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
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
"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.
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
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.