How do you get sufficient damages for an industrial worker who leaves his work station, borrows his employer's front-end loader, parks it across a railroad track at 2:00 A.M., dismounts to load the bucket with railroad ties for his own personal use, and fails to notice an oncoming train?

The short answer: candidly admit some degree of negligence, emphasize the long term economic impact of the devastating injuries, and conduct aggressive discovery to uncover the railroad's institutional negligence.

CONTRIBUTORY NEGLIGENCE

Candidly admitting contributory negligence can disarm the defense ("Of course there is contributory negligence, that's why we are only asking for 10 million, not 20 million"), but should be attempted only after making sure there is no alternative. Plaintiff's counsel Dean Brett conducted four separate mock juries, presenting contributory negligence arguments and the best alternative replies to each. Only after these confidential juries found contributory negligence of 50 percent, 40 percent, 23 percent and 60 percent did counsel decide their efforts would be more fruitful emphasizing other issues.

THE ECONOMIC IMPACT OF DEVASTATING INJURIES

After being hit by the train, Plaintiff incurred over $1.2 million in medical bills while spending a year hospitalized. He was fitted with a prosthetic leg, a colostomy bag, and a hearing aid. Despite a heroic period of rehabilitation, doctors forecast his continuing inability to compete in the labor force. A physical capacities evaluation by Theodore Becker, Ph.D., a vocational rehabilitation assessment and life care plan by Janet Hart Mott, Ph.D., and an appraisal of economic loss by Wolfgang Franz, Ph.D., allowed Plaintiff to blackboard damages into eight digits, enough to get defendant's attention if a coherent theory of liability could be articulated.

FOCUSING ON "The Renegade Railroad"

The balance of the lawyers' efforts was focused on demonstrating that Plaintiff's one-time judgment error paled in comparison to the profit-driven, corporate irresponsibility of WATCO, eventually demonstrated to be "the renegade railroad."

Plaintiff was hand-loading railroad ties into the front bucket of a front-end loader on a switching yard track at his Boise Cascade workplace when a railroad engine driven by two employees of the local switching contractor WATCO, rounded a bend in the track, headed for the rear of the loader. The train crew saw an object on the track when the engine was at least 260 feet and 18 seconds away from the loader. The WATCO employees did not blow the engine's horn or stop the engine before it crashed into the front-end loader, pushing it over Plaintiff. Whether Plaintiff was a trespasser who had no permission to be in the area was a disputed question of fact; however, Plaintiff's counsel argued that even assuming Plaintiff was a trespasser, WATCO nevertheless owed him a duty of reasonable care (including the duty to blow the train horn) once its personnel saw an object on the track which they should have understood was a person. Plaintiff's counsel also argued that WATCO owed Plaintiff a general duty of reasonable care, rather than the more restricted duty towards a trespasser, because WATCO was an independent contractor with limited, contractually specified duties and not a possessor of land entitled to the benefits of premises liability law. Relevant to breach of this duty of care was all of WATCO's negligence in employee training, drug policy enforcement and equipment maintenance, as well as the crew's negligence in failing to blow the horn immediately preceding the collision.

Boise Cascade operates a papermill along the Columbia River at Wallula. Connecting the Boise Cascade papermill with the Union Pacific yard to the south and the Burlington Northern yard to the north is an industrial switching yard consisting of two parallel tracks. Spur tracks lead to eight separate delivery points within the mill. WATCO pays young men as little as seven dollars an hour to operate the locomotives.

Plaintiff worked as a power recovery assistant at the Boise Cascade mill. He took chemical tests every two hours, added chemicals when necessary and monitored the flow of chemicals. Plaintiff was also trained and authorized to operate a front-end loader. During slow times in the chemical preparation room, Plaintiff would use the front-end loader to help out around the plant.

In the fall of 1994, Plaintiff began building a fence on 10 acres of property he owned near Tri Cities. He contacted Union Pacific about abandoned railroad ties that had been thrown over the embankment next to the spur line.

On December 3, 1994, Plaintiff told his foreman that during a slow part of his shift he was going to use the front-end loader to collect and stack a load of abandoned railroad ties. The foreman later denied that the conversation took place or that Plaintiff ever talked to him about railroad ties.

However, another Boise Cascade employee overheard the foreman and Plaintiff talking about railroad ties. And after the conversation with Plaintiff, the foreman continued his rounds, stopping at another work site where he told two other employees that if they needed the front-end loader that evening, they should call Plaintiff on the radio because Bob would be using the front-end loader. Thus, whether Plaintiff's foreman gave permission for him to use the front-end loader to collect abandoned railroad ties during his shift on Boise Cascade property or whether he was a trespasser was a hotly disputed issue.

