Two high school kids climb onto a parked train car and get burned from the high tension power lines.
Their families sue the train company.
Do they have a case?
In this episode of the podcast, partners Bill Rogel and Noah Fardo are joined by layman opinionator and friend of the podcast (the Godfather/Everyday) Ron Myers to discuss attractive nuisances and the liability of of those trespassed upon.
please rise court is now in
session I strenuously object a legal podcast brought to you by the Pittsburgh law firm Flaherty Fardo is now in session all those seeking information about the law and legal matters affecting the people of Pittsburg and the Commonwealth of Pennsylvania half-baked opinions and a dose of self-indulgence are invited to attend and participate I want the truth you can't handle the truth the defense strenuously objects you would call the first witness all right hello seasons greetings and welcome to I strenuously object uh season's greetings boy that I don't really know what that means it's kind of like the the emptiest way that you can acknowledge a time of year without having to take a stand on which particular season or holiday or whatever we're talking about oh my God Santa here I know him in the interest of inclusion and not not taking any stance and and because wishing someone a happy Advent is kind of weird anyway seasons greetings glad we're able to be here today uh I am joined by attorney Noah Faro managing partner of the law firm Flaherty Fardo rogel and Amick morning good morning well you're politically correct happy holidy holid that's what season's greetings is right I mean it's better than I think Pittsburgh stopped using this ridiculous phrase Sparkle season uh I think they retired that one really stupid really stupid but the worst of all time was definitely Sparkle season I agree there then you crossed over the political correctness with the happy Advent but you showed your true colors and I'm okay with that this is an ax I grind all the time right uh we we celebrate holidays in advance of the holidays and then as soon as they happen we're done I hate Easter decorations during Lent I'm less opposed to Christmas decorations during Advent but it has some of the same feel all right well we're canceled for even talking religions well in the interest of getting us one more voice and one more risk of impending cancellation we do also have a guest with us here today the Italian-American Lobby may want to cancel me for calling him The Godfather what are you [ __ ] crazy certainly he wants to cancel me for continuing to call him The Godfather uh of tax appeals or otherwise and then I do not forgive no I'll let you handle the rest of the introduction here who do we got yeah Ron is the ultimate juror when I when we have cases and I've talked to hundreds of people Ron is the only one that can actually give me many different views so he's like having six to eight different jurors and if we're going to do a case or no case I don't want to have six to eight people I want every day The Godfather Ron all right uh so Ron having Noah just disclosed what sounds like protected health information with respect to uh your psychological condition here uh thank you very much for joining us and how are you thank you for having me sounds like I need to go take my meds before we begin well we're we're certainly happy to have you and to have some outside perspective to keep us in check and to let us know if we've kind of fast forwarded over some stuff where we need to slow down or use some terms of art or or just to get get a educated but lay perspective on the things we talk about and what we're doing here today um and what I should have probably put earlier in the uh in the intro and and maybe we can Frankenstein it later we are doing one of our old standbys and favorites it's time for case or no case we've got a case here where there was a trespass onto a railroad car and a lawsuit filed ultimately in federal court about it so let me give you the facts on this and then we can we can get into a little discussion about about what what should happen what is happening and the other facts of the case but we got two 17-year-olds uh who climbed up a ladder to the top of a rail car I think it was a box car but it really doesn't matter what kind of car it was but the rail car was parked on the tracks obviously but under what they call a catary line which I guess is a geometry term but but it means like those saggy electrical wires that kind of light rail will use to kind of power itself so if you if you go places that have street level Light Rail tracks you'll see those kind of Droopy power lines that hang over the tracks and the the train has a big kind of bar that sticks up above it and makes contact with multiple of the the wires so that it can draw its power right from above it so anyway this car not in and of itself a light rail car but it was parked off on a track that had these kind of lines over them so the kids climb up on top of the car uh while they're on top of the car high voltage arcs from these CER lines they don't touch the like a dangling wire or something but they were close enough to it for the electricity to Arc one of the plaintiffs was burned over 75% of his body permanently lost the use of one of his hands uh the other uh the burns were over I guess 18% of his body I think uh if I understood it correctly he was he was injured trying to help his friend who was being electrocuted in the moment serious injuries um you know permanent both scarring and and some functional deficits but not fatal uh again they didn't touch the line but they were trespassers right they had no right to be on this track climbing this car going up onto the roof of this car they were shocked while trespassing Mike the podcast producer here real quick before we open this up to discussion I just have to play a clip that comes to mind when I think of this case it's that scene from Liar Liar which I'm sure you all remember where his secretary has had enough she's in the middle of quitting and she gives him a piece of her mind several years ago a friend of mine had a burglar on her roof he fell through the kitchen Skylight landed on a cutting board on a butcher's