Around Railroad Tracks, Runners Are Trespassers

Do you think areas around railroad tracks are good places to run? You should think again.

Most railroad tracks are private property or travel across private property. Runners face both legal liability and personal injury when they go there. When runners get injured while running on or around railroad tracks, chances are slim they can win in court.

Yet, runners go there. The areas are flat, straight, and oftentimes picturesque and peaceful. Many runners are drawn to such surroundings, long-distance runners in particular. The surfaces next to the tracks often are softer than asphalt and --as some runners would say -- good on the knees.

But runners who run next to railroad tracks have no right to be there. They are trespassing when they do so.

[iTunes podcast: The legal rules of trespassing, as they apply to runners.]

The laws that apply to railroads are a bit confusing, so the best course is to just stay off the tracks and surrounding areas, period.

Suffice to say the railroads were built by private corporations during the era of Western expansion, often at great expense in terms of dollars and human lives. The railroads own the land or have legal rights to use the land. Therefore, they have the right to control who gets to go there. Although railroads serve a public purpose, the owners have a right to exclude uses that are not for railroad purposes. That includes running and runners.

Runners who run on railroad rights-of-way can be arrested for trespassing or sued. But the greatest danger comes not from having to go to court, but rather from personal injury. Rail rights of way are inherently dangerous. Runners increase the danger significantly when they introduce distracting devices such as earbuds and headphones into the mix.

In 2019, radio talk-show host Doc Thompson was killed by an Amtrak train while running alongside rail tracks near Dallas, and earbuds were found at the scene.

Rail rights of way can be particularly attractive to young runners. In the last few years, teenagers ages 14, 16, and 17 have been killed in Pennsylvania, Kentucky, and Texas. In each case, the teens were running while wearing headphones.

Without question, trains and music are a dangerous mix. The case of Manfred v. National Railroad Passenger Corp., which involved the tragic death of a 19-year-old runner in 2010, drives the point home.

The runner, an Ohio college student, was struck by an Amtrak train that was using the Norfolk Southern Railroad’s right of way. The train engineer recognized there was a person on the tracks and tried to sound the horn, but the runner kept running. The engineer applied the emergency brake but it took 24 seconds and 985 feet—two-tenths of a mile, the very last leg of a marathon—for the train to stop.

That was not enough time. The young man’s body was found beside the train. Hanging from the locomotive was a pair of earbuds. A witness testified about seeing a young man on the tracks, wearing a hoodie. An iPod was recovered from the scene and returned to the runner’s mother.

She sued Norfolk Southern on her son’s behalf, alleging the railroad knew runners used the tracks and the railroad was negligent for not fencing off portions to keep runners away.

A federal judge rejected the theory and dismissed the lawsuit, explaining the danger presented by rail rights of way is “obvious” and railroads “cannot be held liable for failing to erect barricades or warning signs as a matter of law.”

In other words, the open-and-obvious legal doctrine applies around rail tracks, regardless of whether there are signs and fences. More often than not, we will assume the risk of running there.

Even a railroad’s own employees lack permission to run on railroad property, evidenced by the Seventh Circuit Court of Appeals’ 1991 decision in Rogers v. Chicago & North Western Transportation Co.

During a layover in Clinton, Iowa, the railroad employee went for a run on company property instead of at the YMCA where the railroad had arranged for him to exercise. Finding the Y’s track “in a state of un-repair and somewhat hazardous,” he opted for railroad property instead. During the run, he hit a hole and injured his knee.

In dismissing the employee’s lawsuit, the Seventh Circuit Court of Appeals provided another reminder that not everyone shares the enthusiasm we have for our sport. Specifically, and curiously, the judge who wrote the decision reflected the view that running is too much exercise.

In the judge’s mind, although the railroad required its employees to stay in shape, it did not require the employee “to maintain a level of physical fitness that necessitated as strenuous a type of exercise as jogging.”

Few runners reading this post likely think of jogging as “strenuous.” But the ruling underscores not only the risks we assume while running on or around train tracks, but also the reality that not everyone shares our enthusiasm for the sport.

