marknewton wrote: Bucyrus wrote:To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. They would say that the pool was on private property and was posted against trespassing, so what ever happens to trespassers is entirely their own fault. Of course this is incorrect, and the 90% holding this view would be incredulous to learn that they are wrong. Here we go again. In what way would 90% of people be wrong? In their interpretation of the law? Or for holding that opinion?Mark.
Bucyrus wrote:To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. They would say that the pool was on private property and was posted against trespassing, so what ever happens to trespassers is entirely their own fault. Of course this is incorrect, and the 90% holding this view would be incredulous to learn that they are wrong.
In their interpretation of the law. And if their interpretation were considered to be their opinion, I guess their opinion would be wrong too. However, if they understand the law, but hold an opinion that the law is not logical, not based on common sense, or otherwise ill-founded, that's fine. They cannot be said to be wrong because they have that opinion.
gardendance wrote: Bucyrus wrote: But your example also states that the acid pool is protected by a chain link fence. And the victims had to climb over the fence in order to gain access. So presumably, the fence is in good condition. That might disqualify your example as being attractive nuisance. Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable. It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool. So I think you have to remove the fence in order to label your example as attractive nuisance.Or you could leave the fence in your example, and just say that it has a hole it it. No, I was thinking more on the lines that the chain link fence was enough if it was a pool filled with water, but the swimming pool with acid needs more protection. And I was thinking the neighborhood was populated entirely with Ordinary Prudent People, and maybe one or two Easter Bunnies :)
Bucyrus wrote: But your example also states that the acid pool is protected by a chain link fence. And the victims had to climb over the fence in order to gain access. So presumably, the fence is in good condition. That might disqualify your example as being attractive nuisance. Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable. It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool. So I think you have to remove the fence in order to label your example as attractive nuisance.Or you could leave the fence in your example, and just say that it has a hole it it.
But your example also states that the acid pool is protected by a chain link fence. And the victims had to climb over the fence in order to gain access. So presumably, the fence is in good condition. That might disqualify your example as being attractive nuisance. Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable. It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool. So I think you have to remove the fence in order to label your example as attractive nuisance.
Or you could leave the fence in your example, and just say that it has a hole it it.
No, I was thinking more on the lines that the chain link fence was enough if it was a pool filled with water, but the swimming pool with acid needs more protection. And I was thinking the neighborhood was populated entirely with Ordinary Prudent People, and maybe one or two Easter Bunnies :)
You might be right about the pool full of acid needing more than a chain link fence to mitigate liability. I imagine that a lot of hairs get split in deciding how far a landowner must go to protect a trespasser from harm. If your example meets the definition of attractive nuisance, then I suspect the chemical company is at fault.
But then with Mark's example of your own swimming pool with a safety fence and warning signs, it would be a conventional water-filled pool, and the fence and signs would probably be deemed adequate to protect you from attractive nuisance liability. So the two examples would not be analogous.
marknewton wrote: Bucyrus wrote:To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. ... and the 90% holding this view would be incredulous to learn that they are wrong. Here we go again. In what way would 90% of people be wrong? In their interpretation of the law? Or for holding that opinion?
Bucyrus wrote:To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. ... and the 90% holding this view would be incredulous to learn that they are wrong.
To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree.
...
and the 90% holding this view would be incredulous to learn that they are wrong.
Bucyrus can speak for himself, I'm just trying to be helpful. I'm assuming he meant their interpretation of the law, but I wish he had phrased his intent more clearly.
marknewton wrote:I daresay most people aren't even remotely interested in the legal theory you describe. Their conclusion is reached after making a value judgement, based on their understanding of personal responsibility, and their common sense.
I daresay most people aren't even remotely interested in the legal theory you describe. Their conclusion is reached after making a value judgement, based on their understanding of personal responsibility, and their common sense.
I agree with you that most people probably aren't interested in the legal theory, but I imagine in some jurisdictions it's more than just a theory. Then we get into the fact, or at least the possibility, that some percentage of the people on a jury might not like chemical companies.
I've been on juries, criminal cases, reached a verdict twice, and was waiting for trial to start once when the defendant changed his plea to guilty. I remember at least one judge telling us that we yes they were expecting us to base our decision in part on our understanding of personal responsibility, and common sense, but also more importantly on the evidence presented and the judge's instruction to us as to what the law meant. So if a judge is going to uphold the law as written, and there's a law that says you're somewhat responsible if you have an acid filled swimming pool, or a scenic railway bridge, then you have to worry about what verdict a jury might return.
marknewton wrote:Let's put up an alternate hypothetical. You, Gardendance, have a swimming pool in your home. Being a responsible sort of bloke, you erected a safety fence around the pool, and placed signs warning of the depth. You're out in the front yard of the house one day, and a neighbour decides he wants to have dip in the pool. He enters your property without your knowledge or permission, climbs over the pool fence, and hops in. But he's a poor swimmer, gets into difficulty, and drowns. You're prepared to accept that you're at least 50% at fault, aren't you?Mark.
