Exercising Land Rights vs Snowmobiling Accident

[Ranchman]

Thanks for the compliment. [img]/forums/images/icons/smile.gif[/img] Just one of those "hot button" topics for me I suppose. Just wish I didn't have agree with your comment on liberalism... [img]/forums/images/icons/frown.gif[/img]

[TimSullivan]

I think that it is a a very sad story.

One of my former students is in a wheel chair because someone put a log across an access road. The kids in the area used it to run their dirt bikes into a large area that had a make shift track. It was dark and he just did not see it in time. Who put it there was never determined.

The lawyers will take their sides but the bottom line is I hope that no one put the cable there with any intent. If someone knew that the snowmobiles used the drive at night and put the cable there,they have to live with killing the boy. We all have to look at the consequences of our actions and I do believe that what can go wrong will go wrong someday. Whoever put the cable there used very poor judgment even if they had no intent to injure anyone.

When I was sixteen and very foolish, I had my own encounter with a steel cable and was very lucky. My neighbor had some large trees transplanted to his property. They each were supported by three cables that ran from about eight foot up the tree to the ground about twenty feet away. My friends and I were walking down the road at night and started chasing each other just messing around. I was running full out across the lawn when I caught a cable just under my left arm and then diagonally across my body. The force flipped me up in the air and I landed face down on the ground. I did not break any bones but the cartilage in my rib cage was a mess. Every breath for the next few weeks was an adventure.

My neighbor was a great guy and felt terrible about my stupidity. I spent the night in the hospital but the next night I got to see the light show on the trees. In the middle of July he had strung Christmas lights on the trees and the support cables. I begged him to take them down but the lights stayed up until the cables came down the next spring.

I later found out that he had stayed up all night with his priest because he had such a hard time dealing with the idea that his cables had caused me injury. The lights, I had thought were on the trees to remind me how stupid I was, but in reality those lights were his prays of thanks that I was OK.

We have all done foolish things in our lives but to actually go out to injure someone with a cable across the trail is crazy. I for one would like to know more about this fatality.

[MikePA]

Here's a followup from later in the day. The video that accompanied the story didn't provide any of the details everyone was wondering about.

Fatal snowmobile accident
Updated: 12/30/2002 6:57 PM
By: Capital News 9 web staff

One teen is dead and another injured after the Sunday night accident. Police said alcohol was involved in a deadly snowmobile accident in Rensselaer County. Authorities said the accident happened near Lindeman Road in the town of Sand Lake around 10 p.m. Sunday. Seventeen-year-old Christopher Earnest was killed in the crash, while his 15-year-old female relative suffered non-life threatening injuries. Twenty-one-year-old Shane Smith of Averill Park, who was also snowmobiling with them, was arrested Monday for providing alcohol to the minors. Police said that Ernest and the girl crashed into a cable that was strung across the trail and both were thrown from their snowmobiles. All three were wearing protective helmets.

[Stoneheartfarm]

<font color="blue"> the landowner would have had to place the cable low </font color>

The cable could have been 10 feet off the ground. It depends on how much snow was piled up underneath. As the snow gets deeper, the ground gets higher and the cable lower.

Steve

[Clint]

The information provided, regarding this incident, contains nothing to imply that the person who installed the cable did so maliciously. Until this information is made available it is fruitless to assume one way or the other.

To say that a person should not install something (e.g., a cable across a road) on his or her property because others may get hurt (even though they are not supposed to be there), as has been mentioned above, is akin to saying even though you own the property, the collective good will dictate all that you can and can't do with it. Obviously laws are necessary and I am by no means advocating anarchy or booby trapping property. Innocent people should be protected by malevolent acts of others.

What I am advocating is protection of a persons rights to his or her property. America was built upon private property rights. Every law that attempts to restrict a person's rights to his own property in order to protect others from their own foolish acts makes us less like a free America and more like a communist China, where everything is dictated to you based on what is supposedly best for the whole. What's ironic is that those who decide what is good for the whole are a select minority who are often out of touch with the common person.

No attempt to open the proverbial can of worms, but I cringe when I see people trying to justify taking away my rights to protect others from their own absurd acts.

Clint.

[Clint]

Ranchman,

Along with the statutes in the Texas legal codes, case law will also influence the decisons of a judge and/or jury. Case law is based on the interpretation of Texas Statutes by the Texas Supreme court. Thus, even though the law may read as you quoted it, that is not necessarily how it will be interpreted or applied.

I do agree with the sentiments, about trespassing and private property rights, behind your post -- see my post immediately above. Simply referring to the legal codes of any state or the United States, will only get you part of the way to where you want to go. You may have already known this, but I thought I'd get the info out there for all.

