Western Railroad Discussion > Another lawsuit

I came across the story below from the Seattle Times in a couple of places today, so I wanted to share it with the board. If the lawyer had dictated the story, he couldn't have gotten better play. The whole piece really stuck in my craw. And, after all is said and done, should the case produce a victory for the plaintiff, it will do not one thing to increase safety, will enrich a lawyer who gets a third to half of the settlement, and will do absolutely nothing to bring back the children who died. Loved ones are heartbroken and want to lash out, but this is not the way to go.

It's a long story, but you may find it interesting to wade through.

Lawsuit in train deaths is beating the odds

By Nancy Bartley

Seattle Times staff reporter

Zandra Lafley, 13, left, and Rachel Marturello, 11, were struck and killed by a train in April 2000. Their families have filed a suit seeking to hold Amtrak accountable.

It was a bright, sunny afternoon when three girls on spring break set off down the trail flanking the Green River in Kent.

As generations of children did before them, on April 20 six years ago, sisters Rebecca and Rachel Marturello and Rebecca's best friend, Zandra Lafley, climbed up the bank onto two sets of railroad tracks and walked onto the aging black trestle that spans the river, past a sign reading "Danger keep off bridge."

Rebecca, 14, was nearly across the trestle when she heard the whistle and saw the Amtrak train bearing down on them. She shouted a warning to the others and sprinted a few feet, leaping to safety. Rachel, an 11-year-old with cerebral palsy, and Zandra, 13, turned back and tried to run along the unevenly spaced ties where they could see the river beneath them, straining to reach the end of the confining trestle.

They leaped onto the adjoining track and then in apparent confusion, crossed back onto the path of the oncoming Amtrak train.

The deaths of the two girls are the basis of a wrongful-death lawsuit against what the victims' families call Amtrak's "corporate culture of tolerance." They want to hold the railroad accountable for the accident and force it to set standards to help avoid other train-pedestrian fatalities, especially among children.

To do so, the families face a longstanding practice of state and federal transportation agencies and Amtrak that frees train engineers from responsibility for trespassers' deaths, no matter the circumstances.

The state has no guidelines for engineers to prevent hitting pedestrians. Amtrak requires only that an engineer sound a warning signal if someone is on the tracks. The assumption is that anyone who hears the signal will get out of the way, according to the railroad.

Railroads generally take the position that people who walk onto tracks, which are private property, put themselves in harm's way by trespassing, thus negating the railroads' liability. It's a position that has been supported by state and federal transportation agencies.

Railroad accidents involving pedestrians aren't unusual - some 225 people were struck and killed by trains in Washington state alone from 1991 to 2005 - but rarely do victims' families successfully sue a railroad. That's because winning such a case in the state requires proving wanton disregard for safety on the part of the engineer - a high burden of proof.

Nonetheless, the fact that the suit filed in 2002 by Mary and Rebecca Marturello and Leeann Lafley is set to go to trial in U.S. District Court in Seattle in June represents a victory of sorts. The case apparently is the only one of its kind in the state where an appellate court has reversed the dismissal of a case against a train company.

The District Court in August 2003 found insufficient evidence that the engineer had been willfully careless and caused the girls' deaths. But in March 2005 the 9th U.S. Circuit Court of Appeals reversed the ruling, saying there appeared to be sufficient evidence for a jury to find the railroad company liable for the girls' deaths.

While neither Amtrak, its attorneys nor the engineer, Gary Reithmeir, will talk about the case, court documents show they deny being at fault for the deaths. In court documents, Amtrak says trespassing on railroad property, which the girls were doing, "courts danger." The state Utilities and Transportation Commission (UTC), which investigates rail mishaps, agrees.

But the plaintiffs believe the railroad should consider the ages of children and do everything possible to avoid an accident. And, if an engineer is alerted before an accident that there are children on the tracks - as was the case in the Kent accident - he should assume the children's behavior will be unpredictable.

On the day of the accident, railroad dispatch notified engineer Reithmeir that the engineer of a southbound train reported seeing children "playing chicken" on the trestle, court documents say. All train engineers are familiar with the potentially dangerous act, in which people dodge danger by leaping away from a moving train at the last second.

Reithmeir was a half-mile away from the trestle when he slowed the train from 79 to 65 mph after being alerted to the children up ahead, court documents say. As he approached, he saw the girls jump to the east tracks and out of harm, so he released the brake and the train accelerated onto the trestle.

But the girls jumped back onto the west tracks. Although they were only about a foot away from clearing the trestle and could have leaped to safety, they dropped into fetal positions just before being struck and killed.

"I think he [Reithmeir] made a mistake by not slowing that thing down" more, instead of just easing up on the brake, said Bob Boston, the state UTC's rail-compliance inspector, who investigated the accident. "But he thought they were going to get out of the way."

Ultimately, the girls were trespassing and responsible for their own deaths, he said.

The plaintiffs insist that if the engineer had immediately applied the brake when he received word that children were on the tracks - or even continued to brake rather than letting up on the brake when he thought the children were in the clear - the accident could have been avoided.

