Our heart goes out to these families and first responders. The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.
News is starting to break about potential causes. Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment. PTC automatically slows the train if it senses the train is going too fast or may crash. Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”
Responsibility for this tragedy is likely to be complicated. The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation. Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit. Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.
Our firm represents 39 victims–a substantial majority–of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history. It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws. With numerous parties and distinct legal theories, this is as complex as litigation gets. These cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.
In the Amtrak 501 disaster, the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks. The full NTSB investigation can take months or years. The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster. NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.
A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation. First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”). Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response. An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene. From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.
In an MCI, documentation and immediate identification of victims can be impossible. We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department. After 30 more depositions, the truth reveals itself.
That is, after all, the main goal victims have–what happened to me and my family, and why? I hope the victims of the Amtrak 501 disaster get the answers they deserve.
NOTE: This blog post is excerpted from AndrewAckley.com
Today, the parents of Charleena Lyles got a chance to tell their story following the fatal shooting of their daughter at the feet of Seattle Police. Read more about the case here. This is the first step on their long path to find justice. Although, nothing can bring their daughter back.
Corporations love to demonize class action lawyers. Guess why? You can likely figure this out on your own, but I’ll spell it out here: Because a class action lawsuit is one of the most powerful tools that consumers have to make corporations accountable for their negligence. But the media doesn’t like to focus on the topic of class actions much because it’s not easy to digest via 10-second sound bites. Thus, witness another week of breathtaking, frenzied stories about the Trump administration. Reporters and talking heads gravitated to discussions about the abrupt departure of Flynn and Trump’s 77 minute presser. Meanwhile, a majority in the House worked in concert to destroy consumers’ most powerful tool to hold corporations accountable. That’s right, this past Wednesday the House Judiciary Committee voted on party lines to gut consumer protection class actions.
Interestingly, the corporate lobbyists’ anti-class-action talking points are eerily similar to the proposed “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives. Coincidence? Of course, not.
Most of the proposed procedural rule changes in Representative Bob Goodlatte’s are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte – a Virginia Republican and chair of the House Judiciary Committee is seizing on the corporate-friendly climate. He’s expanded last year’s proposed changes in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions will lose much of its potency.
The bill will make class actions much more difficult to survive the most critical milestone–certification. And, for those class actions that would survive, the bill would make those automatically appealable. Moreover, the bill seeks to strip away attorneys’ fees so that fewer plaintiffs attorneys will pursue these.
Most consumers think that class actions are big, nebulous things that have little to do with their lives. But if you talk to regular people such like my class action clients, you’ll realize that the Congress needs to stop trying to striking fatal blows to this important vehicle for justice. Like my clients, consumers throughout this country need class action attorneys to fight for them because they can’t or don’t want to spend thousands of dollars and countless hours to fight a giant corporation. My class action clients are like your neighbors, your relatives, your colleagues, and your friends. They are Republicans, Democrats, and Independents. But, for them and for me, these lawsuits are not about politics. It’s about trying to hold a massive company accountable, when an individual consumer is wronged.
We all know that corporations are focused on maximizing profits. To maximize profits, these companies will cut corners, which often result in a harm to the consumers. When a consumer finds that they have a defective product or that their most private information has caused significant harm to them and their bank accounts, they are not sure who will go to bat for them. This is why class action attorneys play a critical role in leveling the field for the citizen who’s suffered injury because a manufacturer used shoddy material, security or processes.
Please, email/call/write your representatives and let them know that they represent your interests–not the corporations who’ve donated tens of thousands of dollars to their campaign.
The purpose of a road shoulder is to provide a safe place for drivers to pull off. This is what Todd Moothart, a 50 year old software engineer, thought as he tried to pull his motorcycle out of traffic. A conscientious motorcyclist, he wanted to wait for his friends to catch up. Motorcyclists know that it’s safer to travel in groups on the highway to increase their visibility to other vehicles.
When Todd got separated from his two friends on a beautiful Saturday afternoon in Fall 2013, he decided to pull off on SR 14 and wait for them. But the road shoulder was far from safe. The broken pavement past the edge of the main road–next to the shoulder–dropped off seven inches.
