Tape
Leads to $55M Train Wreck Award
(As
reported in the National Law Journal, Tuesday,
February 19, 2002)
By Margaret Cromin Fisk
The National Law Journal
A
dispatcher's mistake that set off a collision between a
freight train and a Ford Explorer -- and the plaintiffs'
attorneys' subsequent playing at trial of the dispatcher's
taped conversation with freight train personnel -- has led
to a $55.72 million jury verdict in Chicago.
The
jury awarded damages to three members of one family who
each sustained severe brain injuries during the accident.
Jurors assigned liability for the collision at 60 percent
for the Illinois Central Railroad Co., which owned the crossing
and employed the dispatcher, and 35 percent for the Chicago
Central & Pacific Railroad Co., which operated the train.
The jury found the driver of the Explorer, Lilia Apulello,
5 percent responsible.
The
accident happened Jan. 9, 2001, at the Army Trail Road crossing
in Bloomingdale, Ill., a suburb of Chicago. Illinois Central
had been having problems with malfunctioning gates and warning
lights at the crossing and had issued a "stop and flag"
order, said plaintiffs' attorney Timothy J. Cavanagh of
Chicago's Lloyd & Cavanagh. Under this order, all trains
traveling on the track were required to come to a complete
stop prior to entering the crossing.
On
Jan. 9, the conductor and engineer of a Chicago Central
train headed toward the Army Trail Road crossing radioed
ahead to the Illinois Central dispatcher, Robert Haas, who
informed them that the problem with the crossing had been
fixed and "that the stop and flag order was no longer
in effect," said Cavanagh.
This
information was incorrect. The stop and flag order was in
effect, and the crossing's gates and lights were not hooked
up to the track's approach circuit. Fifteen minutes after
the erroneous communication from the dispatcher, the Illinois
Central train came barreling through the crossing and hit
the Explorer at 50 mph, pushing the SUV more than 400 feet
and flipping it over. The Explorer rolled five to seven
times, Cavanagh said, injuring passengers Fidel and Francisca
Velarde and their daughter, Apulello.
The
Velardes, along with Apulello and her husband, Rafael, sued
Illinois Central and Chicago Central, charging negligence.
The contention against Illinois Central was that its dispatcher's
false information set off the collision.
PROPER
LOOKOUT?
The
contention against Chicago Central was that the company's
employees failed to keep a proper lookout, failed to stop
or slow the train and failed to sound the train's whistle,
and that the train was traveling at a speed that was "greater
than reasonable and proper." At 600 feet from the crossing,
Cavanagh said, the train's conductor and engineer "saw
the car going across. Neither decided to hit the brakes,
until after the impact."
The
Velardes also sued their daughter, charging that she had
failed to keep a proper lookout.
One
key to proving the plaintiffs' case, said Cavanagh, was
in immediately acquiring the audiotapes of the communication
between Haas and the Chicago Central engineer and conductor.
"I was hired the day after the accident and went into
court the following day, Jan. 11, with an emergency motion"
for a protective order seeking tapes of any communications
between the railroads, he said. "I wasn't taking any
chances that they wouldn't disclose the tapes." The
plaintiffs acquired the tapes last February.
At
trial, Illinois Central did not deny liability, but did
dispute "the degree and severity of the injuries resulting
from the accident," said company spokesman Jack Burke.
The defense also claimed that Apulello was substantially
responsible for the accident.
Apulello
was not negligent, said her attorney, Terrence Lavin of
Chicago's Lavin & Nisivaco. "Their lights and gates
weren't working. They failed to keep a proper lookout."
Also, he said, the road crossed the track at such a sharp
angle that she was unable to see.
The
jury recently awarded Fidel Velarde $15.11 million, Francisca
Velarde $6.2 million, Lilia Apulello $30.9 million and Rafael
Apulello $3.95 million.
On
the jury's finding that Lilia Apulello was 5 percent responsible,
the awards to her and her husband were reduced to $29.4
million and $3.33 million, respectively.
Prior
to trial, Lavin said, there was no settlement offer. There
were no settlement offers for the Velardes, either, before
trial, said Cavanagh. Burke called the verdict "clearly"
excessive and said the railroads will file motions to set
aside or reduce the awards. Velarde v. Illinois Central
Railroad Co., No. 01 L 373 (Cook Co., Ill., Cir. Ct.).
