United States District Court, D. Vermont
MICHAEL J. PRATT, Administrator of the Estate of Eric J. Pratt, Deceased, Plaintiff,
NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK, NEW ENGLAND CENTRAL RAILROAD, INC., MICHAEL E. KUJALA, AND WILLIAM C. RAE, Defendants.
OPINION AND ORDER
William K. Sessions III District Court Judge
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.
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.
The Undisputed Facts
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.
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
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.
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.
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
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
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
The Amended Complaint
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
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.
Disputes About the Data
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
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. 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.
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.
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.
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
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.
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 ...