1997 Second Quarter Release

ON TRACK WITH
RAILWAY CLAIM SERVICES, Inc.
Volume 3 Issue 2                                 2nd Quarter, 1997

 

 

FROM THE DIRECTOR
Lexington, TN (04/97) -

Where has the time gone?  A new year, and now spring is upon us.  With spring comes the inevitable rebirth of our world outside.  Changes . . . a world of changes.  Since the deregulation of the rail industry, with the passage of Staggers there have been many changes.  Currently the CSX-Conrail-NS story is playing its way out.   The final system maps for this most unusual coming together are yet to be drawn.  Railway Claim Services, Inc. is continuing to change as well.  In the second quarter of this year RCSI will open two new regional offices (one in Virginia and one in Louisiana) to better serve our railroad clients.  The Merrillville, Indiana office (for the last five years Railway Claim Services, Inc.'s corporate offices) will now become a regional office, with some staffing changes, and the Lexington, Tennessee office will become the corporate office, with the relocation of personnel from other offices to the Tennessee office and the addition of others.  Accidents, incidents and claims will continue to be reported to those offices where these were reported prior to these changes.  Claims will be addressed in the professional manner that all of our clients have come to expect - - and deserve.
RCSI continues to provide the highest level of claims investigation and claims management services throughout the United States, Canada and Mexico. A reminder - Railway Claim Services, Inc. provides pre-employment background checks, which helps to weed out potential problem applicants before they become employees.  The process (from the railroad's end) is simple.  Use Railway Claim Services' application for employment, complete a short questionnaire, which includes a request for information, and fax it to the Tennessee office.  Like magic, you will receive the information requested, usually within two weeks or less.  FRA required driving histories are included.   Let us tailor a program just for you. Dave Gardner of the Tennessee office authors Railway Claim Services, Inc.'s quarterly newsletter, except for this bi-line that I contribute.  Dave and I have been professional associates for over twenty years (handling railroad claims), and life-long friends.   I am always impressed at his ability to paint a picture with the words he writes.  He takes an otherwise boring subject and makes it interesting to read, and always with teaching incorporated.  If you have comments, questions or just suggestions for areas to cover in this forum call write or email Dave at the Tennessee office.  His personal email address is (breaux@netease.net).   I am sure he would love to hear from you.

DEALING WITH UNINVITED GUESTS

Spring is in the air.  People are out and about.  Hobos, hikers, children and nature lovers are wandering through the woods and meadows, inevitably crossing railroad tracks or using the railroad right-of-way as a convenient path in their excursions.  Hobos, hikers, children and nature lovers.  Did I hear someone use the word "trespassers"?   Unfortunately this one word does not describe the people listed above.  There are three categories of people who might be encountered on Railroad property.  They are – Trespassers, Invitees and Licensees.  And while the book definition of each of these is "black and white", the definition recognized by the courts encompasses various shades of gray.  Let us examine the book definitions first.

Trespasser – Someone who has no business on Railroad property, no consent to be on Railroad property and whose presence on Railroad property is unknown and unexpected.  The Railroad owes no duty to a trespasser other than to refrain from wantonly or willfully causing injury to him.  Examples might include a drunk who falls asleep on the tracks, or a hunter crossing the tracks far from any known crossing.  As we will examine later, though, there are exceptions that could change even their status.
Invitee – Someone who has business on Railroad property, or consent to be on Railroad property and whose presence on Railroad property, while possibly unknown, is not unexpected.  The Railroad owes this person the duty of reasonable and ordinary care.  Examples might include a delivery person, mail carrier, or meter reader.
Licensee – Someone who has business on Railroad property, consent to be on Railroad property, and whose presence on Railroad property is both expected and known.  The duty owed by the Railroad is again that of reasonable and ordinary care.  An example of this would be a contractor. As you can see, the definition for Invitee and Licensee is very similar.  The primary difference is whether they are on Railroad property for their own purpose (Invitee) or for the mutual benefit of both themselves and the Railroad (Licensee).  Most outsiders involved in accidents on Railroad property (other than crossing accidents) fall into the definition of Trespasser.  This is when the black and white textbook definition begins to fade to gray.  The courts allow three exceptions to the strict Trespasser definition.  They are as follows:

