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Ulrich wrote:FEC should be more vocal in its defense. That women is on TV playing the victim card and the railroad doesn't take the opportunity to respond? FEC should countersue for tresspassing on private property and endangering the people who work on their trains.
This country is so litigious . . .
MP173 wrote: Now, dont you find it interesting that:on one hand we deplore it when railroad security shows up and chases us off the property and actually enforces the trespassing laws.on the other hand we are amazed that someone actually trespasses and does something stupid and then litigates for massive $$$.Perhaps we should understand the situation when the railroad security, or the town policeman shows up and asks us to leave. It is their property and they have a business to run.Be safe, be smart.edp.s. those days of walking the Illinois Central ROW are long gone, particularly carrying a 20 gauge shotgun. Can you imagine what a train crew would think today?
Now, dont you find it interesting that:
on one hand we deplore it when railroad security shows up and chases us off the property and actually enforces the trespassing laws.
on the other hand we are amazed that someone actually trespasses and does something stupid and then litigates for massive $$$.
Perhaps we should understand the situation when the railroad security, or the town policeman shows up and asks us to leave. It is their property and they have a business to run.
Be safe, be smart.
ed
p.s. those days of walking the Illinois Central ROW are long gone, particularly carrying a 20 gauge shotgun. Can you imagine what a train crew would think today?
Ed, for the record, I personally do NOT find it deplorable when I am asked to leave private property for two reasons...first because I seldom find myself inadvertently trespassing and second because when I do I know I am in the wrong and am happy to obey the law. If any of us don't want to run afoul of the law and/or railroad security forces, then we best not break the law.
Soo 6604,
My right arm is considerably more muscular than my left . . .
Fortunately, the only time you really need power steering is at extremely low speeds, and I can muscle the wheel at such speeds. I now know why they made old-time steering wheels so big--to provide extra leverage to compensate for the absence of power steering . . .
Gabe
gabe wrote: greyhounds wrote: penncentral2002 wrote: Bucyrus wrote: Well, excuse me!I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment". Greyhounds,I have really appreciated your posts over the last few years-I have even cut and pasted some of them and forwarded them to my father. I can recommend a good copyright lawyer to you if you would like to sue me for copyright infringement . . . Also, you can probably prove my below-listed comments to be error just by the mere fact that this type of post comes up on the forum every forty days, and I still engage in the Sisyphean struggle of trying to convince people that they are wrong. I am the proverbial dog that just keeps getting shocked (nothing personal by the dog reference).But, you, as someone who usually knows what they are talking about, should really try to look at things from a different perspective before calling me and my bard a pack of thieves. (1) I graduated in the top of my class from a first-tier law school, have just about any credential that a top-tier lawyer can have, work for what is arguably the biggest and most successful predominantly plaintiff law firm in Indiana. Along your lines, I should have my own private jet that flies me to my estate next to the Lilly family every night. Sadly, and in stark contrast to what you say, I drive a 2001 Grand Prix that only has power steering in one direction. My wife drives a pretty nice car, but that is from her family-who got their money through banking rather than law. The profit for attorneys-especially personal-injury attorneys-is not even close to what you might think it is.Most plaintiffs firms that make a lot of money do so on volume. And even for them, it is really the two or three guys at the top who make a lot-not the 100 blokes like me who work for them.I will guarantee, absolutely grantee, that my brother the union blue-collar welder makes more money than 90 of personal injury plaintiff and defense attorneys. Moreover, he probably has 40-50 days a year off and got to start making big money at 18 rather than after 8 years and $250,000 worth of post-high school education. Admittedly, the ten percent of attorneys that make more than my brother make considerably more (probably in the magnitude of ten-to-twenty times), but they do so because they have a bunch of suckers like me working for them and profit off of the volume. Also, there are some Merger and Acquisition and Patent law lawyers who earn/steal (depending on your perspective) jaw-dropping salaries, but they constitute one percent of one percent of attorneys.Bottom line, I can say with 100% confidence that no one is going to get rich off this case.(2) The individual crew members will have their own attorneys-but they will be paid for by the FEC. It may or may not be right that they are sued, but they are being sued for very hard to explain strategic reasons that have everything to do with FEC paying and they will never pay a dime out of their own pocket.(3) What is your alternative to the system? Although I am loathe to admit political beliefs on the forum, I share your purported anti-bureaucratic ideals. Sure, Europe doesn't have the same legal system as the United States, but it is substituted with a billion bureaucratic hurdles that you and I think are not the right way to go. Just how do we determine who gets compensated for injuries if not by this system?The complex rules that you complain of-the vast majority of which have existed for well over 200 years-reflect the need to work with and interact with a very complex society. I would be willing to bet that if you really sat down and thought about them, you would think differently of them.I am sure you are shaking your head at me right about now, assuming you didn't stop reading . . . But, I can promise you one thing, when my brother comes and visits me in a vehicle that is worth 7 times mine and is on one of his month-long slow down no-work periods, and I can only spend a half-day on Sunday because I have to go into the office so I can make the payment on my house in the ghetto, I am going to have an awfully hard time seeing things your way.Gabe
greyhounds wrote: penncentral2002 wrote: Bucyrus wrote: Well, excuse me!I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment".
