Trial Magazine

Credited with creating the first steam locomotive in the United States, Colonel John Stevens once said, “I can see nothing to hinder a steam carriage moving on its ways with a velocity of 100 miles an hour.” Stevens, a lawyer who also helped shape U.S. patent law, received the first railroad charter to build a rail line across New Jersey in 1815. And even 200 years ago, he envisioned what a system of rails could be: fast, efficient, and a way to connect people. But what he didn’t foresee is how such a system would be fraught with so many problems, compelling his fellow attorneys to jump in and help.

Within 75 years after Stevens received his charter, much of the country’s railroad system was in place. But not long after that, railroad crashes started occurring with some frequency. Even more disturbing was the level of harm some of the crashes caused. In 1918, two passenger trains collided head-on at 50–60 mph in Nashville, Tenn. Both trains derailed, killing at least 100 and injuring at least another 170. Still considered the worst rail crash in U.S. history, the Interstate Commerce Commission investigation of the Great Train Wreck of 1918 concluded that the crash was due to both human error and broader deficiencies. The crew and tower operators made crucial missteps, and there was no system in place for accurately determining train positions.

Over the next 100 years, crashes would become more commonplace, from derailments to train-pedestrian/car crossing incidents to worker injuries. In 2019 alone, 862 people died due to railroad incidents, according to the National Transportation Safety Board (NTSB), the second most behind highway fatalities across the various modes of transportation. Common causes of train incidents include human error, engineer or operator fatigue or impairment, deficient organizational safety systems, equipment and track defects, reckless pedestrians and drivers, mechanical issues, excessive speeding, and unprotected crossings.

Despite the number of incidents over the years, railroad companies such as Amtrak, Union Pacific, and others have sought to hide behind federal preemption, damages caps, and even forced arbitration. But trial attorneys continue to step up to help victims of rail crashes and advocate for safety improvements and advancements.

In 2019 alone, 862 people died due to railroad incidents, the second most behind highway fatalities across the various modes of transportation.

Dangerous Crossings

With over 200,000 highway-rail grade crossings in the U.S., the possibility for a tragic incident is unfortunately enormous. According to the National Highway Traffic Safety Administration and the Federal Railroad Association (FRA), a person or vehicle is hit by a train at a rail crossing every four hours. And the FRA reports that in 2020, there were more than 1,900 highway-rail incidents with 198 fatalities; and in the first half of 2021, 989 incidents with 109 fatalities.

One common issue with railroad crossings, especially in rural areas where thousands of crossings are located, is the lack of safety features—even basic lights, gates, or signage to warn motorists and pedestrians that train tracks lay just beyond. And overgrown vegetation can make these crossings even more treacherous. For example, in 1998, Chris Barber was a passenger in a garbage truck approaching a crossing in Palestine, Ark., owned and operated by Union Pacific. Like many others, the crossing had no lights or gates and was surrounded by overgrown vegetation. The plaintiff and numerous witnesses said that to see the train, a vehicle essentially had to be on the track. A train struck the garbage truck, killing the driver and landing Barber in the hospital for two months.

Barber sued Union Pacific for failure to keep the crossing safe, failure to properly sound the train’s horn, and excessive speed. The jury awarded Barber $5.1 million in compensatory and $25 million in punitive damages. On appeal, the Arkansas Supreme Court upheld the verdict, calling the railroad’s behavior reprehensible: “This case reflects the development of a corporate policy at Union Pacific that put company profits before public safety.” The U.S. Supreme Court denied the defendant’s cert petition.

Preemption. While the Barber case and others like it stand as a testament to the perseverance of trial lawyers, one common obstacle still presents itself in these railroad crossing cases: preemption. Enacted in 1970, the Federal Railroad Safety Act (FRSA) was intended “to promote safety in every area of railroad operation and reduce railroad-related accidents and incidents.” But it wasn’t long after that railways tried to use the FRSA as a liability shield.

