Written by attorney Jodi Marie Petrucelli

"Railroad Trespasser” – What Does it Mean?

Early last Thursday morning, a man, referred to as a “trespasser on the Commuter Rail tracks" was struck and killed by an outbound train in Norwood. On August 21, a “railroad trespasser" was struck and killed by an MBTA commuter train in Lynn; and this past May, an Amtrack train struck “a trespasser on the tracks." These are just a few examples of how train accidents are routinely described. Why do railroads, such as the MBTA, immediately refer to a pedestrian struck by a train as a trespasser, and what is the legal significance of that label? Plenty.

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. So, if our negligence hurts or kills 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 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.

All is not lost, however, for someone injured or killed on tracks in areas other than crossings. Recklessness can be shown by prompt and vigorous investigation, and development of facts showing, for example, that the railroad was violating the speed limit, statutes, or its own rules, or ignoring known risks including the frequent presence of people on that area of track.

At SUGARMAN, we regularly represent victims of railway accidents and are experienced in dealing with the “trespasser" issue. We have successfully fought the trespasser label for our clients, holding the railroads to a duty of reasonable care. We have also won awards for our clients by establishing the railroad’s actions were reckless. If you or a loved one is injured or killed in a railway accident, please fill out a Contact Form or give us a call at 617-542-1000.

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