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
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
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
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
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 them. Being 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
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.