1999 First Quarter Release

ON  TRACK   WITH   RAILWAY  CLAIM  SERVICES,   Inc.
Volume 5  Issue 1                                                                                                     1st Quarter, 1999

 

RAILWAY CLAIM SERVICES

10 Years of Service

 

Railway Claim Services Webpage

Thanks again to everyone who has visited our webpage. As an enhancement to the page we have plans to add an Index of all past newsletter topics and a reference page containing resource material, such as legal opinions, court decisions, regulatory changes, etc. It may be a little while in coming (as you can see, this issue of the newsletter is a month late), but we hope to have everything up and running by the time the next newsletter comes out.

COUNTDOWN TO THE MILLENNIUM (The Y2K Bug Revisited)

The Chinese Government has taken a novel approach to insure Y2K compliance in their country’s air traffic control systems and government owned airlines. "All the heads of the airlines have got to be in the air on January 1, 2000" Zhao Bo of the Chinese Ministry of Information Services has been quoted as saying.

NATIONAL TRANSPORTATION SAFETY BOARD – SAFETY STUDY - Safety at Passive Grade Crossings Volume 1: Analysis

Synopsis: More than 4,000 accidents have occurred at the Nation's active and passive grade crossings each year from 1991 through 1996. Many of the accidents at active crossings have involved highway vehicle drivers who did not comply with train-activated warning devices installed at the crossings. This failure to comply often includes driver actions resulting from a deliberate decision, such as driving around a lowered crossing gate arm or ignoring flashing lights. Drivers at passive crossings are not provided warnings from train-activated devices; consequently, they must rely on a

system of grade crossing signs and pavement markings, passive devices, that are designed to warn drivers only of the presence of a crossing. No element of this passive system changes to alert drivers to an oncoming train. Further, the effectiveness of the passive system is influenced by characteristics of the physical layout of the crossing, such as an adequate view of the area surrounding the crossing (sight distance) and roadway alignment, that affect the information given to an approaching motorist regarding an upcoming hazard.

According to the Federal Railroad Administration, there were 4,054 accidents in 1996 that involved highway vehicles at grade crossings; 54 percent (2,208) of those accidents occurred at passive grade crossings. About 60 percent of the fatalities from all grade crossing accidents in 1996 (247 of 415 fatalities) were at passive grade crossings.

The cost to eliminate or upgrade passive grade crossings is very high. According to the General Accounting Office, the average cost of adding lights and gates in 1995 was $150,000 per grade crossing. The total cost to upgrade the 96,759 passive crossings on public roadways would be about $14 billion. Gates and lights do not completely eliminate the hazards present at crossings, and, therefore, sole reliance on them would reduce but not eliminate all the fatalities. The ultimate solution from a safety standpoint would be a standard grade separation, which usually involves construction

of bridges or overpasses and costs an estimated $3 million per crossing. The large number of passive grade crossings, the high percentage of fatalities that occur at passive grade crossings, and the cost to eliminate or upgrade passive grade crossings prompted the Safety Board to conduct this study to identify some of the common causes for accidents at passive grade crossings, and to identify less costly remedies to improve safety at passive crossings not scheduled for closure or upgrade.

For this study, the Safety Board investigated 60 grade crossing accidents that occurred between December 1995 and August 1996. The Safety Board selected for study accidents involving a collision between a train and a highway vehicle occurring at a passive grade crossing, wherein the highway vehicle was sufficiently damaged to require towing. The sample of accidents is not intended to be statistically representative of the entire population of accidents at passive grade crossings during the study period, but rather to illustrate a range of passive grade crossing accidents. A probable cause was determined for each accident in the study. Overall, driver error was cited as the primary cause in 49 of the 60 accident cases: driver disregard for the stop sign in 13 cases, and the driver's failure to look for a train in 16 cases. In 7 of the remaining 11 cases, the probable cause was determined to be related to roadway conditions that affected the driver's ability to detect the presence of a passive crossing or an oncoming train; roadway and track conditions were cited as the

probable cause in 3 of the 11 cases.

In May 1997, the Safety Board convened a 2-day public forum in Jacksonville, Florida, to gather information about issues affecting safety at passive grade crossings. Witnesses included experts from the railroad industry; law enforcement; research groups; Operation Lifesaver; and Federal, State, and local government agencies. Those involved in grade crossing accidents, both highway vehicle occupants and traincrews, testified about their personal experiences. In addition, representatives from Canada and Italy discussed passive grade crossing issues and experiences in their countries.

Based on the results of the Safety Board's accident investigations and the information gathered at the public forum, the safety issues discussed in the report include the following:

  • the adequacy of existing warning systems to alert the driver to the presence of a passive crossing and an oncoming train;
  • roadway and track conditions that affect a driver's ability to detect the presence of an oncoming train;
  • behavioral factors that affect a driver's ability to detect the presence of an oncoming train; the adequacy of existing driver education material regarding the dangers of passive grade crossings and driver actions required;
  • the need for a systematic and uniform approach to passive grade crossing safety; and the need for improved signage at private passive crossings.