Amazon: The Law of Running: A Runner's Guide to Legal Rights

The Law of Running is written by Steve Aggergaard, steve@aggergaardlaw.com. It is not legal advice. The laws are different in every state and municipality, so if you need legal help reach out to a lawyer in your area who knows the applicable laws and is in the best position to help you in your particular situation.

Runners As Trespassers? Not So Fast

Runners go onto private property more than they realize. Are they trespassing when they do so? Many times, they are not.

If the opposite were true, if runners became trespassers whenever they went onto private property, they would be subject to arrest in a wide range of places where runners commonly go.

For example, runners would be trespassers if they used sidewalks at a private college or ran a few blocks in a townhome development governed by a homeowners’ association. Even the act of ducking into McDonald’s to use the restroom or get a sip of water would be illegal.

However, as I explained in a previous post, if a landowner has put up signs or fences to inform us we are not welcome, we need to obey them. Disobeying signs or climbing fences can make us trespassers.

But if there are no fences, signs, or other instructions to “keep out,” we might have some rights to go onto private property. Or we might not. It depends.

Across the United States, we know we are welcome on a lot of private property for a lot of reasons. Running might be among those reasons, or it might not. Again, it depends. That is why we need to be on the lookout for fences and signs and be prepared to leave private property if we are asked to leave.

The truth is, if you are a runner, you probably have used private property more than you have realized.

For example, if you have run on paths at a resort while on vacation, you are running on private property. Perhaps you are a registered guest of the resort or perhaps not. Is a runner who is not a registered guest at a resort a trespasser? Well, not all resorts are cordoned off with tall fences or signs that say “registered guests only.” Many resorts would welcome runners onto their property with hopes we stay there next time.

But some resorts are not welcoming and the signs and fences let us know that only registered guests are welcome. Excluding others is the property owner's right. If we are asked to leave, we need to leave.

Another place where runners often go without realizing it is private property is a housing development. Many such developments have streets and sidewalks that make them look like public property when in fact they are private. Can we run there? Maybe.

I used to run frequently through a development called “The Landings” where the sign said only it was “private property.” The streets were wide and the sidewalks well-maintained, so I took that as a sign I could cut through the development on my runs.

Plus, the development was just outside the core Minneapolis business district. It catered to residents who the valued the convenience of living close to work so they could walk or bike there. Given the nature of the property and the sign at its entrance, I figured the homeowners association would welcome me as a recreational runner, perhaps with the idea I might want to live there too.

Compare and contrast that development with another one named “The Landings,” which is in a Minneapolis suburb a few miles away. The sign outside that development specifies it is “private property” and “no trespassing” is allowed. If I were to encounter that sign on a run, I would be wise to keep out.

The intersection of the sport of running and law of trespassing is more complicated than runners realize. Look for more posts and podcasts about the topic.

Amazon: The Law of Running: A Runner's Guide to Legal Rights

(Top two photos: Steve Aggergaard)

The Law of Running is written by Steve Aggergaard, steve@aggergaardlaw.com. It is not legal advice. The laws are different in every state and municipality, so if you need legal help reach out to a lawyer in your area who knows the applicable laws and is in the best position to help you in your particular situation.

The Right to Self-Defense While Running

This week’s events stemming from the tragic death of 25-year-old runner Ahmaud Arbery have increased focus on the threat of violent attack while running, and consequently the right of self-defense.

Feeling in danger while running is an all-too-common occurrence. Women experience more threats than men. In addition, racial inequities affect perceptions of who among runners is perceived as a threat, and who in turn might face the reality of having to use self-defense while running. As I explain in my book The Law of Running:

According to an online Runner’s World survey of readers in 2016, 43% of women said they sometimes experience getting harassed during runs compared with 4% of men. Among women younger than 30, the survey found 58% said it happens during runs always, often, or sometimes. As for the perpetrators, 94% of them were men.

