From the article about the rape: "The argument that Amtrak is liable for the attack is based on the Common Carrier Doctrine, which holds carriers such as Amtrak to the "highest degree of care" in regards to passenger safety, rather than the "reasonable care standard." Amtrak's attorneys, however, argue that the doctrine doesn't apply in this case, only when a passenger is injured by an employee acting within the scope of their employment duties. Pinner raping the woman was "not ratified by Amtrak, and thus, Amtrak cannot be liable for punitive damages," the carrier's attorney wrote. " My mind boggles at this: Amtrak is saying it shouldn't be held accountable for actions committed by an on-the-job employee--one whose job is, in part, to ensure the safety and security of passengers--so long as Amtak doesn't explicitly give that employee permission to rape a passenger.
In a sense, Amtrak is correct in the rape case -- the Board should have been named as an additional defendant, and Amtrak should have countersued the Board, because because the Board *specifically ordered* Amtrak to rehire a employee who was known to be irresponsible and dangerous, against Amtrak's protests. That means they ratified the employee's action and THEY are subject to punitive damages. Name the individual arbitration board members as defendants and get going; reinstating someone who committed criminal activity on the job is outside the scope of their legitimate arbitration powers, so their actions can be classified as personal, not state.
If the board members want to claim that Amtrak didn't provide a proper prosecution, they can come defend themselves in court and we'll see who's actually responsible. Best to charge them.
I've always wondered how that worked, but I don't think it works the way you've mentioned, Neroden. Let go back to the archives and recall an incident in Amtrak's past:
A collision in 2004 between a stationary LIRR train and an Amtrak train in the East River tunnel. Please note, that I will only use information publicly available.
Allow a few quotes from TRAIN DRIVER IN CRASH TIRED
Tritini, who has been fired by Amtrak, didn't dispute the finding, and told the Daily News he had worked "excessive overtime" in the week of the collision. "You either go [on an assignment] or you are insubordinate," he said. "You are between a rock and a hard place.
" Tritini was at the helm of an Amtrak locomotive pulling empty passenger cars into Penn Station at about 7 a.m. on April 19 when it slammed into a stopped LIRR train at about 10 mph. The collision knocked the LIRR train 13 feet and injured 131 passengers and crew members on the commuter train. None of the injuries was life-threatening. Amtrak spokeswoman Tracy Connell declined to comment. Tritini is appealing his firing through his union. Tritini was first hired by Amtrak in 1987. In 1994, he qualified as a locomotive engineer but was fired in 1999 because of a "Rule G violation - random testing," according to the report. The rule pertains to possession, use and testing for alcohol, illegal drugs, medication or other substances that could cause impairment. He was rehired two years later and became an engineer again in 2002.
The PLB overturned his dismissal from 1999 and he was reinstated in all capacities in 2002. A few years later, he is involved in a collision, in which he was fired again. This is another example of "What can you do?" Who is ultimately responsible other than the person who committed the act? You could argue that if the PLB didn't reinstate him, this incident never would have occurred. I don't think you can sue the board. I would believe that is akin to suing the courts.
After the above incident, the PLB **again** overturned the dismissal and reinstated him in all capacities (since it was his first operating incident 17 years...remember, the Rule G didn't count since he was reinstated) where he remained until he "moved on" in 2012 after 25 years on the job.
Let say for giggles that he was involved in another collision and injured people after being fired twice and reinstated twice. These are court decisions. Can you sue a court for allowing someone with a previous record to be released on bail while awaiting trial and they commit a crime? Can you sue a parole board for allowing someone out on parole and the commit a crime?
I'm thinking the answer is no so while it sounds good on paper, it doubt this is a viable solution...unless you can prove misconduct or some sort of collusion or bribery. It is along the lines of suing the prosecutor or judge if you have been wrongfully convicted and your case is overturned.
Meanwhile, the companies are left holding the bag.
Additionally, Tricia, this is common tactic. If my memory is clear (and it might not be), Exxon used this same tactic after the disaster in the Prince William sound. They basically said "this isn't our fault. Captain Hazlewood is the one ran the ship aground. He is fully responsible for this since he knew he shouldn't operate a boat under the influence."
The freights (in which the CEO was the head of one) are NOTORIOUS for this move. They've resorted to suing their own crews for damages. Here was the first shot (to my knowledge) across the bow:
Engineer sued by railroad in train collision
Please allow a brief "fair use" quote from this 2005 article:
Documents filed in U.S. District Court in Des Moines allege that Gary Cordray, a railroad engineer who lives in Fort Madison, failed to stop at a signal and ended up on a collision course with another locomotive.
A 4,000-gallon diesel tank was punctured and both locomotives and some freight cars were damaged.
An estimated 700 gallons of fuel spilled along a 1.5-mile section of the track, as did holiday popcorn tins and sneakers destined for Wal-Mart stores.
The crash also delayed an Amtrak passenger train for several hours.
The company said Cordray was negligent in failing to follow proper regulations.
"Obeyance of train signals is essential for the protection of the safety and lives of BNSF employees, the safety and lives of passengers on Amtrak trains" and the safety of "others in proximity to railroad tracks," the lawsuit said.[/b]
I snickered when I first read this. I thought "oh, now they're worried about delaying an Amtrak train! "
This was the first of many. Here are two fairly recent ones from a railroad that may have something in common with Amtrak:
2016's Norfolk Southern Railway sues engineer in 2015 Washington County derailment and 2014's Norfolk Southern suing engineer over Sewickley train crash
I will quote from the latter article:
What Norfolk Southern would gain from winning the lawsuit isn't clear. Several lawyers familiar with employment and railroad laws said it's unlikely Heilig has an insurance policy that would cover a judgment in the case.
John Stember, an employment law attorney who represents a local of the Brotherhood of Locomotive Engineers and Trainmen, said he's heard of companies trying to dock workers' pay or take other actions in response to accidents, but he hasn't heard of suing them in federal court for damages.
“I've never seen it, and I've done this a long time,” he said.
Robert Peirce, a personal injury lawyer who represents people injured in railroad incidents, had the same assessment.
“I've not seen one like it,” he said.
Sam Cordes, an employment lawyer who represents employees, said he's seen companies sue employees to recover damages they have to pay to third parties, but that only makes sense if the employee has an insurance policy.
“That is probably what's going on,” he said.
Two of the damaged locomotives belong to Union Pacific Railroad and one of the railcars belongs to TXX Co., the lawsuit says. Consequently, Norfolk could end up paying both of them damages as well as other third parties, the lawsuit says
You're probably thinking what does any of this have to do with anything. It is cut and dry to me. Look at the first article. The companies are basically saying 'We've trained people to act a certain way. They are professionals. They know what is right and what is wrong based the training and instructions they've received. THEY are directly responsible for this and they are negligent and have failed us as well. We are taking action."
The companies are attempting to limit their liability, which is a common legal tactic. Ultimately, I believe a settlement will be made as soon as the terms have been made clear. However, the legal posturing is as Bob Dylan and Jis mentioned typical from a legal standpoint.
No matter what screening you provide, you can't be sure what someone will do. When the depressed copilot locked his pilot out of the cockpit and flew the plane directly into the side of the mountain, evaporating everyone on board, I'm willing to bet the company didn't see that one coming.
Edited by Thirdrail7, 03 December 2017 - 04:42 PM.