CNW 6000Sawtooth500 Let them be on the bridge, I say. Just if they get hit, they need to know the only party responsible is themselves. The hard part here is that the law may not work quite like that...If my calling of the CN PD (or say I lived near the bridge in the OH lawsuit and called the NS PD) gets a LEO to come out and chat with some folks and maybe, just maybe helps some small business owner avoid the suit because the folks patronizing them remembered the contact with the LEO...wouldn't that ounce of "prevention" (warned by PD, maybe think about warning signs more-pretty reasonable I'd say) be cheaper for everyone involved...than the pound of "cure" (lawsuit-which cost more all around; injury/death to patron and high expense to plaintiff/defendant)? Additionally if enough calls come in to the PD then maybe they keep an extra set of eyes somewhat closer to the bridge when they can...and maybe someone else gets spared down the road. Or am I off in la-la land?
Sawtooth500 Let them be on the bridge, I say. Just if they get hit, they need to know the only party responsible is themselves. The hard part here is that the law may not work quite like that...
Dan
jeaton Bucyrus jeaton Bucyrus If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge? I don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates? Well, if it were up to me, I would not hold the canoe rental company or the NS liable for the death. But if you construct a case where the canoe rental company should have taken action because they knew about the hazard, then the same reasoning should apply to the NS as well. If trespassing on the bridge was so common, it seems reasonable to conclude that NS should have known about it. And if they knew about it, they should have known that a sign was not preventing people from trespassing. So they had to know that there was a particularly high probability of somebody getting killed on that bridge. It seems to me that it is fairly well established that signs warning of danger and posting no trespassing either relieve or significantly mitigate liability for injury to an individual who ignores the signs. If that is situation in this case, and other facts presented in evidence show that all appropriate warnings were made, and in the absence of other considerations, then the plaintiff's suit may not be successful. If it goes to trial, 6 ordinary citizens on a jury may come to the same conclusion that you have. Is that a problem?
Bucyrus jeaton Bucyrus If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge? I don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates? Well, if it were up to me, I would not hold the canoe rental company or the NS liable for the death. But if you construct a case where the canoe rental company should have taken action because they knew about the hazard, then the same reasoning should apply to the NS as well. If trespassing on the bridge was so common, it seems reasonable to conclude that NS should have known about it. And if they knew about it, they should have known that a sign was not preventing people from trespassing. So they had to know that there was a particularly high probability of somebody getting killed on that bridge.
jeaton Bucyrus If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge? I don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates?
Bucyrus If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge?
I don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates?
Well, if it were up to me, I would not hold the canoe rental company or the NS liable for the death. But if you construct a case where the canoe rental company should have taken action because they knew about the hazard, then the same reasoning should apply to the NS as well.
If trespassing on the bridge was so common, it seems reasonable to conclude that NS should have known about it. And if they knew about it, they should have known that a sign was not preventing people from trespassing. So they had to know that there was a particularly high probability of somebody getting killed on that bridge.
It seems to me that it is fairly well established that signs warning of danger and posting no trespassing either relieve or significantly mitigate liability for injury to an individual who ignores the signs. If that is situation in this case, and other facts presented in evidence show that all appropriate warnings were made, and in the absence of other considerations, then the plaintiff's suit may not be successful. If it goes to trial, 6 ordinary citizens on a jury may come to the same conclusion that you have.
Is that a problem?
“If it goes to trial, 6 ordinary citizens on a jury may come to the same conclusion that you have.
Is that a problem?”
My conclusion was that if the canoe rental company could be found liable, then by the same reasoning, NS could likewise be found liable. If a jury came to that conclusion, I would be inclined to conclude that the jury should not have found either party liable. In that sense, from my perspective, it would be a problem. But, at least it would be consistent according to my analogy of the two defendants owing protection to the victim.
However, as Gabe has explained, the burden of protection is stricter with the canoe rental company than it is with the NS. Given that stipulation, I do not know what to expect the jury to do. Nor do I have any opinion as to what they should do. If the burden of protection is different for the two defendants, the protection they provided cannot be directly compared. And I have no idea of how to measure the burden of protection for each party.
