Back in the olden days when Congress used to function – i.e. 2008 - it passed a law to implement a long sought after safety measure: positive train control technology (PTC) on 30 commuter lines, Amtrak and other railroads. Congress was pressured to do this following a horrible 2008 California Metrolink train crash, which killed 24 passengers and injured 135 others, some catastrophically. The crash might have been completely avoided had the train been equipped with PTC.
Because the rail companies kept getting Congress to extend the deadline to make this technology operational, tragedies kept happening, such as the 2015 Amtrak crash outside of Philadelphia, which killed eight and injured over 200 others including Geralyn Ritter. (Read her horrific account in, “I survived the 2015 Philadelphia Amtrak train crash. I had 31 surgeries, a pain-medication dependency, and depression.") Also the 2017 DuPont, WA Amtrak derailment, where several passenger cars fell onto the Interstate below. Three passengers were killed and 57 passengers and crewmembers along with eight people in highway vehicles were injured. PTC controls would have prevented these crashes.
Welp, we are happy to report that this technology is finally operational on all trains as of December 29, 2020. Congrats railroad companies for doing what you should have done years ago. Remember that railroads, like airplanes, are “common carriers,” which means their business is to transport paying passengers. The law requires them to exercise the highest degree of care and diligence in the safety of those passengers. Failures and delays are inexcusable, yet they continue. (Other examples of railroad safety problems can be found in the Center for Justice & Democracy’s report, “Planes, Trains and Automobiles –and Other Transportation Hazards.”)
Last month, an Amtrak train traveling 87 mph hit a dump truck hauling crushed rock at a Missouri railroad crossing. Four died and 150 were injured. The crossing was not controlled by crossing bars, lights or bells despite previous NTSB recommendations for the railroad to install bars, lights and bells. Some of the injured and families of the dead have now filed lawsuits against all companies responsible including Amtrak, which allowed that train to become dangerously overcrowded, and BNSF Railway, which “was aware of the dangerous passive crossing for years and ignored it.”
But whether the civil justice system will work as it should to compensate these violently-injured victims remains to be seen. As explained in this piece from a local Missouri station, there are two huge obstacles with which Amtrak and Congress have shockingly burdened mass casualty victims. “The first is that Congress has capped the total amount Amtrak has to pay passengers in civil litigation for a single crash to roughly $320 million,” writes the station. This is a “per incident” cap. In other words, it applies no matter how many are killed or injured, the seriousness of their harms, the degree of railroad malfeasance or how many entities are responsible:
Attorney Jeff Goodman now represents an Iowa grandmother who sued Amtrak and BNSF for the Mendon crash, alleging the train was overcrowded. …Goodman's firm also represented clients from the 2015 Amtrak crash in Philadelphia, where eight people died when the cap was $295 million. "I can tell you that in the Philadelphia derailment, the $295 million cap was nowhere near enough," he said.
The second obstacle was erected in 2019, when Amtrak added a buried ticket clause that sends victims into rigged, private, individual arbitration to resolve any dispute. In other words, passengers no longer have the right to go before a judge or jury or band together with similarly injured passengers to pursue claims as a class. On December 10, 2019, more than 30 organizations urged Amtrak to end this practice, as did 18 individuals and family members who were able to obtain compensation following the Philadelphia crash. They wrote,
We strongly believe that the only reason we received some measure of justice – since nothing can bring back our loved ones or make up for the devastating impacts to our lives – is because we had the right to hold Amtrak accountable in a court of law. ...Forced arbitration will take away any incentive for Amtrak to remedy their wrongs, knowing that the secrecy of forced arbitration acts as a shield from accountability and public scrutiny.
Several lawmakers have objected to the forced arbitration ticket clause as well. Legislation to end this practice continues to be introduced. At a 2019 U.S. House subcommittee hearing on Amtrak’s reauthorization, U.S. Rep. Stephen Lynch (D-Mass.) observed that forcing cases into secret arbitration following crashes creates disincentives for safety. Jack Dinsdale of the Transportation Communications Union agreed, telling the subcommittee that forcing people to resolve cases in company-controlled secret systems will “make passengers question whether they want to board the train.” It is “telling me right away you don’t have my safety as a concern.”
There is nothing survivors of Missouri’s crash can do about the liability cap. But Amtrak still has a choice whether to force Missouri survivors into arbitration. That Amtrak would try to save money on the backs of their own negligently-injured passengers, and who are already subject to a compensation cap, is an horrific prospect. Let’s hope they do what’s right.
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