knife cutting his leg the burglar sued my friend and because of guys like you he won my friend had to pay the burglar $6,000 is that just Justice no I'd have got him 10 Noah first put it to you case or no case so what you're asking or I guess what the allegation was was the electric lines were too low is that basically what you're understanding as the theory of liability that yes they were trespassing but these lines should not have been live and they got burned well I think it's more the the location of the car under the lines right you park this car under the lines the lines are as low as they have to be so that A Train That's running under them can make contact with who's it against who's it against the train company it's a case against the TR train company obviously we can consider if there's other people on the hook here but the train company is responsible for where the car is uh where the lines are uh they they own or at least have possessory interest in the track itself I don't have the sense that there are any other theoretical parties in this suit but in any case the suit that was brought was brought against the rail company all right and the train is on a track the train is on a track yes as as trains are want to be well I gotta make sure I understand this and the train is under going underneath a wire but H the reason they're getting sued is they stopped it this is a parked car right this is not a train that stopped temporarily or whatever you know this is this is a car that's been shuttled off onto a siding for storage or whatever but presumably in addition to this being as I understand it a freight car there are different kinds of trains that use the tracks for different purposes and so there has there is access to these these cafer lines in case you're putting a car over there that operates on that electricity but this particular car doesn't need the electricity as such it's just where they parked it yeah I want to see what Ron has to say but you know my first questions are was it foreseeable has it h ever happened before um do they know that children climb on these parked cars is there graffiti on top and I think the foreseeability from legal perspective is what I'm asking first but Ronnie initial thoughts I hate these cases I hate them for the plaintiff um five out of six of me believes that if you are trespassing you get what you deserve um I get it they're injured maybe some could have been fatally right um but I don't like these it's like when someone's robbing you and they twist their ankle and I'm supposed to call my insurance company and pay for their medical bill I don't like it for the plaintiff let me ask you a question Ron let me see if let me see if I can change your mind at all okay you and I are neighbors uh in a housing plan um the kids without my permission I actually have a no trespassing sign they use my backyard to cut to the high school because they don't want to have to walk out the entire call to saac okay I know that there is several different dangerous conditions on my property there's broken glass um there's big holes that are covered that you can't see that you'll break your ankle I know of these dangerous conditions they ignore my trespassing signs your child crosses my property and gets hurt does do you have a case or does he have a case he has a boo boo right he shouldn't have been there well in that instance the no trespassing sign really does it for me I mean if it was just like a known pathway and you never tried to stop people from going through um yeah then there might be some liability you were aware um you you welcomed it by default and maybe you should clean up your glass but if you have a no trespassing sign you don't want people there and they're there it's on them so Bill I couldn't persuade Ron right can you yeah well so first of all first of all I think I think Noah you've asked some of the right questions here but let me back out a little bit five six of Ron defaults toour I think most of the population defaults which is you're trespassing I don't as a property owner I shouldn't owe you anything I owe you no Duty you don't want to get hurt don't come on my land that's not what the law is on trespassers in the law they they have different levels of kind of person who's present on your property and different duties owed to each and they to to take them in order that your duties get lower and lower As you move through this progression right so you have at the highest level what they call a business invitee a business invitee is a customer someone who is on your property to make you money and you know they're on there and the whole purpose of it is it's open to them and they're supposed to be there right and you owe them the highest Duty um as a property owner at the law uh a non-b buus invite you ow is kind of the same duty but a little bit lower so that's if you have friends or family and they're not making you money but you've specifically invited them to your property come over to my house for a party then there's what they call a licy which is someone who is on the property with your permission but not for your purposes and not with you know your Express invitation and you owe a slightly lesser duty to someone who has your permission to be there but you're but you didn't invite them in and then the lowest level unsurprisingly is to a trespasser you owe a trespasser less Duty than you owe to everyone else but you still owe something under Pennsylvania law so Under Pennsylvania law your your duty to a trespasser generally is just not to engage in willful or wanting misconduct right basic negligence doesn't apply but if it's so willful or if it's kind of wanting neglect that can trigger liability on your part the obvious example here is let's say instead of just knowing there's stuff back there and Noah is like man I'm tired of these kids cutting across my yard so he digs a pit and covers it over with leaves so that and he puts signs saying hey no trespassing warning but he intentionally creates something that they're not going to see obscures it from their vision and allows them to fall in it he's going to be liable for that and that sort of case is one of the reasons we have uh some measure