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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, 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.

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