Film Crew Fatality on CSX in Georgia

[Euclid]

Mookie

The judge in this case may make the determination that CSX did send notification to the film crew.  Now, I wonder if the way it was sent will be the preponderance.  E-mail, maybe not so much.  Return receipt would be a lot stronger.  Clueless here as to how people are notified.  Hopefully more than just a verbal warning.  Surely the attorneys for CSX have a pretty iron-clad way of serving notice on anyone denied permission?(other than just shooing them away for individuals) 

Interesting.  And it will still probably come down to the judgement of the judge and or jury?  And I would assume that we do probably have a couple of attorneys on the forum.  The opinion of the prosecutors would be different than the defense attorneys.  So some of the replies might be colored by which side they are on? 

The way the article states the issue is that the question as to whether producers had permission to shoot on the CSX tracks is a problem that is making it difficult for the district attorney to decide whether to press charges. 

I don’t think he has any doubt about whether CSX denied Miller permission to be on CSX property.  It has been reported that CSX has an email showing that they denied permission.  I think that would be sufficient proof that CSX denied permission.

But proof that CSX sent a notice to Miller denying permission is apparently not enough to make a criminal case.  There is still a question of whether Miller received the email, read it, understood it, and understood where CSX property was.  As Don and Jeff have pointed out, Rayonier gave permission to be on their property, they told Miller about Rayonier trains that were due, and they have their own Rayonier tracks. 

All of this could have given Miller the impression that he was authorized to shoot on the bridge.  While the issue seems clear as a bell to us, it may not have been at all clear to Miller.  And if Falcon48 is correct, that misunderstanding on the part of Miller may be enough to prevent the district attorney from filing charges against Miller.  If that happens, it will never go to court as a criminal matter.  But I suppose it will go to court as a civil matter, and justice will be served.      

[Mookie]

The judge in this case may make the determination that CSX did send notification to the film crew.  Now, I wonder if the way it was sent will be the preponderance.  E-mail, maybe not so much.  Return receipt would be a lot stronger.  Clueless here as to how people are notified.  Hopefully more than just a verbal warning.  Surely the attorneys for CSX have a pretty iron-clad way of serving notice on anyone denied permission?(other than just shooing them away for individuals) 

Interesting.  And it will still probably come down to the judgement of the judge and or jury?  And I would assume that we do probably have a couple of attorneys on the forum.  The opinion of the prosecutors would be different than the defense attorneys.  So some of the replies might be colored by which side they are on? 

[Euclid]

Mookie

I'm going to comment - probably a little left-handed - but shouldn't the courts take into consideration - personal responsibility.  If CSX can prove denial, then does personal responsibility take over.  Regardless of what Rayonier did or did not permit - it wasn't their tracks/property? 

Mookie,

I understand your point.  That would be my natural reaction too.  If you trespass, you are guilty and can be charged and prosecuted.  Not knowing that you are trespassing is no excuse.  But after hearing what Falcon48 said on page 2, I am not so sure about my natural reaction.  He said this:

“In order to find the any of the film people guilty of criminal conduct, a DA will essentially have to prove "beyond a reasonable doubt" that the film people knew they didn't have authority to be on CSX property, and went there anyway (he'll have to prove more than that, but he must prove this point to have any case at all) "Beyond a reasonable doubt" is a much higher standard of proof than applies in civil cases ("preponderance of the evidence", which is a fancy way of saying "more likely than not"). If there's any real ambiguity on the "authority" point, the DA could well decide not to prosecute, For example, if some CSX official had purported to give the film crew permission (as suggested in some earlier posts), even if it wasn't in writing, and that authority was not unambiguously withdrawn, the DA could decide he doesn't have "beyond a reasonable doubt" evidence for a criminal case. The film company, in this situation, could still face civil liability for negligence.”

I do not know if he is correct, but it sounds like he has knowledge in this matter.  In any case, there needs to be an explanation for why the article says this:

“A major question in the tragedy is whether producers had permission to shoot on the CSX tracks.”

Since we know that CSX denied permission, and Miller cannot show any evidence of having permission from CSX, it is hard to understand why there would be a “major question” as to whether Miler had permission to shoot on CSX tracks.

I think the answer to that mystery is that the article is sloppily written and thus erroneously misstates the issue.  What it should say is this:

“A major question in the tragedy is whether producers knew they did not have permission to shoot on CSX tracks.” 