penncentral2002 wrote: Bucyrus wrote:
Bucyrus wrote:
Well, excuse me!
I was under the apparently false impression that it was "our" legal system and not "The Lawyers' Legal System". I foolishly commented on it. How dare I? I guess I was right on one thing. The current US legal system is of, by, and for, only lawyers. And, according to you, it's quite "irritating" to listen to our comments. We're just the people paying the bills. Heaven forbid if we irritate you with our comments.
One thing that's been overlooked in this "irritating to a lawyer" discussion is the fact that the injured woman is also attacking the crewmembers. Now they're going to have to hire and pay their own lawyers. (Quite the racket.) Unless they've got some kind of legal insurance, this is going to put a real big hole in their finances. It ain't cheap. They could end up being found totally blameless and still be out tens of thousands of dollars.
That's the way she works. The lawyers make up some incredibly complex rules to further their own purpose (see above) and argue about them while charging people a small fortune to do it. And then they get "irritated" when people "comment".
Greyhounds,
I have really appreciated your posts over the last few years-I have even cut and pasted some of them and forwarded them to my father. I can recommend a good copyright lawyer to you if you would like to sue me for copyright infringement . . .
Also, you can probably prove my below-listed comments to be error just by the mere fact that this type of post comes up on the forum every forty days, and I still engage in the Sisyphean struggle of trying to convince people that they are wrong. I am the proverbial dog that just keeps getting shocked (nothing personal by the dog reference).
But, you, as someone who usually knows what they are talking about, should really try to look at things from a different perspective before calling me and my bard a pack of thieves. (1) I graduated in the top of my class from a first-tier law school, have just about any credential that a top-tier lawyer can have, work for what is arguably the biggest and most successful predominantly plaintiff law firm in Indiana. Along your lines, I should have my own private jet that flies me to my estate next to the Lilly family every night. Sadly, and in stark contrast to what you say, I drive a 2001 Grand Prix that only has power steering in one direction. My wife drives a pretty nice car, but that is from her family-who got their money through banking rather than law. The profit for attorneys-especially personal-injury attorneys-is not even close to what you might think it is.
Most plaintiffs firms that make a lot of money do so on volume. And even for them, it is really the two or three guys at the top who make a lot-not the 100 blokes like me who work for them.
I will guarantee, absolutely grantee, that my brother the union blue-collar welder makes more money than 90 of personal injury plaintiff and defense attorneys. Moreover, he probably has 40-50 days a year off and got to start making big money at 18 rather than after 8 years and $250,000 worth of post-high school education.
Admittedly, the ten percent of attorneys that make more than my brother make considerably more (probably in the magnitude of ten-to-twenty times), but they do so because they have a bunch of suckers like me working for them and profit off of the volume. Also, there are some Merger and Acquisition and Patent law lawyers who earn/steal (depending on your perspective) jaw-dropping salaries, but they constitute one percent of one percent of attorneys.
