Woman falls from CN bridge - dies

[Tharmeni]

a missing plank?   Oh, oh, call the attorneys!

[Ulrich]

I'm sure that's already been done...but looking at the bigger picture...if a plank is missing then what else may be missing...maybe something that could affect the safe movement of a train across the bridge?

[selector]

Woman in a party of trespassers falls off bridge.  In anger and dismay, fellow trespasser finds a way to dislodge a plank, throws it in the river so that it cannot be retrieved, winks at loved ones and assures them it'll all be looked after.

This may be a cynical approach to the subject, but it really wouldn't surprise me.

[Anonymous]

In case anyone's interested, there's usually only one train each way per day over that bridge as I was last informed.  The daily New Brighton - Stevens Point job.  The eastbound job used to depart New Brighton anywhere between 11 AM & 1 PM, but lately I've seen it whistling through White Bear about 4:45 PM.

[Modelcar]

....What a tragic loss......How can anyone minimize the chance of something like this from happening.  If it has free access, especially at night, people out getting a bit too happy are going to try almost anything.  Sometimes with these terrible results.

[CShaveRR]

I'm sure that's already been done...but looking at the bigger picture...if a plank is missing then what else may be missing...maybe something that could affect the safe movement of a train across the bridge?

That's almost as big a jump as the woman made (whether she intended to or not).  Based on the article, it can be inferred that this person ignored no-trespassing signs, and just likely may not have been sober.  Does the no-trespassing sign have to explain that a bridge 185 feet above the ground may have hazardous footing?  People--railroad employees--who need to know about a missing plank may have been apprised of it with a bulletin or order either warning of hazardous footing or removing the walkway from service.

I'm sorry for her friends and relatives, but a death such as this is a suicide, whether she wanted one or not.

[Ulrich]

Who knows if it was a suicide...someone could have thrown her over/through the bridge...we just don't know. From a commonsense standpoint I don't think the railroad should be held responsible...however my concern is that the bridge itself may be (I say may not IS) in a state of disrepair. Given other incidents over the last year or two a look at that bridge might be in order.

[Modelcar]

....What else has happened at the bridge recently....?

[Ulrich]

Not at the bridge in particular...but system wide in general. Well...if it were my bridge or a bridge that I was responsible for...a missing plank would be my cue to check it out further...sometimes where there's smoke there's fire.

[Anonymous]

It raises all those liability questions that we talked about in that other thread.  I don't know how an attractive nuisance is defined, but I'll bet that bridge would come close. 

[edblysard]

Come on guys, it is a 2600 foot long, 180 foot high steel arch bridge with a side walkway just wide enough for a single person.

These walkways are not intended for daily or regular use, it is there for emergency use in case the train crew needs to walk the train.

I would have a problem walking it sober, even if I worked for that railroad...the kids had no business being up there, if a train comes along while you are there, you would be hard pressed to stay standing.

As for a missing plank, most of the walkways are made of wooden planks, treated with creosote and bolted to the walkway supports...considering the little frequency any railroad employee would walk on it, and therefore report it, I am surprised if there is only one missing.

 

This isn't an attractive nuisance, access to the bridge and crossing the bridge would require dedicated intent by the trespasser.

I am sorry the girl fell and died, but she and her friend had no business being up there.

[Anonymous]

 

Some thoughts:

Attractive nuisance implies something that draws trespassers.  It does not forgive trespass, but stands as an extenuating circumstance that tends to offset the admonition to refrain from trespass.  I do not know about today, but in the past, the walkway was on one side of the track, and about three feet wide.  It was made of hardwood planking bolted to the steel bridge structure.  It was also accompanied by a very sturdy guardrail. 

The walkway was configured in a way that it would be easy to clear a passing train.  This quite spectacular bridge in the relatively undeveloped country invites trespass.  There is a history of the Soo aggressively enforcing a no-trespass policy on the bridge.  

[selector]

I can see this side of the argument.  Suppose they had been stranded, somehow having found themselves on the 'wrong' side of the river/ravine, late at night, and the only handy way across the obstacle was via the handy bridge.  It would still be willful trespass, but if they were in a bad way, even a pinch, taking reasonable access might be the key point in a lawsuit.  Had the company barred the exits at each end so that people would have to scale a 6' gate or something, that might be good enough.

It's all speculation, though...  Still a very sad time for the families. 

[Railroader_Sailor_SSN-760]

Yet another case of someone being stupid and getting what they deserved.

One of the factors in this is how our culture treats breaking the rules - as if they are only suggestions. 

This could have very easily been a double fatality - what if a train came across the bridge? I am sure both would have jumped.

This is just another example of how the Stoopid need to be protected from themselves.

I propose that we make a zoo to contain the Stoopids, complete with shock collars to teach them the same way that disobedient dogs are corrected.

This reminds me of an article in a recent issue of Trains, making mention of how people that have done stupid things (i.e. try to beat trains to a crossing) are the focus of the media, and how the railroaders that are affected by the Stoopids being stupid are brushed aside.

Help control the Stoopid Population by spaying or neutering your Stoopid today!

[Anonymous]

 

This could have very easily been a double fatality - what if a train came across the bridge? I am sure both would have jumped.

People trespass on this bridge knowing that if a train shows up, they will not have to jump to avoid being hit by it.  Granted, people do trespass on bridges where they likely will not be cleared by trains, and where they cannot possibly outrun those trains, but that is not the case with the bridge in this story.

[Anonymous]

 

Some thoughts:

Attractive nuisance implies something that draws trespassers.  It does not forgive trespass, but stands as an extenuating circumstance that tends to offset the admonition to refrain from trespass.  I do not know about today, but in the past, the walkway was on one side of the track, and about three feet wide.  It was made of hardwood planking bolted to the steel bridge structure.  It was also accompanied by a very sturdy guardrail. 

The walkway was configured in a way that it would be easy to clear a passing train.  This quite spectacular bridge in the relatively undeveloped country invites trespass.  There is a history of the Soo aggressively enforcing a no-trespass policy on the bridge.  

The term "attractive nuisance" has some local applicability.  Last summer it seemed that drunks were fallin' down abandoned grain elevators in Minneapolis like lemmings over a cliff, and there was a lot of blame heaped-on the owners of the properties by the media and relations of the "victims", not the BOOZED-UP MORONS that fell.  Now, an abandoned grain elevator seems to have lost its usefulness and should've been torn-down, and obviously the CN bridge is vital, but rest assured CN will get a lot of undeserved blame for this latest incident.

Also, for additional info, according to my handy CN Wisconsin Division Timetable #2, the speed restriction on that bridge is 25 MPH.

[Ulrich]

Hopefully the law enforcement people won't jump to the conclusion that this young lady committed suicide or was simply a victim of her own carelessness. Murder is always a possibility...someone could have drugged her, raped her maybe , and then thrown her over..It is possible. Hopefully someone will stand up and fight for her now to at least get at the truth..

[greyhounds]

 

Some thoughts:

Attractive nuisance implies something that draws trespassers.  It does not forgive trespass, but stands as an extenuating circumstance that tends to offset the admonition to refrain from trespass.  I do not know about today, but in the past, the walkway was on one side of the track, and about three feet wide.  It was made of hardwood planking bolted to the steel bridge structure.  It was also accompanied by a very sturdy guardrail. 

