My understanding is that yes, even someone who is trespassing may be able to successfully sue if they are injured. Usually the injured party's claim is that there were not adequate fences, signs etc. warning of the danger.
Payouts are not up to the judge. They are up to the 12 idiots on the jury.
Reality TV is to reality, what Professional Wrestling is to Professional Brain Surgery.
A landowner can be found liable for injuries to trespassers arising from hazards on the landowner’s property. It is not just confined to railroad property, and it is not just a matter of stupid people on juries. There are legal principles involved. You cannot have a booby trap in your yard, and then make the case that if anybody gets hurt; it is automatically their fault because they were trespassing in your yard. It may seem like you could make that case, but you can’t.
ButchKnouse Payouts are not up to the judge. They are up to the 12 idiots on the jury.
It seems that we are living in a very 'Litigious' Society and time. Good for lawyers, not so for the rest of society.
Most anyone or any company has a lawyer or lawyers or even a whole legal staff at their beck and call. I used to be employed by a medium sized trucking company (operated about 2000 power units).
Each day the mail would bring in two to three notices to sue the company, and more threatening letters to do the same. I'd bet that it has not gotten any better. Contengency Lawsuits have a pretty good record for settlement- which means the lawyer gets a third to half of the $$$$$$. That's what lawyers do, they file suits or threats to. Settlements are sometimes made to just make someone go away (and take their lawyer with them) and move on. It is almost an accounting function, to cut down on expenses for lawyers time and energies to settlw without a court hearing. As stasted above by Butch Knouse juries can seeming award for no particular reason or guide line.
BucyrusA landowner can be found liable for injuries to trespassers arising from hazards on the landowner’s property. It is not just confined to railroad property, and it is not just a matter of stupid people on juries. There are legal principles involved. You cannot have a booby trap in your yard, and then make the case that if anybody gets hurt; it is automatically their fault because they were trespassing in your yard. It may seem like you could make that case, but you can’t.
ButchKnouse They are up to the 12 idiots on the jury.
They are up to the 12 idiots on the jury.
Makes it crystal clear why they don't want unauthorized people on their property.
zardoz ButchKnouse They are up to the 12 idiots on the jury. Jury: Twelve people not smart enough to figure out a way of avoiding their civic duty.
It sounds like you have not tried to get out of jury duty lately...
zardozButchKnouse They are up to the 12 idiots on the jury. Jury: Twelve people not smart enough to figure out a way of avoiding their civic duty.
Sounds like neither of you have any appreciation of history [the Magna Carta and the US Constitution] and what a break it was for the common man to get the civil right to a trial by a jury of his/her peers.
C&NW, CA&E, MILW, CGW and IC fan
In many cases it never makes it to the jury - which is why it's so lucrative to sue in the first place.
With lawyers taking cases on contingency (a percentage of the award), there is no disincentive to suing - on the odd chance your case gets thrown out of court, you're out next to nothing.
When a company compares the cost of settling out of court to fighting the claim at trial, settling is often the cheaper solution. So they do. The "injured" gets their award, the lawyer gets his/her cut, and the defendent hopes their insurance company doesn't jack up their rate.
Until there's a potential penalty for filing lawsuits that are frivilous or otherwise without merit (ie, "loser pays), this trend will continue.
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
Sawtooth500 I think it's ridiculous that people would sue the RR if they are clearly at fault themselves, but what legal precedent have the courts handed down? Has it really gotten to the point where people can sue the RR for injuries when it was clearly their own fault and actually win?
You can sue anybody for any reason, ..actual guilt takes a back seat to the suing attorney's ability to convince the jury that a harm justifying relief has transpired.
Since the money is not coming out of the jurists pockets, they tend to look at the sued's ability to pay, and the aggrieved "victims" pitifulness before awarding judgment with their hearts, not their head
As they say, anyone with the filing fee can file a suit, regardless of merit, unless, for instance, they have been declared a vexatious litigant (it happens). That being said, most groundless lawsuits do not make it to a jury because of something called summary adjudication or summary judgment which clears the case out early.