Clint

[Ranchman]

Clint -

<font color="blue"> Along with the statutes in the Texas legal codes, case law will also influence the decisons of a judge and/or jury.

Simply referring to the legal codes of any state or the United States, will only get you part of the way to where you want to go.</font color>

Absolutely. Never meant to imply otherwise - just meant to point out that the statutes, as they are written, are not in congruence with the "you are libel no matter what" mentality of the other person posting.

Basically, as I had said in my previous post, since we know absolutely no details about this incident, we have no idea if the individual who strung the cable should/should not, would/would not be held liable (either in a civil or criminal court.) (If you follow this now dead thread - appropriately shut down by the moderators since it was getting somewhat personal, I think you’ll find my comments are much along the same line - here’s the law vs. belief/opinion, and we know virtually nothing about this case to make any judgement.)

Regardless of how laws are written, you are certainly correct when you point out that they are interpreted by judges &amp; juries, and, unfortunately in my opinion, not all judges/juries have been mentally empowered equally. Goes to the whole "spirit of the law" vs. "letter of the law," and while case law is often used, it is not required to make a judgement one way or the other. There are lots of instances where case law was used in the justification of the court that were later overturned.

While many courts use case law to justify the position they took on a case, other courts throw it out the window for various reasons - heck, I've seen juries go as far as to "throw out" both the "spirit" and "written" aspects of the law because they "felt sorry" for someone. Same thing with grand juries refusing to indict for that reason. All goes to what the individuals on the jury within a society think is "civilized behavior" and what is not based on the arguments presented during trial. (Goes back to words like "reasonable person" etc. often found in the statutes.) Add to this mix (deciding if they want to follow the "letter" or "spirit" of the law, or if they want to just throw the law out completely because they "feel sorry" for someone or their "gut" says to do something different) their willingness to follow the instructions given by the court, and yes, it's a less than sure thing as to what will happen once the gavel strikes. - (Judicial activism anyone??? [img]/forums/images/icons/crazy.gif[/img] )

Yes, no doubt, something "bad" happens, it's a crap shoot whether or not you'll be found "guilty" - but, as I pointed out in my earlier post, regarding criminal prosecution for liability in the State of Texas for those on ones property, the law, as written is "on the side" of the landowner. Will a judge/jury follow the “letter� or “spirit� of the law? Depends on the circumstances of the case and the values/morals/ethics of those on the court. “Crazy� courts have made “crazy� judgements. [img]/forums/images/icons/frown.gif[/img]

I appreciate your comments, and yes, I concur that case law does come in to play in a very big way. However, I don't think that I've done any "disservice" by pointing out the statutes currently enacted in the State of Texas. I personally believe that it is everyone’s responsibility to be aware and educated on the various laws of their state/city as ignorance of the law is not a defense to prosecution.

Simple example would be, say, reciprocity along with state/local laws associated with carry of a concealed handgun. Some states (as you may know) have reciprocity agreements with the State of Texas for CHL holders. However once a Texas CHL holder enters another state, he is subject to all regulations associated about use, concealment, restricted areas, etc. regarding carrying of the weapon (e.g. the laws he learned in his classes when going through the training process in Texas no longer apply.) Therefore, it is the responsibility of the individual to try and educate himself on the laws of the state he is traveling within. Can he look up and understand all the case law concerning that subject within the state? Absolutely not. Is it possible for him to read the statutes of the state he is traveling within and use his "best judgement" as to what he believes is "reasonable interpretation?" Absolutely. 'Course this doesn't apply just to CHL but all laws when one moves around within the country. (The whole ignorance of the law is not a viable defense thing again.)

Again, I do appreciate your comments (no offence taken), as case law is very important. I just also believe that stating the written laws has infinitely more value than stating ones belief/opinion. How people feel is nice, but fact is where the "rubber meets the road." As it applies to this case (snowmobile), I have no idea whether or not anyone would/will ever be found liable, but I do know that if the incident had happened in Texas, there would not be a summary judgement by the court without a trial as the other poster seemed to imply would occur as the law (both written and case) has said that under certain circumstances, no criminal liability for the incident would fall upon the landowner.

Thanks again for pointing out the whole case law aspect.

[dmccarty]

John,

We had a similar "accident" in a county north of me earlier
in 2002. Instead of snow machines it was a group of ATVs
running down a private road/trail. The owner was tired of the
ATVs and other tresspassers trashing his land so he put up
a cable a few feet off of the ground. From what I could
briefly see on the TV report there was a sign. The riders, all
adults, came down the road/trail at dusk and did not see the
sign. One rider was killed when his chest met the cable.

The Sheriff said there was no law broken by the land owner.

I have not heard of any case against the landowner. I
expected to hear on the news that he was being sued but
nothing has shown up in the media.

Course the insurance company could have settled out of
court and had an agreement to keep the settlement quiet.