Bottom line, I can say with 100% confidence that no one is going to get rich off this case.
(2) The individual crew members will have their own attorneys-but they will be paid for by the FEC. It may or may not be right that they are sued, but they are being sued for very hard to explain strategic reasons that have everything to do with FEC paying and they will never pay a dime out of their own pocket.
(3) What is your alternative to the system? Although I am loathe to admit political beliefs on the forum, I share your purported anti-bureaucratic ideals. Sure, Europe doesn't have the same legal system as the United States, but it is substituted with a billion bureaucratic hurdles that you and I think are not the right way to go. Just how do we determine who gets compensated for injuries if not by this system?
The complex rules that you complain of-the vast majority of which have existed for well over 200 years-reflect the need to work with and interact with a very complex society. I would be willing to bet that if you really sat down and thought about them, you would think differently of them.
I am sure you are shaking your head at me right about now, assuming you didn't stop reading . . . But, I can promise you one thing, when my brother comes and visits me in a vehicle that is worth 7 times mine and is on one of his month-long slow down no-work periods, and I can only spend a half-day on Sunday because I have to go into the office so I can make the payment on my house in the ghetto, I am going to have an awfully hard time seeing things your way.
Gabe,
You left out one unanswered question that bugged me throughout the whole reading.....
which way to you have to turn so the power steering works?
http://www.youtube.com/user/pavabo
http://www.flickr.com/photos/paulvbox
morseman wrote: zardoz wrote: morseman wrote: what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod. FEC will probably lose out on this case. This is also a triple rail line & FEC are going to have to rip up one track, erect a three foot fence and install a bike & jogging path along the removed track.Are you serious? If so, I suggest talking to a real railroader (not an FRN) about train operations.Now that is just plain silly. And exactly what good would a three-foot fence do? Keep out the gophers?That statement is extremely accusatory and possibly libelous, and if you do not know for certain that this is what the engineer was doing, you should just shut your pie hole!If you had read my followup, you would have noted that I was facetious (given to or marked by playful joculliarty, humorous). If I was in error, it is that I should have been more serious about such a serious incident, for which I apologize.
zardoz wrote: morseman wrote: what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod. FEC will probably lose out on this case. This is also a triple rail line & FEC are going to have to rip up one track, erect a three foot fence and install a bike & jogging path along the removed track.Are you serious? If so, I suggest talking to a real railroader (not an FRN) about train operations.Now that is just plain silly. And exactly what good would a three-foot fence do? Keep out the gophers?That statement is extremely accusatory and possibly libelous, and if you do not know for certain that this is what the engineer was doing, you should just shut your pie hole!
morseman wrote: what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod. FEC will probably lose out on this case. This is also a triple rail line & FEC are going to have to rip up one track, erect a three foot fence and install a bike & jogging path along the removed track.
what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod. FEC will probably lose out on this case. This is also a triple rail line & FEC are going to have to rip up one track, erect a three foot fence and install a bike & jogging path along the removed track.
Are you serious? If so, I suggest talking to a real railroader (not an FRN) about train operations.
Now that is just plain silly.
And exactly what good would a three-foot fence do? Keep out the gophers?
That statement is extremely accusatory and possibly libelous, and if you do not know for certain that this is what the engineer was doing, you should just shut your pie hole!
The only thing serious about this indcident is the level of stupidity the "victim" has shown.
You have no need to apologize; indeed, it is I who owes you an apology: I did not see your followup post.
The article that I linked earlier said this:
"The eight-count complaint states that the company should have known that pedestrians routinely cross the tracks at that location but did not post ''No Trespassing'' signs on the west side of the tracks.
Yes, it's trespassing, but that hardly stops anyone from using the spot to get to a running path on the east side of the tracks, her attorneys say."
It would be interesting to learn why pedestrians routinely cross the tracks at that location. The implication is that for some logistical reason, pedestrian traffic funnels down to cross the tracks at one particular location. To the extent that this crossing gets concentrated to one location, it should become more obvious to the railroad company, especially if the pedestrians wear a path on both sides of the crossing point.