During a lull in his work, Plaintiff called the WATCO terminal to see if they were finished switching for the evening. He got a recording. He then got in the front-end loader and traveled throughout the Boise Cascade mill to the eight locations where switching occurs to make sure first-hand that WATCO had finished switching for the evening. Although in-plant switching had been completed, WATCO employees had decided to move some cars from the Union Pacific yard at the south of the Boise Cascade mill to the Burlington Northern yard at the north of the Boise Cascade mill.

In the early morning hours of December 3, 1994, a single WATCO locomotive was traveling north, in reverse, on a Boise Cascade switch track. They had traveled over this same track less than an hour earlier. The track bends slightly to the right. Between the beginning and the middle of the radius of the curve, the brakeman saw something on the track ahead. The middle of the radius was later surveyed to be 262.5 feet from the point of impact. Immediately, when he saw something, he yelled "Oh, shit, something's on the rail, hit the brakes!" and the engineer "slapped" the independent brake into full operation.

The engine struck the front-end loader, driving it into Plaintiff who was loading railroad ties into the bucket of the loader.

The crewmen estimated their speed at between 5 and 10 miles per hour. The engineer failed to blow the horn, failed to engage the warning bell, and failed to engage the brake sanders. He hit the independent brakes rather than the emergency brakes, which would have automatically engaged the brake sanders.

At the time of the accident, the front-end loader's lights were on, including at least one working light at the rear of the loader facing the on-coming engine. An overhead light on a high pole was situated near the loader. Plaintiff's illumination expert, Lowell Lazara of Olympia, who conducted tests at the site, concluded that the front-end loader was "plainly visible to the engineer of the railroad engine from several hundred feet away at night. The tractor was plainly capable of being seen, even at a glance." Nevertheless, the crew described what they saw as "shadows", "something on the rail", "some kind of shadow".

Charles Culver, a railroad engineer from League City, Texas, conducted stopping tests at the site using a similar WATCO engine. At 10 miles an hour, using various combinations of emergency braking, independent braking and sanders, and sounding the horn as part of each test, the engineer was able to stop the engine in all instances between 57 feet and 89 feet 10 inches, and between 6.09 and 8.9 seconds. Leonard Laketek Ph.D., Plaintiff's consulting physicist, created a computerized model which then put the approach speed at over 20 miles per hour, twice the speed limit.

After recreating conditions on the site at the time of the accident, Plaintiff's expert audiologist David Lipscomb Ph.D. concluded that "had the horn been sounded . . . . alerting would have occurred when the locomotive was more than 200 feet from the point of impact."

WATCO management ultimately admitted that the horn should have been sounded to warn Plaintiff. And the engineer himself admitted that Plaintiff would have heard the horn. Even the WATCO Location Manager agreed Plaintiff would have "definitely" heard the horn had it been blown.

Using these deposition admissions and expert opinions, Plaintiff's counsel argued that, even assuming the worst possible case for Plaintiff - that Plaintiff was a trespasser at the time of the accident - WATCO nevertheless owed Plaintiff a duty of reasonable care once the train crew saw an object indicating the substantial chance of a trespasser on the track.

Since the crew had driven the engine over the accident site less than an hour before, and since the front-end loader had at least one light on facing the engine at the time of the collision, what they saw on the track had to include the substantial chance of a human presence. How else could something with a light on it that was not there less than an hour before have gotten there?

Plaintiff's counsel relied on Power v. Union Pacific Railroad Company, 655 F.2d 1380 (1981), which held that the engineer of a Union Pacific train that struck and killed a pedestrian trespassing on the company's tracks had a duty to use reasonable care once he saw the trespasser. The Ninth Circuit had in turn relied on Potts v. Amis, 62 Wn.2d 777 (1963), in which Washington adopted a standard of reasonable care under the circumstances for a licensee injured by a landowner's activity, as opposed to a passive condition of the land. The Ninth Circuit held that Washington would apply the same standard to a known trespasser, following the Restatement of Torts, § 336.

The crew saw an object on the track 260 feet away. Traveling at 10 miles an hour, the engine would take 18 seconds to reach the object. The engine's horn would have given clear warning at the distance at which the object was perceived. Sounding the horn as soon as the object was spotted would have given Plaintiff 18 seconds to get out of the way. The horn could be sounded by a simple motion of the arm pulling a lever -- as quick as the clap of hands. Yet, the engineer did not blow the horn.

In Power, the trespasser was readily identifiable by the engineer, and thus, the court did not address the issue of the responsibility of an operator of an engine who sees an object on the tracks but cannot tell for certain that it is a person. This question was, however, squarely dealt with by Rustay v. Consolidated Rail Corp., 775 F.Supp. 161 (D.N.J., 1991), and by Restatement, §336, Comment b. In Rustay, defendant's train struck a drunk and trespassing Plaintiff who was lying on the tracks. The engineer saw what he thought was debris or garbage on the track but did not immediately apply the brakes or sound the horn. When someone is carrying on a dangerous activity such as operating a railroad engine, the operator must assume that a perceived object is a person and act accordingly if there is a substantial chance that this is the case. Dangerous activity commands greater caution by the actor.