RanchMan,

I think it was covered in the TBN as well this thread but
just because the statute SAYS you can do something does
not mean one can or should. Just because Texas law says
one can use Deadly Force to prevent certain crimes, doing so
can cause mucho problems. I can think of two cases where
men followed the letter of the statue and got pounded.

The first case was Tennesee vs Gardner. I hope I got the
case name correct. TN law at the time allowed the use of
deadly force against fleeing felons. A police officer responded
to a burglery call and found a man running from the residence.
As the man tried to climb a fence the officer shot and killed
him. The statute said this was legal. The US Supreme court
said otherwise. The funny thing is I don't know what
happened to the officer in this case. I'm sure he was sued
in civil court but I don't know if anything happened criminally.

Case two was in Florida around 1990. The statute was similar
to TX in that deadly force could be used to prevent a
property crime. A man came home and found a man running
from his residence with a TV. The owner chased the thief and
shot at the thug with a small caliber pistol. Something like a
.25 or .32. I don't think it was a .380. The pistol was so
inaccurate that rounds either went left or right but never
staight. Anyway the owner got "lucky" and hit the thief. I
can't remember if it killed him or not.

The local DA took the owner to court even though the statute
said the man's actions where legal. The man was not
convicted but he was put throught the legal ringer and
whatever that TV cost was well outside of what the man's
legal defense cost.

Actually I can think of a third case here in NC from the early
90s. [img]/forums/images/icons/laugh.gif[/img] This one is a bit murkier. But a man found two kids in
his garage trying to steal his motor bike. The man had a .22
rifle and said he was afraid for his life. He fired at the kids
and hit both of them. I think one died. The problem in this
case was that the kids where hit in the back and certainly
where running away from the man when he started shooting.
He was acquitted in court but it cost him lots of money....
I'm not sure of the NC statutes at the time...

My long winded and not articulated point is that one should
only use deadly force when one is afraid for ones life or
someone elses life. Anything less is just not worth the
bricks that are going to fall. The statute may say one thing
but the DA may think differently..... [img]/forums/images/icons/blush.gif[/img]

I don't think you where arguing differently but I would not
want someone reading the thread to think just because a
statute said A, B, C that one could actually DO A, B, C. [img]/forums/images/icons/grin.gif[/img] Tain't the way the law works! [img]/forums/images/icons/tongue.gif[/img]

Later,
Dan McCarty

[Ranchman]

Dan-

A LONG post, I apologize, but lots of important things to say.....

----
I appreciate where you are coming from, but a couple of things:

1) I have not discussed the use of deadly force what so ever on this thread. I brought up the section of the Texas statutes that regards liability, which since liability was what was being discussed, I thought appropriate and applicable. (BTW, just for the record, the statute I stated was from Title 4 of the Civil Practice and Remedies Code, Liability in Tort and NOT the Penal code as I had earlier stated. This doesn’t mean it is any less a law, just from a different section of "the book", that’s all.)

2) I do disagree with part of your opening statement.

<font color="blue">I think it was covered in the TBN as well this thread but just because the statute SAYS you can do something does not mean one can or should. </font color>

The statute itself, doesn’t say one “canâ€ÂÂ� or “can’tâ€à ‚Â� about anything. It says the landowner or agent is not liable. (“canâ€ÂÂ� I think goes to the whole deadly force thing, which I will discuss later in this post.) But moving along with the “spiritâ€ÂÂ� of your statement, I will agree with your point about should. If you go back to paragraphs 3-6 of my last post, I explicitly state that one runs a risk, even if they are "in the right" as far as the written statute is concerned. More to the point, I stated, <font color="red"> "...it's a crap shoot whether or not you'll be found "guilty"...Will a judge/jury follow the “letterâ€ÂÂ� or “spiritâ€ÂÂ� of the law? Depends on the circumstances..."</font color>

<font color="blue">The statute may say one thing but the DA may think differently..... </font color>

Again, my statement of <font color="red">"Regardless of how laws are written, you are certainly correct when you point out that they are interpreted by judges &amp; juries, and, unfortunately in my opinion, not all judges/juries have been mentally empowered equally." </font color> seems to be in agreement with the point of your "DA" comment.

<font color="blue"> My long winded and not articulated point is that one should only use deadly force when one is afraid for ones life or someone else’s life. Anything less is just not worth the bricks that are going to fall. </font color>

Not nearly as long winded as my replies!!! [img]/forums/images/icons/grin.gif[/img]

Ok, this is where we begin to introduce an entirely new subject within this thread - the moral, ethical, and practical ramifications regarding the use of deadly force to protect property. (How'd we get here??? [img]/forums/images/icons/tongue.gif[/img] )

Ok, that being said, I understand your point of view, (and won’t state if I agree or disagree with it, as I have yet to post - and will refrain from posting - my personal beliefs on the use of deadly force.) I will, however, say that using deadly force is a very serious is a personal judgement call and not everyone would concur with your point of view. It all depends on one’s moral/ethical values and the potential repercussions (e.g. prosecution &amp; conviction of a crime) of their actions.