The walkway was configured in a way that it would be easy to clear a passing train.  This quite spectacular bridge in the relatively undeveloped country invites trespass.  There is a history of the Soo aggressively enforcing a no-trespass policy on the bridge.  

You see, this is the problem.

"They were invited to trespass."  Sure, the signs said "No Trespassing", but there's an extenuating circumstance.  You see, there's such a nice view from the bridge.

This is a lawyers' trick to get around the absolute meaning of the word "No" in the "No Trespassing" signs.  Since it's obvious that no one would trespass if there wasn't some reason to do so that was "attractive" to them, lawyers can use this doublespeak to intruduce the comparative negligence silliness.  And to get some of the defendant's money. 

CN, get out your checkbook.  In our legal system "No" doesn't mean "No".  It's more of a suggestion.

[Doublestack]

Its an impressive bridge.  I'm sure there is a great view from the middle, but not too bright of a place to tresspass.

Flying from MSP to Green Bay, if seated on the right hand side of the plane, you can see the  bridge, even from perhaps 10,000 feet up.  It really jumps out in the winter, mid-day, the shadow is very easy to pick up.   Very distinctive look to the bridge.

Here's a pic from a train going over the bridge.

http://www.railpictures.net/viewphoto.php?id=157341

http://www.railpictures.net/viewphoto.php?id=2896

Also - if you click the photo on the Wikipedia page, it takes you to a very nice, larger version.

http://en.wikipedia.org/wiki/Soo_Line_High_Bridge

 

[eolafan]

Woman in a party of trespassers falls off bridge.  In anger and dismay, fellow trespasser finds a way to dislodge a plank, throws it in the river so that it cannot be retrieved, winks at loved ones and assures them it'll all be looked after.

This may be a cynical approach to the subject, but it really wouldn't surprise me.

It wouldn't surpries me either.

[zardoz]

.....Last summer it seemed that drunks were fallin' down abandoned grain elevators in Minneapolis like lemmings over a cliff.....

....and there was a lot of blame heaped-on the owners of the properties by the media and relations of the "victims", not the BOOZED-UP MORONS that fell. 

+1

[zardoz]

Doublestack-

Thanks for those pics.  A very impressive bridge, indeed!  I must visit there some day.

[Anonymous]

As to the cause, anything is possible including murder and suicide, but it has been reported that a plank was missing on the walkway.  With a black, creosoted walkway in the middle of the night, I can see how someone could just step into the hole and be gone.  I suspect we will learn more about the missing plank. 

I doubt that just one out of hundreds of planks suddenly goes missing because of aging or deterioration.  This is heavy planking bolted to steel framing.  And I cannot see the railroad company allowing a plank to be missing much beyond the moment they discover the defect.  It would be a death trap for their emplyees as well as for trespassers. 

 

 

[ButchKnouse]

I'm beginning to think that the "attractive nuisance" part of the law was put in by the liquor lobby in order to "protect" their customers.

[ChuckHawkins]

In looking at a picture of the bridge, posted by doublestack, the planking is rather substantial and their is a protective pipe railing along the walkway side. I would think there is much more to come out of this investigation beside a simple "missing" timber that created an opening large enough for someone to fall through.

Like most initial reports that seem to inevitably be woefully inaccurate, I await the followup.

[Modelcar]

....Impressive photos from Doublestack's post.  I come down on the side of opinion believing it's difficult to go along with the missing plank theory.  And agree with someone's post indicating if a missing plank did occur, it would be replaced pronto by the RR with regard to employee's using said space in their work routine...{possibly}.

That looks like a structure built to handle the job.  The arches are strengthened by all the triangles around it supporting it's shape and the wider stance at the bottom seems to provide great side support from {wind, etc...}.

[Anonymous]

In looking at a picture of the bridge, posted by doublestack, the planking is rather substantial and their is a protective pipe railing along the walkway side. I would think there is much more to come out of this investigation beside a simple "missing" timber that created an opening large enough for someone to fall through.

Like most initial reports that seem to inevitably be woefully inaccurate, I await the followup.

The latest info from a Stillwater newspaper is she fell from the middle of the bridge onto an island 150 ft. below:

http://www.examiner.com/a-1531638~Woman_found_dead_at_foot_of_railroad_bridge.html

Another snippet from the Stillwater Gazette claims Washington County officials are now "looking at the death" as an accident (a rather uselessly-short write-up):

http://www.topix.com/city/stillwater-mn/2008/08/washington-county-officials-consider-death-of-woman-an-accident

There is a related link to a story in the Minneapolis Red Star Tribune that provides some background info.

[penncentral2002]

I'm beginning to think that the "attractive nuisance" part of the law was put in by the liquor lobby in order to "protect" their customers.

Attractive nuisance has nothing to do with drunkenness.  Drunkeness in the law is mainly explained by this quote from what may well be my favorite court opinion ever, Robinson v. Pioche Bayerque & Co, 5 Cal. 460 (1855) "if the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the plaintiff cannot excuse such gross negligence.  A drunken man is as much entitled to a safe street as a sober one, and much more in need of it."

Attractive nuisance generally is more directed towards protecting children (seriously, the test is if it is something that would be attractive to children) - it would be directed more likely at something like an old abandoned quarry which has filled with water - there would be an affirmative duty if you were the property owner to keep people from swimming there.  Perhaps a bridge might qualify - but more likely if it was in a populated area than rural and was commonly used as a short cut.

The scenario about the lost people would be based on necessity - in a case of necessity (such as being lost in the woods and following the railroad tracks in hope of finding civilization) the trespass would be allowed but they would have to pay for any damages.

 

[Anonymous]

Here is a link to several definitions of attractive nuisance. 

 

http://www.answers.com/topic/attractive-nuisance

 

It does make the point that the principle is mostly applied to children, however, I don't know if there is a clearly drawn line for that stipulation.  So it is not clear if attractive nuisance could be applied to the 20-year-old woman in this case.  However, I would think that almost any railroad trestle would qualify as an attractive nuisance, especially the one in this case with its soaring height, attractive views, handy re-assuring walkway, declining number of trains, and rural location which makes anti-trespass relatively difficult to enforce.  Then add one impressive rope swing to that heady mix, and you have what surly must be an attractive nuisance.  Even the river itself, with its substantial current, adds its own considerable danger to the mix.    

[Andrew Falconer]

From the photos it looks like that bridge is very sturdy.

It would only be inviting for the extreme risk takers to cross it and hang out on it.

Among the possible events related to the woman's fall that might have happened on it are illicit drug use and sexual activities that would appeal to those extreme risk takers.

Andrew

[Anonymous]

http://www.twincities.com/ci_10170099?source=most_emailed

According to the article, the couple were just going for a walk and she fell through a six-foot long gap where a plank was missing.  The real risk takers use the rope swing hanging under the bridge over the river.  I'm not sure how that works if the idea is to swing out and drop into the river.  That river can be a bit tough to get out of once the current gets a hold of you. 

Just downstream from the Arcola Bridge was the original bridge crossing at a much lower elevation.  Like ancient ruins, a line of many giant stone piers left over from the original bridge marches across the rather wide river.  They stand about 30 feet high above the water.

[Boyd]

It happened at 1am. She was a pretty gal. I know I had seen her around town but didn't know her. County sherrifs have warned people to stay off the bridge.