From all of the convoluted statements from Miller about receiving permission and advice about trains from Rayonier, I think it is quite possible that he did not know that he did not have permission to film on CSX property.

If Falcon48 is correct; and If it cannot be shown that Miller knew he did not have permission, I think there is a good chance that no criminal charges will be filed against him.   

[Mookie]

I'm going to comment - probably a little left-handed - but shouldn't the courts take into consideration - personal responsibility.  If CSX can prove denial, then does personal responsibility take over.  Regardless of what Rayonier did or did not permit - it wasn't their tracks/property? 

[Euclid]

The question, according to the article, is whether the prosecutor has the evidence that film maker did not have permission.  A lot of the evidence has been reported, including the claim that CSX has the email that they sent to the film maker refusing permission for him to film on CSX property.  I assume that CSX has shown this email to the prosecutor, so we know there is good evidence that CSX denied permission. 

I suppose this could simply be a case of more of the sloppy reporting.  The real question may not be whether the film maker had permission, as the article says.  Instead it may be a question of whether or not the lack of permission from CSX is enough to bring criminal charges IF Miller did not realize he had no permission. 

If Miller says he did not see the email from CSX denying permission; and if he says he believed he did have permission from what he was told by Rayonier; then there may be no criminal intent, which someone earlier said would be necessary in order to bring criminal charges.      

[dehusman]

The picture that seems to be emerging could easily be a case of imprecision by the the movie company on EXACTLY where they would be filming. 

IF there were tracks on the lumber company's property and IF the film crew didn't understand the the tracks on the bridge belonged to the CSX or misrepresented (accidentally or intentionally) where they would be filming to the CSX I can certainly see where confusion could arise.

If the film company approached the lumber company and asked to film on their tracks, recieving permission and the advice that there were only two trains per day (on lumber property) then went to the CSX and told them they would be filming ON THE LUMBER CO PROPERTY, the CSX might have said that's fine (because they weren't going to be on their property).  If I was a trainmaster and you came to me and said you were going to be filming on the lumber company's tracks, I would ask if you got permission from the lumber co.  If you said yes, I'd tell you to go for it.

If the film company didn't know who owned what track or where they actually were (highly probable) I can easily see a scenario where all the statements could be true, the film company talked to the lumber company and got permission, they talked to the CSX and got "permission", the CSX never granted them permission to be on thier tracks and they were told there would only be two trains a day.

I'm thinking the film crew didn't know where they would be, couldn't accurately describe where they would be, and then didn't know where they were when they were filming.

[tree68]

Euclid

On one hand, he has CSX with written proof that the permission was denied. On the other hand, he has the film maker with no evidence that he received permission from CSX.  

I can’t imagine why the prosecutor would be stumped as to whether or not Miller had permission.

Unless the prosecutor has the CSX refusal in hand, he has nothing.  For that matter, we have no proof that someone at the production company actually received the refusal.

If he's worth his salt as a prosecutor, he's not going to tip his hand any more than absolutely necessary.  No sense giving the other parties an opportunity to concoct a defense.

Regardless, he can't pronounce guilt or innocence.  That has to happen in a court of law.  At that time, everyone will present their side of the story (including hard evidence).  The two sides will present proof of permission granted or denied (including appropriate documentation).  Fingers will be pointed ("It wasn't my fault.").  Assumptions will be vetted.  

At this point, all we of the forum have on the case is what we've read.  We don't have the requests, refusals, or any other pertinent documents.  In the end, this may be an open and shut case, but we won't be able to tell that until the end, will we?

[Euclid]

tree68

Euclid

Why would there be any question about that?

From where we sit, there isn't.  

From where the director, et al, sit, they may not have realized there was a difference, as has already been noted.

The question is coming strictly from where the prosecutor sits.

On one hand, he has CSX with written proof that the permission was denied. On the other hand, he has the film maker with no evidence that he received permission from CSX.  

I can’t imagine why the prosecutor would be stumped as to whether or not Miller had permission. 

[tree68]

Euclid

Why would there be any question about that?

From where we sit, there isn't.  

From where the director, et al, sit, they may not have realized there was a difference, as has already been noted.

And this appears to be a case of "I know you believe you understand what you think I said, but you don't realize that what you heard was not what I meant."

