killed in two thousand and one by an amtrak train running on union pacific tracks used crossing the tracks using a well warm path which is illustrated in photos which have been provided to the court the train was going about forty miles an hour there were no trains there was no fences or signs along the tracks at that point what do we do with the fact that the tracks themselves  across that path or how far along that duty run and then that path gets created because people find a way and then you put a fence that won't bite people they want to shortcut find another way th what troubles me about sure i i was pretty sure you have to question let me just mention christoph i think that the that he's turning on whether the plane to prove causation the other cases which is foreseeability pre roll in cases in there's a many many of them and a lot of them are real road cases all held that the trespasser has no rights and so because he's trespassing that was changed by roland wright yeah i think that's that's a trespassing status now you've got you've got you know when you talk about fencing it obviously wasn't of applied in the kristoff situation but beat a path around fences all the time so where do you draw the line in other ok fencing we're talking about only about well worn path well traveled areas and well worn path and well traveled areas are known to the railroad since it was really easy to spot this particular place because of the path now when you put a fence across there it would be and well traveled areas populated areas the tracks are regularly punctuated by crossing guards and so you could put a fence in this particular case from one crossing guard to another crossing guard which would probably be several hundred yards and that was where it would to do is the deter the people that are going to use this well worn path they would have to be stopped and they would have to travel vertically or horizontally around along the fence into the crossing guard not when they get to the crossing guard if the train is coming there's lights flashing there's  crossing card it's going down now i've had a lot of train cases in the silicates of course cited here that's also my case most people that are hit by trains there's two two classes of people when the weather is intent and we can't treat those that they're going to kill themselves they're going to kill themselves no matter what they're going to do but the other class of people that's hit by trains are people that are distracted in silver the guy was thinking about something else the whole point of fences is to break the routine of the person and alert him to the fact that wow there's danger ahead we feel where and if we come across the fence they'll be diverted and then i'll go out to the crossing guard presumably and if there's a train coming at that point then you know bells are ringing lights are flashing and everything else do is to impose an obligation on the railroad to put fancy everyplace along the line where people tend to cross i went out  the union pacific which is the is the only real road company california now and we're talking about tracks there's a place in union city where the tracks go within twelve feet of a park where children roam and i have many pictures just in connection with my of the case of children curiously going up to the tracks and crossing the tracks and playing on the tracks and this is children now there's no fence there there's no fence anywhere that union pacific that i know has ever constructed fencing off their tracks they have a uniform policy they do not fence the tracks anywhere they should where people and highly populated areas union impose an obligation where it's likely that people are going to be crossing like well warm pass to fence those particular areas and i think it would save lives it would have saved my clients to see in this life for sure an eighty year old man is not going to try to scale a fence he's going to go along side the fence and either go to the crossing guard cross there by that time he'll be alerted or else the next time he'll take the safe way which was over the bridge and he won't take that route again that's the thing you divert people to a safe place a crossing guard or you say to them w human than an argument that under the law we can impose that kind of a duty on the railroad well i have the example of well or impasse they could start ascertaining where the well worn paths are and in the bay area for example and fence off those from the nearest crossing guard and either side that would be a not specifically no no there's no there's no law in california imposing that duty but we've got his duty i mean that the courts can i mean if you were to impose that duty you could do it i mean it's within the court's power to do that even without a california law to to make a ruling that tracks are heavily traveled  seems to be as well would be the genesis of your ruling would there have to be a state law that you would be enforcing in order to make a ruling you need a state law in order to reel in my favor is that what you're saying well well the the genesis of the duty imposed by roland the christian was in the civil code section everyone is responsible for not only for the result of his or her or it will collapse but also for an injury occasion to another by his or her his or her want of ordinary care in the management of his or her property that's the greed that servile that's kind of general but it wasn't used to enforce property obligations before rolling the question in christian well in the christian use that and actually said that and in not in a railroad case but made a responsibility for it to a property  you have to look at the actual cases role in the christian silver and the beard vs atchison to pekin santa fe and all of these cases go into the most important thing these cases say and if this was the case law they say that if it's foreseeable that somebody is going to be crossing your land or using your land whether it's children old man or whatever you now have a duty to take reasonable precautions for their safety now this is the reasonable precautions is the genesis of the defense case because they're saying well you know the fences would cost or enormous amount of money and they're talking about sheet sheets of steel and stuff like that that's not the kind of fence we're just talking about a regular old chain link fence six foot high and so the case the law is in the case this is not morning writers my name's joseph mask of h r represent pacific railroad there is a circle council for amtrak who will be addressing the preemption issues i plan to take about seven minutes and the rest of the ten minutes will be taken by co counsel this accident happened because mr of watching from of a moving train that he should have seen that he