[Tharmeni]

Speaking of stupid, yesterday a woman here in Bradenton pulled her Toyota around a stop sign AND a flagman and into the path of a 5-miles-per-hour Seminole Gulf train.  Now bloggers on the newspaper site and wondering if the flagman "was off driniking coffee somewhere..."

Sometimes I feel like I am losing touch with society...

[zardoz]

Speaking of stupid, yesterday a woman here in Bradenton pulled her Toyota around a stop sign AND a flagman and into the path of a 5-miles-per-hour Seminole Gulf train.  Now bloggers on the newspaper site and wondering if the flagman "was off driniking coffee somewhere..."

Sometimes I feel like I am losing touch with society...

Was the stop sign out to lunch as well?

[Anonymous]

Hypothetically, if the Arcola bridge was out-of-service for any reason, what route would the CN use to detour over for Twin Cities - Stevens Point traffic?  Could they use the UP from Hudson to Chippewa Falls?  Or maybe they'd run-up to Superior over the BNSF?

[Anonymous]

I was just listening to the radio and the discussion was just ending about the Arcola bridge accident - they're officially calling it an accident.

[tomikawaTT]

Let me get this straight:

• This big, beautiful bridge has a nice 2' (looks like) walkway with a pipe guard rail that should be able to keep anyone smaller than a sumo wrestler from going through it.
• The big, bad railroad simply posted a No Trespassing sign.  They didn't station an armed security guard to prevent the mentally or alcoholically challenged from walking out on the bridge.
• Somebody wasn't smart enough to notice (in broad daylight - 911 call at 1pm) that there was a plank missing, stepped into the hole and improved the gene pool.

Pardon me if I feel that way.  I was brought up to take responsibility for my own actions (even the potentially fatal ones.)  I am also equipped with two fully functional eyeballs - and have frequently been in places where failing to insure the solidity of my footing would have been life-threatening if not downright suicidal.

As far as I am concerned, any lawyer who would use this event to try to extort money from the railroad should be horsewhipped.

Chuck

[Anonymous]

It was at ~1:00 AM and very dark at the time.

Can anyone answer my hypothetical question about CN's detour route if that bridge is OOS?  Could they use the UP's Hudson - Eau Claire - Chippewa Falls trackage to bypass the Arcola bridge, or would they need to go up to Superior for Twin Cities - Stevens Point traffic?

[Doublestack]

My vote for a CN detour would be Stevens Point to Jct City, South to the CP (New Lisbon?), then upto LaCrosse and St Paul.  I think that has been done before, during the WC.

[Anonymous]

Let me get this straight:

• This big, beautiful bridge has a nice 2' (looks like) walkway with a pipe guard rail that should be able to keep anyone smaller than a sumo wrestler from going through it.
• The big, bad railroad simply posted a No Trespassing sign.  They didn't station an armed security guard to prevent the mentally or alcoholically challenged from walking out on the bridge.
• Somebody wasn't smart enough to notice (in broad daylight - 911 call at 1pm) that there was a plank missing, stepped into the hole and improved the gene pool.

Pardon me if I feel that way.  I was brought up to take responsibility for my own actions (even the potentially fatal ones.)  I am also equipped with two fully functional eyeballs - and have frequently been in places where failing to insure the solidity of my footing would have been life-threatening if not downright suicidal.

As far as I am concerned, any lawyer who would use this event to try to extort money from the railroad should be horsewhipped.

Chuck

Even with both eyeballs working in broad daylight, it is very easy to step into a hole if one happens to be where one is walking and does not expect a hole to be.  A hole big enough to fall through, in the middle of a narrow walkway, in the middle of the night would be a death trap.  Anything less than posting armed guards would probably be negligence.    

[rrnut282]

I have to disagree, as that postion benefits only one segment of our society, lawyers.  By posting armed guards, do you mean they have to shoot the trespassers lest they have an accident and sue?

[Anonymous]

I have to disagree, as that postion benefits only one segment of our society, lawyers.  By posting armed guards, do you mean they have to shoot the trespassers lest they have an accident and sue?

No, I would not suggest shooting people to prevent them from trespassing, so maybe the guards need not be armed.  Do you realize that you can be found liable for certain hazards on your own property if they pose a risk to the public, even though the public is trespassing on your property? 

[rrnut282]

Yes, I have heard that, and I am scratching my head why I have to pay if someone uninvited and unwanted and warned gets hurt where I don't want them to be.  When did consequences for the actions of others become my problem?

Oh, I forgot, congress.

[Anonymous]

Yes, I have heard that, and I am scratching my head why I have to pay if someone uninvited and unwanted and warned gets hurt where I don't want them to be.  When did consequences for the actions of others become my problem?

It arises from the weighing of your right to not be subjected to trespass against the right of others to not get killed or injured by a hazard that you have created.  Suppose you have (for whatever reason) a hidden booby trap on your property that could kill a person, but you know about it, so you are safe.  Say you have your property clearly posted against trespass.  And say a child wanders onto your property (for whatever reason) and gets killed in your booby trap.  And say the child could not read nor understand the concept of trespass.  Just on a moral basis, do you think you would bear some of the responsibility for the child's death?     

[tree68]

Bucyrus - Your example of a child would certainly hold merit.  On the other hand, if some adult dummy entered your property uninvited and crawled under your car, which was supported only by a bumper jack, suffering injury or death, would he not be chiefly, if not fully, responsible for his own situation? 

Just because he was curious about what brand muffler you had on the car does not justify his putting himself at risk.  Are you responsible for erecting guards, blocking the car, etc? 

 

[rrnut282]

You're taking a hypothetical situation to an extreme to force others to agree to your conclusion.  Who can argue against an innocent child? 

Irregardless, I don't build booby traps and I still would feel bad about a child dying on my property, even if I had contributed nothing to that death.  But that doesn't entitle the parents (who were supposed to be protecting and educating the child) to compensation from me or my insurance company.  As a parent myself, they will have my sympathies, but not my wallet.

[Anonymous]

You're taking a hypothetical situation to an extreme to force others to agree to your conclusion.  Who can argue against an innocent child? 

Irregardless, I don't build booby traps and I still would feel bad about a child dying on my property, even if I had contributed nothing to that death.  But that doesn't entitle the parents (who were supposed to be protecting and educating the child) to compensation from me or my insurance company.  As a parent myself, they will have my sympathies, but not my wallet.

Yes I am citing an extreme example to make my point, but the example is be a valid representation of my point.  When you suggest that I want to force others to agree with my conclusion, perhaps I should clarify what my conclusion is.  It is not that the property owner is always 100% liable for death or injury to all trespassers despite the owner's posting of no trespassing signs.  My conclusion is that the property owner is sometimes partially liable for death or injury to a trespasser.

But your conclusion seems to be that a property owner is never liable for death or injury to a trespasser simply because the trespasser should not have entered the property where the death or injury occurred.  I disagree with this never liable position, so I offered an extreme example in order to refute that position.  There is a lot of gray area.  And with my extreme example, you can see that there is moral and logical reasoning behind the property owner being liable in at least some cases.

Larry,

I used a child in my example to make my point, and it is true that a trespassing adult would be expected to take on more of the responsibility and blame for their own injury.  However, the principles can carry over to some extent, and apply to adults as well as children, depending on nature of the hazard, the care that the owner has exercised to guard the hazard, and the nature of the trespass.   I have no idea how this would shake out in the case of this bridge fall.  Attractive nuisance does seem to be developed around a child trespasser, as I used to make the point of my example.  However, my general understanding is that the principles are not necessarily confined to cases where an injured trespasser is a child.  Here is an example of an argument to apply attractive nuisance defense to that case of the two boys who were burned by railroad catenary wires.