The issue of safety at passive grade crossings is complex; therefore, Volume 1 (NTSB/SS-98/02) of the report first discusses the problems drivers encounter at passive crossings, then presents the Board's analysis, conclusions, and recommendations. Volume 2 (NTSB/SS-98/03) of the report contains case summaries of the 60 accidents investigated by the Safety Board for this study.

As a result of this study, safety recommendations were issued to the U.S. Department of Transportation; the Federal Highway Administration; the National Highway Traffic Safety Administration; the Federal Railroad Administration; the States; Operation Lifesaver, Inc.; the American Association of Motor Vehicle Administrators; the American Automobile Association; the American Association of State Highway and Transportation Officials; the Professional Truck Drivers

Institute of America; the Advertising Council, Inc.; the Association of American Railroads; the American Short Line and Regional Railroad Association; and the American Public Transit Association. For more on this, go online to http://www.ntsb.gov

SURVEILLANCE – YEA/NAY?

In May of 1993, an assistant locomotive engineer for the Railroad sustained injuries to his back and arm while attempting to mount a moving locomotive. He claimed that he slipped due to oil on the locomotive grabirons. Although his back and arm complaints resolved, he continued to have pain in his low rib cage. His treating physician never gave him a full work release. In 1994, he was given a functional capacities evaluation, and on the basis of this FCE and the Railroad’s job description, his principal treating physician concluded that he would never return to work as an assistant locomotive engineer. While the engineer was off, the railroad conducted surveillance and videotaped the claimant participating in a team roping event at a rodeo. Later, they videotaped him operating a jet ski. On the basis of this videotaped evidence, the Railroad terminated his employment on the grounds of dishonesty, misconduct and disloyalty. Shortly thereafter, the claimant filed suit under both FELA and BIA. In court, the claimant’s treating physicians testified that he could never again perform the functions of an assistant locomotive engineer. The claimant’s attorney tried to exclude the videotapes from evidence, but the court allowed the jury to see them. Would you care to guess the outcome of this trial? How about a $400,000 jury award!

How could this happen? Do the juries even look at these tapes? Well, the answer to the second question is yes and no. A surveillance tape can be an asset to the defense of your case, but it must be well done, and properly presented. By "well done", I don’t mean having Hollywood production values. I mean that it must, first of all, be watchable. If the tape is so boring, poorly lighted, jerky or otherwise unwatchable, that the jury pays no attention, the only impression they will be left with is that you are wasting their time.

Second, your interpretation of the events shown in the tape must be easily understood by the average juror. In most instances, your surveillance tape will have no dialogue. This tape will be watched by 12 men and women who grew up watching television news events in which commentators minutely explain every nuance of the events they should (but evidently cannot) interpret for themselves. You may know that the bag being carried in the tape contains half a dozen bowling balls and weighs a hundred pounds, but unless it is readily evident to the jurors, it may as well contain party balloons. When you assign the surveillance, make sure that you instruct the person conducting the surveillance of the limitations being claimed by the subject. Be specific in what activities you want on tape and what you do not want. If, for instance, the subject claims a low back injury prevents him from spending any length of time on his feet, and you happen to know that he tends bar every night at the local watering hole, do not have four hours of tape showing him on his feet behind the bar. Rather, have about 1 minute of footage every 20 minutes. You can cover the same 4 hours in 12 minutes. Another mistake commonly made is showing the claimant lifting his children. Unless there is a specific claim made by the claimant that this is something he can no longer do, don’t tape it. It portrays the image of the claimant as a loving parent rather than the cheater you are trying to portray him as. Groceries are another item commonly shown in surveillance tapes. The problem here is that grocery bags are seldom very heavy. And, again, you are showing the claimant as a provider. The point I am trying to make is that the people for whom the tape is being made will, in all likelihood, not have the same critical point of view that you do. The jurors will tend to by more sympathetic with the individual plaintiff than with the faceless railroad. Therefore, you should view each event shown in your tape in the light most favorable to the plaintiff.

Third, make sure that the person conducting the surveillance understands that you do not equate footage with progress. There are two reasons for this. One, many courts will not allow you to edit the tapes. If you have four hours of footage, you may be force to use all or none. Two, even if you are allowed to edit the tapes, the plaintiff’s attorney can turn this against you by inferring to the jury that there was something in the excluded footage that "they" (the defense) did not want the jury to see. Ideally, the tape should be between 15 and 30 minutes in length. Any less fails to leave a solid impression, and any more tends to strain their attention span.

