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

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© NOVEMBER 25, 2006  

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Live Steam Lawsuits
Part II 
 More on using a "liability release"

continued from part 1

Written by our web visitors (in italics)
with comments from Jim O'Connor

This subject has hit home for many live steam people.  We've received lots of comments.  While only one comment came from an attorney, we received several comments from folks in the insurance industry. A couple of folks have passed on what they heard from lawyers.  A lawyer would tell you that second-hand information is hearsay.  Be that as it may, I'm still posting what was sent in and you can take it for what it is.  One gentleman that does risk management wrote us and made an interesting offer. 

I've posted some of the comments here in italics.  Other comments are available for your viewing.

"Having been in the insurance claims business for many years, I know that waivers (releases prior to riding trains, etc.) are of little use except to cause riders/guests to feel they have no right to make a claim when they actually do. The reason for this is that, if honored, it would give live steam clubs carte blanche to be unsafe in their practices, to the detriment of innocent guests. It is best to just be safe, have good safety rules and adhere to them, good maintenance of equipment with record keeping, and get insurance. In our group, two claims were denied due to our good practices and witnesses verified the riders violated the verbal warnings given to them when they got on the train. That was two years ago and we haven't had any more accidents, but we remain very cautious."

"Waivers make us feel good. They do not protect us in that the courts will not allow an uninformed person to waive their rights. Without legal counsel, they are considered uninformed. You cannot eliminate legal liability exposure. You can only manage it. Written rules of operation with records showing they are utilized are critical....  Training with certification of operators is an acceptable practice. Provide First Aid kits in various locations with people NEARBY that know how to use them. Put in place a reporting system for any injury - whether staff or public - and a review program to answer the question "How could this have been avoided?"

It's those bogus claims we hear about that make us feel helpless.  Most of us would not want to prevent a legitimately  injured person from having medical expenses paid even if it means filing an insurance claim. Running a safe railroad is the primary defense against injured passengers and should be at the top of our list.  If you use a waiver or are thinking about using one, remember folks can still sue and win.  Being strict about safety is the best way to prevent suits.

"A conductor positioned at the rear of the train at all times while moving could be a large benefit. Especially if that person has the ability to stop the train, if required for any reason as stated in the bulletin. I'm not a lawyer, just a pessimistic engineer/forensic expert who can still be surprised by what people sue over. "

"At a seminar we attended the subject of releases came up and a lawyer in the audience got up and stated that the release to hold harmless was a great tool for the plaintiff as his lawyer could use it to prove that YOU knew your train was an unsafe vehicle and you were just trying to abdicate your responsibility and culpability."

"I've NEVER seen a release used against the defendant......California seems to have laws (either statutes or judge-made law) that tends to favor plaintiffs. In my experience, it's the statutes that are intended to protect a recreational industry (e.g. skiing) that have the likelihood of being bent against the defendant. A properly worded release should work the effect of barring suit because the PLAINTIFF could foresee injury. In such a case, it doesn't matter that the defendant could also foresee it. Picture a bungee-jumping company. Let's see, can bungee jumpers get hurt? I'm thinking YES. A release holds the participant to accepting the inherent risks, even if he doesn't know what they are. Without one, the inherent risks are liabilities. It's not hard to find someone to testify that any train guy knows what the risks are. Train people will always be shown to know what the inherent risks are, release or no release."

"...the treatment of injured passengers has a significant effect on whether they follow up with a lawsuit. When a passenger claims an injury, we have a supervisor take them to the emergency room or clinic. After they are treated, we take them home and then another supervisor follows up with a call later that day or the next day to see how they are and if they need any other assistance. The City pays for the emergency treatment. We have had only one claim for injury in 25 years and over 70,000,000 passengers and that was when we did not follow up. ...Show genuine concern and get them appropriate medical help will minimize the magnitude of the claim, at least in some parts of the country."

Jerry Smithson wrote the following in 2 separate emails:

"I'm in the Risk Management Business. I do all the safety and Insurance for Largo Central Railroad and the new Pasco and Central Railroad in the West part of Florida. I had one of my attorneys do a release and hold harmless release for the railroads. We have used it for the past four years and it has worked very well. Its a very good tool and if the people don't sign then they do not ride. As for minors, it is true you cannot release them, however, you can have the parents sign a hold harmless agreement which explains if the child does sue us we can go after the parents for what we pay out, not only damages but attorneys fees. I do work in all 50 states in the U S A and this will work in most states, but not all. However, if sued, it's a good tool to defend your club. This release shows all that can happen, including death. This release has worked for us , but the only problem is the amount of paper work we have to do. Please feel free in contacting me at Amusement Risk Management, Inc 727 841 9600 Jerry Smithson "

"One of the most important things that deal with the release is your informing the riders of all the risks of the railroad, including death. Now that sounds a little silly, but in many cases you're going to deal with attorneys that will put together a case sometimes with silly facts such as the hot coffee law suit. The release that I had put together deals with the assumption of risk. This means pointing out inherent risks relating to the operation of your railroad. In the release we point out these risks, and I quote "I agree that I am and/or my child/ward is voluntarily participating in the activities offered by Largo Central Railroad, Inc including but not limited to, the use of equipment , facilities, and premises. I am assuming , on behalf of myself and/or my child/ward, all risk of personal injury, death or disability to me and/or my child/ward that might result from said participation, or any damage, loss or theft of any personal property which I or my child/ward may incur. I understand that the Largo Central Railroad Inc is a ride that has live steam or diesel or gasoline and burning coal that may burn or injure passengers or may derail causing injury and that it has inherent risk. I understand and accept the above risks of bodily injury or death related to this activity." The most important thing to remember is to point out the risks involved in railroading.   If after reading the release,  the rider does not want to sign, they do not ride (even in a city park or on public land).  There is much more in the release that relates to tying this all together. I will be glad to share this with other live steamers. All I ask is a fee to cover the expense of copying and mailing. In my business I deal in all 50 STATES. Even though some states might not hold this release valid, it is still a good tool to show a jury that you have explained all of the risks and they signed the release expressing they understood the risk and possibly of injury or death.  This release will not hold you harmless from an act of negligence on the part of the railroad. 
Jerry Smithson
Amusement Risk Management, Inc.
4526 Edith Street
New Port Richey, Fl. 34652
727 841 9600"

If you use or are considering using a liability release, be sure to have it reviewed by an attorney that is familiar with the use of liability releases in your state. 

The comments above may not represent the the opinions of discoverlivesteam.com  Read more comments that pertain to this subject.  

Written by our web visitors (in italics)
with comments from Jim O'Connor

read part 3 of this series

NOTICE: Some of the above comments are the opinions of our visitors and some are my own opinions. We are not attorneys and are not offering legal advice. We are offering suggestions in an attempt to help make your railroad more safe.  Please 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.

read part I of this series

 

Coming Soon:  Part III Running a Safe Railroad.


the end

Write j.i.m.1.@.d.i.s.c.o.v.e.r.l.i.v.e.s.t.e.a.m...c.o. to ask about use of  this article.


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