"In his 25-page opinion in Klein v. National Railroad Passenger Corp., U.S. District Judge Lawrence F. Stengel found that Pennsylvania courts have recognized the attractive nuisance theory -- outlined in §339 of the Restatement (Second) of Torts -- as a valid exception to the general liability standard for trespassers, and that no Pennsylvania court has ever set an arbitrary age limit.

"The plaintiffs have presented some evidence that 17-year-old males generally do not have fully mature brains, and as such cannot fully control their impulses or appreciate some risks," Stengel wrote."

[rrnut282]

I agree with your premise that if I set a booby-trap and someone gets hurt on my property, I should accept a large portion of the fault.  I should know better and it is intended to harm.  I do not agree that I should bear an unfair (any) portion of fault if someone accidentaly injures themselves while on my property.  If someone were walking across a room in my house and they catch their foot in the deep shag carpet and clumsily trips into an end table breaking an arm, by your definition, as I see it,  it's my fault.  I shouldn't have carpet or a table because "someone may get hurt".  Where does it stop?  I shouldn't have a house at all because if someone gets hurt when a shingle falls off in a high wind, it'll be my fault.  Try explaining to your kids why you had to take down the pool because you couldn't afford the extra liability insurance.

Another example, I have to get up at 0400 dark and shovel the sidewalk in front of my house when it snows, because someone MIGHT SLIP IN THE SNOW, duh, and I can be sued for medical expenses, even though, technically, the sidewalk is in the right-of-way owned by the government.  That really starches my shorts.

There needs to be a better common sense approach to this subject.  Let's stop rewarding stupidity.

[Anonymous]

I agree with your premise that if I set a booby-trap and someone gets hurt on my property, I should accept a large portion of the fault.  I should know better and it is intended to harm.  I do not agree that I should bear an unfair (any) portion of fault if someone accidentaly injures themselves while on my property.  If someone were walking across a room in my house and they catch their foot in the deep shag carpet and clumsily trips into an end table breaking an arm, by your definition, as I see it,  it's my fault. 

But that is not my definition that you are applying to your carpet example.  I would not consider you to be at fault in that example.  I said that my conclusion is that the property owner is sometimes partially liable for death or injury to a trespasser.  I think it has a lot to do with how dangerous the hazard is, and if the owner should be expected to recognize the danger and protect others from it.  In your shag carpet example, I assume that generally you would not be held liable if it were taken to court because the hazard is relatively small and not easily anticipated. 

But if I saw a missing plank leaving a hole large enough to fall through in a 180-foot high catwalk on a bridge that has a 100-year history of public trespass, I would call the railroad and tell them that somebody is going to fall through the hole. 

[marknewton]

Is there any hard evidence that there was in fact a plank missing from the walkway, or is it all merely conjecture?

Mark.

[marknewton]

A hole big enough to fall through, in the middle of a narrow walkway, in the middle of the night would be a death trap.  Anything less than posting armed guards would probably be negligence.    

The entire bridge is a "death trap", if you're a trespasser wandering around on it at 1.00 in the morning. The law may well say one thing about liability, but common sense tells me that the responsibility is all down to the trespasser if they fall. That seems to be the sticking point here...

Mark.

[MP173]

That second picture of the train's shadow is quite a shot.

ed

[Anonymous]

A hole big enough to fall through, in the middle of a narrow walkway, in the middle of the night would be a death trap.  Anything less than posting armed guards would probably be negligence.    

The entire bridge is a "death trap", if you're a trespasser wandering around on it at 1.00 in the morning. The law may well say one thing about liability, but common sense tells me that the responsibility is all down to the trespasser if they fall. That seems to be the sticking point here...

Mark.

Mark, it is certainly reasonable to say that trespassing on the bridge would be dangerous, but I would not call it a deathtrap.  A person could walk back and forth across that bridge continuously every day and night without getting hurt unless they were struck by a derailment or something dragging.  So I would reserve the term deathtrap for things far more dangerous. 

A perfectly robustly constructed walkway with a perfect hand railing running thousands of feet in a perfectly straight, level line inspires confidence.  After a thousand feet or so, the confidence turns into complacency.  Why wear out your hand by keeping it riding along the railing?  There is no need to hang onto the railing on such a perfect, secure walkway.  Who would expect a hole big enough to fall through?  How many people would see the hole in time?  That hole in the walkway is exponentially more dangerous than all the general hazards of the bridge put together.  I would call that hole a deathtrap.

In fact it is such an extreme deathtrap that I would not be surprised if we learn more about how it came about as the story develops.  It could have just as easily killed a trainman.   

[marknewton]

Mark, it is certainly reasonable to say that trespassing on the bridge would be dangerous, but I would not call it a deathtrap. 

You wouldn't, because I suspect you've never had to walk on a structure like that. From experience, I would.

A perfectly robustly constructed walkway with a perfect hand railing running thousands of feet in a perfectly straight, level line inspires confidence.  After a thousand feet or so, the confidence turns into complacency.  Why wear out your hand by keeping it riding along the railing?  There is no need to hang onto the railing on such a perfect, secure walkway.

Isn't there? If you seriously believe that, then continuing this exchange is a waste of time. If you let go of the handrail, you are putting yourself at great risk, no ifs, no buts, no hypotheticals. The handrail is there for a reason. If you can't understand that, I have to wonder how do you deal with the hazards in your workplace?

Who would expect a hole big enough to fall through?  How many people would see the hole in time? 

Anyone with more than two functioning brain cells. Anyone who was watching where they were putting their feet. Anyone whose training and experience included walking safely across a railroad bridge. Anyone except the dozey slapper who fell off the thing, apparently.

That hole in the walkway is exponentially more dangerous than all the general hazards of the bridge put together.  I would call that hole a deathtrap.In fact it is such an extreme deathtrap that I would not be surprised if we learn more about how it came about as the story develops.

Again, is there ANY evidence of a hole in the walkway?

[Doublestack]

Guys - the legal forum is over here.  

http://chat.lawinfo.com/

I come hear to read about the state of the RR industry - not tort law.   I think this post has gone waaaaay off topic.

[marknewton]

I'm not arguing law or tort reform, whatever that may actually be.

I'm making the point that a 180' high railroad bridge is an inherently dangerous place for a trespasser - an idea that seems to be lost on some of our resident bush lawyers.

Mark.

[Doublestack]

I've stood on the public ROW at the west end of that bridge, looked out along the length of it and thought to myself - what a cool place for a train photo, but you couldn't pay me to walk out there.

 

[greyhounds]

Bucyrus, I understand your arguments as best a layman can. But I strongly disagre with them.

If a snowmobiler or fourwheeler comes on to my property (It's happened) and runs into a tree that I planted am I partially liable because I couldn't stop them and they ran into that tree?   How much of my retirement money are they going to get?  After all, I knew snowmobilers and fourwheelers were trespassing and I put the tree there.  And I knew if they ran into that tree they would be hurt.

