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Amtrak Train 91-CSX collision in SC (2/4/18)/Liability issues


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#241 Thirdrail7

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Posted 11 February 2018 - 08:27 PM

If I understand anything about the law (and I really don't,) I'd think Amtrak would have a hard time proving gross negligence when someone left a switch open. It is one thing they were told the switch was open and CSX said "Who cares," or failed to maintain the switch and it opened on its own.

 

It will be hard to prove human error is gross negligence on CSX part....unless you prove the cutbacks caused the loss of the switch tenders, which caused a dangerous condition. However, CSX would just toss it back to the crew.

 

This is the ONE thing keep Amtrak in business: Liability. Most private companies don't want much part of the no fault liability requirements the hosts want to impose in exchange for access to their territory.


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#242 JRR

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Posted 11 February 2018 - 08:36 PM

You would be surprised what terms are in construction contracts and sub contracts.

The hey here is we don’t know the facts. They may or may not support a claim of gross negligence against CSX or its employees and even if the facts may support such allegations, we don’t know how strong the evidence may be or whether it would be a good business decision to pursue such an action.

Eventually, we will learn more of the facts and then maybe we can debate whether or not Amtrak did the proper thing.


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#243 Lonestar648

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Posted 12 February 2018 - 10:42 AM

It may be that if Amtrak could sue the Host RR, they would not be able to get an agreement to run on that Host.  If CSX was sued by Amtrak, I am sure all trains running on CSX would have difficulty with dispatching.  Then when the contract came up for renewal, CSX could refuse the contract, thus ending Amtrak service over CSX which would be catastrophic to Amtrak. 



#244 xyzzy

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Posted 12 February 2018 - 11:25 AM

1. Anyone can sue anyone else for just about anything. Winning a judgment at trial or an advantageous settlement from negotiation is another matter. This matter will take years to play out in the courts. Let's just wait and see.

 

2. After the dollars have been determined, who ultimately pays them pursuant to insurance and indemnification clauses is another wait-and-see that will take even longer to reveal. 

 

3. What's gross negligence and what isn't is likely to be decided by a South Carolina jury, within the latitude that the law gives... assuming the case actually goes to a jury. Lawyers on both sides are often reluctant to let that happen.

 

4. I do agree with Lonestar648 that Amtrak is unlikely to pick an eight-figures fight with CSX. The other host railroads would take note and react defensively.  



#245 VentureForth

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Posted 12 February 2018 - 01:35 PM

A couple of other thoughts that were implied in the article...

The indemnity clause only requires Amtrak to take fiduciary responsibility to their equipment, employees and passengers. In other words, they have to take full responsibility. Not clear - but not likely - that Amtrak would pay to repair the tracks and the damaged CSX equipment.

There's a slight possibility that CSX could pay out to passengers through Amtrak; the check would certainly come from Amtrak. There is a PR war brewing here - if CSX doesn't show public remorse or responsibility, it could black out their already tarnished image.

Edited by VentureForth, 12 February 2018 - 01:36 PM.

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#246 John Bredin

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Posted 12 February 2018 - 03:38 PM

The indemnity clause only requires Amtrak to take fiduciary responsibility to their equipment, employees and passengers. In other words, they have to take full responsibility. Not clear - but not likely - that Amtrak would pay to repair the tracks and the damaged CSX equipment.

I was under the impression that the very object of these clauses in Amtrak's contracts with the host railroads is that each side bears its own costs regardless of liability. Amtrak pays for its equipment, passengers, and crew, and the host pays for its tracks, equipment, freight, and crew, regardless of who was at fault. Someone will surely correct me if I am misunderstanding the arrangement.

Thus, if Amtrak through its negligence had a collision that tore up several feet of the host railroad's track, track bed, signal posts, etc, the host would absorb those costs regardless of how negligent Amtrak was. Now, as a general rule killing people is a hell of a lot more expensive than knocking over a couple of freight cars, but if my recollection is correct, this type of clause isn't quite as unconscionable or one-sided as it seems in the particular situation we're discussing.

#247 neroden

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Posted 12 February 2018 - 03:46 PM

If I understand anything about the law (and I really don't,) I'd think Amtrak would have a hard time proving gross negligence when someone left a switch open. It is one thing they were told the switch was open and CSX said "Who cares," or failed to maintain the switch and it opened on its own.

 

However, in this case, they *padlocked the switch in the wrong position*, and then either (a) signed the federal form stating that the switch had been restored to the right position and turned it in, or (b) the dispatcher released the track without getting the form.  This is pretty gross negligence.  There's a specific, federally mandated (!!!!) procedure to prevent this from happening, and as far as we can tell CSX employees didn't follow it.  The rules they violated have also been in the rulebook of every railroad since the *1820s*.  It's not a subtle or fine point of operation -- it's not an honest mistake.
 

Amtrak has essentially nothing to lose by picking a fight with CSX, which is already delaying Amtrak trains unnecessarily for whatever reason.  They picked a fight with CN over less, and go figure, BNSF and UP haven't been bothered by that.

An ordinary no-fault allocation in a contract is designed for ordinary accidents -- a derailment due to not noticing track damage or not noticing mechanical damage, a signal failure due to salt water or a series of small errors, perhaps even a minor overspeed error -- not a gross violation of what is perhaps the oldest rule in the rulebook, along with a falsification of a federal form designed specifically to prevent that failure!

 

If we discover that a vandal with skeleton keys came in and reset the switch and re-padlocked it, then maybe CSX didn't commit gross negligence -- but that seems highly unlikely!


Edited by neroden, 12 February 2018 - 03:51 PM.

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#248 xyzzy

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Posted 12 February 2018 - 04:00 PM

I quote from a non-copyrighted work "State of South Carolina Compendium of Law" by Reynolds and Tyler:
 
Gross negligence is defined as "the failure to exercise [even] slight care." It has also been defined as "the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Gross negligence "is a relative term, and means the absence of care that is necessary under the circumstances."
 
In the end, it's whatever the jury says it is unless the jury does something that the trial judge or appeals court cannot condone.

Edited by xyzzy, 12 February 2018 - 04:01 PM.


#249 Dakota 400

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Posted 12 February 2018 - 04:34 PM

Interesting discussion about the legal ramifications for CSX and Amtrak of this accident.  But, what about the two men whose lives were lost?  I assume that Amtrak's insurance for these employees would have compensation for the families of these men.  Any idea as to what the families might be entitled?



#250 jmlaboda

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Posted 14 February 2018 - 12:29 PM

I can't help but to feel that the CSX employee or employees who are responsible for this terrible accident should face criminal charges just as any other company's employee would due to the gross negligence that has been displayed, to a very bad degree.  The cost will be great for Amtrak but to the lives lost and those affected in other ways its the least that can be done.


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#251 xyzzy

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Posted 14 February 2018 - 02:08 PM

SC law: "With regard to the crime of involuntary manslaughter, criminal negligence is defined as the reckless disregard of the safety of others. A person charged with the crime of involuntary manslaughter may be convicted only upon a showing of criminal negligence as defined in this section. A person convicted of involuntary manslaughter must be imprisoned not more than five years."

 

Did the CSX employees in question show "reckless disregard" as the phrase is understood in the SC courts? "Recklessness is a state of mind in which the actor is aware of his or her conduct, yet consciously disregards a risk which his or her conduct is creating." A prosecutor would have to convince 12 jurors beyond a reasonable doubt that there was reckless disregard. Did the CSX crew "consciously" disregard the procedures for the switch? That's tough to prove, it seems to me. 



#252 Devil's Advocate

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Posted 14 February 2018 - 02:29 PM

Conscious disregard? What a bizarre concept. Sounds like the sort of vaguely irrational terminology only a lawyer could love.

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#253 jis

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Posted 14 February 2018 - 02:33 PM

Seems to me that if disregard was conscious then the manslaughter would be borderline voluntary no? Lawyers!



#254 JRR

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Posted 14 February 2018 - 04:07 PM

I suggest that we wait until the facts are determined if they ever are.

Finally, assuming the case is tried and goes to the jury, the jury will decide what the facts, based upon the admissible evidence, are as it sees them.


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#255 Devil's Advocate

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Posted 14 February 2018 - 04:21 PM

Finally, assuming the case is tried and goes to the jury, the jury will decide what the facts, based upon the admissible evidence, are as it sees them.

 

Juries determine legal guilt or innocence. They do not and cannot determine actual innocence or guilt.  It's possible we'll never know precisely what happened, but hopefully we'll learn enough to fully understand the problem.  Unfortunately that's probably as far as we can take it at the moment.


Edited by Devil's Advocate, 14 February 2018 - 04:34 PM.

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#256 JRR

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Posted 14 February 2018 - 04:36 PM

Exactly, precisely!


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#257 xyzzy

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Posted 14 February 2018 - 04:41 PM

Conscious disregard? What a bizarre concept. Sounds like the sort of vaguely irrational terminology only a lawyer could love.

 

Concocted example: two people are in a car, and they're in a hurry. The driver says "I'm running the next red light", and the passenger replies "Don't do that, you might kill somebody". The driver indeed runs the red light and immediately collides with another car in which someone dies. The passenger in the first car testifies at trial that the driver said he would run the red light, was given a warning, and then ran it. That's conscious disregard.


#258 brianpmcdonnell17

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Posted 14 February 2018 - 05:00 PM


Conscious disregard? What a bizarre concept. Sounds like the sort of vaguely irrational terminology only a lawyer could love.

 
Concocted example: two people are in a car, and they're in a hurry. The driver says "I'm running the next red light", and the passenger replies "Don't do that, you might kill somebody". The driver indeed runs the red light and immediately collides with another car in which someone dies. The passenger in the first car testifies at trial that the driver said he would run the red light, was given a warning, and then ran it. That's conscious disregard.
It can not be ruled out that there was a similar situation of conscious disregard but not voluntary manslaughter in this case. For example, the CSX crew could have believed the switch was set correctly but had doubts, yet decided to leave it the way it was without checking to ensure it had in fact been switched back to the main line.
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#259 JRR

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Posted 14 February 2018 - 05:19 PM

Folks, don’t get too involved n trying to classify this and trying to draw a bright line between a negligent act and a grossly negligent act. You can look at the law and then study all of the cases involving an interpretation of the law and then decide how the facts in this case stack up. When you are done doing this, you can then state your opinion as to how you think the matter should be determined.

How it actually will be determined , however, no will know until a jury or judge decides.

As the Devil’s Advocate stated that’s just the legal determination which is not necessarily what actually happened.

That’s the way the system works and is why most cases are settled.


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#260 Dakota 400

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Posted 14 February 2018 - 08:17 PM

As far as I am concerned, based upon what I know, the CSX employee that failed to properly set the switch for the Silver Star to safely continue its journey, is the responsible one.  Whomever that person is, he knows it.  Whether he faces a court of law or not, what he did not do ought to haunt him for the rest of his life.






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