A couple of cases out here involving UP are good examples.
Christoff v. UPRR resulted in summary judgment dismissing the case. From the first paragraph of the appellate court opinion: "Plaintiff Steven J. Christoff appeals from summary judgment entered in favor of defendant Union Pacific Railroad Company (Union Pacific), in plaintiff’s action alleging he was injured by a passing train while walking across a railroad bridge. Plaintiff contends triable issues exist regarding duty to warn and duty to remedy a danger. We shall affirm the judgment." (C047961, unpublished opinion dated 10/27/05.)
Similarly, Lindsley v. UPRR resulted in summary judgment which the court upheld, again in an unpublished opinion which began: "Plaintiff Eric Lindsley sued the Union Pacific Railroad Company, the Santa Cruz Seaside Company, and the City of Santa Cruz for personal injuries he sustained while bicycling across the San Lorenzo Trestle Bridge (Bridge) in Santa Cruz. Lindsley alleged a single cause of action against Defendants for premises liability based upon a dangerous condition of the Bridge. The trial court granted Defendants summary judgment.
"On appeal, Lindsley argues that the court erred in granting summary judgment to Seaside because Seaside owns the property where his accident occurred or exercised control over the property. He also contends there are triable issues whether the accident occurred on Seaside’s property and whether Seaside maintained or controlled the Bridge and was therefore liable for his injuries. Lindsley asserts that the court erred in granting summary judgment to the City because there were triable issues of fact whether the walkway on the Bridge was the proximate cause of his accident and whether the walkway was a dangerous condition under Government Code1 section 830. Finally, Lindsley argues that the court erred in granting summary judgment to the Railroad because he produced substantial evidence of reasonable safety measures that should have been taken by the Railroad prior to his accident. We find no error and affirm the summary judgment for all three defendants." (H030587, unpublished opinion dated 7/9/08.)
It should noted that in California, when an appeals court does not certify an opinion for publication, it means that there is no stunning legal issue involved...it's all well-settled law. That, of course, does not stop lawyers from trying to get one past the judge.
An interesting snip from a case cited as a precedent is the following: “A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to it to be struck by a passing train . . . .” this is from California Supreme Court case in 1893. Of course, "ordinary intelligence" seems to be on the path to true oxymoron status, much like "common sense" and similar concepts.
That being said, ridiculous or not, so long as there are lawyers willing to take the gamble of a big payoff on a cheesy case, these lawsuits will continue. Adopting the English rule requiring unsuccessful plaintiffs to pay the reasonable attorney fees and other costs incurred by defendants (it may be reciprocal, I don't know for sure) and making those awards joint and several among plaintiffs and their counsel would probably slow some of this down. Whether that is the best way to deal with the problem, I do not know, though it is an appealing concept.
Gabe? Thoughts?
Is there any law or legal reason why the winning defendent in lawsuits cannot countersue for legal costs incurred because of the original lawsuit?
Semper Vaporo
Pkgs.
schlimmzardozButchKnouse They are up to the 12 idiots on the jury. Jury: Twelve people not smart enough to figure out a way of avoiding their civic duty. Sounds like neither of you have any appreciation of history [the Magna Carta and the US Constitution] and what a break it was for the common man to get the civil right to a trial by a jury of his/her peers.
The question I would like to pose, and perhaps it can be answered by our resident attorney, is who constitute our peers? IOW, is it fair to have a jury of people totally composed of people who have absolutely no knowledge of railroading, or would it be more fair to have some on the jury who do?
In my case; aviation, a jury who knows nothing about airplanes would be more likely to award a verdict based on their lack of knowledge than would one with a few people who do. Seems to me the use of peremptory challenges contributes to an advantage for the complainant.
I take full responsibility for my own actions, but don't think I would get a fair trial given the way juries are selected these days. That's probably why the railroads settle rather than taking a chance of a large damages award from an uninformed jury.
Norm
Since we don't have a legally recognized class system like the UK, for jury purposes our peers are any United States Citizen.