Sawtooth500 Sure, someone could file a frivolous lawsuit against you and yeah you can get it thrown out in court. But in the meanwhile you are going to expend time and money on your part - and as someone who runs a small business I can attest that many small businesses (like I'm assuming that canoe rental is) don't have the resources to defend themselves - and even the cost of a defense of a frivolous lawsuit could run them into the ground.
Thanks to Chris / CopCarSS for my avatar.
gabeSawtooth500This is a great example of how our litigious society negatively affects us: As a railfan, I would LOVE to go for a cab ride on a working RR, not just a museum. Well, had I been born 50 years earlier I could probably hang around trackside and just get an offer from the crew. Now? Not a chance! What has changed? The liability! 50 years ago, if I went for a cab ride and got hurt it was my own dumb fault and that was end of story - but these days I went for one and got hurt I could very easily sue - maybe win, maybe not, but either way still costing the RR money for what would have been a PRIVILEGE (not a right) for me... and now because of all the sue-happy people in our society and the dumb laws that allow stupid suits cabs rides are a great example of a privilege that's been lost - and yes it does make me angry! Ah, how we look at the past with rose-colored glasses. How do you think lawyers made a living 100 year ago? Half of the cases in law school text books coming out of the 1890s involved railroads. Like being a doctor, the golden age of profit is not 2010--it was something like 1950, at least for general practitioners.Tort law has not really changed to produce the result you are complaining about. Insurance companies and profit loss managers have changed.Gabe
Sawtooth500This is a great example of how our litigious society negatively affects us: As a railfan, I would LOVE to go for a cab ride on a working RR, not just a museum. Well, had I been born 50 years earlier I could probably hang around trackside and just get an offer from the crew. Now? Not a chance! What has changed? The liability! 50 years ago, if I went for a cab ride and got hurt it was my own dumb fault and that was end of story - but these days I went for one and got hurt I could very easily sue - maybe win, maybe not, but either way still costing the RR money for what would have been a PRIVILEGE (not a right) for me... and now because of all the sue-happy people in our society and the dumb laws that allow stupid suits cabs rides are a great example of a privilege that's been lost - and yes it does make me angry!
Ah, how we look at the past with rose-colored glasses. How do you think lawyers made a living 100 year ago? Half of the cases in law school text books coming out of the 1890s involved railroads. Like being a doctor, the golden age of profit is not 2010--it was something like 1950, at least for general practitioners.
Tort law has not really changed to produce the result you are complaining about. Insurance companies and profit loss managers have changed.
Gabe
CNW 6000jeatonI don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates?Wouldn't there be a line when expenses related to prevention of trespassing becomes prohibitive? Or is that basically saying that "We didn't do X because it cost too much"?
jeatonI don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates?
Absolutely. Reasonable has different definitions in different contexts, but it often comes down to the expense of preventing the injury versus the likelihood of injury.
In any event, cost is a factor.
CNW 6000 jeatonI don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates? There is a telling question there (to me anyway): what level of 'protection' is considered reasonable? Wouldn't there be a line when expenses related to prevention of trespassing becomes prohibitive? Or is that basically saying that "We didn't do X because it cost too much"? Around my area CN has a swing bridge that gets used as a fishing dock on a fairly regular basis. To my knowledge nobody's been hit...yet...and I've personally called folks in to the CN PD for trespass, especially when I know something's coming. There's about 6 signs on each side of the bridge that warn of the danger. It's even supposedly monitored by remote camera. Where's the line of "enough"?
I think Gabe answered and elaborated on that. CN isn't inviting people to fish on the bridge so they can charge a fee and make a profit. It seems to me that the warning of "danger, keep off" is going to make it very difficult for anyone getting hit by a train on the bridge to successfully sue for damages.
"We have met the enemy and he is us." Pogo Possum "We have met the anemone... and he is Russ." Bucky Katt "Prediction is very difficult, especially if it's about the future." Niels Bohr, Nobel laureate in physics
jeatonBucyrus jeaton Bucyrus If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge? I don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates? Well, if it were up to me, I would not hold the canoe rental company or the NS liable for the death. But if you construct a case where the canoe rental company should have taken action because they knew about the hazard, then the same reasoning should apply to the NS as well. If trespassing on the bridge was so common, it seems reasonable to conclude that NS should have known about it. And if they knew about it, they should have known that a sign was not preventing people from trespassing. So they had to know that there was a particularly high probability of somebody getting killed on that bridge. It seems to me that it is fairly well established that signs warning of danger and posting no trespassing either relieve or significantly mitigate liability for injury to an individual who ignores the signs. If that is situation in this case, and other facts presented in evidence show that all appropriate warnings were made, and in the absence of other considerations, then the plaintiff's suit may not be successful. If it goes to trial, 6 ordinary citizens on a jury may come to the same conclusion that you have. Is that a problem?
