Comments
General Safety Comments
Design railroad from the beginning with safe train handling in mind. The public loop mainline has gentle up and down grades, reducing the need for heroic train handling to get around the track safely with very heavy trains. Regarding riding cars, straddle type cars have been very efficient at preventing roll over accidents. However, people still flop off them once in a while for no apparent reason. Gons, unless coupled with drawbars (to reduce chance of tipping over with adjacent cars acting as an anchor) are asking for trouble when hauling the public.
Safety and Rules given in person to each rider before train leaves the station.
Specific rules covering those visitors who are not allowed to ride such as pregnant women or infants.
Play safety announcements over PA system
I carry my own insurance policy
Telling people all the rules before the ride begins, and, unfortunately, sometimes having to enforce those rules during the ride.
Telling people all the rules before the ride begins, and, unfortunately, sometimes having to enforce those rules during the ride.
"... is a gondola less safe than a flat car with a fixed box for a seat? I'd be interested to see if anyone has evidence one way or the other."
Actually yes, a gondola is much less safe, especially for an inexperienced rider. The sides of a gondola restrict the feet from quickly moving out for balance in the event of a derailment.
I think the "only" car that comes close to being a safe riding car is the straddle bench car with depressed center foot rests, which you have pictured. That provides the lowest center of gravity of any car and allows the best stability for the passengers in the event of a derailment of the car. Gondolas or flats are okay for experienced riders like club members, but for visiting public I'd only recommend the straddle bench car to reduce the liability risk.
At our club, between the club and members, we have nine of these cars and this is what visitors ride on. We also require a conductor to watch the riders.
An interesting thing about riders and derailments, most of the time, when it is not a mechanical issue, almost every derailment is caused by a rider turning around to talk or take a photo, which causes their weight to shift to one side without realizing it.
Law Suit Comments
Having been in the insurance business (claims) 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 the 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 verifies the riders violated the verbal warnings given to them when the got on the train. That was two years ago and we haven't had any more accidents, but we remain very cautious.
I am also a licensed adjuster. I spend 50% of my time in liability claims. Waiver's 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 can not eliminate legal liability exposure. You can only manage it. Written rules of operation with records showing they are utilized are critical. These include bad ordering cars AND operators. Training with certification of operators is an acceptable practice. Provide First Aid kits in various locations with people NEAR BY 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?" Understand that none of us can list all of the issues that must be addressed. We must be able, however, to say that as reasonable and prudent people, we did the following.... Waivers do not inform because case law has ruled that a person cannot waive their legal rights without benefit of legal counsel. This is especially true if there is a potential for personal injury. I am absolutely sure that any lawyer can take any waiver, not previously accepted in a court as an effective means of releasing liability, and have it thrown out. My position has always been that waivers are effective only to the point that they are used to communicate. If someone is hurt, do not count on them being worth much more than the paper they are printed on.....
With the creation of an annual large public event last year, our club has given a lot of time and debate as how to handle the public in general. Without doubt its important to take care of your track, club rolling stock (if any), private equipment and grounds. More importantly we have determined safe loading practices which have taken care of a majority of derailments, keeping the track moving in an orderly fashion. We have started to use so called "T" rail cars for the club use, and shyed away from gons for adults who can't move there legs as easy as younger folks. We have put smaller children into hoppers and gons by there size, which keeps them in place and is safer for them. Some of our members believe that seat boxes (esp. loose ones) are a bad idea, while others like them, in general I believe a good variety provides the greatest flexibly as long you are aware of how to load the equipment. Another problem, as you often hear from your local law enforcement, is running at an safe speed. We have determined at our track with our equipment (while hauling public) safe speed is not faster then a brisk walk. The use of a waiver was started this year, with the encouragement of our insurances law staff, you should talk to your insurance they don't want a law suit filled just as much as you (its not a save all but every little bit helps). We were lucky enough to talk to a lawyer from our insurance at a board meeting this helped us understand were we stand and run ideas past him. Conductors (on trains with 2 cars but no more then 6), and a station master are used to help load and monitor the trains, post rules, verbal speech of rules (also printed on tickets), and bad ordering equipment that derails twice in the same spot. Some other small things for instance we no longer allow 2 trains on our double track bridge at the same time, while on parallel tracks no over taking and only one train may be moving while opposing (the diesels or smaller train must stop) to prevent reaching out to passengers.
Quintin Breen put on a great seminar last June, addressing most of this very thing. The biggest thing I got form him was record keeping, each trip, that the rules were explained, any problems were logged, either equipment or an individual rider. No open toed shoes. If there was a public misbehaving stop train and address, continue or remove the problem. Demonstrate that we are serious and not just a bunch of old guys out for pleasure, an injury lawyers dream. Ric Moses
Jim and All,
How does charging fares or not charging fares affect you liability? This
probably has no affect the liability but it is a question that needs to be
addressed.
Thank You, Terry Miller
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. YMMV
In a perfect world a release would be a good idea. People can and will sue regardless, possibly costing the innocent operator a small fortune to defend himself, regardless of how ridiculous a claim. Paper work that may be beneficial would be a bulletin containing basic operating rules for both crew and passengers with an attention to safety warning on the front. A conduct 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. Tim Flood
Thanks for sharing the research you've done, it's something I've been starting to look into myself. I work for a Trust in Miami, FL, we are restoring a 16" railway, purchased a great train and are now starting the construction phase. The City of Miami is "self insured" and I'll get an opinion from the City atty shortly on this issue. Guy Forchion Virginia Key Beach Park Trust
The Attorneys I Know say you can't sign away something the has not happened yet!