Too, since it hasn't been established who supposedly got what permission they had, it's entirely possible that the director (while assuming that everything had been arranged for) was never told that CSX had turned the request down.

Or not.

Time (and legal proceedings) will tell.

[Euclid]

This kind of misunderstanding makes a lot of sense.  But, with the issue of legitimate permission, it seems like there would be no dispute whatsoever.  So I wonder why the article says, “A major question in the tragedy is whether producers had permission to shoot on the CSX tracks.”

Why would there be any question about that?

[jeffhergert]

Euclid

 

Miller is saying that he got permission from Rayonier.  He also says he was warned to watch out for two trains from Rayonier, and was told that there would be no more trains that day after the two of them.  Apparently, this information came from Rayonier, but once again, there cannot be clarity.

Miller also said he staged lookouts along the track to watch for trains and warn the crew if any trains approached. 

Yet, Miller said he did not realize the trestle was on live trackage.  After being warned about the two trains and staging lookouts to watch for trains, how can one not realize that the trackage is live?

I haven't followed this thread real close, just look at it once in a while.  I don't know the layout of the Rayonier facility, but it sounds like there is a spur into the facility.  Any "permission" and information on train movements from Rayonier would only apply to their specific trackage and adjacent land.  The trouble is that many in the general population, those outside of the railroad community, often have no concept of railroads.  Sure, they know about trains, but mostly from waiting at crossings or what the latest media story is.  Some probably think Amtrak or other passenger trains when they hear the word train or railroad.  Many don't realize that railroad R-O-W is private property, let alone who owns what. 

As crazy has it sounds, I could see someone with (for the sake of argument) permission and information from one entity (Rayonier) that has tracks on it's property thinking it extended to all the tracks and adjacent property in that immediate area. 

Jeff

[oltmannd]

Euclid

At some point in the future, maybe this story will make sense, but it has a long way to go. 

It's starting to sound as if Rayonier might have been talking about their siding and lead - as that's the extent of what they can give permission for -  and Miller was assuming it was all the track he could see, including the main.  Why wouldn't either ask the other for clarification? Probably because it never occured to either party about what was "obvious". (and in Miller's case, obviously wrong.)  Or, Miller was operating on the "forgiveness is easier than permission" rule.

[Euclid]

At some point in the future, maybe this story will make sense, but it has a long way to go.  Miller said, “It was not my job to get permits.”  One big question is this:  Why does an interviewer let Miller get off with that response without asking a follow-up as to whose job it was? 

Miller is saying that he got permission from Rayonier.  He also says he was warned to watch out for two trains from Rayonier, and was told that there would be no more trains that day after the two of them.  Apparently, this information came from Rayonier, but once again, there cannot be clarity.

Miller also said he staged lookouts along the track to watch for trains and warn the crew if any trains approached. 

Yet, Miller said he did not realize the trestle was on live trackage.  After being warned about the two trains and staging lookouts to watch for trains, how can one not realize that the trackage is live?

The article says, “A major question in the tragedy is whether producers had permission to shoot on the CSX tracks.”

The BIGGEST question of all is this: 

How can there possibly be a major question of whether Miller had permission when CSX has proved that they refused permission, and Miller is giving these dingdong answers as to whether he had permission?

[BaltACD]

While it may not be the Directors job to 'obtain permits', it is his job to know that the required permits have been obtained!

Report: 'Midnight Rider' Director Says It Was 'Not My Job' to Obtain Permits to Shoot on Tracks
Variety (Online)
By Ted Johnson May 12, 2014

Appearing at a court hearing on Monday, "Midnight Rider" director Randall Miller said that other members of the crew were tasked with obtaining written permits to shoot on CSX train tracks on Feb. 20, when an oncoming freight train unexpectedly came on the rural Georgia location and struck and killed second camera assistant Sarah Jones and injured six crew members.

"I did not do permits, so I didn't see the permits," Miller said under questioning from David Long-Daniels, the lawyer for singer Gregg Allman, at a hearing in Chatham County Courthouse in Savannah.

Allman is suing to reclaim rights from the movie, which depicts his life story. Allman contends that Miller and his Unclaimed Freight Prods. no longer have the rights because principal photography wasn't started on time and because the production failed to pay him a full $150,000. The hearing was over Allman's motion for a restraining order to halt the movie until the issue over rights is resolved.

