Another reason to hate lawyers

[gabe]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by Junctionfan

I'm in full agreement with you LC. Overmod, in Canada if someone broke into my home and I bashed him over the head with a heavy object; chances are the police would charge the dope with B&E and so would not be eligable to sue me because I would be defending my property not to mention my family. In the U.S where gun licencing is legal, the use of a gun from what I understand is perfectly legal provided that they entered your property without permission and as far as I know, looks to pose a threat (Need confirmation from L.C, EdBlysard or Gabe here).

A part from that; if CN smokes some dimwit foolish enough to walk on their tracks and they manage to survive, the only suing that takes place is CN doing it. I know Canadian laws and U.S laws differ but surely to God they are similar if not identical concerning tort law in this area.

WHOA there Andrew! That is EXACTLY what I did NOT say. First of all, each application of force has to be judged on its own merits. The reasonableness of the force will be judged and if anyone is found to have used unreasonable force can be expected to be charged with the appropriate crime. For example one who shoots an unarmed cat burglar to death in his home when he could have just as easily locked him in a closet and called police may expect to charged with a homicide of some variety and stands a good chance of being convicted. It is all dependent upon the facts and circumstances.
Defending property or even other people only goes so far. I don't recommend it as a practice. It can yield very unexpected results.

LC

I think you get a medal for that in Texas.

Gabe

P.S. For the Texans in the crowd, that is not an insult. Just an exageration based on a significant grain of truth. Some Texans may rationally argue that it is better that way.

[JoeKoh]

ok
she says that ns needs to put up more warning signs or no tresspassing signs.well then she knows that walking along the tracks is dangerous and illegal.I pray the judge throws this case out .
stay safe
Joe

[MP57313]

{Trying to get back to the topic} Years ago when I was in "Business Law" class, they mentioned that quarries and zoos are 'strictly liable'. That is, these businesses could be held responsible for injuries to trespassers, regardless of how much protection (fences, warnings, guards) they had. I was relieved that railroads were not included in this category.

On the other hand, at least once there was a news article about a lawsuit filed by parents when their kid or kids became injured on a rail line in their neighborhood. The lawyer was using the argument that the railroad was an "attractive nuisance", that is something dangerous that would lure the kids. I recall being a curious kid myself, but was never involved in a lawsuit and can't speak for whether that lawyer's approach would be a "valid" point.

[ericsp]

I wonder if someone will sue a city if he/she jay-walks (or was walking down the middle of the road) and gets hit by a car saying the city should post signs that cars use that road. Where has common sense gone?

[MP57313]

QUOTE: Originally posted by Limitedclear
First of all, each application of force has to be judged on its own merits. The reasonableness of the force will be judged and if anyone is found to have used unreasonable force can be expected to be charged with the appropriate crime. For example one who shoots an unarmed cat burglar to death in his home when he could have just as easily locked him in a closet and called police may expect to charged with a homicide of some variety and stands a good chance of being convicted. It is all dependent upon the facts and circumstances.
Defending property or even other people only goes so far. I don't recommend it as a practice. It can yield very unexpected results. LC

Ugh! I agree it would be "excessive force" to use dynamite to get rid of cockroaches. But this notion of "unreasonable force"...if one is caught by surprise by a burglar in one's home, it strikes me as naive/wishful thinking to assume he is not armed. How would you know? What if he has a .22, and you have a .45, would it still be unreasonable force on your part? Sure you could ask him "Hey buddy, how much firepower you got there?"

Your point is well taken about not recommending the practice of armed resistance ... a "defender" could easily shoot a bystander, family member or other unintended party. Just the same, the law as currently written seems biased in favor of the intruders.

[Junctionfan]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by Junctionfan

I'm in full agreement with you LC. Overmod, in Canada if someone broke into my home and I bashed him over the head with a heavy object; chances are the police would charge the dope with B&E and so would not be eligable to sue me because I would be defending my property not to mention my family. In the U.S where gun licencing is legal, the use of a gun from what I understand is perfectly legal provided that they entered your property without permission and as far as I know, looks to pose a threat (Need confirmation from L.C, EdBlysard or Gabe here).

A part from that; if CN smokes some dimwit foolish enough to walk on their tracks and they manage to survive, the only suing that takes place is CN doing it. I know Canadian laws and U.S laws differ but surely to God they are similar if not identical concerning tort law in this area.

