Passenger Trains > BNSF sues deadly Amtrak crash victims

BNSF sues deadly Amtrak crash victims, says they checked boxes in order to buy tickets 
KCTV
By Shain Bergan
Published: Sep. 22, 2022 at 4:42 AM PDT|

KANSAS CITY, Mo. (KCTV) - BNSF Railway filed a lawsuit this week against victims and surviving family members of the summer’s deadly Amtrak train derailment in Mendon, MO, saying Terms And Conditions of buying the ticket included language barring them from suing the railroad

.Victims and surviving family members of the June 27 crash that killed four people and injured 150 others have been suing BNSF over the incident in recent months, since the railway owns and operates the tracks that particular Amtrak train used to travel the trip between Los Angeles and Chicago. National Transportation Safety Board investigators had determined that the crossing where the crash occurred did not have safety mechanisms in place---including crossing arms, bells or lights. The train derailed after colliding with a dump truck at the crossing.

The lawsuits filed by the victims and surviving family members claim BNSF had been previously warned about safety issues on such crossings

.In a lawsuit filed in federal court Tuesday in Missouri, BNSF claims victims and their families cannot seek financial compensation through the courts, because passengers on the train all had to check boxes on lengthy Terms And Conditions in order to buy a ticket. Those check-boxes included language stating that any disputes passengers may have with the railroad must be arbitrated directly with the company and not through the court system, the lawsuit claims.

The crash site is less than two hours northeast of the Kansas City area, and a Kansas City attorney---Sean Hamer of Scharnhorst Ast Kennard Griffin PC law firm---is representing BNSF in the lawsuit. Another Kansas City attorney---Grant Davis of Davis, Bethune & Jones---is representing dozens of plaintiffs who are suing the railroad.

Many of the passengers in the crash were from the Kansas City area, and three of the people who died were local---Rochelle Cook, 58, of De Soto, KS, Kim Holsapple, 56, of De Soto, and Binh Pham, 82, of Kansas City, MO.  There is no next court date listed yet for the case.

https://www.kctv5.com/2022/09/22/bnsf-sues-deadly-amtrak-crash-victims-says-they-checked-boxes-order-buy-tickets/
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I think this article, in its own obtuse way, is saying that BNSF is attempting through legal action to force arbitration.



Edited 2 time(s). Last edit at 09/23/22 01:31 by GenePoon.

This will get real muddy very quicky

Jerry Martin
Los Angeles, CA
Central Coast Railroad Festival

GP25 Wrote:
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> This will get real muddy very quicky

Whichever way it falls I predict these will be consolidated and every attempt will be made to render quick judgement.....in a way I don't blame the lawyers for trying this question...the pasengers did tick the box....but it is it legal to require that? That is what must be known. If it isn't then BNSF and some others can't be held liable. The carrier's lawyers aren't doing their job if they don't pursue that point. If they lose they are no worse off...they'll just have to shell out some money they already have...Railroads are self insured. 

The language in the article was inflammatory to make the railroad look bad. When I first read about this I wondered why BNSF was bothering to go the arbitration route. Isn't BNSF indemnified for any losses by Amtrak? Maybe they are working with Amtrak since it will insist on arbitration. Amtrak probably wouldn't want BNSF to be held liable for damages Amtrak might have to reimburse BNSF. Probably will result in less money to the victims.

Why would BNSF have any culpability whatsoever?

1. They didn’t put the truck on the track.

2. Government decides which crossings get improvements and which do not.

3. The safety and survivability of Amtrak equipment is not under their control.

Bottom line: What should BNSF have done differently? Change the crossing? No, it’s not up to them.

Perhaps some of our better legal minds could explain why, if I was the judge, I should not dismiss the railroad as defendant the moment a motion is filed to do so.

filmteknik Wrote:
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> Why would BNSF have any culpability whatsoever?
>
> 1. They didn’t put the truck on the track.
>
> 2. Government decides which crossings get
> improvements and which do not.
>
> 3. The safety and survivability of Amtrak
> equipment is not under their control.
>
> Bottom line: What should BNSF have done
> differently? Change the crossing? No, it’s not
> up to them.
>
> Perhaps some of our better legal minds could
> explain why, if I was the judge, I should not
> dismiss the railroad as defendant the moment a
> motion is filed to do so.

Because that's what "ambulance chasing attorneys" do.  Remember back in the mid 1970s, when an Amtrak train (Texas Chief?) struck a crude oil tank truck in Oklahoma on the Santa Fe? The "ambulance chasing attorney" brought suit against Amtrak and the Santa Fe, plus General Motors Corp. (since it was EMD SDP40F units), mainly because GM had the "deep pockets".  Eventually, EMD GM was "dismissed" from the case. 

That's pretty pety of BNSF. They didn't need to sue, merely asked the court to dismiss the lawsuits against them.  No need to rub salt into the wounds of the survivors.

