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ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.
Volume 12 Issue RAILWAY CLAIM SERVICES, INC.
Our 18th Year of Service LIABILITY & RECREATIONAL USE STATUTES RAILWAY CLAIM SERVICES, INC. WEBSITE INSIGHTFUL COMMENTS 2004 ACCIDENT DATA OCCUPPIED CROSSING RULE aka STANDING TRAIN DOCTRINE POINTS OF LEGAL INTEREST RCSI INFORMATION Railway Claim Services, Inc. (RCSI) can perform background checks for potential job applicants. RCSI can also check injury histories for employees. For further information contact Elizabeth Vineyard of RCSI at
731-967-1796, or via email at evineyard@railway-claim-services.com. When is a trespasser/invitee not a trespasser/invitee? Well, one instance may be when the person in question is a “recreational user”. In the past, this definition has been used primarily in conjunction with abandoned trackage that has been converted to bicycle trails or other public usage. It has occasionally been useful in cases that might have traditionally been considered invitee claims. One case in
particular that comes to mind involved a 1) four-wheeler 2) an operator 3) a case of beer 4) a seldom used stretch of railroad track and 5) a bridge that had been demolished to make way for a new
span. You can see where this is going, can’t you? Mr. 0.28 BAC was tooling down the right-of-way at an
estimated 35 MPH when he suddenly came upon the “bridge that wasn’t there”. His widow filed suit. Plaintiff’s
counsel demanded millions of dollars. The Railroad should have known that the right-of-way was used by ATV riders. The
Railroad created a trap by removing the bridge. Never mind the fact that he would probably have killed himself even if the bridge had been in place. Testimony would show that the deceased had traversed the bridge many times in the past. The defense wizard pulled out
a copy of Mississippi Code Annotated Title 89 Chapter 2, Article 1. Result – Summary Judgment in favor of the defense.
We at RCSI did a little research and found that most states now offer protection to landowners from lawsuit happy recreational plaintiffs. A summary
of state laws was compiled by American Whitewater and can be found at their website: http://www.americanwhitewater.org/archive/article/123/
. If you currently have a trespasser claim, have your defense counsel take a look at the recreational statute in your state to see if there is any relief
offered by statute. If it involves a four-wheeler, snowmobile operator, mountain biker, hiker, hunter, or fisherman, you may be pleasantly surprised. To quote from American Whitewater’s website, “Recreational Use Statutes generally provide that a landowner does
not owe, to one using his of her property for recreational purposes and without charge, either a duty of care to keep the property safe for entry or use, or a duty to give any warning of a dangerous
condition, use, structure, or activity on their property. Under prior common law (law made by precedent), the landowner had different duties of care
depending on whether a person was on the land as an invitee, licensee, or a trespasser. The greatest duty of care was owed to an invitee and no duty was owed to an unknown, adult trespasser. Under a
Recreational Use Statute, recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care.” We have a couple of test cases working right now to determine the extent of protection offered by these statutes; a
trespasser falling through a trestle and a drunk taking a shortcut home. I’ll let you know how these turn out. RAILWAY CLAIM SERVICES, INC. WEBSITE Railway Claim Services, Inc. maintains a website containing useful information for our industry. If you haven’t visited our website recently, you
may have missed some of the content recently added.
The Code of Federal Regulations, TITLE 49—Transportation, Subtitle B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER
II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION is the Bible for our industry. Several years ago I purchased a complete set and use it on
a regular basis. I am frequently contacted by shortline operators with questions relating to safety rules and regulations.
Rather than paraphrase the rules, I try to refer these questions to the specific part of 49 CFR applicable. At times, the operator may not have a
copy of 49 CFR. If you are in the railroad business, you cannot be without this. Recently I came across a
complete copy of 49 CFR in electronic format on the Internet. If you have any questions regarding 49 CFR, please visit our website and click on the
following link. http://www.railway-claim-services.com/waycar.htm
We have the complete General Code of Operating Rules posted on our website for your viewing. http://www.railway-claim-services.com/safety_first.htm
As a Railroader, you have heard of the FELA. Do you ever wonder exactly what is included in the Federal Employers’ Liability Act? You can read the entire text on our website. http://www.railway-claim-services.com/waycar.htm
2. Some people are alive only because it's illegal to kill them. However, in some parts of the South and West, it is still a reasonable defense to say, "The rascal needed killing!" 3. The gene pool could use a little chlorine, or perhaps a sign
saying, “No Wading.” 4. Consciousness: That annoying time between naps. 5. Ever stop to think, and forget to start again? 6. Being "over the hill" is much better than being under
it! 7. A journey of a thousand miles begins with a cash advance 3. Stupidity is not a handicap. Park elsewhere! 9. They call it PMS because "mad cow disease" was already
taken. I’m gonna regret saying that, I know I am. 10. He who dies with the most toys is nonetheless dead. 11. Ham and eggs; a day's work for a chicken, a lifetime
commitment for a pig. 12. The trouble with life is there's no background music. On second thought, the way my life has been going, the crashing of cymbals might drive me over the edge. 13. The original point and click interface was a Colt .45. 2004 ACCIDENT DATA POINTS OF LEGAL INTEREST Locomotive Inspection Act – Locomotive on storage track in engine house ruled “In Use” by Defendant’s surveillance tape admitted into evidence by plaintiff after defense does not use it – We at RCSI have addressed the pros and cons of surveillance in the past. If you missed it, one of the articles
can be found here http://www.railway-claim-services.com/1999%201st%20Quarter.htm . This case is a prime example of
the cons of surveillance. The defense took surveillance tape of the plaintiff going through her daily routine. The
tape showed her using her walker to move around. There was nothing damaging to the plaintiff on the tape. During
the discovery process, plaintiff obtained a copy of the tape and saw that there was nothing there. During the course of the trial, the defense never
introduced the surveillance tape. Plaintiff therefore decided to introduce it into evidence. Defense objected on
the grounds that (1) it was not self-authenticating, (2) it was hearsay (3) it was not a business record (4) that prejudice outweighed the probative value (5) it was cumulative. The Court ruled that the tape was authentic, relevant and material to the issue of damages. After viewing the tape,
the jury awarded $242,000 to the plaintiff. The Trial Court denied the railroad’s motion for post-trial relief stating that the railroad had chosen to
take the surveillance tape and was therefore hoisted by its own petard. We at RCSI feel that surveillance is a lot like a hand grenade. You need to know what the Hell you are going to do before you ever pull the pin. I will omit the reference to this
case, but please be aware of the dangers of unscripted surveillance. Ayers upheld by the RCSI welcomes your input. If you have any
questions or comments of interest to our industry, please contact either Editor’s Note: If you can receive future editions
via email, please let us know so we can include you on our email distribution list. Email distribution is quicker and saves postage and handling. For further information contact: dave_gardner@railway-claim-services.com or randal_little@railway-claim-services.com Corporate Offices at: Phone: 800-786-5204, Fax: 731-967-1788
or visit us on the Web at www.railway-claim-services.com Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES. |