No one dislikes lawyers and what they've done to riding trains, going to amusement parks, and the the like, more than I do. BUT, to say that juries are full of idiots, or that "smart" people get out of jury duty, offends my sense of American civic duty. We need juries and being on one is part of the price we pay for living in America. So, man-up to it and stop ridiculing a legal defense that took centuries of sacrifice to guarantee to citizens.
That said, I agree that we could learn a lot from our British cousins by making losing parties in a lawsuit pay costs of the winning party. We could also close half the law schools in the country and stop turning out so darned many unneeded lawyers, who then look for "work" everywhere.
George Will once wrote about a small city-state in ancient Greece that had a rule I like: If any citizen proposed a law in the agora that was voted upon but not passed, he was put to death. I bet that discouraged unnecessary legislation!
Let's not forget that it was railroads that made attorneys hated by the general public. For example, the 14th Amendment, made to help newly freed slaves, has for most of its life been used, first by railroads, to trample the rights of the small guy. Don't believe it? Read some history concerning corporations and their lawyers.
As far as juries being "stupid," maybe they are just swayed by the better lawyer. If you go to trial, have the better lawyer.
Norm48327schlimmzardozButchKnouse They are up to the 12 idiots on the jury. Jury: Twelve people not smart enough to figure out a way of avoiding their civic duty. Sounds like neither of you have any appreciation of history [the Magna Carta and the US Constitution] and what a break it was for the common man to get the civil right to a trial by a jury of his/her peers. The question I would like to pose, and perhaps it can be answered by our resident attorney, is who constitute our peers? IOW, is it fair to have a jury of people totally composed of people who have absolutely no knowledge of railroading, or would it be more fair to have some on the jury who do? In my case; aviation, a jury who knows nothing about airplanes would be more likely to award a verdict based on their lack of knowledge than would one with a few people who do. Seems to me the use of peremptory challenges contributes to an advantage for the complainant.I take full responsibility for my own actions, but don't think I would get a fair trial given the way juries are selected these days. That's probably why the railroads settle rather than taking a chance of a large damages award from an uninformed jury.
I am debasing myself just by responding to this thread. To say that the forum has lost a step or two over the years is an understatement, and this thread is indicative thereof.
Call me as an attorney greedy or stupid all you want, I don't really care what you think about me. But, do not call jurors stupid. You have no idea what you are talking about.This thread rivals the white boxcars with shackles threads in terms of overall ignorance:
The thread starts by referring to an unidentified lawsuit, that the poster cannot even confirm the details of the injury much less if the plaintiff prevailed therein. From that insightful excerpt, other contributors start criticizing the intelligence of juries, again without stating so much as an example of a jury that decided a case poorly. Then--my personal favorite--someone states how cheap it is to file a contingency-based lawsuit, so you do not have to have a valid claim before filing. Finally, the claim that Defendants settle cases simply to avoid litigation costs is an absolute knee-slapping joke. That might have been a factor that might have increased the value of settlements during the 1980s--but those times are long gone.
Do you have any idea how expensive it is to run a contingency-based lawsuit? Any? Nevermind the fact that an attorney and client can be sanctioned for filing a frivolous lawsuit, I have yet to run into a lawfirm that has the money to burn by taking a case that is frivolous with knowledge thereof.
Moreover, do you really believe Defendants settle a case for $350,000 to avoid attorney's fees when it would only cost $70,000-$90,000 to litigate it?
Of course, like any system, the court system is not perfect, mistakes are made, and sometimes an individual plaintiff is over compensated. But, I will gaurantee you for every plaintiff that is overcompensated or receives a settlement based upon the nuisance value of a lawsuit, there are two plaintiffs that have very legitimate claims and get railroaded.
Do me a favor, the next time one of you know-it-alls gets injured as a result of the fault of another and you show up thinking you have a winning lottery ticket only to realize after five years of litigation, you are not going to receive 1/3 of what it would take to make you whole and return your life to normal, know there is someone else laughing at you other than me--an insurance company that will make record profits by using the ignorance underlying this thread against the same people who facilitate such ignorance.
If attorneys were in it just for the money, they would have went to business school rather than lawschool. If they were in it just for guaranteed money, their business specialty would be insurance.
