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Off the Rails: Preparing for and Handling Derailment Claims

Article by Nicole Bazzy, Esq.

July 2019 marks the sixth anniversary of one of the largest train derailment disasters in North American history. It happened on July 6, 2013. An unattended, 74-car freight train carrying crude oil derailed on a 1.2 percent grade in the town of Lac-Megantic in Quebec, Canada, resulting in the explosion of multiple tank cars. Forty-two people were confirmed dead with five more missing and presumed dead. All but three of Lac-Megantic’s 70-plus buildings were either destroyed by fire or forced to be demolished due to petroleum contamination.

An investigation revealed that an engineer had secured the train the night before the accident, engaging the handbrakes on five locomotives and 10 freight cars, and leaving one engine running on the main locomotive at the front of the train. A citizen reported a fire on the train approximately 15 minutes later. Despite extinguishing the fire and shutting down the one remaining running engine, 90 minutes after the initial report, the train began to move again. When it derailed in Lac-Megantic, it was traveling at approximately 63 miles per hour with no engineers on board.

Responding to Train Derailment Disasters: Proactive and Reactive Planning and Defending Against Claims in Civil Litigation

While this type of derailment disaster is far from common, it is not without precedent. In fact, several notable train derailments have occurred in recent years, and news of non-fatal train derailments make headlines on a monthly basis. Due to the potential for these types of accidents – and the disastrous consequences – railroads must establish catastrophe response plans and be prepared to take decisive and comprehensive action to mitigate their potential liability when derailments occur.

Catastrophe Response Plans for Train Derailments

All railroads should develop comprehensive catastrophe response plans that they can immediately execute in the event of a major train derailment. This is especially critical since many risk factors for derailments are due to negligence and factors outside of the company’s control. These types of plans should be customized to each railroad’s operations and risks, and distributed to appropriately trained personnel. Issues to address in a catastrophe response plan include:

  • Response team assignments and briefing procedures
  • Company-wide policies on limiting public statements
  • Delegation of responsibility for media and public relations
  • Community interaction
  • Establishing an Assistance Center
  • Controlling the scene of the investigation
  • Evidence preservation
  • Distributing incident kits to affected individuals and families

Responding to a Train Derailment

With an adequate catastrophe response plan in place, the initial response to a train derailment should primarily be a matter of execution. Ensuring a comprehensive and cohesive response should take priority over other non-essential business concerns. Further, the investigation, community and media relations, and litigation preparations should be round-the-clock endeavors in the aftermath of the derailment. Members of the community will be scared, anxious and angry, and they will want answers faster than your company can provide them. It is essential to provide adequate and appropriate tools, resources, and information as efficiently as possible to help prevent the public outcry from spiraling out of control. In this regard, critical responsive measures include:

  • Establishing an Assistance Center as soon as possible with hours of operation designed to accommodate those affected by the derailment
  • Coordinating the public dissemination of information through daily briefings and scheduled town hall meetings
  • Ensuring adequate distribution of incident kits containing claim forms, releases, medical authorizations and other relevant documentation

Defending Against Civil Claims in Train Derailment Litigation

As with any significant casualty event, a catastrophic train derailment will spawn a deluge of civil litigation. To facilitate a streamlined and coordinated defense strategy and limit potential exposure to all relevant claims, it is critical to get ahead of the litigation and conduct an investigation, control the accident scene, and identify available factual and legal defenses in the relevant jurisdiction(s).

After a derailment, a railroad may face a broad spectrum of claims including:

  • Personal Injury
  • Wrongful Death
  • Business Losses and Business Interruption
  • Personal Property and Real Property Damage
  • Trespass
  • Child Support
  • Lost Wages
  • Environmental Loss
  • Medical Monitoring
  • First Responder Claims
  • State and Federal Regulatory Enforcement

While each of these types of claims carries the potential for substantial exposure (depending on the scope and nature of the damage caused by derailment), medical monitoring and first responder claims warrant special consideration.

Medical Monitoring Claims Following Train Derailments

Medical monitoring claims are often brought without a discernible compensable injury. Instead, the plaintiff alleges that he or she has an increased risk of contracting an illness in the future as a result of toxic exposure. Currently, states are divided on whether a plaintiff must prove a physical injury to bring a medical monitoring claim. However, when a plaintiff has standing, he or she can secure compensation by merely showing that a reasonable physician would order medical monitoring.

First Responder Claims Following Train Derailments

Generally, a first responder that receives injuries while discharging his or her duties is prohibited from pursuing a claim against the individual or entity whose negligence is to blame for the injury. This “firefighter’s rule” is based on the legal doctrine of assumption of risk, and the expectation that firefighters and other first responders are trained to evaluate potential risks and take appropriate measures to protect themselves.

However, some states have limited the firefighter rule in cases of willful and wanton misconduct; others have abolished it entirely. As a result, in cases of train derailments in states such as Colorado, Florida, Minnesota, New Jersey, New York, and Oregon, first responders can often pursue claims against railroads based upon negligent or reckless train maintenance or train operation. We have also seen first responder cases involving allegations that companies have intentionally made misleading statements regarding the nature and severity of toxic spills, and that first responders were not provided with adequate personal protection equipment.

 

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