Although whether Plaintiff had permission from his foreman to collect railroad ties or was an unauthorized trespasser began as a hotly contested issue, careful scholarship demonstrated that even assuming he was a trespasser, once the crew saw something on the track ahead which they should reasonably have concluded was a person, WATCO had the duty to sound the train horn and warn the assumed trespasser of their onrushing presence. They failed to do so.

Plaintiff's counsel also argued that, as an independent contractor operating a locomotive on land it did not own or possess, WATCO owed Plaintiff a duty of reasonable care, rather than only the lesser care owed to a trespasser. Under Washington law, rules of premise liability and Plaintiff's status at the time of the accident were irrelevant to the duty owed by WATCO to Plaintiff.

Unlike most railroads, which operate on tracks they own, WATCO did not own the industrial switching yard on which it operated around the Boise Cascade plant. As an independent contractor, WATCO did not own or possess the land; therefore, it owed Plaintiff a duty of reasonable care. Plaintiff's status vis-à-vis Boise Cascade, which possessed the land under a lease, was irrelevant to the duty owed by WATCO. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 869 P.2d 1014 (1994).

Once a reasonable care standard was established, an aggressive discovery campaign demonstrated that WATCO fell woefully short of meeting the standard. WATCO's training did not meet the standard of reasonable care. WATCO provided no classroom training to the switchmen who operated their locomotives. WATCO provided only on-the-job training. The on-the-job training followed no standard format and did not even include an informal list of items to cover. The trainee merely rode with and observed another switchman who himself had learned to operate the locomotive under the same unorganized, unfocused training method. The "engineer" who was operating the engine when it struck Plaintiff was given only three days of on-the-job training before he was allowed to operate the 238,000 pound locomotive solo. He never even learned how to start the engine; it was always left running for him.

The on-the-job training was provided primarily by an Assistant Location Manager. At the time he trained the two crewmen he was not an FRA certified engineer. In the year prior to teaching them how to operate a locomotive, he was reprimanded for speeding in the Boise Cascade mill. Shortly after completing their on-the-job training, he was terminated for failing a drug test.

During the period of his training, the engineer could not have passed a drug test. WATCO did not give him a drug test prior to allowing him to begin running the engine. Following the Plaintiff's collision, the engineer quit rather than submit to a drug test. Six months later, he re-applied for work at WATCO, was given a pre-employment drug test, and failed it.

WATCO's maintenance program did not meet the standard of reasonable care. WATCO's Location Manager was the person in charge of maintaining the locomotives. Prior to his employment at WATCO, he had no experience repairing locomotives. He learned as he went. In order to keep materials flowing to Boise Cascade, WATCO used locomotives which had known defects. "Yes, there has been times [sic] that we have had to get switches done to keep the plant going, and I have used locomotives that had defects on them."

In the year prior to the collision, the two locomotives used by WATCO developed numerous problems: a warning bell that worked only occasionally; brake sanders that worked only occasionally; malfunctioning headlights; inadequate motive power; inoperable speedometer; broken engine compartment heater; partially inoperable brakes. The inspection reports throughout the year list numerous defects, often repeatedly, and one report, in the space for defects, simply relates, "Same ol', same ol'".

At the time of the collision with Plaintiff, the engine was operating without a functioning speedometer and without functioning brake sanders. (Brake sanders allow the engine to stop more quickly.) WATCO is unsure whether the warning bell was operating on the night of the collision, since the crew did not engage the warning bell.

WATCO laid the ground work for this accident through a systematic course of irresponsible conduct, and then its untrained employees had the last opportunity to prevent the tragic accident by simply blowing the train's warning horn.

THE MEDIATION

The comparative negligence allowed counsel to obtain substantial discounts from subrogation carriers who justifiably feared no recovery without compromise, leaving the recovery in Plaintiff's pocket, not just in that of his medical providers.

WATCO, which operates switch yards in numerous industrial facilities in several states, had been operating without certified engineers because of their unilateral reading of 49 CFR, which exempts "a plant railroad" from federal regulation. Plaintiff's counsel put this strained reading in issue. Losing this favorable interpretation of the statute in this case of first impression threatened to force WATCO to comply with the Federal Railroad Safety Act. They preferred to settle prior to resolution of the issue.

The case was filed in U.S. District Court for the Eastern District of Washington as CS-97-0105 JLQ. Plaintiff's counsel moved for summary judgment on liability against WATCO based on the above reasoning. The case settled for $3.5 million before mediator David A. Thorner.

Plaintiff was represented by Eagle Patron Dean Brett of Brett & Daugert, Bellingham, and Timothy W. Mahoney, Kennewick.