November 2021 | Volume 13, Issue 4
According to the article, seven of the more than 50 passengers injured in an Amtrak train derailment in Montana last month have filed federal lawsuits accusing the rail line and the operator of the railroad tracks of negligence, saying the crash could have been prevented.
"Trains just don't derail by themselves," Sean Driscoll, a partner at Clifford Law Offices in Chicago and lead counsel for the plaintiffs, told the media recently.
The lawsuits were filed separately in U.S. District Court in Chicago on behalf of a Massachusetts couple, a Pennsylvania couple, an Indiana couple, and a man from Montana. Driscoll said the plaintiffs are not only recovering from their injuries but also coping with severe emotional and psychological traumas from the carnage they witnessed.
The train that crashed in Montana was carrying 146 passengers and 16 crew members when it derailed. Three passengers were killed.
Amtrak's Empire Builder train headed from Chicago to Seattle derailed near Joplin, Montana, on September 25, sending several cars toppling onto their sides.
The National Transportation Safety Board and the Federal Railroad Administration are investigating the crash and have yet to publicly announce a cause for the disaster. The NTSB said it plans to release a preliminary report on the crash later this month.
But Driscoll said that an investigation by his law firm has already collected enough evidence to allege the crash could have been avoided.
"We have assembled a team of experts including former NTSB investigators who are conducting a thorough examination of all aspects of this tragic derailment," Driscoll said. "We will get answers. They (the plaintiffs) will get justice."
The lawsuits also name the BNSF Railway Company, which owns and operates the track the derailment occurred on, as a defendant in the cases.
Neither BNSF nor Amtrak would comment on the lawsuits.
"We are deeply saddened by the loss of life and injuries due to the derailment of the Empire Builder train on September 25, near Joplin, Mont., on BNSF railroad. It is inappropriate for us to comment further on pending litigation," Amtrak said in a recent statement.
Driscoll said the lawsuits also seek to challenge an Amtrak policy instituted in January 2019 requiring that legal action against the company be resolved through a mandatory arbitration process. Under the change, customers, upon purchasing a ticket, waive their right to sue Amtrak for any reason.
Amtrak made the change after losing or being forced to settle several large lawsuits stemming from other crashes, including reaching a $57 million settlement related to a 2017 crash in DuPont, Washington, that killed three people and injured more than 60. An NTSB investigation concluded that the DuPont crash was the result of inadequate training by the locomotive engineer, who was traveling too fast to negotiate a hazardous curve.
The Montana derailment lawsuits contend BNSF had issued a slow-down order for the East Buelow switching point section of track where the derailment occurred due to maintenance being performed.
"Upon information and belief, BNSF did not communicate information regarding the true condition of the track at and around the East Buelow switch point," each of the lawsuits states.
The train, according to the lawsuits, was going 78 mph, which is about the normal speed limit for the area. The crash occurred in a gradual curve of the East Buelow switch point, according to the NTSB.
The lawsuits allege Amtrak and BNSF failed to properly inspect the track or "ascertain whether it was in a safe condition for the passage of passenger trains."
Eight of the train's 10 cars and two locomotives derailed, four of them toppling onto their sides, officials said.
Ryan and Hanna Shea of Massachusetts, two of the people who filed suit, said they were in their sleeper car, headed to Seattle to visit family, when they felt a series of jolts that "threw us against the walls of our roomette."
"This was our first train trip, and we were planning on primarily traveling by train for future trips if everything went well," the couple said in a statement released by their lawyers. "We hope that it is through our lawsuits that rail will again be a trusted way to travel, and that Amtrak will admit the mistakes it made here and do the right thing. The status quo is obviously not safe enough."
Driscoll said his law firm has been contacted by other passengers injured in the incident and will be filing more lawsuits soon.
- As indicated in the article, the plaintiffs have filed lawsuits in federal court. Why federal court rather than state court? Explain your response.
Federal jurisdiction arises in diversity of citizenship cases in which the amount in controversy exceeds $75,000. Amtrak is also government-owned enterprise, and cases involving the federal government belong in federal court.
- As indicated in the article, Sean Driscoll, a partner at Clifford Law Offices in Chicago and lead counsel for the plaintiffs, told the media recently that "(t)rains just don't derail by themselves." Which tort theory is consistent with this statement? Explain your response.
In your author’s opinion, attorney Driscoll’s comment is consistent with the negligence per se doctrine. “Per se” means “by or in itself” or “intrinsically,” and as Mr. Driscoll so aptly stated, a train does not derail by itself, meaning that the derailment itself is enough of an indication of negligence to get the case to the jury deliberation room (for the purposes of rendering a verdict.)
- As indicated in the article, plaintiffs’ attorney Driscoll said his clients are not only recovering from their physical injuries but are also coping with severe emotional and psychological traumas from the carnage they witnessed. Are damages for emotional distress recoverable in a civil action? Should they be? Explain your response.
Damages for emotional distress are recoverable in a civil action. In your author’s opinion, they should be, because emotional pain and suffering can be as debilitating as physical pain and suffering. Obviously, emotional distress will typically be more difficult to prove than physical distress (usually, it is established based on convincing, medical expert testimony), and it is the plaintiff’s burden to prove emotional distress.