Earlier this month, a man, referred to as a “trespasser” on the commuter rail tracks, was struck and killed by an outbound train in Norwood. On August 21st, another “railroad trespasser” was struck and killed by an MBTA commuter train in Lynn; and this past May, an Amtrak train struck “a trespasser on the tracks.” Approximately 1,000 people across the country die in railroad fatalities each year. To date, there have been 12 railroad fatalities in Massachusetts and nearly all of the people who were killed in these accidents were identified by both the MBTA and the media as “trespassers”. Why do railroads, including the MBTA, immediately refer to a pedestrian struck by a train as a “trespasser”, and what is the legal significance of that label? The answer is likely more than you think.
We all generally owe a duty of “reasonable care” to others in our homes, our cars, and at our places of work. If we do not use reasonable care, we are considered negligent, and if our negligence causes someone else harm, then we are liable for their damages. This does not apply, however, to a person who is determined to be a trespasser. In Massachusetts, a trespasser is only owed a duty to refrain from wanton or reckless behavior. This means that should our negligence hurt or kill someone who is a trespasser, we are not liable.
In most personal injury cases, the issue of trespass is a fact-intensive one involving questions of whether a person reasonably believed they had a right to be in the area where the injury occurred. By statute, however, the railroad industry has a much stricter definition of trespasser. Mass. Gen. Law. Ch 160, Section 218 makes it unlawful for any person to be on property used or operated by a railroad unless they are at a grade crossing (typically where tracks cross a bike path, roadway, or pedestrian walkway). In other words, any person found on railroad tracks at any location other than a designated crossing, for any reason, is considered to be a trespasser. If any of the people in the accidents mentioned above are determined to be trespassers, the railroad cannot be held responsible for its negligence. But that should not be the end of the discussion.
If someone is injured or killed on railroad tracks (other than at crossings) recklessness may be demonstrated by successfully showing that the train violated the speed limit, statutes, or its own rules, or that the engineer ignored known risks such as the frequent presence of people on that area of track. If this kind of tragedy occurs to someone you know and love, don’t be discouraged by the “trespasser” label applied by the railroad. You should speak with someone who can explain the rights and obligations of all involved.