You are employed as a paralegal at Smith, Johnson and Anderson in the corporate legal department. You are part of the legal team defending against a serious crossing accident in which the plaintiff entered the railroad tracks because the required whistles were not given to signify that a train was approaching. The plaintiff, Bill Larson, testified that he was wide awake and that even though the accident occurred at 10 p.m. by Joe's Bar and Grill that he had not been at the bar drinking.

Bill received a minor injury to his neck and his left leg was broken. In his lawsuit, he is seeking damages for the five months he could not work, medical expenses, past pain and suffering and future pain and suffering as his left leg has never been the same since the accident.

As you are working on the case, you sent for and received his medical records which included the emergency room records. In the records you read that he had odor of alcohol on his breath. He stated to the nurse that he did hear the whistles of the train, but thought he could beat the train.

Also, included in the records was a report that was written at his last visit to the doctor. The doctor said that the strength of his leg was normal. Bill told the doctor that the pain was gone and his leg "feels better than before the accident." The doctor concluded that the leg was completely healed and there was not any permanent damage to the leg.

Discuss if there are any potential problems Bill might have with proving any of the four elements of negligence in the case against the railroad.