Now you're making it tough. Of course I'm only prepared to accept it if it's going to happen to somebody else, not to me :). Seriously though, I'd rather stay away from discussing whether I'm happy about the situation. I think it's more on theme with this thread to talk about possible claims that could arise from situations like this. In order to be prepared for the possibility that it might happen to me, responsible homeowner that I am, I shoud buy insurance, which then means there are deeper pockets for claimants to try to collect from, which could increase the frequency and dollar amount of claims, which then increases the risk of not having insurance, so I'm more likely to buy insurance, which means there are deeper pockets...
Another horrible thought is even if I drain the pool I could still have some drunk take a shortcut through my yard, fall in and crack his skull.
Folks we're talking about a spectrum of risk. Try to take reasonable precautions whether your're jumping into the pool or thinking of crossing the railroad bridge, whether you're filling the pool up with whatever liquid, or building the railroad bridge.
Patrick Boylan
Free yacht rides, 27' sailboat, zip code 19114 Delaware River, get great Delair bridge photos from the river. Send me a private message
gardendance wrote: An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.Is there anybody who believes the chemical company is less than 50% at fault in this scenario?
An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.
Is there anybody who believes the chemical company is less than 50% at fault in this scenario?
Something occurs to me:
When you label your example as an example of attractive nuisance, it seems to stipulate that the circumstances of the chemical company and its acid storage do indeed constitute attractive nuisance. If that is the case, then the chemical company could be found liable. But attractive nuisance has criteria that must be met. One qualifier is that the victims must be children, so even though you only describe the victims in your example as "people," they must be children.
gardendance wrote:An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.Is there anybody who believes the chemical company is less than 50% at fault in this scenario?
Bucyrus wrote:When I said that it is a popular, widespread conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed, I was making the point that that conclusion overlooks the legal theory that part or all of the fault for injury to a trespasser may be assigned to the landowner if the landowner can be shown to have been guilty of wanton misconduct by failing to protect the trespasser from a hazard that would not be obvious.
They probably would not even accept it.
To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. They would say that the pool was on private property and was posted against trespassing, so what ever happens to trespassers is entirely their own fault. Of course this is incorrect, and the 90% holding this view would be incredulous to learn that they are wrong. They probably would not even accept it.
You label your example as attractive nuisance, which is defined as follows:
Something on a piece of property that attracts children but also endangers heir safety. For example, unfenced swimming pools, open pits, farm equipment and abandoned refrigerators have all qualified as attractive nuisances.
The definition stipulates that it applies to children, and it is assumed that children might not be able to read no trespassing signs, or understand what they mean if they can read them. However, there are many conditions and complications in defining attractive nuisance.
From Wikipedia:
"While putting up a sign to warn children regarding the danger of the land may exempt the landowner from liability, it will not work in all situations. This is particularly true when the child cannot read the sign. Usually the landowner must take some more affirmative steps to protect children.
There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth."
My guess is that the chemical company might be found 100% at fault if the victims were children. A swimming pool is the classic example of attractive nuisance.
However, attractive nuisance is not the only legal theory whereby a landowner can be held responsible for death or injury to a trespasser. Landowners can be held liable for harm to trespassers who are not children.
While I remain convinced it's none of my business...
This morning I sent an e-mail inquiry to the county sheriff's dept., kindly asking if the official report on the young lady's death is available to the public, and if so, how could I obtain it. I don't even know if the investigation is completed yet, and if I do obtain it, I'll post the content only AFTER having editted-out the name of the woman's friend and the names of any other non-public figures that may be mentioned in the report.
No guarantees that I'll even get a reply from the dept., let alone the actual report.
.....Wouldn't the company be at fault to start with in storing acid improperly....Surely, acid in an "open container", would be sharply against regulations to start with, hence the company would already be in violation....Just my:
Quentin
I also believe the company would not be at fault.
Before an adult goes swimming it is that adult's responsibility to make sure what he/she intends to swim in is safe. Just jumping in the first pool of liquid you see is irresponsible. A five year old couldn't be held to the same standard - but then five year olds shouldn't be swimming anywhere without adult supervision. The supervising adult would then have the responsiblity to makre sure things are safe.
If you're on someone else's property without permission, you're wrong and at your own risk.
