selector wrote: 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
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.
Bucyrus wrote: selector wrote: 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.-CrandellCrandell, 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.
Bucyrus wrote: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?
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.
WIAR wrote: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?)
marknewton wrote: Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.What a great cop-out! Commit a crime and avoid the consequences, all by claiming to be "already in enough grief". Brilliant! And you wonder why I look at your legal system and lawyers with contempt...Mark.
Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.
If you're not demanding the friend be prosecuted by your own words above, then what are you complaining about? Let's get this thread back on the subject.
Modeling the "Fargo Area Rapid Transit" in O scale 3 rail.
WIAR wrote: marknewton wrote: Bucyrus wrote:They were considering charging the guy with trespass, but were leaning against it because he was already in enough grief, and they were reluctant to pile on more.What a great cop-out! Commit a crime and avoid the consequences, all by claiming to be "already in enough grief". Brilliant! And you wonder why I look at your legal system and lawyers with contempt...Mark.If you're not demanding the friend be prosecuted by your own words above, then what are you complaining about? Let's get this thread back on the subject.
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.
greyhounds wrote: Will our legal system punish the CN and reward foolish behavior on the part of humans that seemed to care less about their own personal safety than the two deer in my backyard? Probably.
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.
Bucyrus,
I'm sendin' but you ain't receivin'.
I understand what the law is. I'm saying it's wrong.
Bucyrus wrote:It is interesting that the law speaks of a duty owed by a landowner to a trespasser that might apply to an incident where a trespasser is injured while trespassing. Yet there does not seem to be any room for this concept in the widespread, popular conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed.
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.
greyhounds wrote: 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.
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
1. the article in the initial link said 911 call at 1pm, the tv video accompanying, and one of the subsequent article links say 1am. I'm willing to assume 1am.
2.
JayPotter wrote: The theory was, basically, that the system is moving more and more toward a kind of universal insurance system. Owners of property, manufacturers of goods, providers of services, and so forth maintain liability insurance coverage and pass the cost of that coverage on to the purchasing public. So when an individual is injured and files suit against one of those insured entities, the individual is really doing nothing more than making a claim under insurance coverage for which the individual has already paid a premium. In other words, we may talk a lot about fault; however we're actually participating in a cost-sharing arrangement in which, as a practical matter, fault is much less important than a lot of us think that it should be.
Now that's nice and intriguing. However aren't we speculating that the trespasser-victim's estate will make a succesful claim against the railroad?
3. There have been some posts about how to prevent trespassers, they tend to mention how to keep them out, like fences, regular and electrified, although
Andrew Falconer wrote: If everyone has to have an adventure on the bridge then why not make a job out of it by having people in shacks at each end renting, maintaining, and selling safety clothes, harnesses, and tethers.
If everyone has to have an adventure on the bridge then why not make a job out of it by having people in shacks at each end renting, maintaining, and selling safety clothes, harnesses, and tethers.
Assuming unlimited funds, why not install a substantial, safe, pedestrian walkway? No, it's not a panacea, for example I understand the Golden Gate bridge has plenty of suicides from its pedestrian walkway, but I can't imagine they have any accidental falls. In fact I have seen at least 1 limited access highway bridge, US 422 at Valley Forge PA, where the authorities put up concrete 'Jersey barricades' to turn the shoulder into a pedestrian-bicycle path. Probably more easilly doable with a former 2 track bridge that now runs only 1 track.
4. My apologies, I know I'm not adding anything substantive
WIAR wrote:If I wasn't convinced it's none of my personal business, I'd make a public records request to the county to acquire the official police report on the investigation (assuming the investigation's closed by now), just to provide something more substantive to discuss in this thread.
If I wasn't convinced it's none of my personal business, I'd make a public records request to the county to acquire the official police report on the investigation (assuming the investigation's closed by now), just to provide something more substantive to discuss in this thread.
pure speculation: suppose the couple encountered the missing plank, then got into a "dare you to get close to the edge" contest, with tragic results?
5. still speculating: I'm sure we all assume both the guy and the girl were willingly crossing. Maybe one was pleading with the other all the way across that this was a bad idea and they should turn back.
Patrick Boylan
Free yacht rides, 27' sailboat, zip code 19114 Delaware River, get great Delair bridge photos from the river. Send me a private message
marknewton wrote: Bucyrus wrote:It is interesting that the law speaks of a duty owed by a landowner to a trespasser that might apply to an incident where a trespasser is injured while trespassing. Yet there does not seem to be any room for this concept in the widespread, popular conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed. It's a widespread and conclusion because it is an unarguable fact. These deaths and injuries wouldn't have occured had these people not been trespassing. You cannot argue otherwise.If the woman hadn't trespassed on the bridge she wouldn't have fallen off and been killed - fact.If the two boys hadn't climbed on the boxcar they wouldn't have been electrocuted - fact.Please note - no-one is arguing the facts of law with you. What we are saying is that the law, as it stands, is wrong.And personally, I wonder why you're an apologist for all the self-destructive idiots of the world.Mark.
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?
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?
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.
I forgot to mention there was a high diving board above the fumes. :)
gardendance wrote: An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.Is there anybody who believes the chemical company is less than 50% at fault in this scenario?
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.
.....Wouldn't the company be at fault to start with in storing acid improperly....Surely, acid in an "open container", would be sharply against regulations to start with, hence the company would already be in violation....Just my:
Quentin
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.
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.
Bucyrus wrote:To your question: I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree. They would say that the pool was on private property and was posted against trespassing, so what ever happens to trespassers is entirely their own fault. Of course this is incorrect, and the 90% holding this view would be incredulous to learn that they are wrong.
They probably would not even accept it.
Bucyrus wrote:When I said that it is a popular, widespread conclusion that whatever happens to a trespasser is their own fault because it would not have happened had they not trespassed, I was making the point that that conclusion overlooks the legal theory that part or all of the fault for injury to a trespasser may be assigned to the landowner if the landowner can be shown to have been guilty of wanton misconduct by failing to protect the trespasser from a hazard that would not be obvious.
Our community is FREE to join. To participate you must either login or register for an account.