Gabe
P.S. Disclaimer: although I think the above-cited attitude provides an unjustified advantage to insurance companies, I am not otherwise criticizing insurance companies.
P.P.S. By the way, civil jurys usually have six rather than twelve jurors. One would think you would know how many sit in the box before bombastically calling them stupid.
Thank you Gabe. It is refreshing to hear someone knowledgeable on this forum for a change instead of the typical politically-informed nonsense.
gabe I am debasing myself just by responding to this thread. To say that the forum has lost a step or two over the years is an understatement, and this thread is indicative thereof. Call me as an attorney greedy or stupid all you want, I don't really care what you think about me. But, do not call jurors stupid. You have no idea what you are talking about.This thread rivals the white boxcars with shackles threads in terms of overall ignorance: The thread starts by referring to an unidentified lawsuit, that the poster cannot even confirm the details of the injury much less if the plaintiff prevailed therein. From that insightful excerpt, other contributors start criticizing the intelligence of juries, again without stating so much as an example of a jury that decided a case poorly. Then--my personal favorite--someone states how cheap it is to file a contingency-based lawsuit, so you do not have to have a valid claim before filing. Finally, the claim that Defendants settle cases simply to avoid litigation costs is an absolute knee-slapping joke. That might have been a factor that might have increased the value of settlements during the 1980s--but those times are long gone. Do you have any idea how expensive it is to run a contingency-based lawsuit? Any? Nevermind the fact that an attorney and client can be sanctioned for filing a frivolous lawsuit, I have yet to run into a lawfirm that has the money to burn by taking a case that is frivolous with knowledge thereof. Moreover, do you really believe Defendants settle a case for $350,000 to avoid attorney's fees when it would only cost $70,000-$90,000 to litigate it? Of course, like any system, the court system is not perfect, mistakes are made, and sometimes an individual plaintiff is over compensated. But, I will gaurantee you for every plaintiff that is overcompensated or receives a settlement based upon the nuisance value of a lawsuit, there are two plaintiffs that have very legitimate claims and get railroaded. Do me a favor, the next time one of you know-it-alls gets injured as a result of the fault of another and you show up thinking you have a winning lottery ticket only to realize after five years of litigation, you are not going to receive 1/3 of what it would take to make you whole and return your life to normal, know there is someone else laughing at you other than me--an insurance company that will make record profits by using the ignorance underlying this thread against the same people who facilitate such ignorance. If attorneys were in it just for the money, they would have went to business school rather than lawschool. If they were in it just for guaranteed money, their business specialty would be insurance. Gabe P.S. Disclaimer: although I think the above-cited attitude provides an unjustified advantage to insurance companies, I am not otherwise criticizing insurance companies. P.P.S. By the way, civil jurys usually have six rather than twelve jurors. One would think you would know how many sit in the box before bombastically calling them stupid.
You go Dude!
By the way Norm, both sides get equal challenges on juror selection, so you most often end up with a fairly matched group.
Any anyone who thinks getting out of jury duty is smart has never needed a jury, so...
Anyone of you folks come up with a better system, lets hear it.
Having lived in other countries and seen their legal systems in person, I can unequivocally state that every citizen of the US lives under the protection of one of the few legal systems that presumes innocence, and places the burden of proof of a crime on the state in criminal, and presumes innocence on the part of a defendant, requiring a plaintiff to produce proof of harm on negligence..
God forbid anyone of you ever have to go to court in South America...most systems there consider the fact you were charged with a crime as proof of guilt, it really is up to you to prove you are innocent.
23 17 46 11
Notes on jury service:
I would have no problem with the jury service system if the social responsibility for it were equally and fairly distributed. But it is not fairly distributed because there are a number of acceptable reasons to be excused from jury duty, and in my opinion, many of these reasons are rather frivolous and arbitrary. This means that the people who cannot be excused are bearing the extra burden of this social responsibility for the ones who are being excused.