The Supreme Court only made that shield stronger with its decisions in CSX Transportation, Inc. v. Easterwood and Norfolk Southern Railway Co. v. Shanklin, when it held that the FRSA preempts certain state tort actions and claims. For example, claims that the horn was not loud enough to provide an audible warning, the duration of the horn blast was not long enough, the speed restrictions for the track were unsafe or improper, and improper railcar reflectors were used have all been subject to preemption.

Fortunately, preemption is not an issue with state-based claims in cases involving the following: vegetation or objects on the railroad’s right-of-way that block a motorist’s view; construction, design, and maintenance of crossing surfaces; maintenance of grade-crossing signs, signals, and equipment; and crossings that are located on private property, outside the reach of federal law.

Off the Rails

The 1918 Nashville crash was not the first derailment, and even today, the news is littered with crashes and derailments on a regular basis, most recently the fatal Amtrak Empire Builder derailment in Montana. But trial lawyers have stepped in time and time again, working to improve rail safety.

On Sept. 12, 2008, a Metrolink commuter train in Chatsworth, Calif., collided with a Union Pacific train, killing 25 people and injuring over 100. Among other findings, the NTSB concluded that if positive train control (PTC) had been installed on the Metrolink train, the crash would have been avoided. PTC allows trains’ speed and location to be continuously monitored and automatically slows or stops trains at any point. Despite the judge acknowledging their damages were greater, the victims and their families received just $200 million due to a federal cap on damages in that amount for any single railroad incident, which had been in place since 1997.

On June 22, 2009, two subway cars collided in Washington, D.C.’s Metro system near the Fort Totten stop, killing nine and injuring over 80 others. A failure of Metro’s monitoring equipment caused the crash, which was first installed in the 1970s and had been deteriorating for years. Wrongful death and personal injury lawsuits were filed, and Metro admitted liability.

The NTSB found that Metro’s train-tracking system was improperly maintained and that those in charge of the monitoring system were improperly trained and supervised. It also found that the communication system used by Metro personnel was ineffective. As a result, Metro expanded track work shutdowns and ended automatic train operations.

On May 12, 2015, an Amtrak train bound for New York City derailed on a sharp curve just north of Philadelphia. Eight people were killed and over 200 were injured. Black-box data showed the train was traveling at 106 mph, more than double the speed limit. The derailment occurred on the Northeast Corridor, the country’s busiest train route that then had more than 700,000 riders daily.

Dozens of lawsuits were filed and consolidated as federal multidistrict litigation alleging that Amtrak was grossly negligent because, in part, it failed to install PTC or automatic train control (ATC), which can slow or stop a speeding train. The ATC technology was in place on the southbound side of the tracks but not the northbound side: Amtrak added it only after the derailment.

Amtrak conceded liability and agreed to pay $265 million to approximately 125 survivors and family members of those killed and injured—the largest settlement of its kind in U.S. history. But trial lawyers sounded the alarm on the outdated $200 million damages cap—which had been an issue in the Chatsworth derailment too—for such a catastrophic derailment that could have been avoided if appropriate technology had been in place.

Mere months after the Philadelphia crash, Congress raised the cap to $295 million, paving the way for the historic settlement. Still, it was not enough. The court observed the aggregate compensatory damages approximated “over $500 million—about twice the present value of the available settlement funds.”

On Dec. 18, 2017, an Amtrak train on its inaugural route derailed off a highway overpass near DuPont, Wash., forcing several passenger railcars onto the interstate and striking multiple vehicles. Three train passengers were killed, and 65 people were injured.

More than 35 people sued Amtrak in connection with the derailment. In the first three cases to go to trial on damages only, juries awarded more than $31.5 million. Earlier this year, a judge in one case ruled that Amtrak was strictly liable for the crash, and trial lawyers obtained millions more in settlements. Again, the conclusion was that had PTC been installed on the train, the crash would not have occurred. More cases are pending.

