my opinion only. If you get hurt either ON railroad property or on public property adjacent to the railroad, it is your own D--- fault. If you are unable to accept responsbility for your own actions, you shouldn't even leave the house!

[edblysard]

Old Dad, just checked the Texas Codes,
Ready?
Here it is, minus the lawyer speak.
In Texas, the law presumes you, as a land owner, or a lessor, have the legal responsibility to keep your property, or any property you lease to someone else, free from any defects that could cause harm to a casual passerby.

In other words, if a salesman comes knocking on your door to sell you something, he has the legal right to expect you to have maintained your property to the extent that he will not recieve any injury in doing so.

It dosnt matter if you didnt ask him to come to your house.
If he trips on your door mat, and breaks his arm, then he has a legal case.

The law places the burden of keeping any property you own or lease to others free of defects on you, it does not require the "tresspasser" to excersise any amount of caution, above that which is considered reasonable.

The kicker is, whats considered reasonable?

If he was wearing stilts, or ski boots, then he has no case.
But if he is in street shoes, and still trips, he does.

If your crossing my yard, and step in a hole I dug to plant a tree, and I was inside getting a drink of water before planting the tree, then you can sue me.
If, on the other hand, I placed a sign near the hole, that said, Caution, hole" and you still stepped in it, then I am covered.

Now, if my neighbors dog dug the hole, and I can prove I was unaware the hole even exsisted, then I am safe also, but if you can prove I knew the hole was there, and didnt place a sign warning people about it, or I didnt fill in the hole at the first available chance I had, then you have a case.

For most people, there really isnt any such thing as private property, unless you can afford to build a wall around the property line of your home.

Oh, and the protection offered by the "no salesmen" or "no solicitors" signs, and your "no tresspassing" sign begins at the point the sign becomes readable to a casual passerby.

The code even defines a casual passerby as "a person, who, in the normal pursuit of everyday activities, passes by a given geographical point as a part of those activities".

So putting it on your front door means your protection beging at your door, not the property line.
If the salesman trips in your driveway, your screwed, unless the sign is at the edge or the drive, where it can been seen by everybody.

Now, the code also states that if you, as the lessor or landowner, have posted or display conspicious signs in such a manner that a casual passerby can not miss seeing them, then you have met the minimun requirements in warning them of any danger.

I know, it suck, but thats the law.

Never thought about garlic, maybe a few onions and mushrooms would take that taste away?

Stay Frosty,
Ed

[AltonFan]

It might be useful to remember that laws vary from state to state, and while one may not have recourse in one state, in another state the legal picture may be completely different. Moreover, juries may award damages, not on the basis of law, but on other reasons. (Remember the kid in California who got maimed while playing hooky? His parents sued the school district and won. The jurors said in interviews afterward that while they really didn't think the school was at fault, they thought someone had to pay for this kid's medical care.)

And Ed is right, in many cases it's simply cheaper to pay a settlement than to fight the case in court. Public relations issues may also enter into such a decision.

[edblysard]

Very true Dan,
It does vary from state to state.
And remember, California isnt a state, its really an alternative universe that defies any real attempt to understand its inner workings.
Stay Frosty,
Ed

[JoeKoh]

Old Dad
You can try here but the judges would throw it out real quick.They use "common sense" in their findings.if you're not allowed to be there why were you?Ed you nailed the California state on the head!
stay safe
Joe

[Mookie]

Along with common sense, we must get back to accountability. Take responsibility for your actions! Don't always be the victim - but then again - I guess that is so much easier and pays better.

Mookie

[tree68]

Tort reform, mentioned earlier, in the form of "Loser Pays" would go a long way toward solving part of the problem. If you sue me for something frivolous that I am quite certain I can beat, I'm hiring the most expensive lawyer I can find, 'cause you're paying for him.

Watch the Rochelle webcam for any time at all and you will invariably see someone walking across the junction in front of the camera. It happens everywhere, all the time. Most people probably don't think of a railroad ROW as private property. If anything, it's a convenient path to reach the berry bushes!

Of course, I've heard of railroads leaving the wreckage of snowmobiles along the ROW, just to remind people of the danger (read: Keep Out!)

I've also heard the term "public nuisance" applied to things that are attractive to the public, but where they shouldn't be playing. That certainly applies here.

[jchnhtfd]

QUOTE: Originally posted by Mookie

Along with common sense, we must get back to accountability. Take responsibility for your actions! Don't always be the victim - but then again - I guess that is so much easier and pays better.

