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 Post subject: Re: Film crewman killed by train
PostPosted: Fri Jul 21, 2017 1:22 pm 

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Alan Walker wrote:
[ The most likely challenge would be to the instructions given to the jury by the court. Was something excluded that should have been included? Was something included that should have been excluded? Did the judge apply the law correctly?


What was the law and how should it have been applied in this case?

When CSX was confronted by the plaintiff for not reporting the trespassers as required by their own rules, they replied that their failure to report the trespassers does not prove their negligence. So how exactly was CSX's negligence established in legal terms?


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 Post subject: Re: Film crewman killed by train
PostPosted: Fri Jul 21, 2017 2:49 pm 

Joined: Sat Sep 04, 2004 10:54 am
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Location: Tucson, Arizona
Ron Travis wrote:
Alan Walker wrote:
[ The most likely challenge would be to the instructions given to the jury by the court. Was something excluded that should have been included? Was something included that should have been excluded? Did the judge apply the law correctly?


What was the law and how should it have been applied in this case?

When CSX was confronted by the plaintiff for not reporting the trespassers as required by their own rules, they replied that their failure to report the trespassers does not prove their negligence. So how exactly was CSX's negligence established in legal terms?


That's what the appellate court will determine if CSX appeals the case. This is where things get down to the nuts and bolts of civil law. Evidence that was considered in the trial court will not be reconsidered. What the appellate court will examine is whether the trial judge made some administrative error in his or her management of the case. Did the trial court apply the Rules of Civil Procedure correctly? Was there a reversible error that would justify remand to the trial court? The jury has already made their determination-that's not going to be re-examined. What CSX has to prove is the existence of an error that occurred during the trial that would have likely resulted in a different verdict. If they can prove that, the case could be overturned or remanded back to the trial court. If the appellate court is not convinced by CSX's argument, the trial court's verdict will be sustained.

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 Post subject: Re: Film crewman killed by train
PostPosted: Fri Jul 21, 2017 5:01 pm 

Joined: Sun May 15, 2005 2:22 pm
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Alan Walker,

So this information about what law this ruling was based on is not publically available at this time? I am not asking whether the legal theory was right or wrong, but merely asking what the legal theory was. All that I have heard is that CSX did not follow their own rules on responding to trespassers. But I think to a lot of people, it is not obvious why this makes CSX negligent regarding the accident.


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 Post subject: Re: Film crewman killed by train
PostPosted: Mon Jul 24, 2017 2:20 pm 

Joined: Sun Oct 24, 2010 6:22 pm
Posts: 172
I'm surprised this case got as far as it has, most states - especially in the South - have tort laws on the books negating liability during criminal acts including trespassing.

CD


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 Post subject: Re: Film crewman killed by train
PostPosted: Tue Jul 25, 2017 12:08 pm 

Joined: Sat Sep 04, 2004 10:54 am
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Location: Tucson, Arizona
Ron Travis wrote:
Alan Walker,

So this information about what law this ruling was based on is not publically available at this time? I am not asking whether the legal theory was right or wrong, but merely asking what the legal theory was. All that I have heard is that CSX did not follow their own rules on responding to trespassers. But I think to a lot of people, it is not obvious why this makes CSX negligent regarding the accident.


The information is basically in the trial transcript. The attorneys will look at that and research any case law that they believe may be relevant to prove that the trial court erred. Basically, the CSX attorneys will try to find a reversible procedural error or attempt to find case law to support their argument that their employees were not negligent, despite failure to follow company rules. Plaintiff's attorneys will rebut any argument made by the CSX attorneys and attempt to support their rebuttals with applicable case law. The trial transcript is available to anyone willing to pay the court reporter fees-unlike other trial related matters, court reporter transcripts are copyrighted material.

Bottom line is that this trial has gone beyond the point that issues are easily understood by the common layperson. Now the attorneys are applying previous legal precedence to support their positions-the facts presented at the trial court case no longer matter significantly. This is the point at which people like Trainlawyer and Mr. Wilkins really have to start working-not that trial or other procedures aren't work but Appeals is a different animal than trial.

