Liability roundup

10 Comments

  • If you are walking on train tracks and get run over by a train, you should not be entitled to recover damages, period. I don’t care that the train operators may have been able to do something to prevent the accident. It is not like they put out a sign that said “feel free to walk on our tracks, we will take precautions not to injure you.”

    I do have a bit of empathy, in that this is going to bankrupt the family. Perhaps there should be a mechanism in the law that forces people to have insurance for catastrophic incidents such as this.

    On the other hand, what personal injury attorney would take this case on contingency? Perhaps the family did have insurance and the insurance company is trying to recoup some of its costs?

  • “If you are walking on train tracks and get run over by a train, you should not be entitled to recover damages, period.”

    For once I agree with you on something.

    ” I don’t care that the train operators may have been able to do something to prevent the accident.”

    Of this I am skeptical. The teen was only 1000 feet from the train when the operators first saw him. It took half a mile for the train to come to a complete stop. For some of the heaviest cargo trains, such as ones hauling coal or metal ores, it can take more than a mile for the train to stop.

    And even if it was a passenger train, which would be much lighter, an emergency stop could cause injuries to the passengers.

    • ” I don’t care that the train operators may have been able to do something to prevent the accident.”

      The “do something” may have been a bell or horn which was available to the engineers but they did not use.

      Does not using a horn increase or decrease the liability of the train company? I don’t know. If there is no legal obligation, there may be a moral one for the reason you stated of “the train can’t stop on a dime.”

      But if horns are only there as decorations, let’s eliminate them on cars as many road rage incidents start with the honking of a horn.

      As a side note, I don’t know how the kid didn’t know the train was coming. I lived in a house that was approx .75 miles from the tracks. You could literally feel when the trains came by as a small rumble. (To say nothing of hearing the train on the tracks. They aren’t silent.) Within a thousand feet? While walking on the tracks that would transmit the vibration? How you don’t know that a train is coming is beyond me.

      • “The “do something” may have been a bell or horn which was available to the engineers but they did not use.”

        The kid was wearing ear buds. Even without noise cancellation, there is no guarantee that he would have heard a bell or horn soon enough to matter.

        The horn is there to warn of the coming train as it approaches a crossing, not to warn pedestrians illegally on the tracks away from a valid crossing.

        • The kid was wearing ear buds. Even without noise cancellation, there is no guarantee that he would have heard a bell or horn soon enough to matter.

          According to the kid, the noise cancelling on the headphones was not on. I am not sure why you think that the train horn would not have been heard or even felt. Train horns are at 140 – 152 decibels, which is about the same as a jet engine. People at airports with earmuffs on can still hear a jet engine.

          Whether the horn would have made a difference is something we’ll never know as the engineers never used it or the bell.

          There is also some discrepancy between the kid’s story that he was walking on the tracks and the engineer’s report to the police that the kid was laying across the tracks.

          There are a lot of variables in whether the train horn or bells could have warned the kid. Those variables include the speed of the train, the number of cars and the weight of the cars / train. Frankly, a 1/2 – 3/4 mile stopping distance is rather short, so the train was either light or not traveling at a high rate of speed. However, if the train was traveling miles per hour. a blast of the horn at 1000 feet would have given over 11 seconds to get off the track.

          The horn is there to warn of the coming train as it approaches a crossing, not to warn pedestrians illegally on the tracks away from a valid crossing.

          C’mon Matt. Are you trying to say that as an engineer if you saw a kid walking or lying on the tracks you wouldn’t do everything to warn the person?

          Once again, there may or may not be a legal duty to blow a horn or ring a bell, but in my book, there sure as heck is a moral duty to ring the bell and blow the daggone horn.

          • ” Train horns are at 140 – 152 decibels, which is about the same as a jet engine.”

            Yes, but we don’t know what he was listening to and at what volume. The train was a lot further away from him than the ear buds.

            As you already pointed out, he didn’t even notice the ground vibration until the train was right on top of him.

            According to the kid’s story he tried to jump out of the way when he finally noticed the vibration and the train caught him mid leap.

            What ever was going on with him, he was almost completely oblivious to his surroundings.

            “C’mon Matt. Are you trying to say that as an engineer if you saw a kid walking or lying on the tracks you wouldn’t do everything to warn the person? ”

            No, but I am saying that it’s absurd to impose a legal duty to warn a pedestrian on the tracks illegally away from an established crossing.

            Train tracks are neither straight nor level. There are plenty of spots where the operators might not see a pedestrian on the tracks until there are only a couple of seconds to react,

          • I don’t find the horn argument compelling. This is not like a crosswalk where drivers should be alert to pedestrians. It is more like someone walking down the middle lane of I-95. While it is true that someone could honk to try to prevent an accident, the entire blame must go to the pedestrian. Similarly, if you are walking on train tracks, the entire blame of getting hit by a train is on you.

            For sure, I wish the train operators had done something to prevent the accident, whether that be blowing the horn, going more slowly, or not using the tracks at all. But I wish that because I don’t like tragedies. If I were to use that wish with driving, perhaps no-one would drive.

            I suppose we could put strict liability on trains: if your train causes damage, you pay. But that does not seem right, much like the scaffolding law in NY is problematic.

            On an aside… I do not know whether I would only apply my rule to negligent acts or whether it would also apply to reckless or intentional acts. I would not use it in the criminal law context.

  • Matt,

    Train tracks are neither straight nor level. There are plenty of spots where the operators might not see a pedestrian on the tracks until there are only a couple of seconds to react,

    Except in this case, the engineers say they saw the kid at least 1000 feet away. They saw him.

    Allen,

    For sure, I wish the train operators had done something to prevent the accident, whether that be blowing the horn, going more slowly, or not using the tracks at all.

    That is my point too. I don’t think that there is a legal duty to warn someone out of a position that they themselves have illegally put themselves in, but there is, in my opinion, a moral duty to do what you can.

    To me, and this is just me, there is something strange going on with the kid’s story. I cannot for the life of me fathom how he did not know the train was coming. The vibration caused by a train is hard to believe at times. (Not to mention the noise.)

    The kids story and the engineers’ story don’t match either. I would say that as a jury or judge is a “trier of fact” that this would be interesting to see what the truth is, but I would never advocate it getting near a courtroom.

    • ” but there is, in my opinion, a moral duty to do what you can. ”

      A failure of that moral duty is not something that the courts can order the operators or railroad company to compensate the victim or the family for.

      It’s completely irrelevant to the lawsuit.

  • Chamber of Commerce survey comparing lawsuit climate in the 50 States:

    Comments on Delaware’s slide from #1 (best of 50) to #11 (still better than average) failed to note Delaware’s emergence as a favored venue for patent trolls
    https://hbr.org/2017/06/patent-trolling-isnt-dead-its-just-moving-to-delaware

    Now that SCotUS’s “TC Heartland” decision blocks venue-shopping trolls from the rural District of Eastern Texas, Delaware, with almost equally troll-friendly courts, has the additional advantage of many defendant corporate headquarters.

    Perhaps business writers are split on whether patent trolling is a bug or a feature.

    US. Senator Chris Coons (D-Delaware) has filed a trolls’ wish list, the “Stronger Patents Act” in the Senate. I believe it leaves TC Heartland intact. (Why should Sen. Coons undercut his home State’s advantage?)