Sawtooth500jeaton It appears that many who have commented on this thread are quite ready to give up the right granted by our legal system allowing a person to sue for monetary damages anytime they feel they have been wronged by another party. All that because, so the argument goes, frivolous lawsuit and unreasonable settlements are a great burden on or society and economy. As I understand the process now, there is a certain line of defense against frivolous suits proceeding in that first, a plaintiff's attorney can advise a potential client that the suit is without merit, and second, a judge can summarily dismiss a lawsuit on the same grounds. That doesn't always happen, but if and when such a case goes to trial, ordinary citizens sitting on a jury get to participate in the judgement of the merits of the case. So it's cumbersome, but how would it change? In our system, the only entity that could establish rules restricting the filing of lawsuits without merit would be our government with the legislative branches passing the necessary laws. Be careful what you wish for. I am clear what I wish for. Sure, someone could file a frivolous lawsuit against you and yeah you can get it thrown out in court. But in the meanwhile you are going to expend time and money on your part - and as someone who runs a small business I can attest that many small businesses (like I'm assuming that canoe rental is) don't have the resources to defend themselves - and even the cost of a defense of a frivolous lawsuit could run them into the ground.
jeaton It appears that many who have commented on this thread are quite ready to give up the right granted by our legal system allowing a person to sue for monetary damages anytime they feel they have been wronged by another party. All that because, so the argument goes, frivolous lawsuit and unreasonable settlements are a great burden on or society and economy. As I understand the process now, there is a certain line of defense against frivolous suits proceeding in that first, a plaintiff's attorney can advise a potential client that the suit is without merit, and second, a judge can summarily dismiss a lawsuit on the same grounds. That doesn't always happen, but if and when such a case goes to trial, ordinary citizens sitting on a jury get to participate in the judgement of the merits of the case. So it's cumbersome, but how would it change? In our system, the only entity that could establish rules restricting the filing of lawsuits without merit would be our government with the legislative branches passing the necessary laws. Be careful what you wish for.
It appears that many who have commented on this thread are quite ready to give up the right granted by our legal system allowing a person to sue for monetary damages anytime they feel they have been wronged by another party. All that because, so the argument goes, frivolous lawsuit and unreasonable settlements are a great burden on or society and economy.
As I understand the process now, there is a certain line of defense against frivolous suits proceeding in that first, a plaintiff's attorney can advise a potential client that the suit is without merit, and second, a judge can summarily dismiss a lawsuit on the same grounds. That doesn't always happen, but if and when such a case goes to trial, ordinary citizens sitting on a jury get to participate in the judgement of the merits of the case.
So it's cumbersome, but how would it change? In our system, the only entity that could establish rules restricting the filing of lawsuits without merit would be our government with the legislative branches passing the necessary laws.
Be careful what you wish for.
I also have a small business, but I have found it reasonably economical to establish defensive measures to prevent the costs of any lawsuits, with or without merit, from running me into the ground. One does have to be proactive.
On the other hand, if you don't mind the government establishing more rules as to what you can or cannot do, go for it.
CNW 6000jeatonI don't know, but I wouldn't be surprised to find that NS has posted "Danger, No Trespassing" signs on or about the bridge. What would you do? Have a security guard patrol the bridge? Hang concertina wire? Put up gates?There is a telling question there (to me anyway): what level of 'protection' is considered reasonable? Wouldn't there be a line when expenses related to prevention of trespassing becomes prohibitive? Or is that basically saying that "We didn't do X because it cost too much"? Around my area CN has a swing bridge that gets used as a fishing dock on a fairly regular basis. To my knowledge nobody's been hit...yet...and I've personally called folks in to the CN PD for trespass, especially when I know something's coming. There's about 6 signs on each side of the bridge that warn of the danger. It's even supposedly monitored by remote camera. Where's the line of "enough"?