I also cite research from from Rashawn Ray, a sociologist at the University of Maryland, whose 2017 study indicates would-be runners risk being crime victims—not from a criminal assailant, but from false criminal accusations. Ray explained that when African-American men run or consider running in predominantly white neighborhoods, they “feel the need to signal their middle-class status in predominately white spaces.” Ray writes:

For middle class black men engaging in leisure-time physical activity, this signaling process may mean always carrying a driver’s license or other form of identification, wearing an alumnus shirt of a notable university, walking along busy or well-lit streets, running during daylight hours, and smiling and waving at neighbors.

The law of self-defense is difficult to summarize because self-defense laws are state laws, and every state’s law is a little different. All states affirm the right to use force, even deadly force, to protect one’s self in and around the home, our “castles.” But because runners are most likely to face threats outside the home, the so-called “castle doctrine” has little applicability.

When faced with lethal threats outside the home, roughly half the states allow a potential victim to “stand your ground” and use deadly force if the threat arises where we have a right to be, even if the force leads to a justifiable homicide.

The right of self-defense diminishes if the potential victim is a trespasser or otherwise does not have a right to be on the property.

In the other states, “stand your ground” is not the law. In those jurisdictions, a potential victim may use deadly force in self-defense only if there is no safe opportunity for “retreat.” (The National Conference of State Legislatures’ website provides information on each state’s laws.)

The duty to retreat puts runners in a precarious position. As runners, we have more physical ability to retreat than a lot of potential victims. In addition, we probably are dressed for it.

But having the means and ability to retreat does not mean it will work. Therefore, even in "duty to retreat" states, if fleeing from a potential deadly encounter is impossible, we have the right to fight, potentially with deadly force.

More often, a runner is likely to consider using less-deadly forms of self-defense such as a chemical irritant. The law generally allows potential victims to use nondeadly force if they reasonably believe doing so is necessary to fend off an attack.

But are chemical irritants nondeadly forms of force? The jury is still out.

Some courts have found chemical irritants to be deadly weapons when they are used to commit crimes such as robbery. But chemical irritants were designed to be a self-defense alternative to deadly force, so those court rulings are not particularly relevant.

Unfortunately, there is no clear-cut rule on the legality of using chemical irritants. Although state laws do not ban them outright for adults, some states regulate the size of the containers and prohibit some people who have been convicted of crimes from carrying them. In addition, municipalities sometimes have their own ordinances. Some jurisdictions have banned stun guns as well, but only in places such as parks.

Legally, the bans are open to criticism, particularly because the Second Amendment is interpreted and applied to affirm the right to use deadly force. The result is that in some communities, a runner who feels threatened might have a right to use a gun but not a chemical irritant, at least in parks.

Eugene Volokh, a noted constitutional scholar, has suggested that makes little sense. In a 2009 article he wrote for the Stanford Law Review, he explained a potential victim should not have to limit her means of self-defense in places such as parks and choose streets instead on the theory the right to self-defense is broader on the street.

“One could walk or jog on the street rather than through a park,” he wrote. “Yet one purpose of the right to self-defense is to help people live their lives with less need to avoid potentially dangerous places. A young woman should be able to go to a restaurant, or walk through the park at night, knowing that she has a relatively effective defensive weapon at hand should someone want to rape, beat, rob, or kill her.”

What can you do to know your rights in your specific state or community? To find out whether your state is a "stand your ground" or "duty to retreat" state, National Conference of State Legislatures’ website provides information on each state’s laws.

Regarding the legality of pepper spray or mace, a good source can be your local police department or sheriff's office. The officers are there to help punish crime, but also to prevent it, and they will have information on the ordinances and other laws in your area.

Amazon: The Law of Running: A Runner's Guide to Legal Rights

(Photo: Steve Aggergaard)

Podcast: After Ahmaud Arbery's Death, Exploring the Right of Self-Defense

The Law of Running is written by Steve Aggergaard, steve@aggergaardlaw.com. It is not legal advice. The laws are different in every state and municipality, so if you need legal help reach out to a lawyer in your area who knows the applicable laws and is in the best position to help you in your particular situation.