Mookie

Purr. But when, oh when, is accountability ever to appear again, when the law (and the whole US national culture) is so heavily skewed towards 'sue!'. Tort reform is desperately needed, as is a change to 'loser pays', an elimination of contingency fee legal billing (which encourages frivolous lawsuits and insance awards), and a near if not total elimination of 'pain and suffering' type awards (those are the ones which go into the eight and nine digit range), but none of these changes are even remotely likely while the legislatures are run by lawyers (separation of powers, anyone?), but so are other legal revisions -- a lot of the posts above have noted some of the oddities in the relationship between trespass and liability, for instance (seems to me that if you are on someone else's land without express permission, you're trespassing and the landowner should be able to prosecute you, rather than you should be able to sue the landowner, but then...).

As someone said, funny world...

[Mookie]

QUOTE: Originally posted by jchnhtfd

QUOTE: Originally posted by Mookie

Along with common sense, we must get back to accountability. Take responsibility for your actions! Don't always be the victim - but then again - I guess that is so much easier and pays better.

Mookie

Purr. But when, oh when, is accountability ever to appear again, when the law (and the whole US national culture) is so heavily skewed towards 'sue!'. Tort reform is desperately needed, as is a change to 'loser pays', an elimination of contingency fee legal billing (which encourages frivolous lawsuits and insance awards), and a near if not total elimination of 'pain and suffering' type awards (those are the ones which go into the eight and nine digit range), but none of these changes are even remotely likely while the legislatures are run by lawyers (separation of powers, anyone?), but so are other legal revisions -- a lot of the posts above have noted some of the oddities in the relationship between trespass and liability, for instance (seems to me that if you are on someone else's land without express permission, you're trespassing and the landowner should be able to prosecute you, rather than you should be able to sue the landowner, but then...).

As someone said, funny world...

The genie is out of the bottle - I don't think we will ever go back to pre-hot coffee between the legs! That one still amazes me! As the company pockets get ever deeper, the lawsuits and the lawyers get richer! And our courts don't bat an eye when it comes to leniency and responsibility. But then, they were lawyers to begin with...And you guys don't like Judge Judy - at least she calls a shovel - "a shovel" -

Think about it!

Mook

[dharmon]

QUOTE: Originally posted by edblysard

Very true Dan,
It does vary from state to state.
And remember, California isnt a state, its really an alternative universe that defies any real attempt to understand its inner workings.
Stay Frosty,
Ed

If common sense is the bright center of the universe, California is the farthest planet from it and orbiting in a slightly different plane thn the rest.

[Anonymous]

IF YOUR STANDING IN A BAD AREA LIKE NEAR A SWITCH THATS PRETTY OLD AND YOU GET POPED BY A FORIEGN OBJECT (ROCKS,GLASS,COINS)
THEN YOU SHOULD HAVE KNOWN BETTER.
BUT IF YOUR OUT OF THE WAY AND A CAR DERAILS LANDING ON YOU YES SUE SOME PEOPLE LIKE TO GET HURT SO THEY CAN GET RICH
I WAS INJURED ON UP PROPERTY ONCE AND BROKE MY LEFT FOREARM 4 DIFFRENT LAWYERS CAME TO SEE ME SO THEY COULD GET RICH BUT IT WAS MY FAULT I WAS TRESPASSING AND HAD NO BUSINESS IN THAT YARD SO I THOUGHT IF I SUE WHAT COULD HAPPEN
1 THEY FILE CHARGES AND PUSH IT TO THE MAX
2THEY FIRE 200 EMPLOYEES TO MAKE UP THE MONEY
3THEY WIN AND I HAVE TO PAY THEM
4THEY ALSO SAY NO MORE RAILFANS ON THE PROPERTY
AND BUILD WALLS AROUND THE RAILS SO YOU CANT SEE THEM
SO I SAID IM NOT SUEING THE RR PEOPLE CAME TO SEE ME AND I TOLD HIM GIVE ME A BEER AND WERE EVEN
(NOW IM SUEING HIM FOR GIVING ME A LIGHT BEER )
NO IM JUST KIDDING
I HAD NO RIGHT TO SUE ITS MY OWN FAULT
IF SOME ONE GETS RAN OVER THEY SHOULD HAVE STAYED ON THE SIDE WALK ITS THER OWN FAULT

[Anonymous]

