Articles Posted in Train Accidents

Last month, a federal appellate court issued an opinion in an Indiana personal injury accident that required the court to interpret the Indiana Comparative Fault Act. Ultimately, the court concluded that the evidence presented indicated that the plaintiff was more than 50% at fault for his injuries, and thus dismissal of the plaintiff’s case under the Comparative Fault Act was appropriate.

The Indiana Comparative Fault Act is contained in Indiana Code sections 34-51-2-5 and 34-51-2-6, and provides the system that courts use to determine whether an accident victim who shares fault for their own injuries can pursue a claim against other potentially liable parties. Specifically, the Act states that “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages … but does not bar recovery” except as provided by section 34-51-2-6.

Section 34-51-2-6 explains that a plaintiff cannot recover for their injuries if their fault is “greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.” While this sounds quite confusing, in practice the Comparative Fault Act precludes a plaintiff’s recovery if they were more than 50% at fault for the accident that caused their injuries.

Earlier this month, the United States Supreme Court handed down a decision that discussed the application of the Foreign Sovereign Immunities Act (the “Act”) to personal injury cases brought against foreign governments. According to the Court’s decision, the “commercial activity” exception to the Act is limited to cases where the activity which constitutes the “gravamen” of the defendant’s allegedly negligent conduct is “based upon” commercial activity. More tenuous connections with commercial activity will not suffice.

The Foreign Sovereign Immunities Act

The Act is a U.S. statute that grants immunity to foreign governments in most situations, including those arising out of personal injury accidents. One exception to the Act’s grant of immunity is where the case is “based upon a commercial activity carried on in the United States by [a] foreign state.”

OBB Personenverkehr AG v. Sachs

In the case, OBB Personenverkehr AG (“OBB”) v. Sachs, the plaintiff was injured in Austria as she was boarding a train. The company that operated the railway, OBB, was wholly owned by the Austrian government. Prior to leaving for Austria, the plaintiff purchased a “Eurorail” pass online from a U.S.-based travel agent. After sustaining serious injury from the incident, the woman filed a lawsuit against OBB in federal district court.

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Hundreds of people around the country die every year when they are hit by trains while walking on or along railroad tracks. Despite such a seemingly large number of fatalities, the issue received little attention by lawmakers or the justice system. Railroad companies view the issue as a matter of trespassing and take few, if any, measures to prevent deaths along their rail lines. Laws in many states, including Indiana, make it a crime to walk along the tracks, but put no responsibilities on railroads to avoid such incidents. The families of people killed by trains in this manner have little or no legal recourse.

Research by the St. Louis Post-Dispatch found that trains have killed over 7,200 pedestrians nationwide since 1997 and injured another 6,400. Trains kill more pedestrians each year than motor vehicles, when calculated based on number of miles traveled. On a single day, May 30, 2012, researchers found that trains killed four pedestrians in California, Illinois, Maryland, and Missouri. The death in Missouri, a fourteen year-old middle school student, was the twelfth fatality along that set of tracks since 1996, when another student from the same middle school was killed by a train there. The Missouri victim’s parents asked Union Pacific, the railroad operator, to install fences along the tracks or take other protective measures, but the railroad reportedly refused, even in the face of lawsuit threats.
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