While freight trains, because of their weight, can take long distances to stop, the high-speed Talgo trains that Amtrak uses can stop relatively quickly, within 1,670 feet if traveling at 60 mph, according to the manufacturer's specifications.

Gene Bolin, the attorney for the victims' families, argues that Reithmeir would have had ample time and distance to stop the train before striking the girls.

BNSF Railway, which owns the railroad tracks on which the Amtrak train was traveling, requires its engineers to use the emergency brake to avoid pedestrians.

But Amtrak disputes whether its employees need to follow rules set by the owners of the railroad track, according to court documents.

In a deposition for the case, Amtrak foreman Tim Branson testified that the train company never evaluates engineer competence when fatalities occur.

There is also no requirement that an engineer be tested for substance abuse after a trespasser fatality, according to state and federal officials. Although toxicology reports were done on Zandra and Rachel after the accident, none was done on the engineer.

"The engineer who sees a trespasser on the tracks need, at most, give the trespasser a warning signal, at which point the engineer may assume the trespasser will get out of harm's way," Amtrak argued in court documents. The railroad maintains that the "engineer both blew the whistle to alert the girls to the train's presence and slowed the train's speed some 10 to 15 mph."

The girls, Amtrak points out, "crossed back into danger only after it was too late for Reithmeir to do anything."

For train engineers, accidents involving pedestrians are not an uncommon part of the job. People often misjudge the speed of trains or may not hear one of the newer, quieter trains in time to react. One engineer out of Spokane has been involved in 17 fatalities.

In fact, Reithmeir had been involved in two other fatalities before the Kent accident. The first incident happened in 1987 when he struck a 15-year-old girl at a trestle over the Nisqually River. The second was in British Columbia in 1997, when a 12-year-old boy playing chicken jumped in front of the train and was unable to jump back before being struck.

After the Kent accident, the UTC's Boston recommended in a report to his supervisor that Amtrak look into the problem of child railroad trespassers in confined spaces like trestles. But he said his agency never contacted Amtrak or made any recommendations after his lengthy report.

The UTC does not have any authority over the train-crew operating rules, Boston said. So any punitive action would come from the Federal Railroad Administration (FRA).

Steve Kulm, director of public affairs for the FRA, said it's his agency's policy not to investigate any trespasser fatality.

"It's illegal to be on private railroad property. We don't know what would be learned from a federal investigation into it," he said. "You have a train going down a track. It can't turn off to avoid a trespasser."

But the FRA did a report on the Kent accident because of its "high-profile nature," and concluded that the girls were responsible for their own deaths.

In the meantime, the survivors, Rachel, her mother, Mary Marturello, and Zandra's mother, Leeann Lafley, have tried to cope, too. After the accident, Mary Marturello suffered a heart attack and Lafley returned to drug use after a long stretch of sobriety.

Rebecca, now 20 and working at a day-care center, tries to remember happier times with her best friend, Zandra, who loved rock music and was eager to get a driver's license, and sister Rachel, a "girly girl who always wore her hair up and had earrings in."

Nothing will take the pain away, but "it does seem the engineer should have done something [more]," she said. "We were just kids."

What a shame that these folks are trying to make a buck off the deaths of their children. What a wonderful world.

-Justin

> "it does seem
> the engineer should have done something ,"

Like what? Swerve the train around them?

"it does seem the engineer should have done something [more]," she said. "We were just kids."

should say: "it does seem the parents should have taught their children something about not playing on the tracks." she said. "They were just dumb kids playing in a very dangerous place."

even if the engineer had tried to stop...he still probably would have hit them if the train was traveling faster than 60mph right...so what else could the engineer do...nothing, people should learn to not mess around with trains.

As Operation Lifesaver teaches in ALL of it's classes, for any group, trains take a mile to stop... You can't violate the Laws of Physics. What's sad is that in many cases, because of legal manuvering, the jury never hears that fact. Perhaps one should inquire about "Peer Counseling" programs at most major railroads for the crews who are involved in incidents like this and then are victimized again by the media and ambulance chasers...

This is one case where I would support the railroad counter-suing the parents for failure to teach thier children about the dangers of playing on the tracks, failure to respect warning signs, and failure to respect private property. And then charge them all costs related to the incident. They're forcing this engineer to go through hell because they want to get rich off the whole deal. I'd rather see them in the poor house!

Ted Curphey
funnelfan@yahoo.com

<<<<past a sign reading "Danger keep off bridge">>>>


DUH!!!!!!!!!!!!!!!!!!

Whose fault is this? The pure idiots who got hit. No lawsuit needed. The stupidity of people nowadays only gets more and more apparent. A classic case of "You were warned, and you didn't listen."

