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Death of man struck by train leads to 'bizarre' civil case (Injury by flying body parts!)
The Chicago Tribune ^ | December 29, 2011 | Steve Schmadeke

Posted on 12/29/2011 11:28:30 AM PST by CedarDave

Ruling in what it called a "tragically bizarre" case, an appeals court found that the estate of a man killed by a train while crossing the Edgebrook [Illinois] Metra station tracks can be held liable after a part of his body sent airborne by the collision struck and injured a bystander.

In 2008, Hiroyuki Joho, 18, was hurrying in pouring rain with an umbrella over his head, trying to catch an inbound Metra train due to arrive in about five minutes when he was struck by a southbound Amtrak train traveling more than 70 mph.

A large portion of his body was thrown about 100 feet on to the southbound platform, where it struck Gayane Zokhrabov, then 58, who was waiting to catch the 8:17 a.m. train to work. She was knocked to the ground, her leg and wrist broken and her shoulder injured.

A Cook County judge dismissed Zokhrabov's lawsuit against Joho's estate, finding that Joho could not have anticipated Zokhrabov's injuries.

A state appeals court, after noting that the case law involving "flying bodies" is sparse, has disagreed, ruling that "it was reasonably foreseeable" that the high-speed train would kill Joho and fling his body down the tracks toward a platform where people were waiting.

(Excerpt) Read more at chicagotribune.com ...


TOPICS: Local News; Weird Stuff
KEYWORDS: amtrak; bizarre; chicago; illinois; proximatecausation; trains; wgids
Zokhrabov's attorney said that while the circumstances were "very peculiar and gory and creepy," it ultimately was a straightforward negligence case.
1 posted on 12/29/2011 11:28:34 AM PST by CedarDave
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To: CedarDave

Have we heard from any of the candidates their position on tort reform?


2 posted on 12/29/2011 11:32:38 AM PST by NonValueAdded ("At a time like this, we can't afford the luxury of thinking!")
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To: CedarDave

I understand she is suing for an arm and a leg.

Hey Now!....tip your waitresses people...I’ll be here all week.


3 posted on 12/29/2011 11:35:43 AM PST by RoarkMan (no tag line entered)
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To: CedarDave

Why would his family be liable? This makes no sense.


4 posted on 12/29/2011 11:37:24 AM PST by Alissa
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To: CedarDave

Cases like this should be thrown out of court. You see the train coming, you see lights flashing. The fact that he had an umbrella is a distraction. He tried to beat the train and lost.


5 posted on 12/29/2011 11:37:24 AM PST by Opinionated Blowhard ("When the people find they can vote themselves money, that will herald the end of the republic.")
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To: CedarDave
The man made a record breaking post-mortem flying tackle. He's guilty of negligently being killed. Or something.
6 posted on 12/29/2011 11:41:11 AM PST by count-your-change (You don't have to be brilliant, not being stupid is enough.)
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To: Alissa

Apparently young Mr. Joho should have been able to anticipate that if he were to accidently be hit by an oncoming train as a result of poor judgement on his part, that flying body-parts (his) would be dangerous and might hit and injure innocent bystanders.

I think that’s it.


7 posted on 12/29/2011 11:45:12 AM PST by SuzyQue
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To: count-your-change

intentional grounding, loss of down and 15 yard penalty.


8 posted on 12/29/2011 11:46:21 AM PST by WOBBLY BOB (Congress: Looting the future to bribe the present.)
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To: Alissa
Why would his family be liable? This makes no sense.

I imagine its the same as driving too fast for conditions on an icy road, lose control and crash into another car. You are responsible for the injuries you cause, even though you may have been killed in the crash, and your estate can be sued for damages.

9 posted on 12/29/2011 11:46:44 AM PST by CedarDave
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To: Alissa

His family isn’t liable, his estate is. He was grossly negligent and an innocent person was injured as a result of his negligence. That person has a claim against his estate.


10 posted on 12/29/2011 11:47:14 AM PST by iowamark
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To: CedarDave

It’s Illinois, so now he can vote democrat in 3 different places at once.


11 posted on 12/29/2011 11:48:25 AM PST by WOBBLY BOB (Congress: Looting the future to bribe the present.)
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To: Alissa

It’s his estate, not his family that is responsible; a subtle difference in the case of an 18 year-old perhaps. Sad all around though


12 posted on 12/29/2011 11:51:13 AM PST by muir_redwoods (No wonder this administration favors abortion; everything they have done is an abortion)
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To: Alissa

“Why would his family be liable? This makes no sense.”

Sorry, but if you do something stupid, killing yourself and a family member of mine, I’m going after your estate.