I know of a similar situation near where I live. There is a public trail system at one point, nearly abutting a private trail system. A railroad mainline separates the two trail systems. Trail users routinely cross the tracks to get from one trail system to the other. Not only is there a well-worn path on each side, but they have also eroded the crushed rock ballast right out from between the ties.
AntonioFP45 wrote:Well guys,We have minor disagreements here and there, but IMHO, I think that we all agree that this situation absolutely stinks! Yes, she lost her legs and most of us sympathize...
Well guys,
We have minor disagreements here and there, but IMHO, I think that we all agree that this situation absolutely stinks! Yes, she lost her legs and most of us sympathize...
Bucyrus wrote:Just guessing, but I suspect that railroads get sued routinely when their trains hit vehicles at grade crossings. I wonder if it is routine to also name the crew personally in the suit, or if this Florida case is unique in that regard.
To the best of my knowledge FEC is not releasing the names of the crew in this case. At least not yet. My buddies over at FEC know who they are, but are not saying who.
Ted M.
got trains?™
See my photos at: http://tedmarshall.rrpicturearchives.net/
Not a lawyer responding here but lawyers typically name anybody and everybody... Eventually those that are truly not involved in the incident are dismissed but still they had costs and the stress involved. This atty probably named that last crew to do maintenance on the engine and the brake manufacturer and every one in between as well - especially the guy who posted that No Trespassing sign on the video, he should have known too! (<-- legal system favorite bs, "knew or should have known...")
What? Hear wha...
mp
We have minor disagreements here and there, but IMHO, I think that we all agree that this situation absolutely stinks! Yes, she lost her legs and most of us sympathize but her suing FEC is outrageous. I'm still trying to figure out how, even if wearing an I-Pod or some other gadget she could not hear a train approaching? Did she have it cranked up to 100 decibals?
It's not just railroads. Suppose she would have been struck by a speeding bus or semi-truck as she crossed a seldom used road while listening to music. Seems that transportation companies continue to be fair game after all.
I hope FEC doesn't decide to settle and decides to fight this one tooth and nail.
"I like my Pullman Standards & Budds in Stainless Steel flavors, thank you!"
penncentral2002 wrote: Bucyrus wrote: It is true that if any crewmembers admitted to having been negligently distracted when the woman was hit, it will harm the railroad's defense. However, a much greater harm to that defense may has been done by members of that crew or of other crews if they were aware that the public had established a frequently used crossing at that one particular point, and yet did not pass this information up to their supervisors. Or if the supervisors had learned of the frequently used crossing and did nothing to eliminate its use, then they will have harmed the railroad's defense. In this specific aspect, the fact that the crossing was illegal and amounted to trespass is beside the point. Exactly right on both counts (add in also if there was any deficiency in the locomotive or the required inspections were not done as another source of liability for the railroad as well). Its rather pointless to point this out though. While nothing is more annoying to me than non-attorneys who have little or no understanding of how the legal system actually operates commenting about a pending legal case based on a newspaper article or a TV report, it is a waste of time to try to explain concepts such as "attractive nuisance" or "comparative negligence." One time only the general rules of commenting on personal injury (tort) law involving railroads 1) Most states use comparative risk (a few such as my state, Virginia, still use common law contributory negligence). Comparative risk actually originated in use with the Federal Employees Liability Act (FELA) as a way to get rid of inputed contributory negligence and the common servant rule which made it almost impossible for any railroad employees to collect against their employers. Thus, with the vast majority of railroad injuries comparative negligence will be used. If you do not know what comparative negligence means, it means that if the defendant is found to be negligent, damages will be accessed (say $1,000,000 for example). Then, the negligence of the plaintiff will be accessed - say in this example, the plaintiff was found to be 50% at fault. In that case, in almost all states (and FELA) the plaintiff would collect $500,000. If the plaintiff was found to be 75% at fault, in some states the plaintiff would collect $250,000 - others (which require the plaintiff to be less than 50% at fault) nothing. If plaintiff was 25% at fault, the plaintiff would collect $750,000 If contributory negligence is used, if the defendant is 99% at fault, the plaintiff will collect nothing.2) Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building). In most accidents both parties will be blameworthy.3) The defendant's negligence is measured using what is called the Hand