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Pratt v. National Railroad Passenger Corp.

United States District Court, D. Vermont

June 17, 2016

MICHAEL J. PRATT, Administrator of the Estate of Eric J. Pratt, Deceased, Plaintiff,


          William K. Sessions III District Court Judge

         In 2012, fifteen-year-old Eric Pratt was struck and killed by an Amtrak passenger train while walking across railroad tracks near his home in Vernon, Vermont. Eric’s estate brings this action alleging negligence by the railroad, the owner of the tracks, the train’s conductor, and its engineer. The Defendants have moved for summary judgment on all claims.

         For the reasons set forth below, the Court finds that based upon the undisputed factual record, which includes a video of the incident, no reasonable juror could conclude that the Defendants are liable for Eric’s tragic death. The motion for summary judgment is therefore granted, and this case is dismissed.

         Factual Background

         I. The Undisputed Facts

         On January 15, 2012, Eric and his friend Kyle Shippee walked to Kyle’s house to retrieve a video game. In order to return to Eric’s house, the two young men had to cross a set of railroad tracks. Kyle crossed the tracks just ahead of an oncoming Amtrak passenger train. Eric also tried to cross the tracks, but was struck by the train and killed.

         Kyle’s house was on Vermont Route 142, which runs parallel to the railroad tracks. After Eric and Kyle retrieved the video game, they walked approximately 50 yards north on Route 142, then turned west onto Bemis Road. Bemis Road, which has been both marked and maintained as a private road, crosses the tracks. There are no fixed lights, gates, or bells at the Bemis Road crossing, and there is no allegation that any were required.

         Kyle testified at his deposition that he first heard the horn of an approaching train when leaving his driveway. Because freight trains had recently been stopping on the Bemis Road portion of the tracks, Kyle said to Eric that they should try to “beat” the train. Kyle does not know whether Eric heard his suggestion, or if Eric was even aware that a train was coming.

         Defendants have submitted a video recording taken from a camera mounted on the front of the train. The video depicts the train blowing its horn for approximately 21 of 30 seconds prior to reaching the Bemis Road crossing. The video also shows that a car approached the tracks from the west and stopped prior to the crossing. After the car came into view, the operator of the train blew the horn almost continuously for seven seconds prior to reaching the crossing. During that time, Kyle crossed in front of the train with Eric trailing behind.

         As the train proceeded toward the crossing, Eric walked onto the track. Once on the track, Eric turned his head toward the oncoming train. He then continued across the track, lengthening his strides. It is undisputed that the train operator applied the emergency brake at roughly the moment of impact.

         Kyle testified in his deposition that after he heard the train horn from his driveway, he did not hear it again until approximately two seconds before Eric was killed. The driver of the vehicle that approached the tracks from the west, Michelle Penza, testified in her deposition that she stopped just in time to see the train and was initially afraid that it would hit her vehicle. Ms. Penza did not hear a horn before Eric was struck and killed, though her car windows were closed and she was listening to music at the time. Witness Suzanne King was driving her car on Route 142, parallel to the tracks, and saw Kyle and Eric walking. Like the other eyewitnesses, she did not hear the train horn prior to the collision. She was also surprised at the train’s high speed.

         The speed limit for a passenger train on that section of track is 55 miles per hour. Readings from the train’s data recorder indicate a speed of 50 miles per hour at the time of the accident. A second report produced by Defendants indicates a speed of 54 miles per hour. As discussed more fully below, Plaintiff contests the reliability, and thus the accuracy, of Amtrak’s video recording and its data recording.