WHOA there Andrew! That is EXACTLY what I did NOT say. First of all, each application of force has to be judged on its own merits. The reasonableness of the force will be judged and if anyone is found to have used unreasonable force can be expected to be charged with the appropriate crime. For example one who shoots an unarmed cat burglar to death in his home when he could have just as easily locked him in a closet and called police may expect to charged with a homicide of some variety and stands a good chance of being convicted. It is all dependent upon the facts and circumstances.
Defending property or even other people only goes so far. I don't recommend it as a practice. It can yield very unexpected results.

LC

Ya,..........I kind of forgot to include that in my statement didn't I.[:I]

[locomutt]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by locomutt

In other words "hypothetically" she will win her case.
Prejudice in the court;railroads are always wrong,someone
else is always right.

LocoMutt-

You might notice I purposely stayed away from speculating on the outcome. In a real case I wouldn't even think of speculating before completing discovery including a deposition of the plaintiff and thus having at least most of the pertinent facts.

LC

Pretty much.[:)]

[Anonymous]

Too many lawyers! In the Greater Cincinnati Yellow Page phone book there are 93, that's NINETY THREE, pages of lawyer listings! As the fast food advertisement says "....ya gotta eat!". So we have too many lawyers chasing every ambulance, monitoring every cop, watching every transportation service, examining every medical provider, looking over every food counter and now peering into every voting precinct. Add to that the increasing appetite for our society to "get something for nothing" (see "lottery ticket, reality show contestant, casino growth) and it should surprise no one that some fool is suing the railroad for getting hit by a train while walking adjacent to the track. What that person lacks in common sense, she is trying to make up with corporate dollars.

[Anonymous]

QUOTE: Originally posted by Junctionfan

I'm in full agreement with you LC. Overmod, in Canada if someone broke into my home and I bashed him over the head with a heavy object; chances are the police would charge the dope with B&E and so would not be eligable to sue me because I would be defending my property not to mention my family. In the U.S where gun licencing is legal, the use of a gun from what I understand is perfectly legal provided that they entered your property without permission and as far as I know, looks to pose a threat (Need confirmation from L.C, EdBlysard or Gabe here).

A part from that; if CN smokes some dimwit foolish enough to walk on their tracks and they manage to survive, the only suing that takes place is CN doing it. I know Canadian laws and U.S laws differ but surely to God they are similar if not identical concerning tort law in this area.

WHOA there Andrew! That is EXACTLY what I did NOT say. First of all, each application of force has to be judged on its own merits. The reasonableness of the force will be judged and if anyone is found to have used unreasonable force can be expected to be charged with the appropriate crime. For example one who shoots an unarmed cat burglar to death in his home when he could have just as easily locked him in a closet and called police may expect to charged with a homicide of some variety and stands a good chance of being convicted. It is all dependent upon the facts and circumstances.
Defending property or even other people only goes so far. I don't recommend it as a practice. It can yield very unexpected results.

LC

[Anonymous]

You could pay her in Monopoly money and say that she isn't smart enough to know that trains, go on train tracks, that she won't know the difference between fake and real money

[Anonymous]

QUOTE: Originally posted by locomutt

In other words "hypothetically" she will win her case.
Prejudice in the court;railroads are always wrong,someone
else is always right.

LocoMutt-

You might notice I purposely stayed away from speculating on the outcome. In a real case I wouldn't even think of speculating before completing discovery including a deposition of the plaintiff and thus having at least most of the pertinent facts.

LC

[Anonymous]

I had a friend involved in a similar, but more tragic case. His brother drove around crossing gates at a two track road crossing where the near track had a train parked on it, blocking vision of the second track. A driver on the opposite side decided to drive around the gates and went on his/her way, and my friends brother decided he could do the same. Unfortunately, a train came by on that second track at that moment and he was instantly killed. My friend's family decided to sue for wrongful death, and the railroad in question ended up settling out of court with the family. Of course, common sense suggests the victim was entirely at fault since he illegally drove around the gates, but the railroad must have decided that a courtroom trial would be a detriment to the company, even thought aquittal was probable.

[Junctionfan]

I'm in full agreement with you LC. Overmod, in Canada if someone broke into my home and I bashed him over the head with a heavy object; chances are the police would charge the dope with B&E and so would not be eligable to sue me because I would be defending my property not to mention my family. In the U.S where gun licencing is legal, the use of a gun from what I understand is perfectly legal provided that they entered your property without permission and as far as I know, looks to pose a threat (Need confirmation from L.C, EdBlysard or Gabe here).