Formula, from United States v. Carroll Towing - named after the opinion's author, Judge Hand. A defendant will be negligent if the cost of their burden exceeds the probability and the damages. In many railroad accident cases, the potential damages are very large - the probability varies by location - if there was street running down 5th Avenue in New York City, the odds of an accident would be very high. A high risk of accident would also take place at a grade crossing between a busy rail line and a busy highway. A rural crossing between a lightly used branch line and a lightly used road will have a much lower probability of an accident. A place where the rail line and roads/sidewalks have grade separation has an even lower probality of accident. Thus, the burden that the railroad has to prevent accidents will be much higher the busier the crossing.4) For the purposes of tort law, whether a crossing is legal or illegal but known matters very little. In both cases, the burden may attach to the railroad - thus, if there is a known highly appealing unauthorized pedesterian crossing, merely putting up a "no trespassing" sign may not be sufficient to prevent legal liability. In such a case, fencing might be appropriate and cost effective.5) Certain risks are so great either due to probability or burden that what is called strict liability is supplied - the classic textbook example is blasting. Attempts have been made to make rail transportation of hazardous chemicals subject to strict liability, but they have failed thus far. 6) The fact that someone is a trespasser does not relieve a party's responsibility to provide steps to minimize injuries and cannot be used to defeat "gross negligence." The duty of care will vary whether a person is an unknown or known trespasser - but there will always be a limitation on the use of deadly force such as traps or spring guns. The doctrine of "attractive nuisance" applies. In most railroad cases, the question is whether the location was a spot known for having trespassers - if so, the railroad may have had the obligation to take steps to prevent trespassers from using that spot. Obviously, an operating train can result in death.7) Tort law is all about accessing responsibility (especially in comparative negligence regimes). Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.8) Newspaper articles and TV reports are not going to provide a full picture of what really happened. They never provide the full story and they may well be biased. Keep in mind that many media companies are owned entirely (see, e.g. NBC-Universal, formerly CBS when they were owned by Loew's and later when Westinghouse bought them) or in large part (almost all of the others, but especially Disney and the Washington Post Corporation) by insurance or industrial companies (GE who owns NBC qualifies as both since they have some insurance subsidiaries) who have a specific financial interest in destroying tort law as a means to regulate corporate behavior.9) Unless you understand all of those above concepts (not to mention the underlying substantive tort law involved) and are willing to speak only in hypotheticals (unless you have actually read all of the parties' pleadings which would presumably lay out any arguments and factual disputes in determining whether a case will go to a jury) you are not qualified to speak about the existance of liability or whether a law suit is frivilous or not.10) Very few lawyers file truly frivilous suits - when such suits are filed, they are generally by large corporations, often against individuals (called "SLAPP suits" for strategic lawsuit against public participation where a corporation attempts to silence a critic by filing a meritless lawsuit against them) but sometimes other large corporations (e.g. the Fox News suit against Al Franken (the judge hearing that case called it "wholly without merit legally or factually") or almost in one particularly hilarious case another division of the same company (Fox News once threatened to sue The Simpsons over a parody of the Fox News ticker apparently forgetting that they are both owned by NewsCorp). Most truly frivilous suits by individuals are filed pro se - often by prisoners - and generally against the government. In any case, such suits are generally quickly disposed of - and in the case of corporations, their insurance policies cover the bills (and legal fees and insurance policies are tax deductable as an ordinary and necessary business expense) so the actual cost of corporations of such suits is minimal (and deducted from their taxes anyway).
Bucyrus wrote: It is true that if any crewmembers admitted to having been negligently distracted when the woman was hit, it will harm the railroad's defense. However, a much greater harm to that defense may has been done by members of that crew or of other crews if they were aware that the public had established a frequently used crossing at that one particular point, and yet did not pass this information up to their supervisors. Or if the supervisors had learned of the frequently used crossing and did nothing to eliminate its use, then they will have harmed the railroad's defense. In this specific aspect, the fact that the crossing was illegal and amounted to trespass is beside the point.
