Amtrak engineer, railway co. sued by man who lost wife, unborn child

[tp49]

And, by the way Alan, it is doubtful that a case like this would see a jury. A civil case like this would likely be handled by a single judge or (most likely) just go to arbitration.

Don't be so sure about that. Depends on the rules and statutes of the forum and the wishes of the plaintiff.

 

[ALC Rail Writer]

And, by the way Alan, it is doubtful that a case like this would see a jury. A civil case like this would likely be handled by a single judge or (most likely) just go to arbitration.

Don't be so sure about that. Depends on the rules and statutes of the forum and the wishes of the plaintiff.

Which would depend on the jurisdiction. I'll admit I don't know about this jurisdiction, so my knowledge may be limited to Ohio law and completely wrong.

 

[tp49]

The guy hasn't been criminally charged with anything. If they can't settle it in a back room, you can bet they'll try for arbitration (though back room deals are, in effect, a form of arbitration).
IIRC the plaintiff doesn't have the right to a trial by jury it is the defendant who has the right-- at least in civil matters. Why would the engineer's defense team take this in front of a jury? They wouldn't...

In either case-- this matter was settled before we even started. Amtrak is going to pay out the ass, BNSF might throw some dough into upgrading the crossing, and this money heals the whole in the guy's heart.

All are happy. The universe is in balance.

Wrong, Wrong, Wrong.

It does not matter if anyone was criminally charged with anything. This is a negligence case not a criminal case.

Second, the plaintiff DOES have the right to trial by jury. The plaintiff is the one bringing the action, and makes the demand for trial by jury not the defendant in civil matters. In criminal matters it is the defendant who has the right to choose whether to be tried in a bench trial or by a jury.

Last, even if the case does go to trial the defendants will have the opportunity to raise affirmative defenses to the plaintiff's claims that have the possibility of either reducing the amount plaintiff would be entitled to recover or outright bar the claim.

 

[ALC Rail Writer]

Last, even if the case does go to trial the defendants will have the opportunity to raise affirmative defenses to the plaintiff's claims that have the possibility of either reducing the amount plaintiff would be entitled to recover or outright bar the claim.

Wrong.

The jury will rule in the favor of the guy who lost his wife and unborn child unless she was trying to kill herself by standing in the tracks-- and even if that were the case he'd still probably walk away with seven figures.

 

[tp49]

Last, even if the case does go to trial the defendants will have the opportunity to raise affirmative defenses to the plaintiff's claims that have the possibility of either reducing the amount plaintiff would be entitled to recover or outright bar the claim.

Wrong.

The jury will rule in the favor of the guy who lost his wife and unborn child unless she was trying to kill herself by standing in the tracks-- and even if that were the case he'd still probably walk away with seven figures.

Don't bet on it. Depends on the evidence and how the defense presents its case. I could get into a whole dissertation on contributory negligence and comparative fault here but this would be way too long if I did so. Depending on the jurisdiction the case can be tossed as a matter of law. Just suffice it to say I have extensive experience dealing in tort defense so I know of what I write.

 

[JSmith]

No lawyer worth his salt would ever take a case like this to a judge. If they can't work out a deal in the back room, they'll exercise the client's right to a trial by jury. The lawyer knows that bleeding heart strategies won't work on a judge, so they'll always request for a jury.

I think Alan's right here. I was on a jury last winter for a plaintiff who slipped on a patch of ice. In the end, we found the defendant not liable for negligence, but I get the feeling we were a fairly level-headed group of jurors. You could definitely tell when the plaintiff's lawyer was (in my opinion) getting desperate and going for the emotional sympathy angle.

Which is not to say we weren't sympathetic to the plaintiff - most of us, if not all, were - but the law as it was explained to us requires more than just an accident having happened for there to be negligence and thus liability.

 

[ALC Rail Writer]

Last, even if the case does go to trial the defendants will have the opportunity to raise affirmative defenses to the plaintiff's claims that have the possibility of either reducing the amount plaintiff would be entitled to recover or outright bar the claim.

Wrong.

The jury will rule in the favor of the guy who lost his wife and unborn child unless she was trying to kill herself by standing in the tracks-- and even if that were the case he'd still probably walk away with seven figures.

Don't bet on it. Depends on the evidence and how the defense presents its case. I could get into a whole dissertation on contributory negligence and comparative fault here but this would be way too long if I did so. Depending on the jurisdiction the case can be tossed as a matter of law. Just suffice it to say I have extensive experience dealing in tort defense so I know of what I write.

I'll bet my life savings on it... That's how little faith I have in the American justice system.

 

[AlanB]

The guy hasn't been criminally charged with anything. If they can't settle it in a back room, you can bet they'll try for arbitration (though back room deals are, in effect, a form of arbitration).