Our legal system is really bad.  (NOT saying all lawyers are bad.) I'm convinced this partial liablity for the property owner is designed to make the honcho lawyers rich.  (The minion lawyers also toil to make the honchos wealthy.)   It serves no other purpose.  Lawyers control our government bodies.  The courts, naturally.  But also the legislatures and ususally the executive.  They just set up a system for their own benifit.

In this particular case, the bridge had "No Trespassing" signs and the deceased was an adult.  She was responsible for her own safety and she failed that responsibility.  I'm sorry she paid such a high price, but IMHO the CN had no responsibilty to keep the bridge safe for public pedestrian use and was in no way negligent.

It probably won't come out of court that way because of the above reasons.

 

[Boyd]

I live about 6 miles from that bridge but have not seen it. I've read multiple newspaper articles on this tragic accident. Yes there really was one or two planks missing from the walkway. One of my co-workers knew her and went to her wake thursday evening which was close to where we work. Spring of 2007 the Washington county patrol put out a news release for people to stay off the bridge or they can get a fine. This was the favorite place for this young woman to go to. She went there often and even brought her parents there at least once. What a tragic ending for e beautiful young woman. And should her family get money from the RR for her tresspassing,,, no. But if a RR worker was on that bridge at 1am to inspect something and he fell to his death, then I would say the RR was at fault.

[Anonymous]

Mark, it is certainly reasonable to say that trespassing on the bridge would be dangerous, but I would not call it a deathtrap. 

You wouldn't, because I suspect you've never had to walk on a structure like that. From experience, I would.

A perfectly robustly constructed walkway with a perfect hand railing running thousands of feet in a perfectly straight, level line inspires confidence.  After a thousand feet or so, the confidence turns into complacency.  Why wear out your hand by keeping it riding along the railing?  There is no need to hang onto the railing on such a perfect, secure walkway.

Isn't there? If you seriously believe that, then continuing this exchange is a waste of time. If you let go of the handrail, you are putting yourself at great risk, no ifs, no buts, no hypotheticals. The handrail is there for a reason. If you can't understand that, I have to wonder how do you deal with the hazards in your workplace?

Who would expect a hole big enough to fall through?  How many people would see the hole in time? 

Anyone with more than two functioning brain cells. Anyone who was watching where they were putting their feet. Anyone whose training and experience included walking safely across a railroad bridge. Anyone except the dozey slapper who fell off the thing, apparently.

That hole in the walkway is exponentially more dangerous than all the general hazards of the bridge put together.  I would call that hole a deathtrap.In fact it is such an extreme deathtrap that I would not be surprised if we learn more about how it came about as the story develops.

Again, is there ANY evidence of a hole in the walkway?

The news reports have stated that a plank was missing, leaving a 6-foot-long hole presumably as wide as the plank.  I still would not call the bridge in general a deathtrap.  People have been trespassing on it for 100 years, and there have not been a lot of deaths.  Maybe you would hang onto the handrail, but I doubt that most people would.  I might keep my hand running along it ready to grip if the conditions seemed really treacherous. There is no obvious reason to hang onto it unless the wind is blowing hard and/or there is a lot of snow or ice.  It's mainly a barrier to keep a person from walking off the edge of the plank.  If hanging onto the handrail were critical, you would have to have a continuous grip on it, which would be hard to do while walking. 

Holding the handrail would also require that you walk close to that edge which has a pretty big gap between the planks and the lower pipe, however, walking close to the railing does provide the largest clearance to trains.  But if I were walking across, I would favor the side of the walkway nearest the track and keep an eye out for trains.  I would also keep my eyes on the walkway.  If it were daytime, I would expect to see a big hole in time to avoid falling through it.  If I did not have a light, and it was so dark that I could not see the walkway, I would be really wary of falling through a hole.  If you are aware of all possibilities, you must consider that the walkway may have gotten torn up by a passing train and nobody knows it yet.   

[Modelcar]

....I agree with Bucyrus as he related the potential dangers one would face every foot he advances across that bridge walkway {at night}....and it seems to me there is only one protection of one's life regarding that situation.....Stay off that property.....!!!

Now, how the RR accomplishes that task seems to be a real problem...

But some group of management should sit down and figure how it can be accomplished.  This task is not unsolvable.....but it would be difficult to design I suppose.  More difficult tasks are no doubt solved each day in Corp. structures.

[tree68]

No matter what measures the railroad takes to keep folks off the bridge, someone will try to circumvent said measures, be injured, and blame the railroad.  Of that we can be sure.

[Modelcar]

....Due to recent death, perhaps it's worth a try.

[Tharmeni]

Well, some genius on the St Paul pioneer Press forum on this story had a BRILLIANT idea!  "Fence off the bridge".

I kid you not. 

[Anonymous]

I'd like to hope whoever wrote that post was one of the pink-haired fruit-cakes up here to protest the RNC convention, but alas it probably wasn't.

Even if you fence-off the bridge there'll be an increase, not decrease, in injuries/deaths on that structure since the idiots will be trying to climb the fence.

[Modelcar]

....Anyone have any positive ideas.....?

[Anonymous]

How about if they get permission from the girl's family to post her picture with a thoughtful and well-worded description of how she died (nothing graffic or insensitive) at both ends of the bridge?  Have it lit during evening/night-time hours (and adequately protected from vandalism). 

Maybe this would give someone time to get their brains in gear before they trespass.

[Modelcar]

.....Not bad.  Who knows, might be more effective than other approaches.

[Tharmeni]

Well, installing and electrifying a third rail would probably help, Modelcar. 

[selector]

Maybe a placard listing the names of those know to have died on the bridge, with dates and the cause of death.

Latest entry (with full sobriety and respect to this lady):

August 10, 2008 - Laura MacDonald, aged 20, in darkness, fell to her death through the decking.

[Andrew Falconer]

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. The tethers from the harnesses would clip into newly installed tracks on each side of the bridge. That is the only way to put it in perspective for everybody who must see everything.

Andrew

[Modelcar]

.....After a generous quanity of posts have been displayed, perhaps it would make sense if someone could ID an address to the bridge owners and supply a copy of all our suggestions how one might prevent another terrible accident from happening again.

[exprail]

Folks:

About ten years ago this bridge was part of my supervisory territory when I was Trainmaster for the Wisconsin Central. As a WC supervisor I also was a/am a locomotive engineer /conductor and made many trips over the "High Bridge" and always was very happy to be on either side of it but not on it, due the extreme length and hight. I am very familiar with the problem of tresspassers on the bridge.

After reading these posts let me first say that there is no reasonable way to physically keep people off of it. If you put up fencing and a gate they would just walk around them and walk directly between the rails to gain access to the catwalk or worse yet and more usual, just walk down the center of the track. Also, the idea of having other folks on the bridge to supervise and run a businees there would just invite the public to visit the site and place an "  approval" rating at the site which would encourage more liabiliites. This is a dangerous area which only freight trains pass over and not a public park.

Folks now days feel they have a "right" to go anywhere they please and often don't or won't stop to think of the consequences of failing to obey rules or the law. The general public has no clue as to how long it takes to stop a train of any length and feels everyone and particularly big companies like railroads need to provide protection from hazards rather than folks knowing, and complying with all rules and regulations to keep themselves safe.