A part from that; if CN smokes some dimwit foolish enough to walk on their tracks and they manage to survive, the only suing that takes place is CN doing it. I know Canadian laws and U.S laws differ but surely to God they are similar if not identical concerning tort law in this area.

[locomutt]

In other words "hypothetically" she will win her case.
Prejudice in the court;railroads are always wrong,someone
else is always right.

[Anonymous]

QUOTE: Originally posted by Overmod

Now, hold on a minute -- LC, put your lawyer's hat on, and tell me 'what is the controversy' in this case, given the facts that we have.

First: the proximate cause of this woman's injuries is that she was on railroad property -- I don't want to put a pejorative name on it, but seems to me the word "trespassing" clearly applies.

The woman's claim, again interpreting the wording in the article, is that there were no signs 'at her point of entry' noting that the property was 'posted' or that there were particular dangers if she entered upon that property (illegally in Pennsylvania, I might add, and possibly Federally (e.g. under the Patriot Act?) because the property was a railroad.

This is NOT a crossing-sign issue, right-of-way issue, etc., although I wonder whether attorney Smail expects to conflate that issue to establish his "case".

A potential problem for NS is that I'm sure they have plenty of little 'no trespassing - railroad property' signs at "logical" places where the public might accidentally -- or intentionally -- enter onto railroad property. One presumes the site of this 'incident' was not so marked. LC: does the presence of a great preponderance of warning signs about trespassing incur any particular duty to put signs on EVERY location? (Compare the interpretation of the trademark laws that purported to hold that unless every use of the mark were accompanied with the "TM" or "circle-R" symbol as appropriate, it might pass into 'common usage' and become unprotected in any trade use... or the interpretation of 'working lights' under FRA stats which led SP to chuck their Gyra-Lites.)

Of course, two other things come fairly quickly to mind.

1) If Smail's house is not prominently posted 'no trespassing', and he shoots somebody who breaks in, he would now be liable to charges of murder, by the logic he uses here;

2) I'd expect NS to file countersuit for trespassing -- the question then becoming at least in part whether Pennsylvania has 'posting' laws for property, and how they apply to railroads (for example, is there an applicable Federal statute which might apply under a (typically tortured?) interpretation of the Commerce Clause?)

I think this case has little to do with trains or safety and everything to do with technicalities, loopholes, and (dare I say it) lawyers' quest to find a way to extract money from targets they or their clients perceive as having deep pockets and a certain incentive to settle even nuisance claims to save overall dollars...

OM-

OK. Here goes.

First, we don't have most of the facts in this case available. No legal matter can be described in a couple of paragraphs. The best that I or anyone can do without the facts is apply the rule of law to the facts we know. Anything more is pure speculation.

Here are a few points:

1. Your proximate causation analysis is wrong. The proximate causes of this injury are a combination of the plaintiff's actions and those of the defendant. Under the laws of comparative negligence it is likely that the negligence will be apportioned between the two.

2. The plaintiff's trespassing is not a complete defense to her claim. The laws of real property provide that land owners and occupiers have an affirmative duty to make their property safe for others entering upon it, even trespassers. In the case of trespassers the duty is at the level of making the property safe for trespassers from known hazards. My supposition is that the plaintiff in this case is basing her claim on the NS not making its property safe by posting notice of the passage of trains which she claims to be a known danger.

As to your numbered paragraphs:

1) No. There are completely different rules that govern home intrusion situations. Generally one has no obligation to retreat from their home before using force against an intruder. DON'T TRY THIS AT HOME. You could still end up in jail.

2) It will depend upon preemption by Federal Law and possibly what Pennsylvania statutes say. I can't answer this without research and I'd have to charge you for that...lol...

Most lawsuits are about some transfer of wealth. In most personal injury cases there are few other effective remedies available.

LC

[oskar]

just another way to get money the wrong way[:(!] she probaly saw the signs and just ignored them and said hey, I need money well I got 4 words for her Look,Listen and live you stupid[censored][censored][censored][censored]




kevin

[jockellis]

I was working at a McDonalds when management told us to be careful to warn customers because of the $2.1 million judgement against our parent company. They must have thought it real. Which reminds me, since my hard drive crashed and I got a new one, I need to make stella.com (the woman who sued McDonalds) and darwin.com favorites again.
Jock Ellis

[Overmod]

Now, hold on a minute -- LC, put your lawyer's hat on, and tell me 'what is the controversy' in this case, given the facts that we have.