13 posted on 12/29/2011 11:52:03 AM PST by trumandogz (If Rick Perry cannot secure his name on the Va. ballot, how could he be trusted to secure America?)
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To: CedarDave

What would Mrs. Paslgraff say??


14 posted on 12/29/2011 11:54:18 AM PST by Wallop the Cat
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To: CedarDave

If he hadn’t already lost his ass to the train, he sure as hell lost it in court. /:8^)

I’ve got a million of them. BAHAAAAAAAAAAAAAAAAAAAAAAA

ED


15 posted on 12/29/2011 11:58:06 AM PST by husky ed (FOX NEWS ALERT "Generalissimo Francisco Franco is still dead" THIS HAS BEEN A FOX NEWS ALERT)
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To: CedarDave

Anything to get ahead...


16 posted on 12/29/2011 11:58:06 AM PST by Lando Lincoln (But that's just me.)
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To: Wallop the Cat
Looks like the Illinois Court adopted the reasoning of the dissent in the Palsgraf case.

Etiam non princeps sed usque ad genua, Principis Pacis!
17 posted on 12/29/2011 11:58:40 AM PST by ConorMacNessa (HM/2 USN, 3/5 Marines RVN 1969 - St. Michael the Archangel defend us in Battle!)
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To: trumandogz

So now standing by the wayside minding your own business is “doing something stupid?”


18 posted on 12/29/2011 11:59:35 AM PST by Wallop the Cat
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To: WOBBLY BOB
Amtrac can sue the man's estate too since he caused mental distress to the crew, why...I can sue him since I feel bad just reading about it, Everybody can file a lawsuit!

In ten years I expect my share of his damaged umbrella.

19 posted on 12/29/2011 12:00:56 PM PST by count-your-change (You don't have to be brilliant, not being stupid is enough.)
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To: Alissa

His family would not be liable, his estate would be. It was his negligence just before he was gathered to his people that was the cause of the lady’s injuries.


20 posted on 12/29/2011 12:07:06 PM PST by Busywhiskers ("Once you have wrestled, everything else in life is easy" -Dan Gable)
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To: Wallop the Cat

“So now standing by the wayside minding your own business is “doing something stupid?””

No, but running in front of a speeding train is stupid.


21 posted on 12/29/2011 12:07:11 PM PST by trumandogz (If Rick Perry cannot secure his name on the Va. ballot, how could he be trusted to secure America?)
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To: CedarDave; All
No.

One of the most famous tort/negligence/proximate cause cases of all time - that any lawyer or law student knows by name - is Palsgraf. I had to cheat and look up the cite: Palsgraf v. Long Island Railroad Co. , 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928.

Without going into specifics (and if I remember correctly), a man carrying a package was running to catch a train, and the worker from the train reached out to give him a hand. The man dropped the package. It contained fireworks. Sparks from the train wheels ignited a firework. It struck a scale on the platform, knocking it over, and a bystander was seriously injured or killed by the falling scale.

Was the railroad liable?

Yeah. That Palsgraf Benjamin Cardozo wrote the opinion. Yeah. *That* Benjamin Cardozo. Should your employee have known that trying to help the man may cause him to drop the package that might contain fireworks that may ignite, which might knock over a scale, which could injure someone?

And now we have this?

The law comes full circle.

And you can even buy a Palsgraf t-shirt for your favorite attorney or law student, in several choices of color, with this design:


22 posted on 12/29/2011 12:10:14 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: ConorMacNessa
Looks like the Illinois Court adopted the reasoning of the dissent in the Palsgraf case.

http://www.courts.state.ny.us/history/cases/palsgraf_lirr.htm

23 posted on 12/29/2011 12:11:18 PM PST by thecodont
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To: RoarkMan
I understand she is suing for an arm and a leg.

Especially if the dead guy's arm and leg ended up in her purse.
24 posted on 12/29/2011 12:12:36 PM PST by BigEdLB (Now there ARE 1,000,000 regrets - but it may be too late.)
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To: Scoutmaster
Wait. It wasn't 'should have known,' but 'was helping the man aboard the proximate cause of Mrs. Palsgraf's injuries?" if I remember correctly.

It's been a while, but this is one of the key cases you'll have in law school regarding negligence.

I suspect it didn't matter to Mrs. Palsgraf whether it was fireworks or body parts.

25 posted on 12/29/2011 12:12:55 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Scoutmaster
Was the railroad liable?

Yes or no? Your post is not clear.

26 posted on 12/29/2011 12:13:39 PM PST by CedarDave
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To: count-your-change

she should sue Willie Green.