This is one reason  that I became "soured" about having railfans and passenger/steam excursions on the properties I managed due to the increasing  problems of unsafe behavior and extreme libilities to the company because of the public being around the rrailroad. It becomes very exhausting hosting excursions and public gatherings on the rails due to most folks not understanding the risks they take when for example, standing in the middle of the track to get a photo just before a steam locomotive passes or climbing on railroad property to get a better view. This is one reason why so many Class 1 railroads and most others either limit or don't allow such activites because first there are too many trains on most routes and the liability risk is just too high. The best place to enjoy the railroad is either at an operating railroad museum on on public property where you can view and photograph the railroad from a safe distance.

Enjoy the "rails"... but safely and off the property.

Barry, training railroaders in the midwest 

 

[Boyd]

How about an "electrified" fence around it. It can be put up with an electrified swing gate also or a gate controlled just like a crossing gate. On a farm an electric fence works good for the dumb animals and just might work for the dumb people.

[Tharmeni]

How about teaching today's kids another four letter word:  O-B-E-Y.

If we still had nuns teaching in schools a lot more kids would heed warning signs and not believe they're put there for others to heed, but not them.

[marknewton]

The news reports have stated that a plank was missing, leaving a 6-foot-long hole presumably as wide as the plank.

News reports on matters like these are about as reliable as the average lawyer, in my experience.

Maybe you would hang onto the handrail,

Yes, I would.

but I doubt that most people would.

Then most people would probably fall off eventually.

I might keep my hand running along it ready to grip if the conditions seemed really treacherous.

You're 180' above the ground on a live railroad bridge with a narrow wooden walkway - how much more treacherous do you think it could get?

There is no obvious reason to hang onto it unless the wind is blowing hard and/or there is a lot of snow or ice.

The obvious reason is that you're 180' above the ground on a live railroad bridge with a narrow wooden walkway.

But now I'm beginning to understand what sort of person US liability laws were intended to benefit when they were framed. Idiots with a death wish...

But if I were walking across, I would favor the side of the walkway nearest the track and keep an eye out for trains. I would also keep my eyes on the walkway.

You'd find it very hard to do both - you'd probably either get struck by a train, or fall off and get killed.

If you are aware of all possibilities, you must consider that the walkway may have gotten torn up by a passing train and nobody knows it yet.

Really - torn up how, exactly?

Mark.

(I know I wrote earlier that continuing this exchange was a waste of time,but I admit to being fascinated by the sheer bone-headedness of the OP's attitude to personal safety and responsibility.)

[Mr_Ash]

Safty First!

If it were me walking across that bridge I would have a white knuckle death grip on that railing!

 IMO they should track down this guy who was with her, arrest him and charge him with Tresspassing and Criminally Negligent Manslaughter

[Modelcar]

...Unless there is possitive proof of wrong doing to the young lady by said fellow.....how could he be prosecuted for such....?

The young lady was an adult and presumedly could make her own decisions.

[Anonymous]

Safty First!

If it were me walking across that bridge I would have a white knuckle death grip on that railing!

 IMO they should track down this guy who was with her, arrest him and charge him with Tresspassing and Criminally Negligent Manslaughter

The authorities did question the guy who was with her.  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.  As far as charging manslaughter, the authorities are apparently convinced that she accidentally fell.  I am sure they consider all of the circumstances before reaching such a conclusion.

[tomikawaTT]

Safty First!

If it were me walking across that bridge I would have a white knuckle death grip on that railing!

 IMO they should track down this guy who was with her, arrest him and charge him with Tresspassing and Criminally Negligent Manslaughter

The authorities did question the guy who was with her.  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.  As far as charging manslaughter, the authorities are apparently convinced that she accidentally fell.  I am sure they consider all of the circumstances before reaching such a conclusion.

"Circumstances," like his father's political clout, perhaps?  And grief is a mitigating after-the-fact circumstance that excuses illegal activity?  In a military court, the death of his companion would be an additional charge, not a reason to dismiss the original charge.

Not to be cynical, but I favor the memorial sign - topped by a great big DEAD smiley.  Just don't make it a bronze plaque.  Some metal bandit would find it irresistable.

Chuck

[Anonymous]

The news reports have stated that a plank was missing, leaving a 6-foot-long hole presumably as wide as the plank.

News reports on matters like these are about as reliable as the average lawyer, in my experience.

Maybe you would hang onto the handrail,

Yes, I would.

but I doubt that most people would.

Then most people would probably fall off eventually.

I might keep my hand running along it ready to grip if the conditions seemed really treacherous.

You're 180' above the ground on a live railroad bridge with a narrow wooden walkway - how much more treacherous do you think it could get?

There is no obvious reason to hang onto it unless the wind is blowing hard and/or there is a lot of snow or ice.

The obvious reason is that you're 180' above the ground on a live railroad bridge with a narrow wooden walkway.

But now I'm beginning to understand what sort of person US liability laws were intended to benefit when they were framed. Idiots with a death wish...

But if I were walking across, I would favor the side of the walkway nearest the track and keep an eye out for trains. I would also keep my eyes on the walkway.

You'd find it very hard to do both - you'd probably either get struck by a train, or fall off and get killed.

If you are aware of all possibilities, you must consider that the walkway may have gotten torn up by a passing train and nobody knows it yet.

Really - torn up how, exactly?

Mark.

(I know I wrote earlier that continuing this exchange was a waste of time,but I admit to being fascinated by the sheer bone-headedness of the OP's attitude to personal safety and responsibility.)

Mark, Let me clear some things up for you.  I wonder why you seem so reluctant to believe that there was a hole in the walkway large enough for a person to have fallen through, as the news has reported.  The news has also reported that the woman did accidentally fall through that hole.  I only use the term deathtrap to differentiate relative degrees of danger.  I am not saying that the bridge is not dangerous.  You can call it a deathtrap if you want.  Some people call small cars deathtraps.  But I call that hole a deathtrap to indicate that it poses a far greater danger than all the other aspects of the bridge combined.  Surly you would agree.  And it would be much more likely to not see a hole in time to avoid stepping into it if it were nighttime, as opposed to broad daylight.

I don't know whether the victim had her hand on the handrail at the time of the fall, but I do agree that if there were a hole in the walkway large enough to fall through, a person would be less likely to fall through it if they had their hand on the handrail.  However, even with a hand on the handrail, there is no guarantee that a person could grip the rail sufficiently to keep themselves from going down once they stepped into the hole. 

In addition to falling through a hole, one must plan on the possibility of breaking though the walkway because of a weakened condition at some point that is not visually apparent.  For that reason, I would prefer to not walk near the guardrail where one must rely totally upon the single planks to hold him or her up.  That would be like having all your eggs in one basket so to speak. 

If I were walking across at night, I would do it as I described, favoring the side nearest the track.  This would place me so far from the handrail that it would not be possible to hang onto it.  Perhaps I could reach it with my arm extended horizontally, but an extended arm is in a much-compromised position to arrest a fall. 

So I would forgo the handrail and plan on catching the track rail or other likely more reliable concentrations of features near the track in case my footing gave way.  Those track-related structures are going to be much more structurally reliable than the single planks of the walkway.  And I can assure you that I would not get hit by a train or fall off the bridge as you contend.

Also, perhaps I should clarify that I am not advocating this crossing technique as a way to trespass without getting killed.  I am referring to the way I would do it if I had a legitimate reason to be on the bridge.

[marknewton]

...Unless there is possitive proof of wrong doing to the young lady by said fellow.....how could he be prosecuted for such....?