Not that it really changes anything regarding our discussion here, but just for the record, it's not a guy. That Amtrak train was being driven by a female engineer, Kathy M. Richardson.

On the other hand, having a sympathetic women on the stand who was driving the train instead of some "hard nosed male engineer" could well squash some of the sympathy factor for the women who was killed. Involving Ms. Richardson may not have been the smartest move by the plaintiff's attorney.

As for the rest of things I'll let what our resident lawyer said stand.

 

[Ispolkom]

Don't bet on it. Depends on the evidence and how the defense presents its case. I could get into a whole dissertation on contributory negligence and comparative fault here but this would be way too long if I did so. Depending on the jurisdiction the case can be tossed as a matter of law. Just suffice it to say I have extensive experience dealing in tort defense so I know of what I write.

Oh good. I though proportional contributory negligence was involved (or whatever they call it in that jurisdiction), but since IANAL, I didn't want to bring it up.

 

[Green Maned Lion]

You guys are all wrong, and your knowledge of law is so far off, its crazy. Here's why:

Amtrak's engineers are unionized employees of Amtrak. That means they are AGENTS of Amtrak, and as such a lawsuit of an Amtrak Agent while that Agent was operating in his official capacity as an Agent of Amtrak, the suit is automatically Amtrak's issue. If the Agent is found to be operating in a negligent fashion, that isn't a problem for moron who caused this thing. Its a problem between Amtrak and its engineer- its agent. Amtrak bears all costs involved with this, including the lawyer. If Amtrak finds the Engineer to be at fault, they can then sue the engineer to recoup their losses.

This is why many pizza delivery places, for instance, make their delivery people either sub-contractors, or independents- they essentially buy the pizza from the pizza place and then resells it to the customer. It absolves the pizza place of responsibility in the event that the delivery person gets into an accident.

Assuming that the engineer did what he is supposed to do, and Amtrak is aware of that, the engineers problems are all emotional, primarily, I assume, rage at this ****'s wife for having the gall to kill herself and her unborn child, inflicting emotional strain on the engineer, and then her husband having the utter gall to attempt to blame it on the engineer.

 

[Ispolkom]

You guys are all wrong, and your knowledge of law is so far off, its crazy. Here's why:
Amtrak's engineers are unionized employees of Amtrak. That means they are AGENTS of Amtrak, and as such a lawsuit of an Amtrak Agent while that Agent was operating in his official capacity as an Agent of Amtrak, the suit is automatically Amtrak's issue. If the Agent is found to be operating in a negligent fashion, that isn't a problem for moron who caused this thing. Its a problem between Amtrak and its engineer- its agent. Amtrak bears all costs involved with this, including the lawyer. If Amtrak finds the Engineer to be at fault, they can then sue the engineer to recoup their losses.

This is why many pizza delivery places, for instance, make their delivery people either sub-contractors, or independents- they essentially buy the pizza from the pizza place and then resells it to the customer. It absolves the pizza place of responsibility in the event that the delivery person gets into an accident.

Assuming that the engineer did what he is supposed to do, and Amtrak is aware of that, the engineers problems are all emotional, primarily, I assume, rage at this ****'s wife for having the gall to kill herself and her unborn child, inflicting emotional strain on the engineer, and then her husband having the utter gall to attempt to blame it on the engineer.

Are you saying that if I'm a pizza delivery person employed by, say Dominos, and I run a red light while delivering a pizza and kill a family of four, I'm not liable in civil court for this?

Since I am not a lawyer, I'll bow to those who understand torts better than I. I'll just say that I doubt that it's that cut and dried. There might well be questions of how I adhered to company policy, questions of actual vs. apparent authority, etc., etc., especially considering the quality of lawyers my now former employer will use to transfer the blame to me.

EDIT: Not that I'm claiming that Amtrak (or for that matter Dominos) would actually act that way in such a case.

 

[sechs]

I figure if Amtrak can be responsible for trespassers electrocuting themselves on catenary, they can be responsible for someone accidentally killing herself through reckless driving.

 

[Green Maned Lion]

Are you saying that if I'm a pizza delivery person employed by, say Dominos, and I run a red light while delivering a pizza and kill a family of four, I'm not liable in civil court for this?
Since I am not a lawyer, I'll bow to those who understand torts better than I. I'll just say that I doubt that it's that cut and dried. There might well be questions of how I adhered to company policy, questions of actual vs. apparent authority, etc., etc., especially considering the quality of lawyers my now former employer will use to transfer the blame to me.

EDIT: Not that I'm claiming that Amtrak (or for that matter Dominos) would actually act that way in such a case.