First: the proximate cause of this woman's injuries is that she was on railroad property -- I don't want to put a pejorative name on it, but seems to me the word "trespassing" clearly applies.

The woman's claim, again interpreting the wording in the article, is that there were no signs 'at her point of entry' noting that the property was 'posted' or that there were particular dangers if she entered upon that property (illegally in Pennsylvania, I might add, and possibly Federally (e.g. under the Patriot Act?) because the property was a railroad.

This is NOT a crossing-sign issue, right-of-way issue, etc., although I wonder whether attorney Smail expects to conflate that issue to establish his "case".

A potential problem for NS is that I'm sure they have plenty of little 'no trespassing - railroad property' signs at "logical" places where the public might accidentally -- or intentionally -- enter onto railroad property. One presumes the site of this 'incident' was not so marked. LC: does the presence of a great preponderance of warning signs about trespassing incur any particular duty to put signs on EVERY location? (Compare the interpretation of the trademark laws that purported to hold that unless every use of the mark were accompanied with the "TM" or "circle-R" symbol as appropriate, it might pass into 'common usage' and become unprotected in any trade use... or the interpretation of 'working lights' under FRA stats which led SP to chuck their Gyra-Lites.)

Of course, two other things come fairly quickly to mind.

1) If Smail's house is not prominently posted 'no trespassing', and he shoots somebody who breaks in, he would now be liable to charges of murder, by the logic he uses here;

2) I'd expect NS to file countersuit for trespassing -- the question then becoming at least in part whether Pennsylvania has 'posting' laws for property, and how they apply to railroads (for example, is there an applicable Federal statute which might apply under a (typically tortured?) interpretation of the Commerce Clause?)

I think this case has little to do with trains or safety and everything to do with technicalities, loopholes, and (dare I say it) lawyers' quest to find a way to extract money from targets they or their clients perceive as having deep pockets and a certain incentive to settle even nuisance claims to save overall dollars...

[Anonymous]

Risking your own life is no way to get your point across!

[locomutt]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by wrwatkins

Read today's news wire (Monday November 8). A woman was struck by a NS train and is suing the railroad because they did not post signs that the tracks are used for trains. It is easy to see why there are so many lawyer jokes.

I used to take such things at face value. Then, I learned that there is always a lot more to any lawsuit than is printed in a short "news" item like this. It strikes me as similar to the wailing and gnashing of teeth that always surrounds the retelling, for the ten thousandth time, the story of the woman in New Mexico (or was it Arizona) and the hot coffee from McDonalds...

If there isn't more to this case I would be surprised. Certainly, if it is as reported I would expect the court to issue sanctions for such a frivolous suit...

LC

Before deferring to any "blonde" jokes,what is this person thinking?
First and foremost,it has to be declared a "frivolous" suit. The person
in question,apparently was trespassing and they want to 'sue' whom?
I'm like LC,there must be something else out there that is not being
reported,or it wouldn't(shouldn't have)made it as far as it has.[%-)]

[Anonymous]

QUOTE: Originally posted by wrwatkins

Read today's news wire (Monday November 8). A woman was struck by a NS train and is suing the railroad because they did not post signs that the tracks are used for trains. It is easy to see why there are so many lawyer jokes.

I used to take such things at face value. Then, I learned that there is always a lot more to any lawsuit than is printed in a short "news" item like this. It strikes me as similar to the wailing and gnashing of teeth that always surrounds the retelling, for the ten thousandth time, the story of the woman in New Mexico (or was it Arizona) and the hot coffee from McDonalds...

If there isn't more to this case I would be surprised. Certainly, if it is as reported I would expect the court to issue sanctions for such a frivolous suit...

LC

[Junctionfan]

Sounds like a possible blonde joke too. Suing because NS didn't post signs that tracks are used for trains........unbefreak'n-leavable.

[Anonymous]

Read today's news wire (Monday November 8). A woman was struck by a NS train and is suing the railroad because they did not post signs that the tracks are used for trains. It is easy to see why there are so many lawyer jokes.