When Todd pulled his Harley Davidson onto the shoulder, his motorcycle wheel hit the face of the seven-inch broken pavement edge. His motorcycle hit the face of the broken pavement, his front and rear wheels were severely dented, and his body was propelled into the air like he was on a trampoline.
Note that safety standards in the transportation engineering field recommend that pavement edge drop offs be kept to a depth of no greater than two
Todd suffered severe injuries, including a kidney laceration, a concussion, amputation of a part of his right index finger, and broken/fractured bones in his upper and lower body.
The design plans for the on-ramp called for an eight-foot paved shoulder on the right-hand side. At the location where Moothart pulled off, there was no paved shoulder at all beyond the fog line. For unknown reasons, the State’s as-built plans for the on-ramp showed an eight-foot paved shoulder, but the evidence indicated that the on-ramp never had an eight-foot paved shoulder in the area where Moothart pulled off. The on-ramp was built in the mid-90s.
Stritmatter Kessler attorneys represented Todd Moothart in trial against the State of Washington in late October/early November of this year. The jury found that the State had failed to maintain the road in a reasonably safe condition.Todd was awarded $2,993,000. Part of the award was for about $500,000 in undisputed past medical bills and wage loss.
Todd was a conscientious motorcyclist who was at the wrong place at the wrong time. Emergencies and split second decisions happen anywhere and anytime. That’s why the shoulder must be maintained per State of Washington standards. The shoulder needs to be safe to pull over for all vehicles. This is the State of Washington has standards for an eight food shoulder with a minimum drop off of 2 inches.
Kudos to our firm’s roadway safety attorneys for educating the jury and judge about the need to keep the State’s road shoulders safe! The government needs to be held accountable, when its roads don’t meet basic safety requirements.
Hopefully making the most out of the extra hour yesterday, transportation workers were busy at work around Seattle yesterday. Why? They were installing 145 signs announcing the new 25 mph arterial-speed limit. The policy behind lowering the arterial speed limit is to reduce traffic related injuries and fatalities.
So…. take note:
The residential speed limit of 25 mph falls to 20 mph throughout the city, including hundreds of unmarked roads — in many cases, too narrow for drivers to exceed 20 anyway.
• The default speed limit of 30 mph for arterials drops to 25 mph citywide,“unless otherwise posted,” according to new signs at the city entrances.
This last point may confuse drivers because some outlying streets that were historically 30 mph have sporadic signs, due to abuse and neglect. The City Council unanimously approved the changes Sept. 26 and is looking to extend the program next year.
Friends at Seattle Greenways were big proponents of this change. Kudos to Cathy Tuttle and Gordon Padelford!
People walking and biking have a 90% chance of surviving if hit by a car driver going 20 MPH. But at 30 MPH there is only a 50-50 chance of survival.
You can help move Seattle towards safer speed limits, right now.
What’s the proposal? The city council is considering lowering speed limits on non-arterial streets from 25 MPH to 20 MPH, and in downtown on arterial streets from 30 MPH to 25 MPH (see the City’s FAQ).
Why should you care? If you have a young child, elderly family member, or if you are a pedestrian/cyclist in Seattle, this means safer streets for you and your family.
How will this proposal make a difference? This proposal makes sense. Our neighborhood streets are where we raise our families, talk to our neighbors, play in our front yards, and walk to school. Neighborhood streets should be quiet, calm, and safe places that enhance our quality of life. Downtown streets have the highest concentration of collisions between people walking or biking and people driving, and lowering the speed limit will help. Speed limit changes are only a small, but important, part of a comprehensive Vision Zero effort to eliminate serious injuries and fatalities on our streets by 2030. Learn more.
How you can help:
- Tell the City Council why adopting safer speed limits is important to you and your community. Or if you are too nervous to speak, hold signs in support.
- When: 2:00 (show up at 1:50 to sign up), Tuesday, September 20th
- Where: Seattle City Hall’s main council chambers. If you are having trouble finding the chambers, simply ask anyone you see inside the building.
Please let Gordon Padelford know if you can join to support the legislation on Tuesday.
If you can’t make it: Please call your city council members and let them know you are supportive:
Tim Burgess (Citywide): 206.684.8806 | firstname.lastname@example.org
Lorena González (Citywide): 206.684.8802 | email@example.com
Find your city council district here.
Lisa Herbold (Dist 1): 206.684.8803 | firstname.lastname@example.org
Bruce Harrell (Dist 2): 206.684.8804 | email@example.com
Kshama Sawant: (Dist 3) 206.684.8016 | firstname.lastname@example.org
Rob Johnson (Dist 4): 206.684.8808 | email@example.com
Debora Juarez (Dist 5): 206.684.8805 | firstname.lastname@example.org
Mike O’Brien (Dist 6): 206.684.8800 | email@example.com
Sally Bagshaw (Dist 7): 206.684.8801 | firstname.lastname@example.org
Thank you for all that you do!
NOTE: Printed with minor modifications and with permission from my friends at Seattle Greenways, specifically SG Policy Director Gordon Padelford.
Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.
In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.
Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”
“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.
O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.
A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.
To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”
The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.
The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.
“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”
(Above KOMO News story aired June 20, 2016)
What does it take to make this treacherous stretch of the First Hill Streetcar tracks safer for cyclists? A few weeks ago, we mourned the tragic death of cyclist Desiree McCloud, who crashed her bike only a few blocks away from where our client, cyclist Daniel Ahrendt, crashed his bike and survived after a Metro bus ran over him. Now, we have Jessica Hicks, who crashed on her scooter a few weeks after Denise Chew, a Tukwila nurse, crashed in the same area. To add insult to injury, Denise’s scooter was auctioned off, while she was unconscious and on a ventilator at Harborview. Really. I’m not making this up.
There are a number of ways that we can make this area safer for those riding two wheels. Bicycle advocates have frequently pointed to flange-fillers (used in a less trafficked area of the First Hill Streetcar line in the International District) or a covered-track system such as VeloStrail (currently used in Europe for curved tram tracks that intersect cyclist/pedestrian paths). As much as I would love to see solutions like those embraced, we also have a number of other less dramatic options. Let’s look at what the City has done on the Second Avenue corridor, soon after the horrific death of young attorney and friend Sher Kung.
We should look at options that keep cyclists away from the tracks with bollards, signalization, bright paint, and education–among other ways. In a future post here, I will share more insights with a transportation engineer, who is well versed in the area of cyclist safety along light rail lines.
A little over a year after my client, Daniel Ahrendt, caught his tire at the intersection where First Hill Streetcar tracks curved onto the bike lane. I’m saddened, but not surprised to learn about 27 year old Desiree McCloud’s death. She too crashed along the same tracks, close to where Ahrendt was run over by a Metro bus. Witnesses apparently saw her flip over her handlebars and hit the pavement.
The South Lake Union cyclist crash cases were dismissed because the City argued that bicycles were not considered “ordinary travel” along the South Lake Union route. In fact, the City had planned to ban bicycles there.
However, in Daniel’s and Desiree McCloud’s cases, the City included bike lanes along the First Hill Streetcar line. The argument that bicycling is not considered “ordinary travel” cannot pass muster for our injured/killed cyclists who were invited to ride their bikes on this hazardous portion of the streetcar line. We must not blame cyclists, when the City developed this new streetcar line with eyes wide open regarding the extraordinary hazard that the curved tracks pose to cyclists and those on wheelchairs.
Note, there are rubber flangeway fillers along this streetcar line in the International District by 8th Avenue. Why there aren’t flangeway fillers or something else that will prevent cyclists from unintentionally falling into these curved tracks escapes me. Excuses about the cost in replacing the rubber or maintaining them is absurd. How many lives and serious injuries does the City need to see, before it does something like it did in response to the injuries and deaths from cyclist crashes on Second Avenue?
Please visit the donation page that Desiree’s family put up, which will go to cover medical costs, etc.