A county prosecutor is reviewing the results of an investigation to determine if criminal charges will be filed. A major question in the tragedy is whether producers had permission to shoot on the CSX tracks. According to Wayne County sheriff's deputies, CSX claims that they did not. At the hearing, Miller said that the crew had permission from Rayonier, which has a paper plant nearby and owns the land surrounding the tracks.

According to the Savannah Morning News, when Long-Daniels on Monday pressed Miller whether they had written permission from CSX, the director answered, "That's not my job."

But Miller pushed back at the suggestion that they were reckless in the shooting.

"I almost got run over by a train myself. I did," he said at the hearing. "I was the last one on the train track."

Miller said that he did not know that the location was on a live train trestle. "We were told there were two trains from Rayonier coming through, and no more trains that day," he said, according to the Savannah Morning News. The paper also reported that Miller said that crew members were placed as lookouts along the tracks for any trains, but he did not know how far away.

Miller testified that Allman was informed that they would be shooting on the trestle, including a dream sequence with a hospital bed across the tracks. The dream sequence is part of Allman's memoir, but in the screenplay, written by Miller and wife Jody Savin.

Allman has argued that, given the tragedy, the production is injuring his reputation. But Miller's lawyers say that principal photography did start on time, and that the full payment was not made for tax reasons.

 

[overall]

Greg Allman has sued to stop any further filming on this project, according to an article in Rolling Stone Magazine written by Ryan Reed. The aricle does say that the producers did not have permission to be on the tracks. This same article also appeared in the Huffington Post and Yahoo news.

[Euclid]

Falcon48

I know nothing about the actual facts of this incident, save what I have read (and I've learned a long time ago not to rely on media reports for much of anything).  But, in talking about what the sherifff or the DA may or may not do, keep in mind that there's a difference between criminal and civil liability.  

In order to find the any of the film people guiltly of criminal conduct, a DA will essentially have to prove "beyond a reasonable doubt" that the film people knew they didn't have authority to be on CSX property, and went there anyway (he'll have to prove more than that, but he must prove this point to have any case at all)  "Beyond a reasonable doubt" is a much higher standard of proof than applies in civil cases ("preponderance of the evidence", which is a fancy way of saying "more likely than not").  If there's any real ambiguity on the "authority" point, the DA could well decide not to prosecute,  For example, if some CSX official had purported to give the film crew permission (as suggested in some earlier posts), even if it wasn't in writing, and that authority was not unambigiuously withdrawn, the DA could decide he doesn't have "beyond a reasonable doubt" evidence for a criminal case.  The film company, in this situation, could still face civil liabilty for negligence.

Again, I don't know what actually happened.  I suppose we'll all find out in due course.

           

Falcon48,

This is an excellent explanation of what I see as the connection to the possible existence of conflicting accounts of whether permission was given to the film company, as alluded to by Sheriff Carter.   I think you have summed it up perfectly with your analysis of the consequences. 

If the film company’s interpretation of CSX’s ultimate refusal of permission is influenced by a conflicting message from CSX, then that might compromise the criminal case against the film company.    

I guess another possibility is that the report of the sheriff’s mention of “conflicting stories” was wrong.  But I agree that we will find out in due course.   

 

 

[Mookie]

edblysard

He just shows up for a few minutes, makes some noise, and then is ignored for the rest of his life!

[edblysard]

He just shows up for a few minutes, makes some noise, and then is ignored for the rest of his life!

[Mookie]

Psst:  What about the rooster?

[Murphy Siding]

CShaveRR

Spoiler alert for SJ:   the egg came first.

  Yes, but  what if the chicken and the egg came at the same time?  Using intuition, common sense, connecting the dots...things like that, it is conceivable that both arrived on the scene at the same same time.  Ergo, the media want you and the government to believe that there was some predetermined predilection for the part of those who have us believe that one came before the other.  My theory, is that it's all run by a big eastern syndicate don't you know.

[Mookie]

CShaveRR

Spoiler alert for SJ:   the egg came first.

We are a litigious society - you must have proof! 

[CShaveRR]

Spoiler alert for SJ:   the egg came first.

[BaltACD]

zugmann

Euclid

Now this of course all of this is just a theory.  I think it is quite plausible.  Others are free to offer their own theory and claims of plausibility.  I certainly would not assert that they are wrong and I am right. 