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 Post subject: Re: Film crewman killed by train
PostPosted: Tue Jul 25, 2017 1:30 pm 

Joined: Sun Oct 19, 2008 12:58 pm
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Location: Chicago USA
Were there cameras on the prior trains? Such video could have demonstrated there was nothing significant going on by the tracks.

There should have been testimony that actual company policy is based both on what is in writing and what supervisors tell you. Is there a law or case law somewhere that only a company's written policy dictates? If written policy is to report anyone even 10' outside the right of way but verbal instructions are not to waste special agents' time like that who is to say that the crew wasn't following the company policy? Sounds like that IS the company policy then.


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 Post subject: Re: Film crewman killed by train
PostPosted: Tue Jul 25, 2017 5:00 pm 

Joined: Fri Aug 27, 2004 4:02 pm
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Location: Back in NE Ohio
My experience with reporting trespassers or suspicious activity along the RoW was that things got a lot more hysterical after 9/11/01. I had to stop a new conductor once from calling in to report a father and small child who were watching trains on a commuter platform on a weekend afternoon. I really thought that the railroads used 9/11 as an excuse to try and end active railfanning once and for all.

It's a real judgement call as to what might be trouble or suspicious. If I were a terrorist, I know how I'd disguise myself and my accomplices around a railroad - as a survey crew. Railroads constantly lease their RoW's to various utility companies for pipelines and fiber optic cables, and there are often survey crews out working near the tracks that never show up as things to look out for on crew train messages. They just are there. You see enough stuff like that, if they aren't right up against the tracks or in the "kill zone" you just let it go, and 99% of the time nothing ever comes of it. That is probably what happened that day with that film crew and the previous two trains that passed before the accident.


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 Post subject: Re: Film crewman killed by train
PostPosted: Tue Jul 25, 2017 6:07 pm 

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Location: southeastern USA
Am I the only one that sees this as simply including anybody with deep pockets that could be theoretically involved in the suit? I understand that's SOP with liability cases.

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 Post subject: Re: Film crewman killed by train
PostPosted: Tue Jul 25, 2017 7:03 pm 

Joined: Sat Sep 04, 2004 10:54 am
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Location: Tucson, Arizona
Dave wrote:
Am I the only one that sees this as simply including anybody with deep pockets that could be theoretically involved in the suit? I understand that's SOP with liability cases.


No. However, the dirty little secret in the film industry was that many directors and other managers actively ignore industry safety/OSHA standards. Until this case, they were able to simply make the attorneys go away by settling out of court. This case represents a watershed of sorts in that it is the first case where someone in authority got charged and convicted of a crime and did actual jail time. Lowlife director got one person killed, several others injured and placed others at risk of injury or death-all for a shot that could have been done in the safety of a soundstage with a projection screen and set construction.

Back when I was with TVRM, we did a shoot for a Warner Brothers feature that involved the main characters jumping from a bridge to avoid being hit by a train-at least that's what the final product looked like on film. In all actuality, the actors never set foot on the actual bridge at all-the "bridge" was a forty foot section built by the carpenters on the depot grounds. The actors jumped onto an airbag. The camera crew then got footage of the train running across the bridge and the actors swinging from a trapeze and landing in the creek. The editing crew spliced everything together and worked their magic. Reputable film producers don't do the crap that this guy did.

Quite frankly, railroads have a great deal of reason to worry not only about people on their property, but people doing nefarious things near their property. Some of the major railroads have found companies illegally setting up reading devices to pick up data from the tags that the railroads use to track equipment location. Such information, if it were to fall into the wrong hands, could be used to plan a low grade terrorist attack-the biggest concern being shipment of hazardous materials.

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"When a man runs on railroads over half of his lifetime he is fit for nothing else-and at times he don't know that."- Conductor Nimrod Bell, 1896


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 Post subject: Re: Film crewman killed by train
PostPosted: Thu Jul 27, 2017 4:41 am 

Joined: Wed Jul 26, 2017 2:44 am
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When you a car driver you are responsible for own safety. Why he didn't stop at the railway crossing? You can't expect train to stop and be careful at every crossing. There are a lot of peoples who lost a life because they didn't pay attention.


