Ted mentioned this one in his roundup yesterday, but it merits a post of its own, duly assigned to our “personal responsibility” archive: Jeffrey Klein and Brett Birdwell were 17 “when they trespassed onto railroad property and climbed atop a rail car” because they wanted to see the view from there. They were shocked by a 12,500-volt wire and severely injured. The incident took place in Lancaster, Pa. but through the miracle of forum selection the lawsuit against Amtrak and Norfolk Southern landed before a jury in Philadelphia, a locality notably more favorable for plaintiffs than Lancaster. An attorney said the railroads should have posted signs for the benefit of trespassers warning of the overhead hazard and also should have had the electricity turned off at the time. As Ted pointed out, Birdwell, who was awarded $6.8 million, had injuries transient enough that he’s now serving with the Army in Afghanistan. (“$24.2 million for men burned atop rail car”, AP/MSNBC, Oct. 27; Brett Lovelace, “Verdict: $24.2M”, Lancaster Intelligencer Journal, Oct. 27; Janet Kelley, “A $24.2M question”, Lancaster New Era, Oct. 27)(& Coyote Blog). Update: railroads appeal (AP, Nov. 15).
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That case was moved to Philadelphia most likley because the Federal Third Circuit Court is there.
I was involved in a case where a trespasser on the rail was sleepy, used the rail as a pillow. It was a good, sleep promoting pillow. He failed to hear the frantic whistle of the locomotive. Same court had the case. No intoxicating substances found. This was a straight mistake.
That case was settled for mid-5 figures, after very aggressive defense. The above result seems unwarranted with an adequate defense. I had suggested the hiring a lawyer to intimidate the insurance defense lawyer into more aggressive actions. The interests of defendants and insurance companies are nearly adverse.
As a matter of sound policy, people who commit a crime, such as trespass, should not be rewarded with a money settlement. People who surf rail cars assume the risks. These are elementary, long standing, non-controversial attitudes in tort law.
They are however also counter to the nanny state paradigm which is ever more pervasive in both government and legal thinking.
The attitude that people have no responsibility at all for their own choices and mistakes, that everything is the fault of someone else, anyone else.
“everything is the fault of someone else, anyone else.”
No, not ANYONE else… anyone else WITH MONEY.
I looked up the federal docket for #: 2:04-cv-00955-LS (E.D. Pa.). The case was originally in Easton, Pennsylvania before Judge Van Antwerpen, and was randomly reassigned to Philadelphia when Judge Van Antwerpen was confirmed to the Third Circuit. But the new judge, Judge Stengel sits in Reading, Pennsylvania. It’s not clear from the record how the trial ended up in Philadelphia; it may have been for the convenience of the defendants.
NB that Birdwell received punitive damages in a 10:1 ratio from compensatories.
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