Dominoes eliminated their "15 minute or less" guarantee because of just that. But like I said, most pizza delivery boys are not "employed" by the pizza place. They are either sub-contracted or they "buy" the pizza from the pizza parlour and then deliver it at which point they "re-sell" it.

There are lots of questions about adhering to company policy and so on. However they will not be at issue in the basic civil case. The only question is: "Was the employee conducting official business in their function as an agent of the company?" If the answer is yes, the company pays up.

In a related suit, the company can then sue the employee on all of the grounds you mentioned and more in an effort to transfer blame to the employee. But it is an unrelated case dealt with on a separate docket.

The question is, then, did the employee act in a fashion consistent with a "reasonable and competent" person performing their function. Did Amtrak's engineer act in a reasonable and competent manor, doing all of the functions required of him as a reasonable and competent engineer? I.E. slam on the brakes in a timely fashion, operate the required warning signals, etc. If it is proved that the engineer, in fact, did not sound his horn as he is required to, Amtrak can and probably will sue him to compensate for as much of the damages they pay out as possible.

 

[Nickrapak]

Are you saying that if I'm a pizza delivery person employed by, say Dominos, and I run a red light while delivering a pizza and kill a family of four, I'm not liable in civil court for this?

No, you would still be liable. The issue is that Domino's would not be liable. If you were serving as an "agent" of Domino's, someone could feasibly sue Domino's for millions in pain and suffering.

 

[the Other Mike]

This was a Lincoln Service train that hit a pickup truck at an unmarked crossing in Hartford, IL back in March.

This is very tragic, but I think the reports are wrong about it being unmarked. If you watch the News video on the site you linked, you can see the reporter standing in front of the accident site, and the crossbucks are clearly visible in the background. I guess they meant it wasn't signaled or gated.

Are there still completely unmarked crossings in the US? I would be somewhat shocked considering the danger posed.

Hundreds, IF NOT thousands of unMARKED crossing still exist in USA.

HOWEVER, the bulk of them are private crossings. (farm, private driveways, roads across land owners property)

Personally, I cannot remember the last time I saw a truly UNmarked public road - RR Crossing..... But I'm betting that in some rural areas they exist. They may well have BEEN marked at one time, and the county has since not replaced the crossbucks..........

I can show you at least 6 crossings within 2 miles of my house that have just white crossbucks and this is in metro New Orleans. Theres a strech of about 10 blocks with at least 6 of that type of crossing between Mays Yard and Williams Blvd on the CNIC / KCS main that causes the engineers to LAY on the horn.

 

[rrdude]

This is better than watching re-runs of Perry Mason, or LA Law. I'm getting quite the edge-ah-mu=cation....

btw, Domino's tag line was 30 minutes, not 15, but who cares................

One of the questions was, and I believe it was answered, was about the "marking" of the crossing. Simple cross bucks do qualify as the X being marked. And if there was/is a quiet zone (highly doubt it) then there would HAVE to be ACTIVE crossing signals, (bells, lights, and gates)

As was also said, law requires PUBLIC crossings to be marked. Private X are a whole other story.........

 

[PRR 60]

...Logically the host RR should be responsible, but that is not how the contract is written. They are indemnified no matter what happens, no matter why it happens. This is how all RR's work. If BNSF clobbers a car for any reason while running on UP tracks, BNSF pays any awards, even if UP allowed the signals to fail. The car collided with a BNSF engine, so BNSF pays.

Your description of the indemnification aspect of Amtrak operation on host railroads is not correct. Amtrak (and any trackage rights user) does not pay all costs associated with accidents on host railroads.

The contracts provide a "no fault" indemnification. Basically, each party is responsible for their own costs. So, if an Amtrak train has an accident on CSX, Amtrak pays Amtrak's costs and CSX pays CSX's costs, regardless of which party was at fault. Amtrak costs would include any actions taken by passengers resulting from the accident, even if such actions are directed at CSX. Amtrak's passengers are Amtrak's responsibility. CSX's costs would include the cost of repairing the rail line, and any costs associated with freight delays or losses. If CSX crew members suffered losses, that too would be CSX responsibility. Even if a defective Amtrak car tears up several miles of railroad (as what happened on NS a few years ago), the host railroad pays the entire tab for repair of the track.

In the case of a grade crossing accident, there is a sharing of responsibility. The victim was not an Amtrak passenger, so cannot be assigned as a direct Amtrak cost. In this case, any settlement or judgment awarded to the victim will have a percentage share for each defendant, and each would pay that share. Amtrak would not pay the portion of any judgement levied against the host railroad for grade crossing accidents.

 

[cpamtfan]

Its too bad that this engine did not have the new cameras set up in the cab, but it probably hadn't gone to get it fitted <_< .