         II. The Amended Complaint

         Defendants in this case are the National Railroad Passenger Corporation doing business as Amtrak (“Amtrak”); track owner New England Central Railroad, Inc. (“NECR”); the train’s conductor, Michael Kujala; and the train’s engineer, William Rae. Counts 1, 3, and 4 of the Amended Complaint allege negligence by Amtrak and its employees, including: failure to require or provide an adequate warning, both as to the frequency of horn blows and the loudness of the horn; failure to keep a careful lookout; and failure to slow or brake the train to avoid the collision. Count 2 is brought in negligence against NECR, and claims a failure to construct a safe and reasonable crossing; failure to maintain the crossing in reasonable condition; failure to clear vegetation and obstructions; failure to provide adequate sight lines for motorists and pedestrians; failure to implement "FORM B" protection; and failure to provide warning devices at the Bemis Road crossing.

         Notwithstanding the allegations in Count 2, Plaintiff has since made clear in the briefing that the only claim being brought against NECR is that it was negligent in maintaining the vegetation at the crossing. ECF No. 97 at 18. Plaintiff has also clarified that it is not arguing: (1) that Amtrak (as opposed to NECR) was negligent in failing to evaluate the dangers of the crossing; (2) that Amtrak was negligent in failing to provide additional protection because the crossing was ultra-hazardous; or (3) that Amtrak hired a crew that it knew or should have known was incompetent. Id.

         III. Disputes About the Data

         Defendants have produced two printouts from the train’s data recorder, as well as the video recording. The first data printout was provided in discovery prior to the deposition of Amtrak’s corporate representative, Harald Keuerleber. The second data printout was produced at Mr. Keuerleber’s deposition. Although derived from the same data source, there are differences in the two printouts. Plaintiff contends that these differences render the data unreliable.

         The primary difference in the data printouts is the wheel size. Wheel sizes vary as the train’s wheels wear out, and in the event of an accident the wheel size is measured contemporaneously by an Amtrak employee.[1] Wheel size is significant because as the event recorder records the rotation of the wheels, wheel size dictates the calculation of the train’s speed and distance traveled. A smaller wheel size correlates to a slower speed.

         The printout that was first produced in discovery (ECF No. 87-11) indicates a wheel size of 37.5. Mr. Keuerleber brought a second printout to his deposition (ECF No. 98-3), with a wheel size entry of 41. The smaller wheel size calculated to a speed of 50 miles per hour at the time of impact, while the larger wheel size calculated to 54 miles per hour. Although Mr. Keuerleber was not able to explain the wheel size difference on the day of his deposition, his “errata” to the deposition testimony explains that 37.5 was the wheel size measurement at the time of the accident, while 41 is simply a default measurement. Accordingly, he contends that the first-produced printout has the accurate information.

         A piece of data that is not dependent on wheel size is the time at which the horn was sounded. The data sheets measure horn blows in tenths of seconds, as signified by a “1” under each tenth of a second in which the horn was blowing. There are small differences in the data sheets as to the precise timing of the horn blows, including a difference of .1 seconds at the time of impact (16:00.54). Defendants attribute these small differences to the fact that the printouts were generated by different versions of the software. The printout with the correct wheel size of 37.5 used the most recent software.

         Plaintiff contends that the event recorders show the horn continuing briefly after Eric is struck by the train, while in the video the horn stops immediately. Plaintiff argues that these alleged differences are suspect, and criticizes Amtrak for not maintaining a chain of custody record for the data recorder.

         IV. Expert Opinions

         A. Plaintiff’s Expert

         Plaintiff has retained Jimmy Scott, an expert on train operations. Mr. Scott’s initial opinions included the following conclusions: (1) the engineer failed to blow the horn at the right time or in the right progression as required under federal law; (2) a buildup of ice and snow on the three forward-facing flutes caused the horn to sound muffled; (3) the engineer did not reduce the speed of the train prior to applying the emergency brake.

         With regard to the blowing of the horn, Mr. Scott cites the General Code of Operating Rules (“GCOR”). The GCOR reportedly requires two long blasts, followed by one short blast and another long blast before reaching a crossing. Mr. Scott’s report also concludes that the horn did not blow at all during the 4.5 seconds immediately prior to the accident, based upon a police ...

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