Would you use deadly force against someone throwing Molotov cocktails @ your house, trying to burn it down? (Defense of Property - arson)

What if you come home to see your wife being held by the throat by someone who outweighs you by 100 lbs. yelling at her, “Give me the money or I’m going to kill you!� (Defense of a Person - robbery - but **NOT** a life threatening situation, Defense of Property - robbery)

What if you woke up at 2:00 am to see someone who is attempting to rape your daughter? (Defense of Person - sexual assault - **NOT** a life threatening situation.)

(I know, these are not pleasant things to contemplate, but deadly force is a serious subject, so euphemistically “tip toeing� around the subject just clouds the issue. )

My point here is that "simple" crimes can (and do) turn in to more violent crimes quickly, and that there are a million possible scenarios where Defense of Property may escalate to something where someone, based on their beliefs, is less inclined to be a pacifist. (All of the above could evolve in to life-threatening scenarios.) It’s easy to say what one would or would not do hypothetically, after all - but saying and doing are different things. (Would Dukakis really not take the life of another who was trying to rape his wife as he essentially said in the ‘88 race? See 2nd paragraph, last sentence; 3rd paragraph, 1st sentence)

Again, I ***NEVER*** stated one should or should not use deadly force in defense of property (or under any other circumstance) on the TBN thread and never even mentioned deadly force in defense of property at all on CBN.

All I did on CBN was point out the written words of the a liability statute in Texas as it applies to property, and then in a later post, pointed out that one runs a risk of conviction if they choose follow the "letter of the law."

All I did in the TBN post was 1) again, to point out how the written words of the statute regarding deadly force in defense of property were in disagreement with the opinion made by another person; 2) say we knew so little about the case we should not pass judgement one way or the other, and; 3) that I never said one way or the other if I would/would not use deadly force in defense of property.

<font color="blue">I don't think you where arguing differently </font color>

Correct, as I have outlined above.

<font color="blue">...but I would not want someone reading the thread to think just because astatute said A, B, C that one could actually DO A, B, C. [img]/forums/images/icons/grin.gif[/img] Tain't the way the law works! [img]/forums/images/icons/tongue.gif[/img] </font color>

Again, I hear where you are coming from, (e.g. <font color="red"> "Crazy� courts have made “crazy� judgements. </font color>) and can't really comment on the case examples you gave. (I don't know any real details about what was presented in court.) What I can say is that not everyone is convicted, or even prosecuted for exercising the use of deadly force when defending property in Texas. It all depends on the specifics of the case and situation. As I said earlier, it is all up to the individual to take personal responsibility for their actions - be aware of what the statutes are and what they believe is "reasonable" behavior.

Please don't take my response as a "reactionary" one. Just thought it important to respond since somehow my points were lost/unclear somewhere in my last post. For the record, in enumerated form:
<font color="brown">

1) The law clearly states that in Texas, one has the right to defend property under certain circumstances with the use of deadly force.

2) Courts, juries, prosecutors, police, family members, priests, etc. may or may not agree with this statute and even if one follows the "letter of the law," one could very well find themselves being convicted of a crime if they elect to use deadly force under any circumstance.

3) I have ***NEVER*** advocated nor discouraged the use of deadly force under any circumstance in this or the equivalent TBN thread.

4) I do not believe I have done any "disservice" by pointing out the actual Texas statute text within this or the TBN thread. (I still fail to see how propagating knowledge of the written law is "bad" but allowing personal "interpretations" or ignorance of the law is “good." [img]/forums/images/icons/confused.gif[/img] )

5) I believe that individuals should take the time and become familiar with all their state, local, and federal statutes, AND take responsibility for their actions. </font color>


Please take my post in the spirit of which it was written - to help clear up where I "stand" on things.

-Take care [img]/forums/images/icons/smile.gif[/img]
------
THIS section of the Texas Penal Code seems more applicable to this discussion than does the whole thing about deadly force to protect property.
<font color="green">§ 9.44. Use of Device to Protect Property
The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:

(1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and

(2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.</font color>

[fireman_dcb]

Amen! WAY to much liberalism in today's society - its always - ALWAYS someonelse's fault. And as terrible as this situation is what really bothers me is that in today's society the parents will be after the land owner. Why can't folks take responsiblity for their actions? stuff your hand under a brush hog where the blades are still spinning and is it Company X's fault that you lost your hand?

Thanks, Doug