 

[battalion51]

Even without the Dash Cam it should be pretty easy to tell whether the horn was used. If you pull the tapes from the black box you can tell the throttle position, brake conditions, and a host of other factors based on the time of the computer. Put that in relation to when the train was dumped and you'll be able to tell. If you see the horn being actuated seconds prior to the train being dumped you've got a fairly rock solid case as far as Amtrak is concerned. Now you could still contend that KCS didn't have the crossing properly cleared. However, the way the laws read it's fairly hard to blame the railroad if all the systems at the crossing (crossbucks, flashers, gates, etc.) are in working order. Trains always have and always will have the right of way.

 

[DET63]

As far as jury or no-jury in a civil case, I believe that's usually agreed to by the plaintiff and defendant in advance, unlike a criminal trial, where the right to a jury trial is enshrined in the Constitution. I would assume that, if either the plaintiff or defendant wants a jury, but the other doesn't, either the judge is the tie-breaker or the case automatically goes to a jury. I could be wrong, and procedures might vary from one jurisdiction to another.

Who knows what would happen if the case went to a jury? A lot depends on the lawyers' skills at presenting their case to the jurors, as well as the makeup of the jury. Sometimes cut-and-dry cases turn out to be anything but by the time all is said and done.

 

[JAChooChoo]

Either way the Engineer probably doesn't need to pay for his own representation and I believe that that is the primary concern of the OP. Whether the UTU or Amtrak does it is a moot point.

OK stereotypers. Every posted mention of the engineer uses the male gender, but her name is Kathy !

 

[DET63]

Either way the Engineer probably doesn't need to pay for his own representation and I believe that that is the primary concern of the OP. Whether the UTU or Amtrak does it is a moot point.

OK stereotypers. Every posted mention of the engineer uses the male gender, but her name is Kathy !

Well, maybe we have another transsexual, like that MBTA operator who was caught texting just before her/his train crashed.

 

[como]

You guys are all wrong, and your knowledge of law is so far off, its crazy. Here's why:
Amtrak's engineers are unionized employees of Amtrak. That means they are AGENTS of Amtrak, and as such a lawsuit of an Amtrak Agent while that Agent was operating in his official capacity as an Agent of Amtrak, the suit is automatically Amtrak's issue. If the Agent is found to be operating in a negligent fashion, that isn't a problem for moron who caused this thing. Its a problem between Amtrak and its engineer- its agent. Amtrak bears all costs involved with this, including the lawyer. If Amtrak finds the Engineer to be at fault, they can then sue the engineer to recoup their losses.

This is why many pizza delivery places, for instance, make their delivery people either sub-contractors, or independents- they essentially buy the pizza from the pizza place and then resells it to the customer. It absolves the pizza place of responsibility in the event that the delivery person gets into an accident.

Assuming that the engineer did what he is supposed to do, and Amtrak is aware of that, the engineers problems are all emotional, primarily, I assume, rage at this ****'s wife for having the gall to kill herself and her unborn child, inflicting emotional strain on the engineer, and then her husband having the utter gall to attempt to blame it on the engineer.

GML you make an interesting point, but I hope that you respect the woman and her unborn child. The woman was someone's wife and daughter and she did not deserve to die. None of us know what happened in the car. It was a terrible accident for everyone involved.

 

[battalion51]

By the way, I'm 99% sure that the Union takes care of all representation for Engineers in these sorts of things. The BLET should have access to a pretty good legal team thanks to its association with the The Teamsters. The Union dues don't just go into oblivion...

 

[VentureForth]

Gotta throw my hat in the ring.... ACL: Plaintiff won't walk off with 7 figures - they're only asking for $200,000. Amtrak wastes that when they're unconscious; they will hardly miss it as part of a settlement. Sending a lawyer to court can cost more than that. The fact that they are suing the engineer is horrible, but common practice. In fact, I'm sort of suprised that GE and their subcontractors aren't being sued as well. That's essentially what killed general aviation in the 1980s.

Looking at Google, the basic railroad markings on the street are missing both crossings on 7th St. The Western single track has lights, but no gate. The triple track to the East has no lights. Now, on Mapquest, the Western track is labeled "Norfolk Southern", the Eastern set of tracks is labeled "Great Western". So whoever owns what, who knows unless they are there. No matter what, for a town that seems to have a pretty suburban-esque population density, the grade crossings are woefully inadequate. On the other hand, the Google Maps seem to indicate that visibility is pretty good both ways, but the video didn't seen to show that.

Finally, it looked like the power on the Amtrak train (at least on the video) was an F40. I didn't think they ran those any more, and even got rid of the cabbabge, but regardless, I highly doubt the dash cams were installed on this train. When did they start putting those in?