It is true that if any crewmembers admitted to having been negligently distracted when the woman was hit, it will harm the railroad's defense.
However, a much greater harm to that defense may has been done by members of that crew or of other crews if they were aware that the public had established a frequently used crossing at that one particular point, and yet did not pass this information up to their supervisors. Or if the supervisors had learned of the frequently used crossing and did nothing to eliminate its use, then they will have harmed the railroad's defense. In this specific aspect, the fact that the crossing was illegal and amounted to trespass is beside the point.
Exactly right on both counts (add in also if there was any deficiency in the locomotive or the required inspections were not done as another source of liability for the railroad as well). Its rather pointless to point this out though. While nothing is more annoying to me than non-attorneys who have little or no understanding of how the legal system actually operates commenting about a pending legal case based on a newspaper article or a TV report, it is a waste of time to try to explain concepts such as "attractive nuisance" or "comparative negligence."
One time only the general rules of commenting on personal injury (tort) law involving railroads
1) Most states use comparative risk (a few such as my state, Virginia, still use common law contributory negligence). Comparative risk actually originated in use with the Federal Employees Liability Act (FELA) as a way to get rid of inputed contributory negligence and the common servant rule which made it almost impossible for any railroad employees to collect against their employers. Thus, with the vast majority of railroad injuries comparative negligence will be used. If you do not know what comparative negligence means, it means that if the defendant is found to be negligent, damages will be accessed (say $1,000,000 for example). Then, the negligence of the plaintiff will be accessed - say in this example, the plaintiff was found to be 50% at fault. In that case, in almost all states (and FELA) the plaintiff would collect $500,000. If the plaintiff was found to be 75% at fault, in some states the plaintiff would collect $250,000 - others (which require the plaintiff to be less than 50% at fault) nothing. If plaintiff was 25% at fault, the plaintiff would collect $750,000 If contributory negligence is used, if the defendant is 99% at fault, the plaintiff will collect nothing.
2) Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building). In most accidents both parties will be blameworthy.
3) The defendant's negligence is measured using what is called the Hand Formula, from United States v. Carroll Towing - named after the opinion's author, Judge Hand. A defendant will be negligent if the cost of their burden exceeds the probability and the damages. In many railroad accident cases, the potential damages are very large - the probability varies by location - if there was street running down 5th Avenue in New York City, the odds of an accident would be very high. A high risk of accident would also take place at a grade crossing between a busy rail line and a busy highway. A rural crossing between a lightly used branch line and a lightly used road will have a much lower probability of an accident. A place where the rail line and roads/sidewalks have grade separation has an even lower probality of accident. Thus, the burden that the railroad has to prevent accidents will be much higher the busier the crossing.
4) For the purposes of tort law, whether a crossing is legal or illegal but known matters very little. In both cases, the burden may attach to the railroad - thus, if there is a known highly appealing unauthorized pedesterian crossing, merely putting up a "no trespassing" sign may not be sufficient to prevent legal liability. In such a case, fencing might be appropriate and cost effective.
5) Certain risks are so great either due to probability or burden that what is called strict liability is supplied - the classic textbook example is blasting. Attempts have been made to make rail transportation of hazardous chemicals subject to strict liability, but they have failed thus far.
6) The fact that someone is a trespasser does not relieve a party's responsibility to provide steps to minimize injuries and cannot be used to defeat "gross negligence." The duty of care will vary whether a person is an unknown or known trespasser - but there will always be a limitation on the use of deadly force such as traps or spring guns. The doctrine of "attractive nuisance" applies. In most railroad cases, the question is whether the location was a spot known for having trespassers - if so, the railroad may have had the obligation to take steps to prevent trespassers from using that spot. Obviously, an operating train can result in death.
7) Tort law is all about accessing responsibility (especially in comparative negligence regimes). Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.
8) Newspaper articles and TV reports are not going to provide a full picture of what really happened. They never provide the full story and they may well be biased. Keep in mind that many media companies are owned entirely (see, e.g. NBC-Universal, formerly CBS when they were owned by Loew's and later when Westinghouse bought them) or in large part (almost all of the others, but especially Disney and the Washington Post Corporation) by insurance or industrial companies (GE who owns NBC qualifies as both since they have some insurance subsidiaries) who have a specific financial interest in destroying tort law as a means to regulate corporate behavior.