Aliens.

Aincent Aliens designed the 'dream sequence' and granted permission on flash paper.

[Mookie]

Euclid:  I am pleasantly surprised that you wrote an answer.  I thank you for that. 

I have a different perspective on the overview.  I have always gotten the impression that the way anything with a fairly large legal bent such as this case is handled, the details are played very tightly.  Media gets very little in the way of information and even sometimes confusing information.  Law enforcement often doesn't even share with other divisions, let alone the media.  Lawyers want their clients protected, ergo the oft-said "no comment", unless they think it will help their clients. 

If this does go to court, as I suspect it probably will, lawyers and law enforcement will not want this to have been played out in the public media, dissected and autopsied before any legal proceedings. 

I also have a way of predicting outcomes in my mind.  I can, occasionally, come pretty close - if I am either able to actually watch reactions, listen carefully to the words of the actual people involved and even get to see the body language of those involved.  I also admit to never reading a good mystery thriller until I have read the ending.  That is the only time I can actually know for sure how things will turn out. 

But I go back to the chicken and the egg.  I get the feeling it isn't that you think you will get any information out of the forum to help you make this conclusion.  I think it is more the fighting of the battle rather than the winning of the war. 

But the bottom line in my mind is that you seem to enjoy stirring the pot and I enjoy trying to figure out why you do. 

[zugmann]

...

[Euclid]

Mookie

To Euclid:  I am not going to get into the matter before the board in this thread, but I am intrigued.  Your postings suggest to me that you possibly have figured out which came first: the chicken or the egg.  And I mean that respectfully. 

Are you questioning (as a defense lawyer would do), playing devils advocate, enjoy this form of conversation as a hobby or all of the above.  I rarely pay any attention to the back and forth, but my "hobby" is the study of the individuals posting.  I get a sense that there is someone more complex behind all the rhetoric. 

Just curious.

Mookie

 

Mookie,

Thanks for your comment.  I am just interested in how these types of things come to be and play out.  Questioning as a lawyer, playing devil’s advocate, and enjoyment are all part of it.  I guess it’s my nature.  In my mind, I always predict the probable outcome of everything.  This story has intrigued me from the start because the news has raised so many questions and left them unanswered.  So I read between the lines to look for the missing pieces.  Initially, as I recall, the film crew was said to have permission, but then that was clarified to mean they had permission from Rayonier, but not from CSX. The role of Rayonier and the point of the film crew being on their property has never been clarified. 

The news asked the film company president whether he had permission.  He said, “That’s complicated.”  Astoundingly, there was no follow up question to seek clarification of that bizarre answer.  Reading between the lines, I would say the answer was a way of saying, “Maybe we did and maybe we didn’t.  It all depends on what the meaning of is is.” 

Eventually the media seemed to settle on the consensus that CSX had denied permission.   Perhaps the answer, “That’s complicated” was just a way to dodge the question of permission.  The consensus in all discussion seemed to settle on the certainty that someone in the film company will be prosecuted for the death of Ms. Jones.  But now, out of the blue comes the sheriff saying that he will not prosecute and part of the reason is that the story is complicated because there are “conflicting stories” about whether the film company had permission. 

Some have said that if they did not have written permission, they had no permission.  I am not convinced that is true.  Just because railroad companies give formal permission in writing does not mean that less formal permission carries no weight in terms of responsibility to the company if something goes wrong.  And I do know for a fact that permission has been known to come from different individuals within railroad companies when it conflicted with the formal rules for granting such permission, or perhaps was granted by someone who had no authority to grant it.  Nevertheless, once given, the grantee is in a different legal status than would be the case if he or she were on the property with no permission.   Falcon48 reiterates that same point in an earlier post here. 

But in any case, reading between the lines, I would not expect the sheriff to give any weight to a story about having permission if there was no evidence of that.  And yet, he seems to be giving substantial weight to it, although he does not make it clear why the conflicting stories would be a reason to withhold prosecution.  Once again, no follow-up questions from the news media on such an inviting point. 

So I can only conclude that the film company has claimed that they did have permission, and have provided evidence for that claim.  It could be in writing, or it could simply be identifying the name of the person who gave permission.  I have no idea how much weight that permission will carry in light of the apparent fact that CSX formally denied permission. 