jeatonIt appears that many who have commented on this thread are quite ready to give up the right granted by our legal system allowing a person to sue for monetary damages anytime they feel they have been wronged by another party. All that because, so the argument goes, frivolous lawsuit and unreasonable settlements are a great burden on or society and economy. As I understand the process now, there is a certain line of defense against frivolous suits proceeding in that first, a plaintiff's attorney can advise a potential client that the suit is without merit, and second, a judge can summarily dismiss a lawsuit on the same grounds. That doesn't always happen, but if and when such a case goes to trial, ordinary citizens sitting on a jury get to participate in the judgement of the merits of the case. So it's cumbersome, but how would it change? In our system, the only entity that could establish rules restricting the filing of lawsuits without merit would be our government with the legislative branches passing the necessary laws. Be careful what you wish for.
BucyrusIf canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it? And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge?
First, the guy who died was an an invited guest for profit of the canoe company. Tort law imposes the highest duty for such people to take steps to avoid injury. Conversely, the guy's relationship to NS was that of a trespasser, which tort law imposes the lowest possible duty to take steps to avoid injury.
Thus, the canoe company will likely be charged with a high duty to protect the deceased whereas NS will likely be charged with a very low duty to protect the trespasser.
Second--and this defense may well absolve the canoe company--the law does not impose strict liability here. It only requires that a reasonable effort be made. If the canoe company admonished its customers not to trespass or otherwise use the bridge, it will--at the very least--have a defense against the lawsuit. NS will likely be held to even less--if any--of a burden.
To be clear, I am not saying the canoe company *IS* liable. I am merely contending that I could imagine a scenario in which it could be held liable--it knew its customers were engaging in health-threatening activity and did not take REASONABLE actions to protect its customers, like admonishing them not to trespass.
P.S. You guys are having a negative effect on me. I bought a big thing of drano and a small bottle of what I thought was drano to unclog my sink--thinking I did not need two big bottles. As it turns out the small bottle was meant to look like drano, probably so someone like me would buy it thinking it was drano.
I put both bottles in my sink not knowing they were two different chemicals. I am now typing this message from the hospital recovery room, and have a new empathy for WWI soldiers. Before you guys got a hold of me, I would have sued them. Now, I am just go to write a nasty letter to consumer reports--a lawsuit isn't worth the $2000 recovery I would get . . . .
gabeBecause it gives the entity whose services led to the injury an incentive to make reasonable efforts to attempt to avoid injury.If a canoe company knows that its customers are trespassing on the land of another and there is inherent danger involved with that trespass, I don't think it is at all unusual that the canoe company is charged with the duty of making reasonable attempts to see to it that its customers are adequately warned of the danger. Gabe
If a canoe company knows that its customers are trespassing on the land of another and there is inherent danger involved with that trespass, I don't think it is at all unusual that the canoe company is charged with the duty of making reasonable attempts to see to it that its customers are adequately warned of the danger.
If canoe renters trespassing on the bridge were so common that the canoe rental outfit should have known about it, does it not follow that the NS should have also known about it?
And if the canoe rental outfit should be held liable for not warning canoe renters about the danger of trespassing on the bridge, should not NS also be held liable for not preventing people from trespassing on the bridge?
Sawtooth500Ha - anyone stupid enough to iron their clothes while wearing them deserved to get burnt. It's really sad that are tort laws are written in such a way that iron manufacturers actually have to put that label on them...
Murphy SidingSawtooth500So the purpose of tort law is to reduce the cost of accidents to society... so then how does the canoe company getting sued reduce the cost of accidents to society? I'd guess that no matter what the outcome of this lawsuit is in regard to the canoe company, there will be warning signs at the canoe company. Maybe, even at all the canoe companies that read about the suit will do the same. If you don't believe me, look at the label on your iron that says "Do not iron clothes while you are wearing them"
Sawtooth500So the purpose of tort law is to reduce the cost of accidents to society... so then how does the canoe company getting sued reduce the cost of accidents to society?
