CannonLaw Newsletter - Fall 2006
TRAIN DANGERS, RAILROAD HAZARDS
Trains have been around for over 150 years and they continue to play a vital role in our economy. They transport goods over long distances far more cheaply than do planes or trucks. However, all those trains mean that there are frequent accidents and, because trains are so large, these accidents can cause very serious injuries. Thousands of people are injured by trains in the United States every year. Such an injury may give rise to a claim against a railroad.
Of course, the best way to deal with train collisions is to prevent them in the first place. Drivers and pedestrians need to remember that trains are large and heavy and take a long time to stop. Trains are confined to their tracks and if you are on the tracks they probably will hit you. Drivers who are crossing a railroad track should carefully check for trains before crossing the tracks, even if the crossing is equipped with warning devices such as lights and gates.
Drivers must be especially careful at crossings where there is more than one set of tracks, because a train on the first set of tracks may obscure their view of a train on the second set of tracks. Never cross the tracks unless there is room for your car to drive completely off of the tracks on the other side. If a train is anywhere in sight, wait for it to pass. Needless to say, do not drive around lowered crossing gates . It is far better to be a few minutes late than dead.
Pedestrians also need to exercise caution and should follow the same rules as drivers. Pedestrians should cross train tracks only at marked crossings and they should not walk across or fish from a train trestle because they may be trapped if a train arrives unexpectedly. Train tracks should never be used as paths or walkways. In fact, pedestrians should be very careful even when walking beside railroad tracks because trains hang over the edge of the tracks by at least three feet on each side -- cargo may extend this distance even further. Do not put yourself in a position where there is any chance you will be hit by a train. The train will win every time.
Unfortunately, people are sometimes involved in an accident with a train. If this happens, the nature of the injured person's claim may depend on what the person was doing at the time he or she was injured. People who are hurt in a collision with a train may have a negligence claim against the railroad. To prevail on a negligence claim requires showing that the railroad owed the person some duty of care, and that the railroad breached this duty and caused some injury.
Although trains usually have the right of way, this does not mean that trains may go barreling through crossings at top speed at all times. Instead, the operator of the train must use reasonable care, which may mean slowing down in built-up areas and keeping a sharp lookout for vehicles or pedestrians. Reasonable care may also require a railroad to erect the appropriate warning and signal devices in order to alert people when a train is coming.
Railroads owe a higher obligation to the passengers who "ride the rails." For historical reasons, railroads are usually treated as common carriers, which means that although they are not insurers of the safety of their passengers, they may have an affirmative obligation to protect them from harm, including injuries that might occur when the train is derailed. All of the facts and circumstances surrounding the accident can affect the determination of whether the railroad was or was not negligent.
Finally, if the accident involves an employee of the railroad, the claim is subject to a federal law called the Federal Employers' Liability Act (FELA). Unlike most workers' compensation laws, which protect workers who have been hurt at work regardless of fault, FELA requires that the injured worker show that the railroad was negligent. Although the standard used is similar to the standard used in cases involving drivers, railroads do have a general obligation to provide workers with a safe place to work, and if the worker is injured because the railroad did not provide him with the appropriate tools or equipment, the railroad may be guilty of negligence.
Get Legal Help
Railroad injury lawsuits can involve navigating a minefield of state and federal laws and will require showing that the railroad should be liable under the particular circumstances of the case. Do not do it alone. Get the help of an experienced personal injury attorney who can help you assess your claim and pursue all available sources of recovery.
FACTS ABOUT RAILROAD ACCIDENTS
* On average, there is a train collision or derailment every two hours.
* A train carrying hazardous materials derails about every two weeks.
* More than half of accidents involving trains occur at unprotected crossings.
* The federal government says that 80% of all railroad crossings have inadequate warning devices.
* It takes a train traveling at 55 mph a mile to stop after the emergency brakes are applied.
AVOID TELEMARKETING FRAUD
Although the national Do Not Call Registry has cut down on the number of telemarketing calls, it has had less effect on scam artists who engage in telemarketing fraud. Telemarketing scammers prey on anyone they can, but they often target the elderly and others they see as "easy pickings." Therefore, when you receive a call from a telemarketer, it is important to be on the lookout for scams.
How can you tell if a sales call is legitimate? Common signs of telemarketing fraud include:
* Offers that sound too good to be true. If it sounds too good to be true, it probably is.