The young lady was an adult and presumedly could make her own decisions.

And she made a decision that lead directly to her death - it's hard to see how anyone else is responsible for that.

Mark.

[marknewton]

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.

[Anonymous]

Oh dear.  Someone in Australia holds our laws and our legal system in contempt.  I doubt I'll sleep tonight with such disappointment. 

1.) The woman's friend of which we speak hasn't been convicted of anything as of yet, and the owners of that bridge, CN, have the right to press forward or not with a complaint of trespassing.  Therefore, to-date, he's not officially committed any crime - that is a legal clarification as we all know they were trespassing, but until he's been charged, tried and found guilty he's not committed a crime for which he's to be punished. 

2.) There has to be evidence of criminal negligence on his part that would've lead to her death in order to charge him accordingly.  So far we've heard of none.  Simply because he didn't tackle her to prevent her walking that bridge or otherwise physically restraining her from doing so doesn't constitute negligence.  She was an adult and able to make her own choices, albeit with tragic consequences. 

3.) A strange argument is yours:  Usually the Europeans as well as the "Far-East Europeans" (a.k.a. Australians) raise the loudest howl over Americans persisting in our support of capitol punishment.  This, even though in many, many cases, the convicted murderers stand a better chance of death by natural causes before the chair takes its' toll, as the result of seemingly endless legal appeals.  Yet here, you condemn our legal procedures for not convicting and punishing the grieving friend on charges that, at least so far, the railroad hasn't opted to press and without supporting evidence for manslaughter.

[Anonymous]

Good job with those electrodes WIAR.

[marknewton]

Oh dear.  Someone in Australia holds our laws and our legal system in contempt.

Yes, and I'm in good company too, judging by the number of Americans who have expressed similar views on these forums.

3.) A strange argument is yours:  Usually the Europeans as well as the "Far-East Europeans" (a.k.a. Australians)

"Also know as" by who? Americans who know bugger all about geography, like yourself? Wherever you imagine the "Far East " to be, we aren't part of it.

raise the loudest howl over Americans persisting in our support of capitol punishment.  This, even though in many, many cases, the convicted murderers stand a better chance of death by natural causes before the chair takes its' toll, as the result of seemingly endless legal appeals.

Now that's a strange argument - capital punishment is relevant to this discussion how, exactly?

Like most Australians, I personally couldn't give a toss how many of your own citizens you choose to execute. The more the better, I think.

Yet here, you condemn our legal procedures for not convicting and punishing the grieving friend on charges that, at least so far, the railroad hasn't opted to press and without supporting evidence for manslaughter.

You need to apply those electrodes to your own ignorant nipples. And while you're at it, you ought to develop your comprehension skills. I was commenting specifically on this statement:

"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."

I made no mention of manslaughter.

[marknewton]

Mark, Let me clear some things up for you.

You can't. You're not capable of clarity, only obfuscation.

I wonder why you seem so reluctant to believe that there was a hole in the walkway large enough for a person to have fallen through, as the news has reported.

The "news" has been known to get it wrong, to misrepresent the facts, to lie. Hence my reluctance to unquestioningly accept this claim as true.

I only use the term deathtrap to differentiate relative degrees of danger.  I am not saying that the bridge is not dangerous.  You can call it a deathtrap if you want.  Some people call small cars deathtraps.

Relevance? None.

But I call that hole a deathtrap to indicate that it poses a far greater danger than all the other aspects of the bridge combined.  Surly you would agree.

No, I wouldn't agree. You opinion as a layman counts for nothing.

And it would be much more likely to not see a hole in time to avoid stepping into it if it were nighttime, as opposed to broad daylight.

I don't know whether the victim had her hand on the handrail at the time of the fall, but I do agree that if there were a hole in the walkway large enough to fall through, a person would be less likely to fall through it if they had their hand on the handrail.  However, even with a hand on the handrail, there is no guarantee that a person could grip the rail sufficiently to keep themselves from going down once they stepped into the hole. 

In addition to falling through a hole, one must plan on the possibility of breaking though the walkway because of a weakened condition at some point that is not visually apparent.  For that reason, I would prefer to not walk near the guardrail where one must rely totally upon the single planks to hold him or her up.  That would be like having all your eggs in one basket so to speak. 

If I were walking across at night, I would do it as I described, favoring the side nearest the track.  This would place me so far from the handrail that it would not be possible to hang onto it.  Perhaps I could reach it with my arm extended horizontally, but an extended arm is in a much-compromised position to arrest a fall. 

So I would forgo the handrail and plan on catching the track rail or other likely more reliable concentrations of features near the track in case my footing gave way.  Those track-related structures are going to be much more structurally reliable than the single planks of the walkway.  And I can assure you that I would not get hit by a train or fall off the bridge as you contend.

You've demonstrated that you don't know how to conduct yourself safely in a hazardous working environment, so your assurances count for nothing, either.

I am referring to the way I would do it if I had a legitimate reason to be on the bridge.

I hope for your sake you never do find yourself on a high railroad bridge - you'd become an organ donor in no time.

[selector]

Let's return to the topic...has anyone information to add that can be readily scrutinized and discussed?  Conjecture at this point does not seem to be helping us to advance beyond exchanging barbs.

-Crandell

[Anonymous]

Mark, Let me clear some things up for you.

You can't. You're not capable of clarity, only obfuscation.

I wonder why you seem so reluctant to believe that there was a hole in the walkway large enough for a person to have fallen through, as the news has reported.

The "news" has been known to get it wrong, to misrepresent the facts, to lie. Hence my reluctance to unquestioningly accept this claim as true.

I only use the term deathtrap to differentiate relative degrees of danger.  I am not saying that the bridge is not dangerous.  You can call it a deathtrap if you want.  Some people call small cars deathtraps.

Relevance? None.

But I call that hole a deathtrap to indicate that it poses a far greater danger than all the other aspects of the bridge combined.  Surly you would agree.

No, I wouldn't agree. You opinion as a layman counts for nothing.

And it would be much more likely to not see a hole in time to avoid stepping into it if it were nighttime, as opposed to broad daylight.

I don't know whether the victim had her hand on the handrail at the time of the fall, but I do agree that if there were a hole in the walkway large enough to fall through, a person would be less likely to fall through it if they had their hand on the handrail.  However, even with a hand on the handrail, there is no guarantee that a person could grip the rail sufficiently to keep themselves from going down once they stepped into the hole. 

In addition to falling through a hole, one must plan on the possibility of breaking though the walkway because of a weakened condition at some point that is not visually apparent.  For that reason, I would prefer to not walk near the guardrail where one must rely totally upon the single planks to hold him or her up.  That would be like having all your eggs in one basket so to speak. 

If I were walking across at night, I would do it as I described, favoring the side nearest the track.  This would place me so far from the handrail that it would not be possible to hang onto it.  Perhaps I could reach it with my arm extended horizontally, but an extended arm is in a much-compromised position to arrest a fall. 

So I would forgo the handrail and plan on catching the track rail or other likely more reliable concentrations of features near the track in case my footing gave way.  Those track-related structures are going to be much more structurally reliable than the single planks of the walkway.  And I can assure you that I would not get hit by a train or fall off the bridge as you contend.

You've demonstrated that you don't know how to conduct yourself safely in a hazardous working environment, so your assurances count for nothing, either.