should have heard and that he could have easily avoided let's not lose sight of the fact that in this record there was a sidewalk that would have taken this tribute to exactly the same place it would have crossed underneath the realm of tracks and would have kept him completely out of harm's way now counsel that's the case if it's that obvious why do you think people created this path it's doesn't seem as if he's the first person to engage in the kind of conduct you're suggesting so doesn't that suggest pretty clearly that withstanding the logic of what you're saying in practice people are beating a path to this particular crossing and doesn't that cause the railroad some concern your honor the record shows quite clearly facts of this case and the facts of this case show that there's a very definite path that's been created from a parking area that crosses onto the gravel at least the rock portion i don't know whether those people go down there and then walk along the tracks to get to the super efficient or they walk there and go across the prairie but if union pacific in taking this so seriously doesn't this scream out for hey you go to a well worn easement almost going across your tracks where you don't want them to be so your responses to that your honor first of all the fact that there's a well worn path simply trespassing occurs right but trespassing occurs just about everywhere in our system particularly in urban areas so the question then becomes of some of the questions to deter council made earlier where do you draw the where the horseback rider sued the garbage company because as he was riding his horse he came up behind a garbage truck and the noise made by the garbage truck spooked the horse and threw him off the california supreme court  property open and sorious use over a period of time generally under real estate law can create adverse possession and a cruise ship pay taxes and a few other things but that's an element in real property that landowners are required to take some affirmative actions to protect their property interests in their own property interests and now we're talking about protecting the public be they trespassers or crossing your property where they aren't supposed to be exposed in a adverse possession case you say well why didn't you just put up a fence then you could signal to the world that they're not supposed to be there so in this  decision makes clear as of two thousand and five that in california the presence of railroad tracks is noticeable hopi and javi a stranger now now with respect to fencing itself council's position is fencing is this wonderful a different set of safety risks into the equation you create risks to train crews you create risks but for the public and you create risk to the trust pastors who are still going to cut through the fences climb over or passengers or freight and next you look at what would the consequences be for the community and for the defendant first of all it would be very very expensive for the railroad to correct and maintain fences he never mentioned it in his brief in response to judge walker's order and he doesn't talk about it today but that evidence is one contradicted and that is why judge walker ruled the way he did  position that there is no place where they're required to fans your honor i think as a general matter that is correct because that because of the difficulty of trying to come up with a statement of the duty that would produce provide predictability and uniformity that would give notice to railroads that's what they should do with respect to fencing now we do regret fencers in places in california as well as elsewhere in the country we do so work and we're usually municipalities believe that a fence would be the best way to solve the trespassing problem if we work with those communities to do so that has never happened in this hayward area council is also going well outside the record by talking about how union counsel some time but again fencing is not the easy answer because it's not effective it's costly and to create safety risks for the public an a state cause of action for negligence against amtrak arguing that the train was being negligently operated at an excessive speed what is important about this is what the just record noted in its opinion which is that federal law pre state law negligence claims for excessive speed and it doesn't because the federal railroad safety act was enacted in one nine hundred seventy for the purpose of providing a national uniform system of regulation governing railroads day fifty an awful ration to accomplish that goal the federal railroad administration does a few things that's classifications for tracks based on the characteristics suburban they do your honor in fact the f r a had intentionally and expressly decided that in urban areas there would be no reduction in train speed and they arrived at that conclusion because the fact of reducing train speed and increasing train speed imposed a lot of safety hazards it was much safer from the f r a c point of view for trains to be operated at consisten they did express the address that and the regulations intentionally do not provide for slowing through urban areas so in addition to these operating requirements the the  say incorporates a preemption provision so that this goal of national uniformity can be achieved and section four three four of the f r s today is the section that says speed limits are set under this federal system state law cannot regulate the speed of the train it is completely a federal control the united states supreme prove and so that's an in my briefs i don't want to go into that what we've got this is a spurious issue the different set of safety risks produced by six foot tall chain link fence any professional fireman or police can scale that fence in two seconds they've a train operator anybody any employee can scale a fence in two seconds what you do you know it can be scaled very easily if there was a safety issue pending so there's no still difference there's no new set of risks to the problem if you want to alert the large majority of people that are crossing that tracks are either asleep or distracted defense would perform a very valuable to the in distracting those persons preventing them from crossing the tracks and diverting them to either change or direction go go over the safe route or else follow the the fence to the crossing guard and when to go to get to the crossing guard there's lights there's there's bells and there's the crossing guard alerting them to the pass train people that are hit by the tracks if they're not intentionally doing that are people that are distracted they're going to work they're going to schools are thinking about other things a fence would really provide a valuable service in preventing those people