East Palestine Train Derailment: A Legal Point of View
Feb. 24, 2023
The news has been featuring story after story on the freight train derailment in East Palestine, Ohio. The fact that the train was carrying some hazardous materials has been widely touted, and the pictures of the devastation caused by the derailment have caused many people to ask questions about the safety of trains particularly.
It is undeniable that the incident occurred, and devastated the nearby countryside, and even now there are concerns about some chemicals affecting the local drinking water. These concerns are merited, but some people have taken to decrying trains. This ignores that trains are almost ten times more efficient, and environmentally friendly, than the same amount of trucks that would be needed to haul the same amount of freight, according to, inter alia, the federal Department of Transportation(1)(2).
Having said that, accidents and incidents do happen, such as this one in East Palestine. The preliminary findings of the National Transportation Safety Board, or NTSB, have just been released(3). The facts are by now, well known: a Norfolk and Southern (“NS”) freight train that was 149 cars long slowed to a stop after a “hotbox” detector sounded in the locomotives. A hotbox detector, or HBD, is located trackside, and relays information to the locomotives digitally. The device is designed to let the engineer know if there is a problem with axles, or braking generally, since trains are so long they cannot be seen from the locomotive cab. The crew stopped the train and then noticed smoke, and fire, and confirmed that part of the train had derailed - 38 cars derailed, including 11 which had some sort of hazardous material within.
In the operation of the train, the actual engineer and conductors who made up the train crew do not appear to have themselves been negligent, according to the NTSB report. The crew received an alarm, responded to it, brought the train to a stop, promptly attempted to locate the source of the problem, and upon finding it, raised the alarm for first responders.
The question, then, is: if the train crew did not do something wrong, is there still a case against the railroad?
As with any civil lawsuit, the question of a case comes down to negligence. Negligence can be found in the actions, or inactions, of many different entities: people, companies, devices, manufacturers, inspectors, etc. This can mean badly manufactured or installed devices, insufficiently monitored equipment, insufficient numbers of devices, etc.
Circling back to the February 3rd derailment, the location along the railroad where the incident happened had hot box detectors every 11 miles. This may sound like a broad distance, but remember that trains are usually traveling about 50 miles an hour, so a detector every 11 miles meant a reading was taken every 9.13 minutes (approximately).
- NOTE - this train was actually under the recommended speed, at 47 mph.
The next question is logical: is a detector every 11 miles sufficient? Should they be closer together?
There is no immediate answer to this question, as neither the NTSB nor the Federal Railroad Administration, or FRA, regulate the positioning of detectors. So the issue of whether or not the placement of the HDBs every 11 miles was sufficient will, in the event of litigation, come down to what experts say it should be, and what they opine to be reasonable.
Often these matters involve the question of "should", such as what "should" have been done (or, sometimes, not done). In this instance, should question of should HBDs be closer together will be determined in a court of law. Experts with competing opinions will testify, and a jury will decide whether or not the railroad acted reasonably in its deployment and location of the HBDs. Experts, such as we are describing here, are those who qualify with the Court as having competency in their field. Perhaps experienced railroaders, railroad superintendents, industrial design team members, safety managers, and even regulators.
One must also ask: was the negligent action (location of HBDs) the proximate cause of the injury, or harm?
This is a very difficult question to answer, and no attorney can see into the future. This question has to be opined to by experts, and ultimately, decided by a jury. The question of causation is a jury question, and the burden of proof always rests with the Plaintiff, or person(s) bringing the case.
It is possible that the installation of more HBDs may have alerted the crew sooner, and they could have stopped the train sooner, but would the train still have derailed? And then, having derailed, would the chemicals have spilled/caught fire?
Defense attorneys have a large quantity of tactics to draw from that can muddy these waters, as we see in car accident litigation frequently. They will admit the incident occurred, even admit to negligence, but will work strenuously to convince a jury that nothing they could have done would have prevented it.
Where does the law stand on this?
Many people may not realize that there are not codified standards for many of the things that we do, including drive, fly, boat, travel, etc. Some things are the way they are not because of laws or regulations, but industry standards. Those standards change over time, often as the result of tragic incidents. For example, there was a time when seat belts were not put into cars because the manufacturers thought that the mere presence of seatbelts would convince the public that cars were inherently unsafe. It is possible that the position of the hotbox detectors, too, will fall into this class of changed standards: what was acceptable in 2022, may no longer be acceptable in 2023, and beyond.
This derailment is likely to result in significant litigation from homeowners, property owners, and residents. Not only was property damaged, but some people have suffered medical issues as a result of the incident. With major incidents like this, it is very possible that the underlying cases may not be resolved for years.
Here in Alexandria, we are not too far from the tracks ourselves. Trains serve the industrial park near our office, and the old Richmond, Fredericksburg, and Potomac mainline, now CSX trackage, hauls freight from the south to, and through, DC - right past the King Street Metro Station. Trains are an important part of the make-up of Northern Virginia, so we have to be aware of them. If there ever is an incident where the negligence of an individual, or the railroad itself, hurts or harms someone, Blaszkow Legal is here to help!
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(3) NTSB report: https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf