ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 13 Issue 2 April 2006

RAILWAY CLAIM SERVICES, INC. Our 19th Year of Service

BACKGROUND CHECKS

SERVICE

IT’S ABOUT TIME

RAILROAD INDUSTRY ACCIDENT AND INJURY STATISTICAL INFORMATION

THE 13th ANNUAL RAILROAD LIABILITY SEMINAR

SPRINGTIME

ALL ABOUT THE WHISTLE REQUIREMENTS

QUOTATIONS FOR THE AGES

COLLECTIONS?

PONDER A MOMENT

RAILWAY CLAIM SERVICES, INC. WEBSITE

POINTS OF LEGAL INTEREST

RCSI INFORMATION

BACKGROUND CHECKS & 49 CFR PART 172

Railway Claim Services, Inc. (RCSI) can perform background checks for potential job applicants. RCSI can also check injury histories for employees. For further information contact Elizabeth Vineyard of RCSI at 731-967-1796, or via email at evineyard@railway-claim-services.com.

Background checks are required for new employees under the Haz Mat Security Plan implemented by CFR Part 172, Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials. This rule states in part, “No later than the date of the first scheduled recurrent training after March 25, 2003, and in no case later than March 24, 2006, each hazmat employee must receive training that provides an awareness of security risks associated with hazardous materials transportation and methods designed to enhance transportation security”.

If your railroad has not yet implemented 49 CFR Part 172, Railway Claim Services can assist.

SERVICE

Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?” And I said, “Here I am. Send me!” ISAIAH 7:8

IT’S ABOUT TIME

Prior to 1883 there was no standardization of time across the United States. Each local community or city set their own "time", which in many instances was the time on the "town clock". This worked fine for the citizens; if two residents had a 10:00 a.m. appointment they knew when they should show up. But it was inconvenient for the railway companies, which had to wrestle with annoying variances among local time along their route. So, it was the railroad industry that set to impose "standard time" on an unwilling nation. The collective railroad industry persuaded the U. S. Naval Observatory and Western Union to subscribe to the change and begin sending it by telegraph as the "correct" time. Thus, it was at noon, on Sunday, November 18, 1883, that America found itself running on the same clock. A capsulation from A History of American Time, by Michael O'Malley, Viking Penguin Press

RAILROAD INDUSTRY ACCIDENT AND INJURY STATISTICAL INFORMATION

Railroad accidents and injuries to railroad workers dropped last year, and the rate of grade-crossing collisions fell to an all-time low.

Overall train accidents in 2005 decreased 7.9% to 13,388, including an 8.4% drop in derailments, according to figures compiled by the FRA (FEDERAL RAILROAD ADMINISTRATION : HOME). A spokesman for the FRA said the accident numbers cover everything from very minor incidents to significant accidents.

There were 3,010 collisions between trains and cars at grade crossings last year, which represents 3.81 collisions per million train miles, the lowest annual rate recorded by the FRA.

The injury total for rail employees on duty fell 12.7% to 5,430 cases, according to the agency. There were 25 employee fatalities in train accidents.

“Railroads are making progress, but we still have miles to go with our safety program,” U.S. Transportation Secretary Norman Y. Mineta said in a statement announcing the statistics.

Mr. Mineta launched the National Rail Safety Action Plan in May 2005 to target the most frequent causes of train accidents. The project includes testing of technology to identify cracks in rail joints, monitoring track switch positions in dark or non-signaled territory and providing timely information on hazardous materials to first responders in accidents.

THE 13th ANNUAL RAILROAD LIABILITY SEMINAR

The dates for the 13th Annual Railroad Liability Seminar have now been set, with final program tweaks in the works. This year’s host is OmniTRAX, with the Seminar to be held in Denver, Colorado on July 19 and 20.  The conference will start on Tuesday evening, July 18th, with registration and a reception.  Follow the following links for more information. Click here for more details. Registration information can be found here. Sponsorship information can be found here. This year’s Seminar is going to be special. I encourage you to make plans to attend, and encourage others to attend as well. We hope to see you there.

SPRINGTIME

As I look at my calendar, I notice that today is the first day of Spring. You couldn’t tell it by looking out the window. I’m sure it’s the same for many of you today, but over the next three months, we should see the trees becoming green and a return of warm weather. Unfortunately, we will also probably see high winds, fires and flooding, depending upon where your railroad operates. The National Oceanic and Atmospheric Administration has released their April through June forecast which predicts a significant drought with increased wildfire potential in the Southwest, central and southern Plains. A full account of their forecast can be found on their website at: http://www.noaanews.noaa.gov/stories2006/s2595.htm

Since December 26, 2005, already over 3.5 million acres in Texas has gone up in flames. Most of this was not related to railroad activity, but a few of the fires have been laid at the railroad’s feet. These have been caused by, or at least blamed on, faulty or missing spark arrestors, sticking brakes, and/or dragging equipment.

With the high winds and tinder-dry conditions as they currently exist in parts of Texas, New Mexico and Oklahoma, any spark can rapidly be whipped into a major inferno.

Now is the time to inspect your locomotives to make sure they are equipped with spark arrestors and that they are functioning as designed. RCSI recommends that your train crewmembers be instructed to report any fire they see near to the right-of-way. The railroad is a natural target for blame any time that a fire starts near the tracks. If your crew members spot a fire, have them report it to the dispatcher and the appropriate authority.

It is inevitable that the railroads will be the cause of ignition for some fires. You should, therefore, limit the damage these fires can cause. RCSI recommends that you have a fire guard follow all trains during wildfire conditions. There is a cost for this, but is pales in comparison to the damage an out-of-control wildfire can cause. In the Texas fires mentioned earlier, eleven people have died; thousands of horses and cattle have perished; and homes and businesses have gone up in smoke.

Reduce your exposure whenever possible. Proper maintenance on equipment, observant crewmembers and a fire guard are ways to limit that exposure.

Flooding is expected to be a problem in the Northern Plains and Great Lakes region. If your railroad is in a flood prone area, you will need to have someone check all bridges, trestles and culverts to make sure there are no obstructions to normal drainage.

A lawyer and an engineer were fishing in the Caribbean. The lawyer said "I'm here because my house burned down and everything I owned was destroyed by the fire. The insurance company paid for everything."

"That's quite a coincidence", said the engineer, "I'm here because my house and all my belongings were destroyed by a flood, and my insurance company also paid for everything."

The lawyer looked somewhat confused. "How do you start a flood?" He asked.

ALL ABOUT THE WHISTLE REQUIREMENTS - From Railway Claim Services, Inc.'s Website Library

Those of us who have been around the industry many years (especially in operations and claims) intuitively think of locomotive whistle sounding requirements as being in distance. But, that only works when the locomotive is traveling greater than 45 mph, at which time the sounding requirements are to begin sounding the whistle at 1,320 feet. Less than 45 miles per hour the sounding requirement is by time. The link is:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=4cc72d9e106236fa595afb63d86ae6b5&rgn=div8&view=text&node=49:4.1.1.1.17.2.13.1&idno=49

The excerpted information from that link is:

(a) Except as provided in this part, the locomotive horn on the lead locomotive of a train, lite locomotive consist, individual locomotive, or lead cab car shall be sounded when such locomotive or lead cab car is approaching a public highway-rail grade crossing. Sounding of the locomotive horn with two long, one short, and one long blast shall be initiated at a location so as to be in accordance with paragraph (b) of this section and shall be repeated or prolonged until the locomotive or train occupies the crossing. This pattern may be varied as necessary where crossings are spaced closely together.

(b)(1) Except as provided in paragraph (b)(2) of this section, the locomotive horn shall begin to be sounded at least 15 seconds, but no more than 20 seconds, before the locomotive enters the crossing.

(2) Trains, locomotive consists, and individual locomotives traveling at speeds in excess of 45 mph shall not begin sounding the horn more than one-quarter mile (1,320 feet) in advance of the nearest public highway-rail grade crossing, even if the advance warning provided by the locomotive horn will be less than 15 seconds in duration.

(c) As stated in §222.3(c) of this part, this section does not apply to any Chicago Region highway-rail grade crossing at which railroads were excused from sounding the locomotive horn by the Illinois Commerce Commission, and where railroads did not sound the horn, as of December 18, 2003.

Subsection (c), above, only touches upon the Final Rule from the FRA for quiet zones, effective June 24, 2005. The final rule for quiet zone whistle requirements can be found at: http://safetydata.fra.dot.gov/officeofsafety/

All of the above is contained in Railway Claim Services Website. Check Railway Claim Services, Inc.’s online library for this and many other interesting and "must know" information about railroads at: http://www.railway-claim-services.com/waycar.htm

QUOTATIONS FOR THE AGES

Either you decide to stay in the shallow end of the pool or you go out in the ocean. Christopher Reeve, Actor; Spokesman

It’s never too late to be who you might have been. George Eliot (1819-1880), Writer

Be kind, for everyone you meet is fighting a hard battle. PLATO (c.427-347 b.c.), Philosopher and educator

Keep away from people who try to belittle your ambitions. Small people always do that, but the really great make you feel that you, too, can become great. Mark Twain(1835-1910), Humorist and writer

The game of life is the game of boomerangs. Our thoughts, deeds and words return to us sooner or later, with astounding accuracy. Florence Shinn (1871-1940), Writer

COLLECTIONS?

Problems collecting for damages? Increase your chances of collecting that money, or reducing the total you are legally obligated to pay. All without the cost and delays where litigation is involved. Let Railway Claim Services, Inc. handle these collection issues for you. You pay nothing if RCSI fails to collect or fails to reduce the bill for the submitted loss. Email or call Randal Little or Dave Gardner for further information. There is no cost if we are not successful.

PONDER A MOMENT

If you have integrity, nothing else matters. If you don't have integrity, nothing else matters. Alan Simpson

High Expectations are the key to everything. Sam Walton

 RAILWAY CLAIM SERVICES, INC. WEBSITE

Railway Claim Services, Inc. maintains a website containing useful information for our industry. If you haven’t visited our website recently, you may have missed some of the content recently added.

The Code of Federal Regulations, TITLE 49—Transportation, Subtitle B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION. Please visit our website and click on the following link. http://www.railway-claim-services.com/waycar.htm

Railway Claim Services’ website has the complete General Code of Operating Rules posted for your reference. http://www.railway-claim-services.com/safety_first.htm

RCSI also has the entire test of the FELA posted on our website: http://www.railway-claim-services.com/waycar.htm

Also, The Occupational Safety & Health Act of 1970 is available at: http://www.railway-claim-services.com/waycar.htm

As a part of our ongoing efforts to provide RCSI clients with information vital to the safe and efficient operation, RCSI’s website contains the complete text of the Emergency Response Guidebook: http://www.railway-claim-services.com/waycar.htm

RCSI is always trying to upgrade our website and make it a place for you to find the information you need. If you have any suggestions, comments, or questions, please feel free to contact me at your convenience. We appreciate your feedback.

 POINTS OF LEGAL INTEREST

Crossing Accident Ruling by Mississippi Supreme Court. The Trial Court found in favor of the Defendant and The Mississippi Supreme Court Affirmed the Verdict. Facts of the Accident: On May 10, 1999, the driver, age 16, was traveling over a cross buck-only crossing in Alcorn County, Mississippi, when he collided with a Norfolk Southern train, resulting in the decedent’s death.

The trial court granted summary judgment to the county as to plaintiffs inade­quate signalization claim on grounds of federal preemption, plaintiff filed an amended complaint against the railroad. The railroad sought, and the trial court granted, summary judgment as to the adequacy of the signals on federal preemption. The trial court dismissed the excessive speed claim finding that it was also pre-empted. The case proceeded to trial on two claims, negli­gent maintenance of the existing warnings and failure to properly maintain the right of way. The jury returned a defense verdict.

The Mississippi Supreme Court took the case on the Federal Preemption issues, exclusion of Evidence of Other Accidents and Refusal to Give Spoliation Instruction. The Mississippi Supreme Court affirmed the judgment. Frances Mary Richardson v. Norfolk Southern Railway Co., Supreme Court of Mississippi, Case No. 2004-CA-00876-SCT. John W. Chandler, Jr., Pamela R. O'Dwyer, and Phil R. Hinton, for the plaintiff. Stephanie C. Reifers and Everett B. Gibson, for the defendant.

Crossing Accident, Private Crossing. In June 2003 a 27 year-old construction worker was involved in a crossing accident with a BNSF train in Clay County, Missouri when he turned onto a private road leading to a power plant. The collision allegedly left plaintiff with both permanent brain injuries and permanent orthopedic injuries which disable him from working. Notwithstanding the fact that the crossing was a "private" crossing so that warning devices were not required by law, plaintiff claimed that as many as thirty high-speed trains a day proceeded through the crossing. According to plaintiff; his view of the oncoming train was blocked by vegetation and inadequate sight distance. He asserted that track owner Norfolk Southern, the power plant and the city, as owners of the land around the crossing, knew the risks posed by the crossing. Plaintiff asserted that the combination of dangerous conditions at the crossing required the installation of some type of warning device. He claimed that the crossing was allegedly never evaluated for the possible installation of warning devices in the fifty years of its existence. While a yellow railroad sign was attached to the gate at the power plant, it faced south and was only visible to motorists leaving the power plant. According to published accounts, the case settled for $3 million. Norfolk Southern involked indemnity agreements from the power plant and BNSF and made no contribution to the settlement. James Teat and Melody Teat v. Norfolk Southern Railway Co.; Burlington Northern Santa Fe Railway Co.; NW Electric Cooperative, Inc.; the City of Independence, Missouri, Jackson County (MO) Circuit Court, Case No. 03CV-225310. Thomas C. Jones and Jose M. Bautista, Davis, Bethune and Jones, Kansas City, MO for plaintiff.

Trespasser - (Minor - Age 11) - Below-the-knee Amputation of leg. The accident occurred when an 11-year old minor fell from a freight car while attempting to jump on it for the joy ride, and resulted in the traumatic below-the-knee amputation of the minor’s leg. The tracks where the injury occurred was near two schools and the plaintiff’s main theory of liability was that the railroads should have provided more education in the community’s schools in order to educate the children about the dangers of such activities. The case involved several interesting and important issues of not only New Jersey railroad law, but also the general law of trespassing as it exists in many of the states. Had the minor have been an adult the railroad would have been immune, pursuant to a New Jersey statute. However, since he was a minor, the case went to the jury on two theories of liability, the Persistent Trespasser Doctrine and the Child Trespasser (or Attractive Nuisance) Doctrine. The jury found that the plaintiff made his case in terms of the application of these trespass theories, but awarded a defense verdict on the grounds that no matter how negligent, the railroad’s failure to provide the safety education, did not cause the minor plaintiff in this case to be injured.

Defense Attorney Flynn said, “This case is noteworthy for two reasons. First, the Persistent Trespasser and Child Trespasser Doctrines are very dangerous. We were able to speak with the jurors after the trial and learned a lot from them . . . . Second, the case highlighted the impact that well-done surveillance can have on the defense of a case, . . . We retained Jeff Blaney of National Data Resources Corp. to videotape the minor plaintiff’s activities. Contrary to his allegations that he had difficulty walking, running and jumping and that, due to these problems he would be unable to hold a job in the future, National Data videotaped the minor performing all of these activities, including jumping over a chain link fence without any difficulty, for a lengthy period of time. This footage, which was obtained only a few days prior to trial, was produced to plaintiff’s counsel before the jury was impaneled. In response, plaintiff’s counsel significantly altered their presentation of the case beginning with his opening statement during which he told the jury that the plaintiff could do all of the things shown in the video, in contrast to the allegations he had been making up to that point. Similarly, the direct examination of the minor plaintiff himself and the opinions expressed by his economist and vocational specialist, all were altered at trial to take account of the activities shown on the videotape.” Rovetto v. Conrail et al., Bergen County Sup. Ct., C.A. No.: BER-L-2396-03. Michael Flynn and Rich Davidson of Flynn & Associates in Boston for defen­dant.

Trespasser - (Minor - Age 11) - Amputation of both legs. According to testimony the plaintiff, an 11-year-old minor was walking to school in the company of his 15-year old brother.  The older brother informed the police officers that while walking along the railroad tracks the claimant got too close to a passing train.  The older brother further stated that a metal bar protruding from the train caught claimant's coat, dragging him beneath the wheels of the passing train.  The Court granted the defense attorney’s Motion for Summary Judgment.  Counsel for the plaintiff appealed to the Ohio Court of Appeals, in part arguing that the claimant was a discovered trespasser and that the attractive nuisance doctrine should apply.  The Appellate Court upheld the Motion for Summary Judgment.   Leroy Sutton v. Wheeling & Lake Erie Railway Co., et al., Summit Co., (OH) Supreme Court Case No.  2006-0269, Ninth Appellate District Court Case No. 22642, Court of Common Pleas No. 2003-09-5294.  Thomas E. Dover, Cleveland, OH for defendant.