>>MC>> two less idiots to foul up the planet

The loss of life is always hard to deal with but the parents shouldn't be blaming the crew. If anyone should get sued is the parents. They should have known the where abouts of their kids. Now what if the crew experiences possible psychological problems and can't handle the job anymore? What did they want the engineer to do? Dump the train have the cars possibly derail then the girls get off the track just in time. Guess who gets pulled out of service for derailing equipment for trying to avoid kids who had no business there in the first place. This just pisses me off on how some people try to get paid at the expense of hard working people because I could be the engineer next time. The longer this case lingers, the more precedence is set for the next greedy person.
I know sometimes kids do things they shouldn't, but they should have known to stay off the tracks if nothing else. My kids were taught at an early age to stay away from the tracks because they know if I found out their BUTTS WOULD BE ON FIRE when I got done with them. Speaking of butts being on fire, so should the parents butts. Even though the parents have a lot to deal with, like the post said earlier, the crew should counter-sue. Just my opinion.

I agree totally with ESPEEFAN. And it pisses me off too.

ALCO Wrote:
-------------------------------------------------------
> I agree totally with ESPEEFAN. And it pisses me
> off too.

Got my vote.
jd

Sad part is the whole lawsuit is effort in futility with only lawyer(s) filling their pockets.

This Federal Appeals Court, located in (where else?) in San Francisco, always produces the goofiest of legal reasoning. Thankfully they are overturned more than another U.S. Appeals Court by the Supreme Court.

my heart goes out first to the crew because they were just doing there jobs and there was nothing they could have done to stop in time. second to the families of the children because sometimes we parents talk to our kids about doing things that can hurt them but we can't be with them 24/7 to make sure they adhear to our teachings. in our 1/8the scale train club we go though the same thing when people kids and parents alike do not listen when told to sit still and don't lean out and move around and drag your feet because you can get hurt. it's written on our sign at the loading area and told to them by the folks that load them. i agree that the crew should counter sue for the suffering they must be going though.
trainnut51 giving his moneys worth

If I'm not mistaken, one of the justices on the 9th Circuit in San Francisco is "Marilyn J. Patel" ...
She is HATED by vast numbers of people because of some of the rulings she has made, going back many years when she was on the local court system in San Francisco.
Not sure how she might rule in this Amtrak suit however.

KRK

This one seems cut and dried. The kids were tresspassing, and they could all read. However, sometimes the railroads settle out of court, in which case the attorneys will probably get most of it.

BTW, WE ALL have tresspassed in dangerous places. I don't know what the engineer could have done differently, but the girls should not have broke and run like that, either. Were there not two tracks and a walkway? No disrespect to the girls, but that was pitiful and foolish behavior, lolligagging on a bridge like that with no thought of how to escape if a train came along. The parents share some responsibility in that, IMO.

I have two kids approximately that age. I teach them to stay out of trouble and not to tresspass. I can't be everywhere, however, and they might do something stupid someday. I did plenty of it myself, spending many hours on my favorite boyhood railroad trestle. Therefore, I think it is important to teach your kids to be observant, and try not to panic in an emergency, just in case they do find themselves in the wrong place at the wrong time. Talk to your kids and grandkids about the importance of not running helter skelter like that. They just might remember.

Christ what a biased article.

"As generations of children did before them"
Right, it's a tradition so it's OK?

"and tried to run along the unevenly spaced ties where they could see the river beneath them"
Are they trying to imply that was irresponsible of BNSF to not build their tracks so they could be run over easily?

"the confining trestle"
Yes, the blasted testle that checked their every move and maliciously kept them from escaping.

"After the accident, Mary Marturello suffered a heart attack and Lafley returned to drug use after a long stretch of sobriety."
Are they going to sue Amtrak for that too?

Very subjective, yes, but the wording seems very sympathetic and seems to downplay the fact that these kids wandered onto a stretch of track from which they knew they couldn't escape.

So I say lets re-create the incident. Put some child size "dummies" (as in not human) in the fetal position 1 foot from clearing the trestle. Then put the familys in the cab. Let them view what the engineer saw.

bw

One solution and settlement I saw recently was for the railroad to plead no contest, and lay a wooden plank walkway down the center of the tracks on the bridge in question so that future trespassers could quickly exit the bridge if a train should arrive while they are on the bridge. The plaintiffs acknowledged that the victims and their friends had an established history of "playing chicken" with the trains, but that was not addressed in the settlement. A walkway would have made the three girls' exit in the case in this thread a bit easier, and the whole sad event might have been avoided. But a walkway then becomes something for the railroad to keep maintained, and get later sued for later for not maintaining.

Don Strack

Not only that but if you provide a walkway people assume its ok to enter the trestle.
Walkways on Bridges and trestles are there for MofW and signal maintainers their not there for Joe Q public.
The reason there is no tresspassing signs is not because the big bad railroad wants it all to itself but because its dangerous and due to liability that if they did not post a sign they could be held liable.
The sign is there folks now kick that bottom feeding scum sucking lawyer in his nuts and say enough.
These parents should be held liable for the grief and mental pain the engineer has to carry. The parents are the once that did not bring up their kids right, I lived near a bussy railroad and was told to stay away from it, and if I did not listen the slipper of my father set me straight. todays bleeding heart courts and parents make it the big bad railroads fault.
I feel for parents loss but its not the railroads fault the parents should look in miror and say where have we gone wrong.