9) Unless you understand all of those above concepts (not to mention the underlying substantive tort law involved) and are willing to speak only in hypotheticals (unless you have actually read all of the parties' pleadings which would presumably lay out any arguments and factual disputes in determining whether a case will go to a jury) you are not qualified to speak about the existance of liability or whether a law suit is frivilous or not.
10) Very few lawyers file truly frivilous suits - when such suits are filed, they are generally by large corporations, often against individuals (called "SLAPP suits" for strategic lawsuit against public participation where a corporation attempts to silence a critic by filing a meritless lawsuit against them) but sometimes other large corporations (e.g. the Fox News suit against Al Franken (the judge hearing that case called it "wholly without merit legally or factually") or almost in one particularly hilarious case another division of the same company (Fox News once threatened to sue The Simpsons over a parody of the Fox News ticker apparently forgetting that they are both owned by NewsCorp). Most truly frivilous suits by individuals are filed pro se - often by prisoners - and generally against the government. In any case, such suits are generally quickly disposed of - and in the case of corporations, their insurance policies cover the bills (and legal fees and insurance policies are tax deductable as an ordinary and necessary business expense) so the actual cost of corporations of such suits is minimal (and deducted from their taxes anyway).
penncentral2002 wrote: Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building)
Contributary negligence has been scrapped in most places precisely because it is unfair and because it does not reflect reality - rare is the accident where one party will be 100% at fault (an example would be if a drunk driver driving 150 miles per hour slams into a building)
In most accidents both parties will be blameworthy.
Thus, it is with the utmost irony that persons who complaint about plaintiffs always claim that they lack responsibility. Apparently large corporation's responsibility do not matter.
marknewton wrote: morseman wrote: what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod.You know this to be a fact, do you?In the unlikely event you ever find yourself in charge of a train, know this - you don't make a brake application every time you see someone who may or may not cross your path.Mark.
morseman wrote: what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod.
what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod.
The report stated she was crossing the tracks which means the jogger you see running along the road next to the tracks (or alongside the tracks) may suddenly change direction and begin crossing right in front of you before you can effect the trains speed, all the engineer may have been able to do was put it in emergency stop and lay on the horn and hope the moron looks your way before they get tagged.
Based one the behavior of joggers I have seen here, looking around does not help generate the myopic groove joggers delve to get into, I've seen joggers run into major intersections without even looking. Thats what I think happened here. Didnt even look up, and was wondering what that dam noise spoiling her groove was in her earplugs just before the world went upside down.
Have fun with your trains
However, a much greater harm to that defense may have been done by members of that crew or of other crews if they were aware that the public had established a frequently used crossing at that one particular point, and yet did not pass this information up to their supervisors. Or if the supervisors had learned of the frequently used crossing and did nothing to eliminate its use, then they will have harmed the railroad's defense. In this specific aspect, the fact that the crossing was illegal and amounted to trespass is beside the point.
Ted Marshall wrote: narig01 wrote: Could someone send the thread to the TV Station so the station managers asst cld see? My regrets to the lady, I am unsure how to phrase this but here goes. 1. I can only say I would question the Attorney representing her about not talking to her about this 1st .2. The Judge should not allow this to go forward.3. FEC is base out of St Augustine if I remember correctly. The TV station is out of Boca Raton as was the accident. Who did the TV station try to contact?Rgds IGNNot quite sure where you're going with this, but, for the record, FEC is based out of Jacksonville (Duval Co.) and the Channel 10 is out of Miami (Dade Co.). The accident occurred in Pompano Beach (Broward Co.). FEC used to be headquartered in St. Augustine, but hasn't been for some time now.I agree that based on what was reported as fact regarding the ipod, trespassing, etc... this case should be thrown out faster than the discards from last nights shrimp boil dinner. There's no way this would've happened if she had just excercised due dilligence on her part by looking out for trains before she attempted to cross the tracks. I'm still not sure if she was even cited for trespassing; she certainly should've been. Maybe that would buttress FEC's position in this matter. I've seen cases in the past where automobile accident victims laying in hospital beds were handed traffic citations for being at-fault, literally adding insult to injury. Miss Risse should not have been treated any differently.