* Promises of high return with little or no risk. If some opportunity promises high profits, it is safe to assume that it also has high risks.
* Appeals to "act now," or claims that the offer is good "for one day only." This kind of high-pressure sales tactic is often associated with telemarketing fraud. While legitimate companies sometimes have limited-time offers, most will not try to force you to take them.
* Offers of a "free" gift that requires you to pay shipping and handling to receive it. You will usually find that the cost of shipping and handling is more than the "free gift" is worth.
* Offers that require you to provide credit-card or other private financial information. Scammers usually tell you it is to "verify" some information about you, but really all they are verifying is information that they will then use.
* Telemarketers who are hesitant to identify their company or give you other information. Legitimate companies are happy to have you know who they are.
Texans who suspect that they have been victims of telemarketing fraud can contact the Consumer Protection Division of the Attorney General's office at
CRISIS? WHAT CRISIS?
In Texas and across the nation, politicians (strongly backed by insurance companies and doctors) claim that we are in the midst of a malpractice insurance crisis. In response to this supposed crisis, many states (including Texas) have passed laws making it harder to sue doctors and limiting the amount recoverable from doctors who have committed malpractice. However, a recent study shows that there is no crisis at all.
The study looked at 15 years of malpractice claims data maintained by the Texas Department of Insurance. The study found that, despite the assertion that the number of claims was increasing, the number of medical malpractice claims (both large and small) per doctor actually dropped during those years. The study also found that medical malpractice claims accounted for only 60 cents of every $100 spent on health care.
Doctors will tell you that malpractice insurance premiums have more than doubled since 1999. While this is true, the study tells you not to blame the lawyers. It concluded that these steep increases in malpractice insurance rates charged to doctors in the last decade are the result of the business dynamics of the insurance industry, not because of claims or malpractice litigation. Because rising rates are not caused by malpractice lawsuits, caps on malpractice damages are unlikely to result in lower rates.
CASE BY CASE
Cold Remedy Caused Stroke
The possible dangers presented by certain prescription medications seem to be constantly in the news, but a recent case reminds us that even nonprescription medicines may not always be safe. A suit was brought by a 33-year-old Texas man who had taken Alka-Seltzer for three days to treat a cold. He had a stroke and blamed the stroke on phenylpropanolamine (PPA), a decongestant that is found in Alka-Seltzer.
The man's doctor testified that PPA had been associated with an increased risk of stroke, a claim that Bayer (the maker of Alka-Seltzer) denied. The jury ruled in favor of the plaintiff, determining that Bayer had made a dangerous or defective product despite there being safer alternatives available. The jury awarded the plaintiff $400,000 in damages. Bayer's case was likely not helped by the fact that it voluntarily removed Alka-Seltzer containing PPA from the shelves in late 2000, and has since removed PPA from Alka-Seltzer.
Although not a huge amount of money for a large drug company, the verdict could signal bad news for Bayer in other suits. This case was the first of over 1,100 PPA suits against Bayer to go to trial.
RISK AND RELEASE FORMS
Risk and release forms: We have all seen these forms and most of us have signed one. Risk and release forms are usually given to us to sign before we participate in some activity, whether it be a school field trip or skydiving lessons. They typically state that we understand the risks associated with the activity and release the organizer from claims arising from negligence. Do we have to sign these documents and are they enforceable?
The answer to the first question is that, yes, we do have to sign them. If the person organizing some activity wants to make our right to participate conditional on signing such a form, he or she usually has every right to do so, and it is up to us to decide whether or not we want to participate enough to sign the release. The answer to the second question is also, yes, they are usually enforceable. However, just because we agree to assume whatever risk is associated with the activity does not mean that the organizer cannot be held liable for any act of negligence. In Texas, the question in a proportionate responsibility lawsuit means that courts ask who was negligent and in what degree. If you have signed a form saying that you are aware of the risks of the activity, this will be weighed in determining how negligent you were.
It is a good rule of thumb to assume that documents mean just what they say. Be aware that signing a risk and release form may affect your ability to bring a negligence claim if you are injured.
In the wake of recent events that were painfully played out in the media, we all should make appropriate arrangements for end-of-life medical decisions. It is important to talk to your family about your wishes, but you also need professional advice and assistance to prepare the necessary documents. Those documents include a "Living Will" (known in Texas as a "Directive to Physicians and Family") and a "Medical Power of Attorney." Don't wait until it is too late.