NormSchultze Wrote:
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> That's pretty pety of BNSF. They didn't need to
> sue, merely asked the court to dismiss the
> lawsuits against them.  No need to rub salt into
> the wounds of the survivors.

I disagree. This may be the only way to legally get the "ambulance chasers" to go away.

If you read yesterday's post by reagalstream it says BNSF petitioned the court to enforce the arbitration clause. I think this TV station might be fanning flames claiming they sued victims. 

I thought "host railroads" like BNSF are "held harmless" and that any liability
is upon the carrier, Amtrak, unless "negligence" can be proven?
In the 1993 Sunset Limited/Bayou "barge" disaster, was CSX  found liable?

Everybody hates attorneys until they need one!

AMTRAK indemnifies host operating railroad, per contract. Thus BNSF cannot be made to pay. At least that is the way it used to be.

RRBMail Wrote:
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> Everybody hates attorneys until they need one!

Whenever We have needed an attorney, we don't hire "ambulance chasers".

Oh and the truck driver then didnt have any liablity in the whole thing? He is the dummy that didnt look for track to be clear?  This is the bottom line as I guess a stop sign without flashing lights and gates are soon up for grabs. All of this just adds to the cost of doing business.

Westbound Wrote:
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> AMTRAK indemnifies host operating railroad, per
> contract. Thus BNSF cannot be made to pay. At
> least that is the way it used to be.
Yes, that's what I thought  and is that what happened 
in the aftermath of the 1993 disaster I mentioned? Thanks!

filmteknik Wrote:
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"... > 2. Government decides which crossings get
> improvements and which do not. ..."

My guess is that you are referring to various grants that the "government" (I think you mean Federal) administers and distributes. If the crossing was 1) defective and dangerous and 2) caused this accident, then that does not remove any responsibility on BNSF's part to do the right thing simply because they thought someone would come along later and pay for their crossing rehabilitation.

An analogy: if I think some sugar daddy is going to buy me new tires to replace my worn out dangerous tires and I continue to drive on the dangerous old tires and an accident occurs as a result of my dangerous tires, then I am at fault. It does not matter it I thought someone else  was going to buy me new tires and I held off while irresponsibly driving on dangerous tires. 

I don't know if the crossing was dangerous, but if it was, then the accident is BNSF's fault regardless of any funding they anticipated. So BNSF, in the interests of safety, must fund the rehabilitation of it's crossings.



Edited 1 time(s). Last edit at 09/23/22 15:06 by OnTime.

OnTime Wrote:
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> filmteknik Wrote:
> --------------------------------------------------
> -----
> "... > 2. Government decides which crossings get
> > improvements and which do not. ..."
>
> My guess is that you are referring to various
> grants that the "government" (I think you mean
> Federal) administers and distributes. If the
> crossing was 1) defective and dangerous and 2)
> caused this accident, then that does not remove
> any responsibility on BNSF's part to do the right
> thing simply because they thought someone would
> come along later and pay for their crossing
> rehabilitation.
>
> An analogy: if I think someone is going to buy me
> new tires to replace my worn out dangerous tires
> and I continue to drive on the dangerous old tires
> and an accident occurs as a result of my dangerous
> tires, then I am at fault. It does not matter it I
> thought someone else  was going to buy me new
> tires and I held off while irresponsibly driving
> on dangerous tires. 
>
> I don't know if the crossing was dangerous, but if
> it was, then the accident is BNSF's fault
> regardless of any funding they anticipated. So
> BNSF, in the interests of safety, must fund the
> rehabilitation of it's crossings.
'
I see problems with your view.  First and foremost,  define 'unsafe'.  Do safe crossings require full gates, lights and bells,  or does a crossbuck suffice?   What are the grading and sight line standards for the road crossing the tracks?  Once you define this,  then consider how many level crossings exist along any large railroad.  Given the rural nature of much of the BNSF and UP,   the number is probably in the high thousands.  Which is why things are they way they are.   Of course,  the railroads could close most all rural crossings and fence the entire railroad.  I think most people would rather assume the risk of such crossings and hopefully act accordingly.   

That BNSF sure is classy.

OnTime Wrote:
------------------------------------------------------

>
> I don't know if the crossing was dangerous, but if
> it was, then the accident is BNSF's fault
> regardless of any funding they anticipated. So
> BNSF, in the interests of safety, must fund the
> rehabilitation of it's crossings.

I don't know how you arrive at this.  What defines "dangerous"?  Who defines it?  Any crossing is potentially dangerous if the motorist is careless.  Was there a history of accidents at this crossing?  I don't know the situation there but in many states the State Highway Department pays for active warning devices with the railroad then responsible for maintenance.

Respectfully, I think you are wrong.

Gordon

I was under the impression that government does not just fund improvements but actively decides which get improved.