narig01 wrote: Could someone send the thread to the TV Station so the station managers asst cld see? My regrets to the lady, I am unsure how to phrase this but here goes. 1. I can only say I would question the Attorney representing her about not talking to her about this 1st .2. The Judge should not allow this to go forward.3. FEC is base out of St Augustine if I remember correctly. The TV station is out of Boca Raton as was the accident. Who did the TV station try to contact?Rgds IGN
Could someone send the thread to the TV Station so the station managers asst cld see?
My regrets to the lady, I am unsure how to phrase this but here goes.
1. I can only say I would question the Attorney representing her about not talking to her about this 1st .
2. The Judge should not allow this to go forward.
3. FEC is base out of St Augustine if I remember correctly. The TV station is out of Boca Raton as was the accident. Who did the TV station try to contact?
Rgds IGN
Not quite sure where you're going with this, but, for the record, FEC is based out of Jacksonville (Duval Co.) and the Channel 10 is out of Miami (Dade Co.). The accident occurred in Pompano Beach (Broward Co.). FEC used to be headquartered in St. Augustine, but hasn't been for some time now.
I agree that based on what was reported as fact regarding the ipod, trespassing, etc... this case should be thrown out faster than the discards from last nights shrimp boil dinner. There's no way this would've happened if she had just excercised due dilligence on her part by looking out for trains before she attempted to cross the tracks.
I'm still not sure if she was even cited for trespassing; she certainly should've been. Maybe that would buttress FEC's position in this matter. I've seen cases in the past where automobile accident victims laying in hospital beds were handed traffic citations for being at-fault, literally adding insult to injury. Miss Risse should not have been treated any differently.
Can I get an amen on this !
UP sends an officer out and tickets anybody walking on their property..
Dont cross their tracks anywhere but a street Xing in Ft Worth,Tx....
morseman wrote:what has not been mentioned is that this is a long stretch of straight right of way & the engineer should have seen her a long way off & applied his brakes, but he was reading his favorite novel or listening to HIS Ipod.
Several instances where RR lost despite common sense on its side. Enola yard railfan tresspassing on CR property got clipped despite all kinds of warning; RR paid. Drunk driver goes around a line of cars stopped at occupied grade crossing with lights, bells, gates, trainman flagging on the crossing, goes under the train peeling the roof off car and lnot a scratch on him, gets DUI ticket, sues the railroad and wins. There are more stories like that...we commonly refer to them as "The hot coffee in the lap vs Mc Donald's" legal awards.
Despite the carelessness, negligence, distraction of the I-pod, and trespass, it appears that the lawyers will make a case that the railroad is partly responsible because they provided a hazardous condition, and did not barricade or protect it in a way that would prevent the public from being injured by it. I am not a legal expert, but I doubt that the fact that the railroad is private property would fully exonerate the railroad from the charge of failing to protect the public from a hazard.
A hazard on private property unbeknownst to the owner may nevertheless be a liability to the owner if the public is likely to be injured by it. I suspect the hazard may be a greater liability to the owner if he or she does know about it.
This crossing point, although illegal, was apparently routinely used, thus raising the point that railroad was probably aware of that public usage, and thus was aware of the hazard to the public. While they did have the ROW posted, they apparently did not post signage to warn pedestrian traffic approaching this crossing point from both directions.
I have no idea which side will prevail, but I doubt that the case will be thrown out because it has no grounds.
http://www.freerepublic.com/focus/f-news/2035578/posts
Quote from the above link:
And so, with the help of Fort Lauderdale attorneys Stephen L. Malove and Scott L. Henratty, she has filed a negligence lawsuit against FEC, the train's engineer and its brakeman.
The eight-count complaint states that the company should have known that pedestrians routinely cross the tracks at that location but did not post ''No Trespassing'' signs on the west side of the tracks.
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