gabeSawtooth500gabe Sawtooth500This whole NS bridge incident is just a great example of an idiot trying to skirt personal responsibility... nothing more, nothing less. Honestly, if I were the canoe company I'd be countersuing them for legal fees and wasting my time. You may disagree with the law on this point--many do--but, the canoe company *may* have some liability hear. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger. That having been said, the canoe company is probably going to have a solid assumption of risk argument--most intelligent people walking on a train bridge would know that there is a risk involved. In any event, although my initial reaction to the NS suit was "frivolous" and the canoe company may well prevail, I don't think the suit against the canoe company is necessarily frivolous. I could certainly think of fact scenarios that the canoe company would have a rough time of it. Worse still, the canoe company could be up the creek without a paddle--I was just waiting to use that line. If it knew its customers were regularly using NS' bridge and provided no admonishments or other efforts to get them to desist, the likely result of this is NS countersuing the canoe company. There is a canoe company owner right now that is very nervous and is hoping that his payments on his liability insurance did not make it into the mail late. Gabe This is a great example of where I disagree with the law and I think that tort reform is badly needed - just because you rent something to someone (especially a common, mundane item like a canoe, we're not talking about a flamethrower) you shouldn't have to be responsible for how that person uses that item. I really think it's ridiculous how our laws are written in a way that the canoe company could possibly be sued for this... Additionally the lawsuit says that the canoe company knew that people jumped off that bridge - I'm guessing if it actually goes to court the plaintiffs would have to prove that the canoe company actually had knowledge of the jumping. I don't really have a position on this or agree or disagree with you. This kind of Tort law is not how I put food on my families' table and I hope not to be involved in this kind of tort . . . But, the purpose of tort law is not to promote personal responsibility or to make poeple act in an intelligent manner. The purpose is to reduce the cost of accidents in society. If an owner of a business knows his customers are acting in a manner that has a substantial probability to cause an injury, tort law imposes a duty upon him to attempt to prevent that injury. I would be surprised if all the tort reform in the world would nullify that maxim, as it is pretty well established. Tort reform is more aimed at minimizing the lawsuits that NS is currently experiencing. Like I said, there are affirmative defenses, but--generally--when you know someone is using your services in a manner that might lead to injury and someone gets injured, you are not going to have an easy time of it. Gabe
Sawtooth500gabe Sawtooth500This whole NS bridge incident is just a great example of an idiot trying to skirt personal responsibility... nothing more, nothing less. Honestly, if I were the canoe company I'd be countersuing them for legal fees and wasting my time. You may disagree with the law on this point--many do--but, the canoe company *may* have some liability hear. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger. That having been said, the canoe company is probably going to have a solid assumption of risk argument--most intelligent people walking on a train bridge would know that there is a risk involved. In any event, although my initial reaction to the NS suit was "frivolous" and the canoe company may well prevail, I don't think the suit against the canoe company is necessarily frivolous. I could certainly think of fact scenarios that the canoe company would have a rough time of it. Worse still, the canoe company could be up the creek without a paddle--I was just waiting to use that line. If it knew its customers were regularly using NS' bridge and provided no admonishments or other efforts to get them to desist, the likely result of this is NS countersuing the canoe company. There is a canoe company owner right now that is very nervous and is hoping that his payments on his liability insurance did not make it into the mail late. Gabe This is a great example of where I disagree with the law and I think that tort reform is badly needed - just because you rent something to someone (especially a common, mundane item like a canoe, we're not talking about a flamethrower) you shouldn't have to be responsible for how that person uses that item. I really think it's ridiculous how our laws are written in a way that the canoe company could possibly be sued for this... Additionally the lawsuit says that the canoe company knew that people jumped off that bridge - I'm guessing if it actually goes to court the plaintiffs would have to prove that the canoe company actually had knowledge of the jumping.