27 posted on 12/29/2011 12:19:41 PM PST by WOBBLY BOB (Congress: Looting the future to bribe the present.)
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To: RoarkMan

“Hey Now!....tip your waitresses people...I’ll be here all week.”

Try the veal!


28 posted on 12/29/2011 12:26:43 PM PST by Hoosier-Daddy ( "It does no good to be a super power if you have to worry what the neighbors think." BuffaloJack)
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To: SuzyQue

I wonder of there’s insurance for that liability.


29 posted on 12/29/2011 12:31:15 PM PST by meatloaf (I've had it with recycling politicians in any way shape or form. Vote 'em out!)
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To: Scoutmaster; thecodont
Cardozo, writing the majority opinion holding the railroad was not liable, relied on the foreseeability doctrine. Andrews, writing for the dissent, argued that the railroad should be liable on the basis that the employee's action, pushing the passenger onto the railroad car, was the proximate cause of Palsgraf's injury.

Etiam non princeps sed usque ad genua, Principis Pacis!
30 posted on 12/29/2011 12:50:49 PM PST by ConorMacNessa (HM/2 USN, 3/5 Marines RVN 1969 - St. Michael the Archangel defend us in Battle!)
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To: CedarDave
Sometimes with a jury you just have to get your foot in the door.

A guy cant just go throwing his weight around....

31 posted on 12/29/2011 12:56:03 PM PST by DainBramage
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To: ConorMacNessa; thecodont
Yep. You have to realize this was a novel idea at the time, and the opinion is so well written, which is why the case is so famous that it's still taught.

Basically, Cardozo said: "Hey, at some point, people (and companies) are only responsible for the reasonably foreseeable consequences of their actions, and not for every possible thing that could happen in a parade of horribles."

It was a conservative view compared to the dissent by Andrews - and, of course, when you talk about commerce, there's the doctrine of strict products liability. And with any legal concept, there are exceptions. And exceptions to the exceptions. And exceptions to the exceptions to the exceptions. And . . .

Incidentally, Cardozo wrote for the New York Court of Appeals. That's the highest state court in New York, not the Supreme Court, which often confuses people. In New York, the Supreme Court is a trial court.

32 posted on 12/29/2011 1:09:09 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Wallop the Cat; ConorMacNessa

When I started law school, I thought Palsgraff was the name of a local brewery.


33 posted on 12/29/2011 1:09:42 PM PST by Larry Lucido
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To: Scoutmaster

Eh. You take your time to craft a post and all of these other smarties are faster with the button. Sorry to over-Palsgraf everybody. There weren’t any Palsgrafian comments when I started writing. But was it foreseeable that somebody would beat me to the punch? Perhaps we should apply the reasoning in Palsgraf . . .


34 posted on 12/29/2011 1:12:09 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Scoutmaster
Basically, Cardozo said: "Hey, at some point, people (and companies) are only responsible for the reasonably foreseeable consequences of their actions, and not for every possible thing that could happen in a parade of horribles."

That would explain the lack of courtroom scenes in the Final Destination movie series.

35 posted on 12/29/2011 1:31:30 PM PST by Moltke (Always retaliate first.)
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To: Moltke; Scoutmaster; Gamecock; F15Eagle

I kind of like this modern day (more or less) re-enactment of Palsgraf (Cosmo Kramer on the tennis courts).

http://www.youtube.com/watch?v=YxoQm9kcELQ


36 posted on 12/29/2011 1:44:03 PM PST by Larry Lucido
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To: Larry Lucido; All
I kind of like this modern day (more or less) re-enactment of Palsgraf (Cosmo Kramer on the tennis courts).

Respectfully, if, when Kramer had fallen, he had spilled a bag of popcorn; a pigeon had swooped onto the court; a small, leashed dog in the stands had lunged for the pigeon; the woman holding the leash was abruptly jostled, causing her to spill an iced drink in the lap of the man sitting next to her; the man had an undiagnosed medical condition which caused him to be hypersensitive to cold in the 'groinal' region; his spasmodic temperature-induce twitching caused his steel-toed size 12 Oxfords to strike the propellor-topped beanie on the head of the boy in front of him, spinning it; and the beanie helicopter-ed into the air, hitting the microphone of the broadcaster in the open-fronted third-level booth, knocking the mic into his mouth and choking him; and as his broadcasting partner performed the Heimlich maneuver, he had a Post-Traumatic Stress related flashback to a first-lieutenant's too-large-spoonful of dried-chipped-beef-on-toast in a dining fly in a small compound in Istanbul, causing the partner permanent to lose his ability to speak and his livelihood and to sue the manufacturer of the tennis ball machine? ~

~ now that's Palsgraf.

