The On-Line Magazine of Rideable Model Railroading
 NUMBER SEVENTY THREE

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© November 2, 2006  

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Live Steam Lawsuits
Part I 
Using a "liability release"

Written by Jim O'Connor

I'm starting this series with "Liability Release" not because it's the logical first step to make your railroad safe but because, in my opinion, this single thing is often missed by railroads.   If your railroad runs on public property, much of this article may not pertain to your situation.   There is a lot of concern about lawsuits associated with live steam and diesel railroading. I want to help the discussion by injecting my own ideas into the mix.  Please understand that I'm no lawyer and I'm not giving legal advice here; Just some common sense.  You will want to first contact your attorney before you act on my suggestions below.

Someone wrote to me while I was doing a survey on lawsuits saying that "if people are going to sue, there's nothing you can do about it."  If you believe him, and you think there are no steps you or your railroad can take to reduce the chances of being sued, then don't read any further.

Since you're still reading, you must be interested in reducing the risks of a lawsuit.  People have the right to sue in the United States, and they sue mostly to get your money.  The courts can award the person filing the suit money for hospital bills, lost wages, pain, and suffering.  And there's another thing the courts can award: "punitive damages".  I've been told that punitive damages (although rare) are a punishment levied against  you or your railroad for being "horribly negligent" or if it was felt you acted intentionally, or if you try to cover up negligence. These punitive awards can be quite high.  Therefore, every reasonable step should be taken to reduce exposure to punitive damages. If you take all reasonable steps to insure your track and associated buildings and equipment are safe, and you can prove it, you will be in better shape. 
See the article" Running A Safe Railroad.

Another way you can reduce your exposure to some types of lawsuits is the use of a liability release form.  You might call it a consent form or a waiver, but what ever you call it, you should consider using one.  In today's environment, I can't imagine not using one.  Some folks may tell you that using one of these [waivers] will not help. They will tell you that people can still sue you even if they sign a release.  That's true, people can still sue even if they sign a release. But if you think a release won't help your situation, think again.



In a recent survey we found that only 1/3 of railroads
require some type of liability release.

 

Have you ever had an operation?  Didn't you need to sign a consent form?  You bet you did!  No doctor in is right mind would ever do an operation without having a signed form from you.  It's called "Informed Consent" and it states that you understand the risks of the procedures, that they have been explained to you, generally in writing, and that you are willing to take the risks associated with that operation.  How can this consent form help the doctor or hospital in a lawsuit?   The consent form removes one powerful argument that the plaintiff would have been able to use against you, namely "I didn't know the operation was risky".

If your passengers are properly informed of all of the risks that are inherent with riding live steam and diesel model railroads and they they sign a paper saying they are willing to take those risks, it will be difficult or perhaps even impossible for them to claim otherwise in court.  Although you are aware of the risks involved in riding a model railroad, a large portion of the general public hasn't a clue about what potential risks might be present.

The web site Findlaw.com says that "Release forms or hold harmless agreements are used by a variety of businesses, in an attempt to limit (or release altogether) the business's liability if a customer is injured on the business's premises, or as a result of the business's services. In some contexts, a release agreement will use language to indicate that the person signing the agreement has assumed the risk of being injured. For example, a horse stable may require that all people wishing to ride the stable's horses sign a release form acknowledging the risks involved in riding, and agreeing that the stable will not be liable if the customer is injured while riding. "   The website goes on to say,  "When it comes to liability for a personal injury, release forms can significantly alter the legal relationship between a customer and a business."

Findlaw.com also says that a release may not be enforceable if the business has been "grossly negligent or engaged in intentional misconduct".  Also, a minor usually can't sign the release.  To be enforceable, it must be signed by the minor's parent or guardian.  It also says a  release needs to be signed before an injury occurs.   Additional information from Findlaw.com on this subject can be found here.

Where do you get a liability release form?  There are several examples available on the web. I suggest doing a Google Search and typing in "liability release forms".  You can also check with railroads in your state.  Be sure to contact your lawyer about the liability release you currently use or plan to start using. California apparently has one of the most plaintiff-friendly legal climates regarding inherent risks in recreation, so you folks in California need to be extra careful.  And speaking of states, each state is different as far as what releases work, how they divide responsibility between operator and rider, and other legal details, so people should at least inform themselves of those laws. Ignorance of the law is NEVER an excuse. It seems to me that a good release will inform the riders of the rules of the railroad, state the risks of riding, and a contain a promise to hold the railroad and the engineer harmless in the event of an unforeseen "event".  As a railroad operator or member, you will want to insure the maximum protection, be sure to have it reviewed by an attorney that is familiar with the use of liability releases in your state.

Even after reading this, folks will still say that a release does not really protect you and it's not worth the trouble.  But there's one thing that no one has statistics on, and that is how many folks didn't bother to file a claim or suit because they felt they couldn't after signing the release.   I'm not talking about folks with real injuries that really got hurt.  Those folks will file a claim with your insurance carrier.  That's what insurance is for. I'm talking about the other claims and suits that should never get filed in the first place.

Here's advise someone in the legal profession gave me:   If people are injured at your business (or railroad), one of the greatest factors in determining whether they sue or not is how you treat themBeing upfront, apologetic, and taking responsibility for your fault can REALLY go a long way to avoiding suit. On the other hand, being arrogant, acting untouchable ("yeah, just TRY to sue me!"), or treating it like it's their own fault is inviting return hostility.

Here's a question for discussion:  "Am I safe from a law suit if I do not haul the public?  What if I just allow  friends and neighbors to ride and not allow anyone else?"

I want to hear from folks on these and other related  issues.  It's an important subject and we need to do what we can to keep live steam railroading safe and available into the future. 

Here is what I did not cover, but wish to in the future:

  • Running a safe railroad by avoiding injuries and reducing derailments and other incidents.

  • What you always wanted to know about live steam railroad insurance.

Written by Jim O'Connor

 

If you are a  lawyer and can shed some light on this subject (free of charge, of course!), send in your comment   read the comments If you're a live steamer and you want to add to this discussion, please contact me, too.

Read Part II: more on using a "liability release"

 

NOTICE: The information above is my opinion only.  I am not a legal expert.  Please contact your lawyer when you start your program to protect your railroad.  Run as safe an operation as you can and be sure to share this unique model railroad experience with as many folks as you can.

 

 


the end


Have an idea for an article?  We need your article on ....

Technical Issues such as problems and solutions associated with , steam locos, hydraulic drives, electric drives. track laying and maintenance, signal systems.

Construction Projects, mostly looking for car projects (let's leave the steamer building to the print magazines). How about scenery construction or building a hand car?

Full scale railroads and museums.  If you work for or volunteer for a railroad, if you've visited one recently and have a few photos and can write up a half dozen paragraphs on it, we'll be happy to put it up on the web.

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Please share what you know with us.

 


 


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