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 Post subject: Re: Film crewman killed by train
PostPosted: Thu Jul 27, 2017 11:21 am 
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PaulWWoodring wrote:
If I were a terrorist, I know how I'd disguise myself and my accomplices around a railroad - as a survey crew.
When I was in the Army, I once ran opposing force units to train against the units going through some type of field exercise. I used to get creative with messing with them. I found the two things that would allow me to walk right past the barriers, guards and into HQ tents/trailer would be if I was either dressed as UPS delivery guy in the brown clothes (borrowed from my neighbor at the time), or in day-glow survery crew duds, carrying a transit tripod. In either case, nobody ever stopped me.
The funny thing was nobody ever thought to ask why a surveryor/UPS guy was wearing a MILES 'laser tag' vest like everyone else, but that's another topic for a different type of forum...

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 Post subject: Re: Film crewman killed by train
PostPosted: Thu Jul 27, 2017 11:47 am 

Joined: Wed Dec 15, 2010 8:17 pm
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What I find really sad about jury awards, is they think everyone has deep pockets and insurance will cover it. Sadly, they never think that the insurance companies will recover their cost, by raising everyone's rates.

Then when their rates go up, they will cry the loudest.

Though, even a judge with the least bid of common sense should have ruled other wise.


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 Post subject: Re: Film crewman killed by train
PostPosted: Mon Aug 07, 2017 6:09 pm 

Joined: Sat Sep 04, 2004 10:54 am
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Location: Tucson, Arizona
AlcoC420 wrote:
What I find really sad about jury awards, is they think everyone has deep pockets and insurance will cover it. Sadly, they never think that the insurance companies will recover their cost, by raising everyone's rates.

Then when their rates go up, they will cry the loudest.

Though, even a judge with the least bid of common sense should have ruled other wise.


In most civil cases, the judge has limited authority. Their job is to apply the law based upon precedence of case law and the statute. Bottom line is that CSX was unsuccessful at defending their case at trial level. I don't know what the practice for estimating damages is in Georgia, but Court of Appeals probably won't overturn the jury award unless CSX can prove reversible error or that the sum awarded is excessive.

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"When a man runs on railroads over half of his lifetime he is fit for nothing else-and at times he don't know that."- Conductor Nimrod Bell, 1896


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 Post subject: Re: Film crewman killed by train
PostPosted: Wed Aug 09, 2017 9:37 am 

Joined: Sun Oct 19, 2008 12:58 pm
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Location: Chicago USA
Here would be my suggestion as regards tort reform. I don't seek to limit awards when a company knowingly does bad things. It takes a large punitive award to correct that kind of behavior. What I want to address is the notion that something bad happened and SOMEONE ought to pay so let's soak the one party that has deep pockets which seems to be the case here.

My idea is this. In a criminal case, the defendant can select a bench trial over a jury trial. Not sure how it works in civil litigation but I suppose that both parties would have to agree. I would make it the law that the defendant has the exclusive right to take that option. The thinking is that a judge is less apt to be swayed by emotion. Maybe not but I think it would help a great deal.

A question about the case at hand: Was there any trespassing visible to prior trains? Because if not then I still don't get it. What were they supposed to report?

Any idea why CSX turned down the shoot? Did the production say we want to do this and this and CSX just flat out turned them down over and over? Or did they respond with a cost estimate like it's going to cost so much for special agents, MoW people to make sure you don't hurt our tracks, and so much for delaying a couple of trains? And the production said no we don't have that in our budget? Bearing in mind the train hitting the bed was not in the script. So it would have simply been some occupancy of the track, get the shots, and they're done. May not even have caused any delays if they can clear the track for any trains coming through. Obviously I support CSX to simply say no as it is their track. But it doesn't seem like it would have been a big deal to carry out.


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 Post subject: Re: Film crewman killed by train
PostPosted: Wed Aug 09, 2017 11:08 am 

Joined: Mon Aug 23, 2004 3:01 pm
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Location: SouthEast Pennsylvania
filmteknik wrote:
Any idea why CSX turned down the shoot? Did the production say we want to do this and this and CSX just flat out turned them down over and over?
CSX produced correspondence that flatly turned them down and suggested that they find a short line railroad instead.


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