1.  When the trespasser is a child.  This brings up another definition, that of "child".  What is a child?  Most, if not all states, recognize the inability of children under the age of seven to distinguish danger.  The age at which this inability to distinguish danger ends, varies from state to state.  I would strongly suggest that you talk with your local counsel to determine the age appropriate for your area.  When accidents harm children, juries habitually disregard such trivialities as negligence and liability.  They look for any reason to award money to the child, especially if the child has suffered amputation, brain damage or any other severe injury.  The reasons they most often evoke are either "attractive nuisance" or "dangerous instrumentalities".  An "attractive nuisance" could be an abandoned railcar or abandoned building that a child might see as a clubhouse.  It could also be a bridge where children congregate to look at the fish.  Anything that can attract the attention of a child and cause harm could be an "attractive nuisance". "Dangerous instrumentality" refers to the care taken by the Railroad to protect children from anything that might be dangerous to them.  Like I said, these are very gray areas, but a "dangerous instrumentality" could be something as simple as a sharp knife left unattended in a place available to children.  That same knife in a locked toolbox would not be a "dangerous instrumentality".
2.  When the trespasser's presence has been discovered the Railroad is obligated to take immediate action to remove him from the property.  Failure to do so changes his status to that of an invitee and the duty owed to him also increases as previously stated.  Example, a short line general manager is driving past the rail yard and notices an obviously inebriated man cutting across the yard from a tavern across the street.  The GM decides to call the tavern owner later and complain.  In the interim, the drunk passes out on the rail and is struck by a switch engine.  His status is that of an invitee because the Railroad (in the form of the General Manager) had knowledge of his presence and took no action to remove him.
Had the GM immediately called the police to remove the man, his status would still have been that of an invitee until such time as he was actually removed from the property.  He was a trespasser only up until such time as his presence was known.
3.  When the trespasser's presence is habitual and the acquiescence of the Railroad is so pronounced that it is tantamount to permission changes his status to that of Licensee.  This has come to be known as the "permissive use" exception.  Taking the former example, if the tavern and the residential area from which it draws its customers is separated by the railyard, and there is a well worn path connecting the two, anyone using that path is a licensee.  To protect itself, the Railroad would need to post "No Trespassing" signs in accordance with state law and elicit the cooperation of the police to enforce the no trespassing law.  The Railroad should also make every effort to obliterate the path.  Many times, a fence is looked at as an easy fix for trespassing problems.  If properly maintained, a fence can accomplish this purpose.  If not maintained, all the fence does is prove the Railroad's knowledge of the problem.  A fence can be cut, climbed over and under, or walked around.  Maintenance and good records are essential in disproving licensee claims. As I reported in the 1996 4th Quarter newsletter, a trespasser was awarded $7.5 million when he was injured at a train station which had been closed for the past 35 years due to the fact that the plaintiff was able to prove that the Railroad was aware of frequent trespasser activity at the station and had not taken any steps to prevent it.
In another case, a child was using a path across a railyard to get from his home to a playground.  He fell underneath a passing cut of cars and suffered amputation of both legs.  The jury awarded $18 million. What can be done to protect your railroad from trespasser claims?   First of all, develop an aggressive plan to deal with trespassing and share this plan with employees, law enforcement agencies and civic leaders.  Second, encourage and require that all Railroad employees report cases of trespassing.  Third, identify areas where trespassing activity is physically evident.  By this I mean well-worn pathways, trash accumulation, etc.  Sign or stencil these areas in accordance with local laws and ordinances.  Fourth, remove or protect any potential "attractive nuisances" and/or "dangerous instrumentalities".  Fifth, elicit the assistance of law enforcement.  Report all cases of trespassing to the police and obtain written documentation of same.  Finally, document all your efforts.  Keep files on repeat offenders.  Take photos of signs and stencils.  Aggressive efforts and good documentation are essential in defending trespasser claims.

VERDICTS & POINTS OF LEGAL INTEREST

FELA - NRPC – 56-year-old engineer allegedly injured left foot and left shoulder when slipped on greasy locomotive step.  Unable to return to work in any capacity.  Jury awarded $2.75 million.

FELA – GTWRR – Engineer claims back injury from attempting to throw snow-covered switch.  No surgery required.  He still claims disability and RRB grants it.  Jury awards $1.1 million.

FELA – NSRR – Switchman slips and falls from ladder on side of boxcar.  Required cervical diskectomy.  He also claimed carpal tunnel as a result of trauma and underwent carpal tunnel surgery.  Permanent disability.  Jury awarded $1.1 million.

FELA – NSRR – Conductor jumps from moving locomotive due to impending collision with tractor-trailer at crossing.  Suffers closed head injury as well as fractures to shoulder and hip.  Negotiated settlement with Railroad and trucking company in the amount of $2 million.

CROSSING – SJVRR – 22 year old nurse slams into parked tanker car at unlit rural crossing at night.  Crossbuck crossing. She was killed instantly.  Parents sued and were awarded $1.2 million.

CROSSING – CR -  Train strikes garbage truck at crossbuck crossing.   After crossing tracks, driver had to immediately turn onto road, which paralleled tracks.  Truck driver could not make turn quick enough to avoid collision.   Driver suffered closed head injuries.  Passenger in truck was killed.   Gross verdict of $11.5 million.

CROSSING – KCSRR – 58 year old stuck at crossbuck crossing.  Lived for about 30 minutes after collision.  Heirs brought suit claiming failure to sound horn.  Jury bought their argument and awarded $4.5 million.

BITS AND PIECES

Two-way end-of-train braking devices will be the law on most trains by July 1, 1997.  FRA's final rule, which was published in the January 2, 1997 Federal Register, requires the use of two-way end-of-train braking devices on all trains except passenger trains with emergency brakes; local or work trains; trains operated in the push mode; trains with a functioning caboose; trains with a secondary, fully independent braking system; trains with locomotives located in the rear third of the train; and trains that do not exceed 30 MPH and do not operate over heavy grades.  You can obtain a copy of this rule via the Internet at: http://www.dot.gov/affairs/index.htm
While we are listing Internet sites, here are two more you may find of interest.  First    http://www.mapquest.com   is a site that will map any location you need to find, and even give you directions on how to get from point to point.  Another site of interest is the home page for the American Short Line Rail Association at http://www.aslra.org.   We are in the process of designing a homepage for RCSI and will communicate this information to you when we go on line.  If you would like to be placed on our email list, please send your request to rcsi@netease.net.

RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788.

Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between.  If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

Railway Claim Services, Inc. 52 South Main Street  Lexington, Tennessee   
901-967-1796                  FAX (901) 967-1788        Email – rcsi@netease.net

 

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