Fourth, be aggressive in your presentation of the tape. Do not apologize for having conducted the surveillance. This tape is being presented because the plaintiff is a liar. He lied under oath. He lied to the jury. This tape is evidence, in the form of his own actions, that he is a liar.

Most important, do not rely on what you consider a good surveillance tape to be the cornerstone of your defense. The example I started this article with should be indicative of the results this can produce. A surveillance tape is best used to impeach the plaintiff’s own testimony. It can also be used to cast doubt on a treating doctor’s testimony. But, at best, it is a tool to break down the plaintiff’s case.

The title of this article is "SURVEILLANCE YEA/NAY?" In almost all cases, I would answer, "YEA". Whether or not to employ video tape, however, would be predicated on your reasonable expectation of getting good results in accordance with the points listed above.

POINTS OF LEGAL INTEREST

The first point I would like to discuss is the way in which two cases of almost identical circumstances can be decided differently. The cases are Chelmo v. Burlington Northern Santa Fe and Dent v. Consolidated Rail Corporation. Each of these claims arose from a crossing accident in which a trainman on the engine sustained injuries and brought about a lawsuit based on the premise that the railroad had not taught him how to react in an emergency crossing accident situation. In Chelmo, the defense was able to obtain a summary judgement. In Dent, the plaintiff was awarded $750,000. What was the element that was responsible for these two highly divergent results? Expert testimony! In Chelmo, the defense attorney for the BNSF offered expert testimony to counter the plaintiff’s claims that there was any type of training, directions and/or rules that could anticipate the dangers presented by various types of crossing accidents and provide specific instructions to insure the safety of the crew. In Dent, the plaintiff’s attorney offered the uncontested testimony of their own expert that the crew should have been instructed that the safest place in the cab for this accident would have been in the nose of the locomotive. Although the cost of retaining an expert witness can be high, in some cases it may be invaluable to the defense of your claim.

 

Duren v. Union Pacific Railroad, Missouri Court of Appeals, Eastern District, September 1998, and Sissom v. CSX Transportation, Inc. No. 97-5061, U.S. Court of Appeals, 6th Circuit, April 14, 1998. These cases deal with the issues of unmitigated damages and unproven damages. In Duren, the defense was able to get the court to instruct the jury that they should find that the plaintiff had failed to mitigate his damages if they believed that the plaintiff had failed to participate in vocational rehabilitation, or had failed to return to work with a fifty-pound lifting restriction. Evidently, the jury did believe this. From a $2,000,000 prayer, they awarded only $60,000. On appeal, the giving of the mitigation instruction was upheld. In Sissom, the plaintiff suffered a ruptured biceps tendon in his left arm while on duty. In his lawsuit, he claimed diminished earning capacity, medical expenses and pain and suffering. The CSX argued that this was unproven. Sissom did not miss any time from work. He sought no medical treatment. He earned more money in the year following the injury than he did the year before. Although the jury found CSX 50% liable for his injuries, they refused to award any compensation to Sissom. He appealed. The appeals court affirmed the decision.

 

Joseph v. CSX Transportation, Inc, Seneca Sounty Court of Common Pleas, Ohio, Spetember 1998. This case pivoted on the information provided by the locomotive event recorder. This involved a crossing accident in which plaintiff had witnesses to say that the horn was not being sounded. The locomotive event recorder contradicted this testimony. The defense was awarded a Summary Judgement. The court said that the downloaded data from the locomotive’s event recorder which shows that the whistle and bell were sounded is so conclusive that oral testimony to the contrary has no probative value and is insufficient to create a genuine issue of material fact.

Hooper v. Norfolk & Western Railway Company, St. Louis Circuit Court, September 1998. In this case the judge refused to allow a chiropractor to testify regarding the cause of the plaintiff’s pain, nor did he allow the chiropractor to testify regarding the plaintiff’s medical prognosis. The judge said that these questions called for a medical opinion and that allowing the chiropractor to testify might mislead the jury into believing that they were hearing medical expert testimony equal to that of a physician.

BITS AND PIECES

The Federal Railroad Administration has announced that there will be no increase in the accident/incident reporting threshold for 1999. The reporting threshold will remain $6,600.

Congratulations to Mr. Edward A. Burkhardt, Chairman, President and Chief Executive Officer of Wisconsin Central Transportation Corporation as winner of the railroad industry’s most prestigious honor, Railroader of the Year for 1999. Railway Age Publisher Robert DeMarco will present the 1999 award to Mr. Burkhardt at the spring meeting of the Western Railway Club in Chicago on March 16th.

RCSI welcomes your input. If you have any questions or comments of interest to our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788.

Visit the Railway Claim Services, Inc. webpage. It’s located at www.railway-claim-services.com

Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between. If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

Railway Claim Services, Inc. 52 South Main Street Lexington, Tennessee

800-786-5204

FAX (901) 967-1788

Email           dave_gardner@railway-claim-services.com

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