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