37 posted on 12/29/2011 2:11:53 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Scoutmaster
~ now that's Palsgraf.

Sort of the legal version of a Rube Goldberg contraption!

38 posted on 12/29/2011 2:15:36 PM PST by thecodont
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To: Scoutmaster

lulz


39 posted on 12/29/2011 2:28:16 PM PST by martin_fierro (< |:)~)
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To: RoarkMan

That is so sick............but funny...


40 posted on 12/29/2011 3:04:18 PM PST by goat granny
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To: trumandogz

The flying parts were from an 18 year old kid....his estate consists of what is in his bedroom....


41 posted on 12/29/2011 3:09:07 PM PST by goat granny
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To: Scoutmaster
Incidentally, Cardozo wrote for the New York Court of Appeals. That's the highest state court in New York, not the Supreme Court, which often confuses people. In New York, the Supreme Court is a trial court.

Oh wow, you just made my day! Here's why - one of my favorite old-time Christmas movies is Miracle on 34th Street, where Santa Claus is put on trial. And in the movie, the prosecutor mentions that the trial (actually a sanity hearing) is being held before the "New York Supreme Court," and it always bugged me to no end, because it was obviously a trial-level court. I figured Hollywood was just doing what it loves to do most - dump down the people. But still, back in 1947, people were a lot more on the ball, and I wondered how the got away with it (especially to audiences in NY).

Well, now I know - they told the truth.

Thank you!

42 posted on 12/29/2011 3:11:28 PM PST by Talisker (History will show the Illuminati won the ultimate Darwin Award.)
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To: goat granny

And the homeowner policy.


43 posted on 12/29/2011 3:17:41 PM PST by trumandogz (If Rick Perry cannot secure his name on the Va. ballot, how could he be trusted to secure America?)
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To: trumandogz

Being an adult by law at 18 I think they can just go after his estate....not the insurance company that his parent may have, but in this day and age who knows...


44 posted on 12/29/2011 3:25:31 PM PST by goat granny
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To: Talisker
one of my favorite old-time Christmas movies is Miracle on 34th Street, where Santa Claus is put on trial.

You may also notice it if you watch reruns of any of the variants of the television series Law & Order. On the black and white text screens (audio: thum-THUM!), it will often note that a trial proceeding is taking place before the Supreme Court in NYC.

45 posted on 12/29/2011 3:45:51 PM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Scoutmaster; thecodont; Larry Lucido; Wallop the Cat
In my torts class, I was one of the few adherents to the Cardozo opinion - I was surrounded by nascent bloodthirsty plaintiffs' attorneys. Thirty -five years later I still favor the Cardozo opinion. I felt that the net of liability was extending too wide then and I think it has gone way too far now. We have notions of "enterprise liability" which imposes liability on a company in products liability and other cases on the basis of market share rather than fault. The lefties love this one.

I am now semi-retired - have not practiced in about ten years. I know lawyers are held in low odor in this forum as well as among the general populace. When I started practicing law back in the late 70's, there was a high degree of professional courtesy and collegiality among lawyers. In recent years, this has all gone. The practice of law, particularly the litigation end of it, has become a savage and vicious business in which hardball tactics, incivility and high-handedness reign.

I couldn't take it any more. That is why I no longer practice. I have forbidden any of my children from becoming lawyers.

End of rant.

Etiam non princeps sed usque ad genua, Principis Pacis!
46 posted on 12/29/2011 5:01:53 PM PST by ConorMacNessa (HM/2 USN, 3/5 Marines RVN 1969 - St. Michael the Archangel defend us in Battle!)
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To: Larry Lucido

Heh, not bad. And this (the only Brad Pitt scene worth watching over and over) is somewhat closer to the article topic:

http://www.youtube.com/watch?v=mikj8eDKxMQ


47 posted on 12/29/2011 5:27:09 PM PST by Moltke (Always retaliate first.)
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To: ConorMacNessa

I know exactly how you feel. In June, I closed my practice after 21 years for the primary reason that I could no longer look myself in the mirror. I was 100% litigation, and it was no longer worth it to me. Left a lot of $$$ on the table, but left with my peace of mind and my integrity intact.


48 posted on 12/29/2011 10:20:16 PM PST by Wallop the Cat
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To: iowamark

To you, and all the posters afterwards, yes, I got it almost immediately after I made the post. It was the estate they were suing. My mistake in not reading carefully.


49 posted on 12/30/2011 9:44:19 PM PST by Alissa
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