Positive train control. In response to the Chatsworth derailment, Congress passed the Rail Safety Improvement Act of 2008, requiring PTC systems to be fully implemented on all passenger tracks by the end of 2015. But the deadline for full implementation was extended twice, and ultimately, the FRA was required to approve any railroad’s request for an “alternative schedule and sequence” with a final deadline of no later than Dec. 31, 2020.

But three years after the Philadelphia crash, only 60% of passenger railroads had PTC installed. It took until the end of 2020 for PTC to be installed on all trains, after countless people were killed and injured due to what trial attorneys have called a basic safety failure.

Amtrak and forced arbitration. As the trials over the Washington state derailment proceeded, in January 2019 Amtrak quietly amended the terms and conditions of its tickets to include a forced arbitration provision and a class action waiver. This limits crash victims’ access to the courts for the railway’s negligence and failure to take basic safety precautions. Had these provisions been in effect when the Philadelphia cases settled, for example, the victims and their families would have had no access to the courts.

In January 2020, Public Citizen sued Amtrak in federal district court in the District of Columbia, seeking declaratory and injunctive relief to prevent the railroad from enforcing the arbitration provision. That suit, Weissman v. National Railroad Passenger Corp., alleges that the forced arbitration provision is unconstitutional. But the district court dismissed the case based on the forced arbitration clause, and an appeal of the decision is pending.

In March 2020, with the support of AAJ and its members, the Ending Passenger Rail Forced Arbitration Act (S. 3400/H.R. 6101) was introduced in both houses of Congress to prohibit Amtrak from including forced arbitration clauses in ticket contracts. Although it is now tied up in the larger infrastructure bill currently being negotiated, AAJ will continue to advocate for the end of forced arbitration clauses in Amtrak passenger tickets and in other contracts where corporations seek to hide these clauses in the fine print.

But with no legislative fix yet, forced arbitration will be an issue in Amtrak’s most recent deadly derailment. On Sept. 25, 2021, an Amtrak train traveling in rural Montana carrying 157 people derailed, killing three and injuring dozens. The first wrongful death and personal injury lawsuits were filed against Amtrak and BNSF Railway, which owned the tracks. This would be the first mass casualty case in which the forced arbitration clause will be an issue.

Protecting Rail Workers

But it’s not just passengers and bystanders who are injured by railroad companies’ failures—rail workers also have been the victims of lax safety controls. In 1908, Congress passed the Federal Employers’ Liability Act (FELA) to address worker safety and the already too-high rate of rail incidents involving workers. As the exclusive remedy for most claims by rail workers against their employers, FELA lawsuits can be brought in state or federal court and have a three-year statute of limitations from the date the cause of action accrued.

Unlike workers’ compensation claims, rail workers must show their employer’s or coworker’s negligence in these cases. But like any employment cases involving serious injury or even death, trial attorneys have been able to achieve some measure of justice for these workers over the years. (For more, see p. 104.)

In one case, Eric Doi, a Union Pacific signalman, was left a quadriplegic when his coworker crashed a company-owned truck after becoming distracted. A California jury awarded Doi $48 million, one of the largest FELA verdicts ever, which was upheld on appeal.

In another FELA case, Dawson v. BNSF Railway Co., the Kansas Supreme Court focused more on the three-year statute of limitations. It reinstated a $3 million verdict in favor of a BNSF railway worker who had a “cumulative injury,” finding that although a cause of action generally accrues when the injury occurs, some injuries “cannot be discovered immediately” or have “an indefinite onset, and progress over many years unnoticed.” The court held that it was for the jury to decide whether the worker filed his suit within three years of when he “knew or had reason to know of the existence and cause of [his] injury.” This case has proven instructive for other statute of limitations fights in FELA cases.

The Biden administration’s current infrastructure plan calls for $39 billion to update and improve America’s public transit system and $66 billion for passenger and freight rail. However, even if that comes to pass, it will take years for the necessary repairs and upgrades to be completed.

In the meantime, more passengers and rail workers will be hurt or killed. But trial lawyers will continue to advocate for the rail system to live up to the idea that led to its creation in the first place: a fast, efficient, and, importantly, safe way to connect people.