Depending on the details of what was said back and forth in these permission discussions, I tend to think the film company will be seen as negligent to some extent at least.  Certainly they did not have the proper permission which would have included an escort, safety officers, releases, insurance, etc.  I would speculate that the sheriff sees this case as a hot potato, so he wants to kick it up to a higher level rather than risk losing it.  He did say the conflicting stories make it complicated.  Personally, I do not believe that the distance between Georgia and California is thwarting the investigation or movement toward a trial.

Now this of course all of this is just a theory.  I think it is quite plausible.  Others are free to offer their own theory and claims of plausibility.  I certainly would not assert that they are wrong and I am right. 

[Murphy Siding]

IF permission had been given, no one would have been killed.

[edblysard]

What makes you sure CSX is the one to be charged?

I would think the film crew would be charged.

Reckless endangerment, trespassing, so forth.

The only thing CSX is known to be guilty of is running trains on their tracks.

I am not real sure why you wish to weave these convoluted theories, but  here is an even more plausible explanation….

The director decided the dream shot would be even better if it was shot on the bridge, not just with the bridge in the background.

He thought they could sneak it in without the railroad knowing, even though he had not been given permission to film on the tracks, maybe he even asked earlier and had been refused.

Trains make lots of noise, so he rationalized that they would hear the train if one came, in plenty of time.

Didn’t wrork out that way.

Now, the film crew and all are way out in Lotus land, the DA and Sherriff are in Georgia, everyone on the film crew has an attorney who is telling them to not say a word to any law enforcement official anywhere at any time, the Georgia bunch has to try to communicate with the Hollywood folks by phone and email, the distance make face to face follow up interviews very difficult, and no one from the film crew or production company plans on stepping foot anywhere over the Georgia border ever again, so its stalemate time.

You have been told over and over, in this thread, and the other one on this issue, that no one under the rank of senior trainmaster would give permission for anyone, for any reason, the foul or be allowed to occupy live track.

The reason is simple, if someone lower than that did give verbal permission, and something like this happened, that person would be responsible, would be fired, and sued, folded, twisted ,spindled and all that.

Every single Class 1 railroad, and every single railroad that follows the GCOR and Norac rule books have strict rules and policies and protocol about this, and strict rules about watchman/ flagmen, slow orders, track bulletins and all…that’s how we work, it is an normal everyday thing.

I have told you this, Mudchicken, Carl, Jeff ,Zug, Balt and many many others, all who do or did this for a living day in and day out have made the same basic statement.

You can apply any spin you choose, but simply put, if CSX had given permission, such permission would have come from a Senior Trainmaster or Operational Officer or higher up, and would have included written permission, dates, times, locations and also included a watchman and flagman on site.

By necessity railroads still work and function in the paper world, with copies to everyone that needs it, and quite a few who don’t.

The fact that the film crew and production company have yet to offer up their copy of such permission, no matter who it was issued by, lends itself to the belief that there is no such written permission.

If such a document existed, you can bet the bank the film crew/production company would have produced it, post haste.

Okay, now back to your regularly scheduled “Geraldo Report.”

[cx500]

They obviously did not have permission.  You can indeed be passed from one person to another, none of whom will allow you on the property.  Eventually, with luck, you might reach a person on the railroad who has the authority to arrange a shoot.  He would require exact details of what was intended.  At this point any scenario involving a bed on the tracks would be instantly refused as conveying a dangerous visual message.  That would be bad enough; in this case they went further and went out onto a bridge.

Should the answer be a qualified yes, with a more acceptable script, then the paperwork begins, specifying liability (100% for the film crew), exact time and location limits to be used, purchase orders (maybe payment in advance) to cover costs of flag protection, use of the property, management time, etc.  Perhaps a month later everything will be in order for the shooting to begin.

A "lower authority" might have looked the other way if the crew was merely straddling a perhaps poorly defined property line 50 of 100 feet away.  That is very different from being set up on or close to a main line track.  Any railroader would recognize the inherent danger to life, property, and even the trains themselves. 

I regret to say that your "plausible explanation" is as plausible as the tooth fairy.

John

[BaltACD]

Having actual permission is NEVER COMPLICATED!

The only thing that gets complicated is trying to lie one's way out of not having permission to be where you were and having one of your crew die - that is complicated.