Many small businesses and independent contractors are hanging by their fingernails in this economy. A two-week shut down of these enterprises, and/or the irretrievable loss of income that could very well be much larger than what is commensurate with the loss of two weeks; while others are excused by some rather whimsical and arbitrary privilege is something that is not acceptable in a country that values equality.
schlimm zardoz ButchKnouse They are up to the 12 idiots on the jury. Jury: Twelve people not smart enough to figure out a way of avoiding their civic duty. Sounds like neither of you have any appreciation of history [the Magna Carta and the US Constitution] and what a break it was for the common man to get the civil right to a trial by a jury of his/her peers.
You and I may not agree on a lot of things, but your comment is worth gold. It is part and parcel of the freedoms and rights we hold in the U.S. Are freedoms abused? Yes. Would we want less freedoms/rights to safeguard against those who would abuse our remaining freedoms/rights? No.
I have said elsewhere, Railroad carriers have very able Law Departments, and perhaps the best firms in the country on retainer. And there is no "fund" or "contingency" in a carriers budget for injuries and accidents. That comes right off the bottom line. Thus, Safety Pays.
Norm48327The question I would like to pose, and perhaps it can be answered by our resident attorney, is who constitute our peers? IOW, is it fair to have a jury of people totally composed of people who have absolutely no knowledge of railroading, or would it be more fair to have some on the jury who do? In my case; aviation, a jury who knows nothing about airplanes would be more likely to award a verdict based on their lack of knowledge than would one with a few people who do. Seems to me the use of peremptory challenges contributes to an advantage for the complainant. I take full responsibility for my own actions, but don't think I would get a fair trial given the way juries are selected these days. That's probably why the railroads settle rather than taking a chance of a large damages award from an uninformed jury.
Your job as an attorney, is to represent the facts in a case, and by doing so, educate the jury on what is, and is not proper. But then it goes back to the presiding Judge's instructions to that jury, "Is there sufficient evidence to find X Corporation guilty of neglect, negligence, or wanton behavior?" (or whatever the question of the case may be).
Think like it is the jury members first day on the planet earth. Mold their opinions and understanding of the relevant facts of the case, what is proper care and reasonable precaution. And prepare against what the other attorney will offer as evidence.
gabe I am debasing myself just by responding to this thread. To say that the forum has lost a step or two over the years is an understatement, and this thread is indicative thereof.
I am not sure you are debasing yourself Gabe. Education takes time. To learn facts, to examine issues, or form an opinion. Thirty second sound bites, or a two paragraph article in a news paper does not give you enough information to think at all. Yet today, that is the standard Gabe. There is little insight into the whats and whys.
I use as an example, an article run in the South-town Economist in suburban Chicago in the 1980's. Small paper, limited resources. Took a press release, and ran with it as fact. It concerned CSX at Barr Yard. It was produced by an organization run by the ATA (did not have time to dig around for it). The purported facts were that CSX allowed dumping on it's properties at Barr, and further polluted the surrounding area. What was unwritten was that CSX, just that spring had spent $1.8 million to clean up dumping and waste on it's property, and surrounding area.
Until I called the newspaper, the chap who had the byline, had never heard of the ATA, nor the fact that earlier that year, CSX had issued press releases about their clean up. It was pretty sad back then, and now, for someone to grab something off the wire, and paste it onto the days layout, is a forgone conclusion. They don't even check most times.
Thus, we are a society who does not take the time to be educated, even in the facets of our interests.
Many well stated opinions/positions above, but one issue has not been adressed:
Why do so many plaintiffs attorney's seek to file their suits in specifec judicial venues?
They must have a reason and it appears to be the jury pool. Comments welcomed.
Given what I said of the regard I hold jurors, you might be surprised that I am telling you this secret. But, my view is, if your civic duty is not enough to make you show up and take jury duty seriously, then you really do not belong there--and you have no business complaining about what jurors do.
Anyway, if you really want to get out of jury duty, legally, here is how you do it. It is a little-known rule, but most states allow jurors to ask questions. Just tell both lawyers how much you are looking forward to asking the witnesses questions--they will not be able to find a way to get you out of there fast enough. No lawyer wants someone other than him doing the questioning.
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