Regarding Liability Insurance, why don't we, (Live Steamers and riding railroads) band together Nation wide and form an organization similar to the AMA (Academy of Model Aeronautics}. For a membership fee of $58.00 a year each individual has 2.5 million general liability coverage plus $25,000 Medical coverage. The liability covers Remote Controlled (R/C) Model Airplanes, Boats, Cars and Rockets. Another possibility, perhaps the Railroad community could join forces with the AMA and be added to their coverage. Many model railroaders are also involved in R/C modeling and already belong to the AMA. Size does make a difference, the bigger the organization the better the rates.
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 (eg 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.
I ran this past my wife who is a commercial insurance underwriter. If you operate in your backyard and do not charge for the ride then homeowners insurance would cover unless specifically excluded. If you charge then you become an amusement park and (the ugliest word in the English language) LIABILITY looms. Public land that a club operates on, the club is liable for the physical plant and club equipment itself - if your equipment fails on that property (other than due to physical plant failure) you are liable. Releases do have some effect depending upon the severity of an incident. We once signed one to get a cab ride on Strasburg 90 (which she said wasn't worth the paper it was written on). Of course, Strasburg has an excellent reputation and we weren't about to pass up a cab ride no matter what.
I have a private track in the Midwest where litigation is not as common as on the coasts. My experience as a public transit manager has been that 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. Other bus companies that do not treat people well have many claims. Show genuine concern and get them appropriate medical help will minimize the magnitude of the claim, at least in some parts of the country. I limit visitors to people who have some railroad interest such as model railroaders and live steamers and their immediate families. On days when there are several visitors, we limit train length and operate at walking speed. Bob Bourne, Ames, IA
Jim, An interesting topic. Thanks for bringing it up. I am interested as a private track owner, hauling friends and neighbors. Thanks, Brian Banks
Hi, My name is Reno and I own a private railroad in California and yes we have everyone that comes to a ride weekend (friend, family, and a few locals) sign a lib release and we do inform them on how to ride safely, but things can happen and I would rather be prepared with my side of the store before the story even starts. Some people ask me if they can bring their grandkids for a ride, I tell them that we have a work day planned and that if you would like to learn about live steam I would be happy to teach them all I know. So what just happened was that I got some help and they learned something.....then we can talk about grandkids riding after you learn how to re-rail your own train. Maybe I'm all wet but if I know who is on my place I stand a much better shot at winning a law suit. This is all very unfortunate since all we wanted to do in the first place was go have live steam fun and now I'm always looking over my shoulder for the next bad seed that might come my way. I just hope that informed people will be responsible people and just do what's right and not what's in their best interest only. If you end up with a real release please forward me a copy to use. Tks Reno
The adage about an ounce of prevention being worth more than a pound of cure applies in spades to the Live Steam/Diesel hobby. If your club is privately owned and operated (that is, your charter does not mandate hauling the public and your railroad is not on public land), you have the right to limit access to the property and trains, and thus limit your exposure to a claim. Disallowing public access is the best way to shield your club from a lawsuit. You don't allow the general public to enter your home to play with your HO layout, do you? Then why would you allow them to enter your club and expose you to unnecessary risk?
Many clubs are loathe to restrict public access, as they fear being labeled "elitist", "unfriendly" or "unneighborly" by those who want access only for train rides and are not otherwise interested in the large scale railroading hobby. You have to balance the needs of your club and its desire to not have to get involved with adverse legal action against the desire to present a positive public image.
You also need to stringently enforce safety and operating rules to minimize the likelihood of an accident. While the requirement of riders reading and signing a waiver may theoretically reduce risk exposure, no court will give any weight to such a waiver if gross negligence can be proved (and there's always some slimy lawyer just waiting for the opportunity to prove negligence and land a big settlement). Negligence starts with a club mentality that pays lip service to safe operation, but enforces no sanctions against members who do not adhere the club rules and procedures for fear of alienating violators. It continues with members who operate inadequate or poorly maintained equipment (e.g., long trains without functioning brakes or equipment cars with faulty wheel sets). It is furthered by clubs who do not maintain the facility and eliminate hazards that may cause train wrecks and/or injuries. Does any of this describe your club?
One other thing that may not have been considered is shielding your club from exposure to member-instigated claims. Although most in the Live Steam/Diesel hobby understand the nature of what they are doing and the potential for injury in the event of a derailment or other sort of wreck, there are a few who, if injured, will attempt to shift blame to the club and perhaps score in the process (the so-called deep pocket mentality). Clubs should be on the lookout for any such members and perhaps should consider having each member sign, in the presence of at least two club officers, a waiver absolving the club of any liability in the event of injury while running trains. Considering the hyper-litigious nature of today's society, all possible risk exposures must be carefully examined to protect the club and its assets.
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 attys 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 can not release them however you can have the parents sign a hold harmless agreement which explains if the child does suit us we can go after the parents for what we pay out not only damages but Atty 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 suited its a good tool to us 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
Sick and tired of people who sue at the drop of a hat! I have been biten, hurt, burned at other people's hands and have never sued in my life because no one is perfect and everyone makes mistakes. I would never sue anyone because of something minor. People need to grow up and stop acting like children who love to run to an attorney like their mommy or daddy. If I get hurt then it's usually something stupid I did and not what they did to me. People need to look back on history when you had to work things out for themselves. Are people really so weak and sensitive anymore that they would sue over a little spilled coffee or a little noise? GROW UP!!! I am also sick and tired of all the complaints about our president and the war in Iraq! Support him! It only makes thing worse with all the complaints. Stop taking drugs and face reality people!!!
I'm working on a loco and will be in the position to haul guests and other members on a private live steam club. I've had umbrella coverage (excess liability) and your article has made me realize that I need to check and see that I'm covered as a miniature RR'er. I'm also in training to run (conductor, engineer / motorman) full size equipment, and will check on that with my insurance agent, too.