YOU KNOW WHAT IF YOU BREAK YOUR LEG FALLING IN THE HOLE I DUG TO PLANT A TREE YOU WOULDNT SUE CAUSE THE HOLE WOULD BE BIG ENOUGH FOR YOU TO FALL IN BUT I WOULD SHOOT THEM AND SAY THERE INTENT WAS TO STEAL OR HARM SOMETHING OR SOMEONE ON MY PROPERTY
ASK A REPO MAN ABOUT THAT ONE

[dekemd]

Tort reform is something this country badly needs. Unfortunately, its not going to happen until we vote the lawyers out of congress. Check your congressman's former job. You would be amazed at how many congress members are lawyers. North Carolina Senator and presidential hopeful John Edwards is a personal injury lawyer. That's how he made his millions.

I don't know why everybody is bashing California. There's nothing wrong with California that a rise in ocean levels wouldn't take care of [:D]

[mudchicken]

It's trespassing and let's keep the lawyers as unemployed as possible so that common sense has a chance (however small...)

Dirty Bird

[Anonymous]

QUOTE: Originally posted by OLD DAD

[?] If a person is ON railroad property taking photos or picking up old track spikes and this person gets hurt...... should they have the right to sue the railroad for damages or should they.................

Don't be shy...stand up and be counted..........OLD DAD[}:)]

A court case like that WOULD NEVER stand in Canada. Your case would be thrown out with the Judge laughing his *** off. People up here never get awarded for their own stupidity. If you are tresspassing............ Those dots back there represent the end of the case.. heres the case one more time so everyone can see

If you are tresspassing....

End of case.. you loose, next case. You have no right to walk where trains travel, and thats a given, and is autmotically taken into account that YOU therfore understand these laws as soon as you step one foot onto the tracks.

Really, there is no reason stupidity should ever win, especually when it comes to tresspassing on tracks

[jchnhtfd]

QUOTE: Originally posted by kevinstheRRman

QUOTE: Originally posted by OLD DAD

[?] If a person is ON railroad property taking photos or picking up old track spikes and this person gets hurt...... should they have the right to sue the railroad for damages or should they.................

Don't be shy...stand up and be counted..........OLD DAD[}:)]

A court case like that WOULD NEVER stand in Canada. Your case would be thrown out with the Judge laughing his *** off. People up here never get awarded for their own stupidity. If you are tresspassing............ Those dots back there represent the end of the case.. heres the case one more time so everyone can see

If you are tresspassing....

End of case.. you loose, next case. You have no right to walk where trains travel, and thats a given, and is autmotically taken into account that YOU therfore understand these laws as soon as you step one foot onto the tracks.

Really, there is no reason stupidity should ever win, especually when it comes to tresspassing on tracks

Ah, but Kevin me lad -- that's Canada, where English Common Law (like it or not -- even in Quebec!) is still common[:D], and the marvelous lunacies[xx(] of the US legal system haven't hit. Yet. Be on guard, though... I've heard some ominous rumblings.

[RudyRockvilleMD]

If you have no business being on railroad property you are trespassing so you should have no right to sue, or much less collect damages.

[Anonymous]

My Trains magazine gets delivered to my mailbox, as does MR.

[brilondon]

If you knowingly tresspass on to railroad property but with the understanding of that railroad would you really have a case anyway. I am thinking of my own experience with CN. I use to go down to their yard here in London to photograph the goings on there and was able to stay there with the permission of the authorities. If I was hurt by something, i.e. stones or rocks kicked up by a highspeed train running through, would I knowing that I am tresspassing be able to sue CN for not kicking me out or would I be out of luck because I was there knowing I shoul not be.

[Anonymous]

I think the worst case of suing a railroad has happened close to where i live. We have a shortline here in Upstate NY here and the whole RR is 27 miles long and the whole thing is restricted speed-yard limits. Every crossing on the line is a stop and protect. The train was pulling up to the crossing and stopped. The conductor got off and flagged the crossing gave the engineer a go ahead and the train started rolling again. The locomotive was occupying the crossing when a car came over the hill and hit the side of the engine. There was a 35MPH speed limit 150' before the crossing and the lady hit the side of the engine at 52 MPH. Her skidmarks were 71' long.(you do the math) All the brush within 300' either side of the crossing was cut 3 weeks prior. When the EMT's got there her radio was at half volume, she had tinted windows all around the car, and her AC was on. Railroads fault or the drivers. Either way the family of the driver is sueing the railroad and looks like they are gonna win.