I am referring to the way I would do it if I had a legitimate reason to be on the bridge.

I hope for your sake you never do find yourself on a high railroad bridge - you'd become an organ donor in no time.

Well if you don't trust the news when they say there was a hole in the walkway, why trust anything else they say about the incident?  They reported many facts.  Why not disbelieve them all, and just let the whole story go away?  It seems apparent to me that you are trying awfully hard to avoid the issue of the hole because it apparently works against your argument somehow.  I don't see why it should.  You seem convinced that no trespassing signs or the fact of private property completely exonerates the CN from any responsibility in the matter. 

If the police, news media, or victim's friend just made up the story about the hole in the walkway to try to blame the railroad, what difference would it make?  According to you, hole or no hole, she was trespassing, so it's all her fault.  End of story, right?  So why worry about the truthfulness of the alleged hole?  With all due respect, it seems like you are not as sure of your position as you want us all to believe.

[Anonymous]

Let's return to the topic...has anyone information to add that can be readily scrutinized and discussed?  Conjecture at this point does not seem to be helping us to advance beyond exchanging barbs.

-Crandell

Crandell, I thought this was all entirely on topic.  It is not my intent to exchange barbs, but there is a considerable difference of opinion here, and I am trying to debate it in a responsible, non-flaming manner.

[marknewton]

Let's return to the topic...has anyone information to add that can be readily scrutinized and discussed?  Conjecture at this point does not seem to be helping us to advance beyond exchanging barbs.

-Crandell

Crandell, I thought this was all entirely on topic.  It is not my intent to exchange barbs, but there is a considerable difference of opinion here, and I am trying to debate it in a responsible, non-flaming manner.

Debating? You reckon that's what you're doing?

Debaters usually respond to the points put to them - you don't.

[marknewton]

It seems apparent to me that you are trying awfully hard to avoid the issue of the hole because it apparently works against your argument somehow.  I don't see why it should.

I don't give a toss whether there was a hole or not. The bridge is a dangerous place to trespass on at 1.00am, hole or no hole. Only an ignorant layman would think otherwise. And as an ignorant layman, you've tried awfully hard to make the alleged hole the issue, when it isn't.

You seem convinced that no trespassing signs or the fact of private property completely exonerates the CN from any responsibility in the matter.

CN were responsible for the woman and her friend venturing out onto the bridge at 1.00am, did they? Forcibly marched her out there to die, eh?

If the police, news media, or victim's friend just made up the story about the hole in the walkway to try to blame the railroad, what difference would it make? 

Now who's being deliberately obtuse?

According to you, hole or no hole, she was trespassing, so it's all her fault.  End of story, right?

Absolutely. Tata!

[Anonymous]

It was the railroad's property that was trespassed-upon, and therefore the railroad can choose to pursue a complaint of trespassing, if they feel it necessary.  The county could prosecute independently, but in such cases, if the property owner doesn't opt to prosecute, neither will the county.

The only other possible charge, in any imagination, beyond trespassing, would be involuntary manslaughter against the woman's friend.  No other charge even remotely fits the circumstances.  There's simply no evidence to support any prosecution beyond trespassing.

The attitude of your countrymen (all 39 of them) towards American capitol punishment is steeped in suspicion that the legal proceedings here are unfair, corrupt and bigoted.  According to most Europeans and you Far East Europeans (east of Europe, you see), we Americans are far too draconian in our sentencing.  Yet in this case, you harshly demand the friend be charged and prosecuted under any and every possible law in order to punish his stupidity no matter what (shall we send him to Botany Bay?).  Once Australia reaches a population level where overloading the courts with needless prosecutions and prison over-crowding begins to matter, you may think otherwise about wasting a prosecutor's time and tax-payer money to crucify this individual.

If the Canadian railroad opts not to pursue a formal trespassing complaint, that's it, he WON'T be prosecuted.

[marknewton]

The attitude of your countrymen (all 39 of them) towards American capitol punishment is steeped in suspicion that the legal proceedings here are unfair, corrupt and bigoted.

Ya reckon? What part of your anatomy did you pull that nonsense out of?
You don't even know where we are on the globe, let alone what our attitudes are.

According to most Europeans and you Far East Europeans (east of Europe, you see), we Americans are far too draconian in our sentencing

I've spoken to the other 38, and we all agree - we don't care how you sentence your crims. You're dreaming if you think anyone else gives a toss what you do.

Yet in this case, you harshly demand the friend be charged and prosecuted under any and every possible law in order to punish his stupidity no matter what

Now you're telling lies. I made no such demand.

(shall we send him to Botany Bay?)

Nah, Minnesota seems to be the right place for people like you and him. Botany Bay's a nice place - it would be a shame to fill it up with American crims...

[Anonymous]

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.

[Boyd]

Like what "SELECTOR" said, why don't we stop argueing. I would drive the 6 miles up to the bridge myself and inspect if if it were not for that I would get a tresspassing ticket. I have no idea why someone would doubt the plank missing in the bridge when it has been reported widely in the media. This is not something the police or media would make up. Its now been 7 days since this accident and I would think that they would have fixed it by now.

[Tharmeni]

You know, fellas.  I work around attorney-wannabees all week.  To see that going on in this forum (WAY off topic, IMHO) is wearisome.  Debate and insult about American law, Austrailian law, Pygmy law all you want, but I'm off this thread...not to return.

[marknewton]

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.

Either you really CAN'T read for comprehension, or English isn't your first language. There is no demand for prosecution in that paragraph.

The thread is on topic, as far as I can see. When did you get made up to be moderator?

[Anonymous]

Well Mark, I think the issue is the intent or meaning of what you said, and not what the exact words were.  When you said this: "What a great cop-out! Commit a crime and avoid the consequences, all by claiming to be "already in enough grief". Brilliant!"  I interpreted it to mean that you disapproved of the guy not being charged.  And then it would follow that you wanted him to be charged.  It's true that you did not use the word "demand,"  but your tone of disgust over the fact that he was not charged, sounded demanding that he be charged.  Or are you just disgusted that he was not charged, but have no opinion as to whether or not he should have been charged? 

[greyhounds]

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?  

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.

[Anonymous]

 

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.  

[greyhounds]

Bucyrus,

I'm sendin' but you ain't receivin'.

I understand what the law is.  I'm saying it's wrong.

[marknewton]

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.

[JayPotter]

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. 

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.

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.

 

 

[Anonymous]

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.   

[Anonymous]

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.

[Anonymous]

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

[gardendance]

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.

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

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

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.

[Anonymous]

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.

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? 

[gardendance]

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?

[selector]

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.

[gardendance]

I forgot to mention there was a high diving board above the fumes. :)

[greyhounds]

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?

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.

 

[Modelcar]

.....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:

[Anonymous]

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.

[Anonymous]

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?

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.

[Anonymous]

OK - I just spoke to Washington County, and they said a copy of the investigative report would be available to the public (for a fee of something like $1 for every 4 pages).  However, the investigation is still ongoing as of today.

[marknewton]

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?

They probably would not even accept it.

On that we agree 100%

Mark.

[marknewton]

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 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.

Mark.

[marknewton]

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?

Me. I don't believe the chemical company is at fault.

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.

[Anonymous]

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. 

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.   

[gardendance]

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 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.

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.

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.

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 :)

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.

[Anonymous]

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.

 

[Anonymous]

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.

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.