Crossing Accident Verdict. The driver of a tractor-trailer loaded with equipment drove past a cross buck and stop sign and onto an Ogeechee Railway crossing, where it was struck by a slow moving train. The driver of the truck was fatally injured. Litigation ensured, and the railroad filed a motion for summary judgment, in part on preemption issues. The trial denied the Summary Judgment Motion. The railroad appealed to the Georgia Court of Appeals and the trial court’s ruling was reversed and the summary judgment was granted. The Georgia Supreme Court then reversed The GCA ruling and remanded the matter back to Bulloch County for trial on all issues. Trial was held in Statesboro, Georgia, in February, 2006. Plaintiff suggested a demand in excess of $1,000,000, however, no formal demand was ever made. In response to the court’s special interrogatory the jury found the railroad 0% negligent. Sheila Fortner, Admrx. For the estate of Leon E. Fortner, Jr. v. Town of register and Ogeechee Railway Company. Civil Action case 1B-98-CV-067. Matt Williams and Sean McEvoy for the defendant. .

Crossing Accident Verdict. The 16-year old plaintiff’s auto allegedly stalled on UP tracks where it was struck by a UP train that allegedly resulted in brain damage to the driver. A Colorado jury returned a verdict of $10.762 Million Verdict. The accident occurred in November of 2002 when her vehicle allegedly stalled on a crossing. According to testimony at trial her boyfriend, who was driving a pickup truck behind her, attempted to push plaintiff’s car across the tracks. Although the UP crew saw the vehicle at a distance of some 1500 feet the train was unable to stop in time to avoid the collision. According to testimony at trial the plaintiff suffered a severe, traumatic brain injury which resulted in both cognitive and physical disability that rendered her unable to care for herself or earn a liv­ing.

The trial court granted plaintiffs request to proceed under the Colorado Premises Liability statute, which did not allow comparative negligence or third-party negligence as defenses. Plaintiff claimed that the train had the capacity to stop at 800 feet. The defense claimed that plaintiff’s car was in the clear until the boyfriend attempted to push it across the tracks. The defense also asserted that the crossing gate came down on the roof of plaintiff s car. The defense de­nied that its actions were willful and wanton so as to entitle plaintiff to recover punitive damages. According to Jury Verdict Reporter of Colorado, the jury found in favor of plaintiff for $6,762,914 in compensatory damages and $4 mil­lion in punitive damages. Martin and Rebecca Martin v. Union Pacific Railroad; Dannie Dolan, Douglas County (CO) Dis­trict Court, Case No. 03-CV-710. Robert A. Schuetze and Glenn Gordon, Schuetze and Gordon, Boulder, CO for plaintiff. Steven E. Napper and Alice M. de Stigter for defendant.

Crossings —Summary Judgment on preemption issues. On July 25, 2001 the defendant was involved in a crossing accident at a crossing with cross bucks and a white stop bar painted on the road beside the sign. In the approach quadrant stood a field of mature corn. Almost two years later plaintiff sued CSX, the town and the county claiming that the CSX negligently failed to: (1) exercise proper caution when approaching the crossing; (2) remove obstructive vegetation; (3) install lights and gates at the crossing; and (4) reduce the train's speed due to the visually obstructive vegetation at the crossing. The plaintiff also alleged that the county and town breached their duty to maintain the crossing and keep it clear of nuisance, i.e., the ob­structive vegetation.

The trial court granted summary judgment to all defendants. The appeals court affirmed the judgment. It first found that the lack of adequate warning devices and train speed claims were preempted under Shanklin and Easterwood. Although the court agreed that the failure to remove vegetation claim was not preempted by federal law, it con­cluded that the trial court properly granted summary judgment to the railroad on that claim. In that regard the court found that while plaintiffs expert's affidavit could be accepted as to perception/reaction times and his suggestion that the corn obstructed the view of the locomotive, the affidavit simply did not create an issue of fact as to the railroad's responsibil­ity for the sight restrictions since it was undisputed in this case that the corn was located on private property and did not en­croach on railroad right of way. Wooten v. CSX Railroad, Court of Appeals of Ohio, Second District, Case No. 2005 CA 4. Gary J. Leppla, Dayton, OH for plaintiff. James L. O'Connell and James F. Brockman, Cincinnati, OH for defen­dant.

RCSI welcomes your input. If you have any questions or comments of interest to our industry, please contact either Dave Gardner or Randal Little at (731) 967-1796 or FAX your message to (731) 967-1788.

Visit the Railway Claim Services, Inc. webpage 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?

For further information contact:

 

dave_gardner@railway-claim-services.com or randal_little@railway-claim-services.com

 

Corporate Offices at: 52 South Main Street Lexington, Tennessee 38351

 

Phone: 800-786-5204, Fax: 731-967-1788 or visit us on the Web at www.railway-claim-services.com

 

Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES.