Say that three times. Or to put it another way, another train wreck with mass casualties, another opportunity to examine the railroad industry’s liability cap. This is a cap that has created severe pain not only for wounded passengers but also for the judges who must apply it.
We are talking, of course, about the tragic Metro North train wreck in the Bronx on Sunday, apparently caused by a sleepy train engineer who sped too fast around a dangerous curve. And we are also talking about the federal law that sets a $200 million overall liability cap for all rail passenger injuries - not just Amtrak’s - no matter how horrific the crash, reckless the rail company or number of people killed or injured. The law, 49 USC 28103, says “(2) The aggregate allowable awards to all rail passengers, against all defendants, for all claims, including claims for punitive damages, arising from a single accident or incident, shall not exceed $200,000,000.”
In the 2008 Metrolink crash in Los Angeles, where 25 people died and 135 were injured, the cost of personal injuries far exceeded the cap. As we wrote in 2011, the judge in the case lamented, "Impossible decisions had to be made … What was given to one victim had to be taken from another.…Essentially, a ‘Sophie's Choice’ had to be made on a daily basis. One `Sophie's Choice' is enough for a lifetime, but over 120 of them defies description.”
Speed forward to December 2013, where four died and 67 others were injured in the Metro North crash. Civil liability may be the only way to hold this seemingly negligent railroad accountable and the only way that the families of the killed and injured can be compensated.
Two passengers have now “filed a notice of claim against the commuter railroad, an initial step in a lawsuit seeking damages in connection with the accident.”
Denise Williams is a retired Army colonel and dentist who was on her way to a convention at the time of the crash. She suffered spine, collarbone and rib fractures after she was pinned inside an overturned car for about an hour, according to her attorney Michael Lamonsoff.…
Edward Russell was among the seriously injured in Sunday's crash. He will ask for punitive damages in the amount of $10 million, according to his notice of claim, which cites "loss of earnings," "inability to work" and "post traumatic stress" as part of the damage sustained from his injuries.
Russell's claim accuses the MTA, Metro North, City and State of New York of being negligent "in allowing the train to run at a place where there is a sharp curve in the terrain, (and) in failing to change the design of the tracks when another incident had occurred similar to the incident herein several months previously," among other things.
Hhmm, good luck with that, too. Guess what else the federal law does? It raises the burden of proof for punitive damages to almost impossible levels. According to the law, “punitive damages, to the extent permitted by applicable State law, may be awarded in connection with any such claim only if the plaintiff establishes by clear and convincing evidence that the harm that is the subject of the action was the result of conduct carried out by the defendant with a conscious, flagrant indifference to the rights or safety of others.” And speaking of state law, punitive damages are already almost impossible to obtain in New York State.
We'll have to see what the evidence shows. Just sayin’