of liability to trespassers because the the courts don't want people to engage in that kind of conduct where they're setting traps for trespassers right bill I was just wondering if we could add sharpen bamboo sticks to the pit um I mean I I suspect that would only only increase your liability but yeah sure right that exact kind of trap and and obviously look we in this business I've had a of phone calls from a lot of angry land owners about about their neighbors about people using their property uh we know there are people who get so worked up over their property that you know that they will set traps to injure people and the law doesn't abide that but there is an additional principle at play uh it's what they used to call the attractive nuisance Doctrine that's been a little bit Modified by the re Under Pennsylvania law and the restatements um so it's a little bit of an Antiquated phrase but it conveys the point if I have I don't know a like a giant bounce house set up in the back of my yard and I don't have fences and the neighbor kids come over and play on it and they're injured because it's not actually set up the fact that it's children is relevant you have to take into account the fact that look children might trespass they might make bad decisions they're not expected to be fully mature and if you have something that is basically calling to them then the fact that you didn't give them express permission to come onto your land becomes not entirely irrelevant right but it's no longer a defense you are responsible to take reasonable measures to make sure that if you have this quote unquote attractive nuisance that someone who follows that attraction doesn't encounter some risk of injury Serious injury that you're aware of and they're not aware of and wouldn't discover so and you see this sometimes with people who are injured in Neighbors swimming pools or whatever and they're there without permission but we understand that kids are going to be kids sometimes and the the responsibility is different for a child than an adult as a trespasser I wanted to back up to where you were describing who has access to a property and it started with you know people that were invited right in different right they call invitees yeah business invitees but after all the invitees we went there was there was a big gap between invitees to trespassers and I feel there's like an in between category of like recreational use you know like people using your Woods to hunt or walk is there anything in state law that addresses that where it seems to me like there's this category they're invited or this category they're trespassing there's nothing kind of in between well hey we know these people are always back there in the woods well there there is there's a category what they call a lensey which is someone who is there you know with your permission but not your Express invitation or for your own purposes okay right so if you have a neighbor who has kind of repeatedly cut across your land and you're like yeah I'm good with it it's okay I know he hunts back there then you owe a higher Duty than you do to a trespasser but not the same Duty you would owe if you were you know if you were charging him to come hunt on your land or something right and for me the reason I'm asking that question if if I'm sitting in in a jury pool that's going to heavily influence how I would decide if someone were to have uh some kind of recompense for an injury or or or something of that nature again if someone's breaking into your house like I have zero tolerance for that but you know if if if you say like oh yeah um what is that an attractive nuisance uh you know I have my trampoline out back and I know these kids come and play on it all the time one of them gets hurt I I'm expecting to be sued I really am you know what I mean you need to not offer that or or be aware that you know someday you're going to get sued your homeowners is going to get sued you have to you have to kind of overrun the um the Natural Instinct a little bit right so the theoretically at the end of a case the judge gives you instructions on the law and the judge is going to tell you about what the duty that's owed to a trespasser is whether that does or doesn't comport with your instincts as to what the duty should be but even someone who breaks in let's say hypothetically I'm I'm in an area where you know it's high crime or someone broke into my house once years ago I'm like I've had enough of this and so I I set up a you know I set knives under my window uh or I do like the Kevin Alister thing from home alone right to to be seasonally appropriate here and I I put a bunch of you know a blowtorch over the
door in that case obviously like Defending Your Own well-being as an act of self-defense is a separate issue right but if I just set that trap at my house so that someday if someone breaks into my house this is what fate befalls them sorry that's willful um that's want and you're going to be on the hook for that Mike the podcast producer here there's a question that keeps coming up in my mind and I don't know if you mentioned it in the original story but were there barriers in place keeping them away from this area did they have to climb fences and and so forth I do think that matters that was not clear from so so and this will let me also get back into answering some of the first questions that Noah had because I do think he's seizing on some things that the court did as they developed the factual record here um obviously it's a train that's on tracks uh generally speaking if you follow the tracks you can get there right um because they can't fence off the tracks and then have to come out and take the fences off or the gates down every time a train comes through so any train that's on tracks like that is if you follow a sufficiently circuitous path able to be accessed from the track now that may take you walking through the station Roundhouse or something and back out the case here as I reviewed it did not tell me whether or not they had to hop any fences to get there uh based on the lines over there it's certainly possible I'm assuming unless it tells me otherwise right that they did not have to scale off fence they didn't barbed wire the thing in it was relatively accessible now it's on railroad tracks right you know as a 17-year-old kid you're not supposed to be playing on the railroad tracks climbing on a car like they didn't they knew they weren't supposed to be there but I don't think they had to like break and Enter to get to that point I don't think there was a fence to scale now some other some questions that Noah asked right at first instinct right uh has this happened before uh was there was there graffiti around graffiti was interesting because that's specifically one of the things that an appell at court talked about in affirming the trial Court's judgment is look the train company here is on notice that this sort of trespassing happens with some measure of frequency I read about a this this case I I think this was Amtrak but it was a case about Conrail uh anyway I saw another case from it was older statis statistics it was from like back in the 80s but at that time when they were doing the analysis they said that on conrail's uh various lines something on the order of 24 children on average were either killed or severely injured uh by these catary lines um every year now I I'm hoping those numbers have come down since the 80s um I don't know I I haven't seen a more recent analysis than that I I am I am not a you know a person who works in Risk at a railroad to know the full-on answer to that but railroad companies know two things that are relevant here one they know that kids will climb on top of cars if those cars are left available not every day right but but they know it happens and they know that there is a risk from these Canary lines that the public probably isn't going to be aware of by which I mean they have to train the heck out of all of their employees when they hire them about working in proximity to these lines because you don't have to touch them to get shocked because they hang low they're not at a uniform height or tension because there's high voltage running through them um so the fact that they have to train a bunch of their own employees to be aware of this risk is an indication that you wouldn't expect the local high school kid to be aware of that risk in that level of detail when they haven't had that sort of training there was graffiti on cars that were kept in this area there were a couple schools in relatively close proximity to where this car was parked there were some ancillary facts that made it such that look this this wasn't an entirely unforeseeable occurrence it didn't mean the kids weren't trespassers right the kids were still trespassers but there was enough notice of the the risk that was being posed there by this car which by the way doesn't live there all the time but was parked there you know temporarily maybe long term maybe not I don't know so it's kind of like a nuisance that's specifically created by the property owner in the way that they put this car under these lines in an area where cars get graffitied and it's in in sight of a couple schools and so you you start kind of seeing where you you swing the balance to ah the railroad company maybe should have seen this coming and doing nothing about it not warning not blocking it off is the sort of thing that can lead to a lead to liability being imposed and let's reiterate they didn't even touch the lines they didn't have to touch the lines to be injured they were just near the lines and that's right that which means there's an incredible amount of power there and again the railroad company probably should have been aware of that and kept th that thing away from those lines is that is that what you're suggesting that is what I'm suggesting as a theory of liability right that either under some kind of this is a child and there's some attractive Nu nuisance principles in play now they're 17 right this isn't like a eight-year-old kid who who wandered in but they're still legally minors and that means that you can apply a different analysis other than just you know to to consider whether or not this was a sufficiently attractive nuisance that you have to take some other precautions but the court also said that when you take all the factors into consideration you could find this to be willful or or wanting misconduct wanting negligence higher than ordinary negligence to to know that you're having this number of injuries and deaths to warn the heck out of your employees about it and then to park this car right under those lines right near a school with a ladder accessible to climb that car like there's a lot of things going on that when you add them all up a reasonable finder of fact could and in this case I note did find that the railroad company was liable for the injury to trespassers to the tune of $ 24.2
million the vast majority went to the one who was more severely hurt but there were also punitives tacked on right they're not dead neither of them died I mean Burns over 75% of your body is pretty bad you're not convinced Ron you're not conv struggling over here no no [ __ ] around find out right these kids are 17 years old right and this is not um what do we call these things an an attract nuisance this is an unattractive nuisance okay right everyone knows you don't go near the train tracks right you don't touch the train track right the third rail or whatever we know not to [ __ ] around on the train tracks everyone knows this I grew up near train tracks I was told not to be on them a million times you were told not to be on them and I was on a million times yes but I knew if a train hit me it was on me my mom wasn't suing the train company that's what made it exciting is because we knew we could get killed at anymore exactly yeah right right we used to sit on the train tracks at our favorite swimming hole it was a bridge a railroad bridge and I probably sat on that bridge for a million and a half hours as a child with 12 of my buddies jumping off of it into the water hanging out uh doing all kinds of fun things and we knew if a train came it was on us right get out of the way right but look look here Stand By Me you guys want go see a dead body I understand that if a train hits you like a train moving on the train tracks is not an act of negligence on the part of the train company but what if the bridge collapsed while you were sitting on it and the train company knew that the bridge was in disrepair right and you were there you were a trespasser you weren't supposed to be on the bridge but they knew kids sat on that bridge and also they knew the bridge wasn't safe right does that change your analysis I mean if they knew the bridge was unsafe but simply parking a car a train car they I mean they have probably tens of thousands of these things you can't protect them all from kids you know 17-year-old kids they knew they were in a bad place in a bad situation right and it's unfortunate what happened to them I mean I would pay for the medical bills and you know what that's a gift wow hey Ronnie um what would you say if you had to switch hats because you're my worst nightmare in a in a juror you know a strong WR personality I would convince the rest of the jury too I would like I'm ready to go to the matap on this one 12 Angry Rons but put on your other hat just play okay I'm gonna try to be that one that one what would you say to yourself if that was yeah so okay I I could go with um all right we know that kids are always there right because of the graffiti we we know kids are going to go play on these trains um how can we further protect uh or seal off or you know maybe there has to be some engineering design to uh stop kids from being able to climb on cars like is the train company doing enough to stop people from getting hurt on their property or you know on their possessions whatever on their equipment that's it I mean for me it would be very it's it's very difficult for me this one all right excellent all right well memo to other plainist attorneys out there if if Ron Meers is in your jury pool you should definitely not select him for your jury use that challenge unless you can get five six of him to leave and keep that other one six of Ron on right so well is it an interesting bill that that makes me think if you're having a case on you know can trespass or Sue that in the v dire of the potential jurors asking them whether or not they believe trespassers have any rights is just crucial like jury selection and trying to understand their train of thought going into it would be crucial and and again this this is where I'm I struggle it's the trespassing part The Uninvited part if if my friends come over um Saturday night um for a few drinks and and they one of them gets Tipsy and falls down my steps leaving my house and gets hurt
I'm okay with them suing me I'm okay with them suing my homeowners like I'm good with that an amicable lawsuit hey you're hurt not only to pay your medical bills but there's pain and suffering you're going to be off work it hurts right you should be paid for your pain I feel but it I again and it's maybe it's a personal thing the the trespassing part The Uninvited part the the part where you know you shouldn't be there you know this right if I go climb that uh that High uh voltage Tower right and I get electrocuted sorry well not to belabor this point right but one uh we we hope and ask that jurors will do their job and apply the law that's told to them the law that the judge is going to tell you is not that you have no duty to a trespasser it's that you have a limited duty to a trespasser there are obviously cases where people have climbed high voltage Towers encountered electricity been shocked and and generally there's no case there they don't just know they're trespassing they know it's a high voltage high tension line they're climbing a tower they are specifically choosing to encounter this risk climbing on top of a box car and not touching any wires OB the court found right that people and children in particular are not likely to know that there is that risk up there on top of this train right if they fall off the train when they're trespassing that's different right they the train didn't do anything to make the person fall off the train they just fell but when you encounter an unanticipated and undiscoverable risk like hey a giant bolt of electricity can jump off these wires and get me up here on top of the car you know that changes the calculus and I would hope that confronted with those facts the juror would you know find how I would want them to find here which is yeah that the train company has responsibility and the train company knows of this risk and knows that people people trespass and you know they don't have to they don't have to make sure no one ever gets hurt but but put up some signs uh pull up the ladder on the car so the car is harder to climb park it on a different siding that doesn't have these wires over it whatever you've got to do if there are some relatively attainable things you can do to reduce this risk do them and if you didn't if you've just chosen to take the approach as a train company hey if someone climbs up here that's on them is not good enough okay that should about do it for this episode of I strenuously object uh thanks to the Godfather himself uh multiple personality Ron uh for being our entire jury here today uh we appreciate his time his input and his Insight uh hopefully you The Listener have you know learned something or were entertained in some other way if so please subscribe rate and review the podcast tell your friends tell your enemies tell people to check us out if you have questions uh for our mailing it in segment or other feedback to the podcast email us that's at iob PGH firm.com uh to that end I note our next episode we will have a mailing it in segment um so get those questions in and uh additionally in our next episode we have one other case or no case to discuss uh that of the ugly baby is it me or was that the ugliest baby you have ever seen so we are on Instagram at I strenuously object podcast and for more information on personal injury cases uh property tax appeals uh medical malpractice uh if you're hurt if you need legal help visit flaherty fardo at PGH firm.com until next time some parting advice settle settle settle
In this episode of I Strenuously Object, we answer listener emails, this time concerning medical malpractice cases and their challenges.
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