I forgot to mention there was a high diving board above the fumes. :)
Yes, I do. However, I understand that it is not so easy, and that our determination of "reasonable" has changed over time as it relates to court cases. Even so, let us suppose the blame is evenly split, by all accounts and judgments. The matter should then close, in logic, as the incident cannot be assigned a disparate punitive or compensatory value for either party, except that the initiator of the lethal conduct dies. Case closed.
Besides, in my experience, a person is unlikely to be able to get close enough to a pool of acid due to the fumes.
marknewton wrote: Bucyrus wrote:It is interesting that the law speaks of a duty owed by a landowner to a trespasser that might apply to an incident where a trespasser is injured while trespassing. Yet there does not seem to be any room for this concept in the widespread, popular conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed. It's a widespread and conclusion because it is an unarguable fact. These deaths and injuries wouldn't have occured had these people not been trespassing. You cannot argue otherwise.If the woman hadn't trespassed on the bridge she wouldn't have fallen off and been killed - fact.If the two boys hadn't climbed on the boxcar they wouldn't have been electrocuted - fact.Please note - no-one is arguing the facts of law with you. What we are saying is that the law, as it stands, is wrong.And personally, I wonder why you're an apologist for all the self-destructive idiots of the world.Mark.
Bucyrus wrote:It is interesting that the law speaks of a duty owed by a landowner to a trespasser that might apply to an incident where a trespasser is injured while trespassing. Yet there does not seem to be any room for this concept in the widespread, popular conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed.
I agree that the death would not have occurred had the victim not trespassed. I am not arguing otherwise as you seem to believe.
When I said that it is a popular, widespread conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed, I was making the point that that conclusion overlooks the legal theory that part or all of the fault for injury to a trespasser may be assigned to the landowner if the landowner can be shown to have been guilty of wanton misconduct by failing to protect the trespasser from a hazard that would not be obvious.
I do realize that nobody is arguing the facts of the law, but rather, some are arguing that the law is wrong headed or flawed in its logic. But I am only explaining my interpretation of the legal theory, and not taking a position as to whether it is flawed in its construction. You believe the law is flawed, and would probably disagree with anybody who contends otherwise. But I have no opinion on that matter, so why are you arguing with me?
1. the article in the initial link said 911 call at 1pm, the tv video accompanying, and one of the subsequent article links say 1am. I'm willing to assume 1am.
2.
JayPotter wrote: The theory was, basically, that the system is moving more and more toward a kind of universal insurance system. Owners of property, manufacturers of goods, providers of services, and so forth maintain liability insurance coverage and pass the cost of that coverage on to the purchasing public. So when an individual is injured and files suit against one of those insured entities, the individual is really doing nothing more than making a claim under insurance coverage for which the individual has already paid a premium. In other words, we may talk a lot about fault; however we're actually participating in a cost-sharing arrangement in which, as a practical matter, fault is much less important than a lot of us think that it should be.
The theory was, basically, that the system is moving more and more toward a kind of universal insurance system. Owners of property, manufacturers of goods, providers of services, and so forth maintain liability insurance coverage and pass the cost of that coverage on to the purchasing public. So when an individual is injured and files suit against one of those insured entities, the individual is really doing nothing more than making a claim under insurance coverage for which the individual has already paid a premium. In other words, we may talk a lot about fault; however we're actually participating in a cost-sharing arrangement in which, as a practical matter, fault is much less important than a lot of us think that it should be.
Now that's nice and intriguing. However aren't we speculating that the trespasser-victim's estate will make a succesful claim against the railroad?
3. There have been some posts about how to prevent trespassers, they tend to mention how to keep them out, like fences, regular and electrified, although
Andrew Falconer wrote: If everyone has to have an adventure on the bridge then why not make a job out of it by having people in shacks at each end renting, maintaining, and selling safety clothes, harnesses, and tethers.
If everyone has to have an adventure on the bridge then why not make a job out of it by having people in shacks at each end renting, maintaining, and selling safety clothes, harnesses, and tethers.
Assuming unlimited funds, why not install a substantial, safe, pedestrian walkway? No, it's not a panacea, for example I understand the Golden Gate bridge has plenty of suicides from its pedestrian walkway, but I can't imagine they have any accidental falls. In fact I have seen at least 1 limited access highway bridge, US 422 at Valley Forge PA, where the authorities put up concrete 'Jersey barricades' to turn the shoulder into a pedestrian-bicycle path. Probably more easilly doable with a former 2 track bridge that now runs only 1 track.