gabe Sawtooth500This whole NS bridge incident is just a great example of an idiot trying to skirt personal responsibility... nothing more, nothing less. Honestly, if I were the canoe company I'd be countersuing them for legal fees and wasting my time. You may disagree with the law on this point--many do--but, the canoe company *may* have some liability hear. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger. That having been said, the canoe company is probably going to have a solid assumption of risk argument--most intelligent people walking on a train bridge would know that there is a risk involved. In any event, although my initial reaction to the NS suit was "frivolous" and the canoe company may well prevail, I don't think the suit against the canoe company is necessarily frivolous. I could certainly think of fact scenarios that the canoe company would have a rough time of it. Worse still, the canoe company could be up the creek without a paddle--I was just waiting to use that line. If it knew its customers were regularly using NS' bridge and provided no admonishments or other efforts to get them to desist, the likely result of this is NS countersuing the canoe company. There is a canoe company owner right now that is very nervous and is hoping that his payments on his liability insurance did not make it into the mail late. Gabe
Sawtooth500This whole NS bridge incident is just a great example of an idiot trying to skirt personal responsibility... nothing more, nothing less. Honestly, if I were the canoe company I'd be countersuing them for legal fees and wasting my time.
You may disagree with the law on this point--many do--but, the canoe company *may* have some liability hear. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger.
That having been said, the canoe company is probably going to have a solid assumption of risk argument--most intelligent people walking on a train bridge would know that there is a risk involved.
In any event, although my initial reaction to the NS suit was "frivolous" and the canoe company may well prevail, I don't think the suit against the canoe company is necessarily frivolous. I could certainly think of fact scenarios that the canoe company would have a rough time of it.
Worse still, the canoe company could be up the creek without a paddle--I was just waiting to use that line. If it knew its customers were regularly using NS' bridge and provided no admonishments or other efforts to get them to desist, the likely result of this is NS countersuing the canoe company. There is a canoe company owner right now that is very nervous and is hoping that his payments on his liability insurance did not make it into the mail late.
I don't really have a position on this or agree or disagree with you. This kind of Tort law is not how I put food on my families' table and I hope not to be involved in this kind of tort . . .
But, the purpose of tort law is not to promote personal responsibility or to make poeple act in an intelligent manner. The purpose is to reduce the cost of accidents in society. If an owner of a business knows his customers are acting in a manner that has a substantial probability to cause an injury, tort law imposes a duty upon him to attempt to prevent that injury.
I would be surprised if all the tort reform in the world would nullify that maxim, as it is pretty well established. Tort reform is more aimed at minimizing the lawsuits that NS is currently experiencing.
Like I said, there are affirmative defenses, but--generally--when you know someone is using your services in a manner that might lead to injury and someone gets injured, you are not going to have an easy time of it.
gabeSawtooth500This whole NS bridge incident is just a great example of an idiot trying to skirt personal responsibility... nothing more, nothing less. Honestly, if I were the canoe company I'd be countersuing them for legal fees and wasting my time. You may disagree with the law on this point--many do--but, the canoe company *may* have some liability hear. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger. That having been said, the canoe company is probably going to have a solid assumption of risk argument--most intelligent people walking on a train bridge would know that there is a risk involved. In any event, although my initial reaction to the NS suit was "frivolous" and the canoe company may well prevail, I don't think the suit against the canoe company is necessarily frivolous. I could certainly think of fact scenarios that the canoe company would have a rough time of it. Worse still, the canoe company could be up the creek without a paddle--I was just waiting to use that line. If it knew its customers were regularly using NS' bridge and provided no admonishments or other efforts to get them to desist, the likely result of this is NS countersuing the canoe company. There is a canoe company owner right now that is very nervous and is hoping that his payments on his liability insurance did not make it into the mail late. Gabe
You may disagree with the law on this point--many do--but, the canoe company *may* have some liability here. Given their status, they have a pretty well recognized duty to--at the very least--warn their customers of a known danger. If they knew their customers were regularly using that bridge in such a manner, they probably had a duty to warn them not to undertake that danger.
That having been said, the canoe company is probably going to have a solid assumption of risk argument/defense--most intelligent people walking on a railroad bridge would know that there is a risk involved.
CNW 6000 What is NS' reputation in cases that you allude to Gabe? TIA
What is NS' reputation in cases that you allude to Gabe? TIA
Have you heard of Attila the Hun and Genghis Kahn? Panzies, I tell you.
Don't get me wrong, scorched-earth litigation doesn't scare me when I have a legitimate case, and it can (sometimes) backfire on a defendant when there is a legitimate claim. But, if your best closing argument starts out with "and now ladies and gentleman a tap dance," you are going to be in for a rough time of it going up against a company that is just waiting to stick the fire hose in your mouth and turn on the proverbial spicket.
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