4. My apologies, I know I'm not adding anything substantive
WIAR wrote:If I wasn't convinced it's none of my personal business, I'd make a public records request to the county to acquire the official police report on the investigation (assuming the investigation's closed by now), just to provide something more substantive to discuss in this thread.
If I wasn't convinced it's none of my personal business, I'd make a public records request to the county to acquire the official police report on the investigation (assuming the investigation's closed by now), just to provide something more substantive to discuss in this thread.
pure speculation: suppose the couple encountered the missing plank, then got into a "dare you to get close to the edge" contest, with tragic results?
5. still speculating: I'm sure we all assume both the guy and the girl were willingly crossing. Maybe one was pleading with the other all the way across that this was a bad idea and they should turn back.
Gotta agree with WIAR. Reported in the press means nothing. I have seen live reports on TV here. Truck parked behind the police line and the 'reporter' talking to someone who talked to someone else who heard a policeman say something to someone. Or a city official says that he talked to a sergeant who was not too commucative.
Board or no board, nobody falls through an 8 inch (maybe 10) by 8 foot long hole. Not possible.
BUT, if a person stepped into, or stepped back into, such a hole they could lose their balance and fall (especially if the plank was missing next to the guard rail), rolling under the lower strand of guard rail, and failing to grab what might save them because of the darkness.
Look again at the great picture Doublestack posted at the bottom of the first page:
http://www.railpictures.net/viewphoto.php?id=157341
Art
greyhounds wrote: Bucyrus,I'm sendin' but you ain't receivin'.I understand what the law is. I'm saying it's wrong.
Bucyrus,
I'm sendin' but you ain't receivin'.
I understand what the law is. I'm saying it's wrong.
greyhounds,
I understand what you are saying. I only used your comment wondering about the legal outcome as a springboard to discuss the legal ramifications for the benefit of others who may not understand what the law says. I am not saying the law is right or wrong.
A number of years ago, I heard a theory about the personal-injury segment of our legal system. It was more of a social-sciences theory than a legal theory.
I didn't particularly like the theory when I heard it; and I didn't think that it accurately described our personal-injury legal system. Now, years later, I still don't like the theory; however I believe that it does explain a lot about the system.
greyhounds wrote: Will our legal system punish the CN and reward foolish behavior on the part of humans that seemed to care less about their own personal safety than the two deer in my backyard? Probably.
Will our legal system punish the CN and reward foolish behavior on the part of humans that seemed to care less about their own personal safety than the two deer in my backyard? Probably.
Here is an interesting discussion of the legal theory involved in that electrical burn injury to trespassers case against Amtrak. The case was presented to the jury on two theories: (1) the duty of a landowner to a trespasser; and (2) whether the attractive nuisance doctrine applied.
http://electrocutionaccidentlaw.com/2008/07/05/2008-cases-pennsylvania-railroad-premises-liability/
From the link:
"The boys were trespassers on land owned by Amtrak, since no one had given them permission to go onto the track or climb up on the rail car to look around. The duty generally owed by a landowner to a trespasser is to refrain from willful or wanton misconduct."
The article goes on to explain how wanton misconduct on the part of Amtrak was established.
It is interesting that the law speaks of a duty owed by a landowner to a trespasser that might apply to an incident where a trespasser is injured while trespassing. Yet there does not seem to be any room for this concept in the widespread, popular conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed.
Do deer have more common sense than people?
As I write this there are two deer laying down in my backyard. A doe and her fawn.
They are about 40 feet apart back to back forming a protective circle each covering 180 degrees of potential danger with their vision and hearing. Deer are prey animals and must watch for predators. They're resting, but they are also alert for any danger. A Green Beret "A" Team couldn't do it any better, except that I probably wouldn't be able to see the "A" Team. (Special Forces aren't exactly "Prey")
Now please compare the two deer in my backyard with the two people who walked out on a very high, unlit railroad bridge at 1:00 AM. Which two are acting with more regard to their own personal safety?
WIAR wrote: marknewton wrote: Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.What a great cop-out! Commit a crime and avoid the consequences, all by claiming to be "already in enough grief". Brilliant! And you wonder why I look at your legal system and lawyers with contempt...Mark.If you're not demanding the friend be prosecuted by your own words above, then what are you complaining about? Let's get this thread back on the subject.
marknewton wrote: Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.What a great cop-out! Commit a crime and avoid the consequences, all by claiming to be "already in enough grief". Brilliant! And you wonder why I look at your legal system and lawyers with contempt...Mark.
Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.
If you're not demanding the friend be prosecuted by your own words above, then what are you complaining about? Let's get this thread back on the subject.
Modeling the "Fargo Area Rapid Transit" in O scale 3 rail.
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