Louisiana Supreme Court: Kenner, railroad not liable in woman’s death
DEAF WOMAN KILLED AT TRAIN CROSSING
BY JIM MUSTIAN
[email protected]
April 23, 2014
Kenner and the Illinois Central Railroad Co. are not liable for a 2009 crash in which a train struck and killed a deaf woman who was trying to cross the tracks at an unguarded intersection, the Louisiana Supreme Court has ruled.
The high court, in a 6-1 decision last week, called the death of 58-year-old Cynthia Tuckson “a tragic accident,” but it dismissed a wrongful-death lawsuit that claimed the crossing was unreasonably dangerous and, given its history, should have been equipped with crossing gates and flashing lights.
The ruling reversed an October appellate court decision that would have allowed the case to be heard by a Jefferson Parish jury.
New Orleans attorney Harry E. Forst said Tuckson’s son, Donald Davis, was “distraught and upset” at the ruling, which he said likely is the end of the road for the case. Tuckson’s family members could not be reached for comment.
“I think all he asked for was his day in court,” Forst said of Davis. “That’s really what he wanted, to show that the community in fact knew that this area, this crossing, was dangerous and should have had an active warning system. Everybody in the neighborhood knew that.”
The crash happened about 7:20 p.m. on July 25, 2009 — in daylight — as Tuckson was walking north on Taylor Street toward her home. She lived alongside the tracks on Kenner Avenue, not far from the site of the accident, and had crossed the intersection many times. At the time, the crossing was marked by post-mounted crossbuck signs, as required by state law, but lacked a so-called active warning system to visually alert motorists and pedestrians of an oncoming train.
In court filings, Davis contended that someone at a park near the tracks had been trying to get his mother’s attention “to tell her to get off the tracks, that a train was coming.”
“She was deaf and she could not understand what the person was saying,” Davis added. “Evidently, she did not feel the vibration.”
Witnesses told authorities that Tuckson had been walking backward at some point. But video footage from the train showed Tuckson “walking steadily toward the tracks, gazing straight ahead without looking to either side,” according to court documents. The train arrived at the Taylor Street crossing just as Tuckson stepped onto the tracks.
The train, having blown its horn repeatedly, braked more than three seconds before impact but did not come to a halt until the next street crossing. The train was pulling 53 cars, was traveling about 26 mph and needed 600 feet to stop. Tuckson was killed by the impact.
Tuckson had been well known in her community and was reportedly active in her church. She became deaf after suffering a brain aneurysm in 1987, The Times-Picayune reported, an affliction that initially confined her to a wheelchair.
Forst acknowledged that Tuckson bore “some responsibility” for the accident. “They have a film showing her walking across the crossing and she did not look,” he said. “But our argument has been from the very beginning that that’s not the only issue. The son really wanted to show that there were other causes to the accident.”
Davis, the plaintiff, contended the intersection was “extra hazardous” and the defendants had a responsibility to guard it with crossing gates and warning lights. That equipment was not installed at the crossing until after the crash, Forst said.
An expert hired by the plaintiff found the crossing had been in need of an active warning system due to a number of factors, including sight-distance restrictions and the intersection’s collision record. Roger Perkins, who identified himself in court filings as president of the Concerned Citizens Civic Coalition, swore in an affidavit that he had long complained of the danger posed by the intersection, and that he had lobbied for blinking lights and crossing gates to be installed before the crash.
The defendants claimed they had “breached no duty” to Tuckson and that they weren’t responsible for the accident. They noted the intersection was in compliance with Louisiana law, which requires crossbucks to be posted at all railroad crossings on public roadways.
The case boiled down to a legal analysis of whether the crossing constituted a “dangerous trap” that the defendants had a duty to address. Judge Glenn Ansardi, of 24th Judicial District Court, ruled the crossing did not, and that Tuckson “had ample opportunity from a position of perfect safety to see what she should have seen had she simply looked as she was legally obligated to do.” He noted that Tuckson’s view had been “in no way obstructed.”
The state 5th Circuit Court of Appeal in Gretna last year reversed that decision, but the Louisiana Supreme Court reinstated Ansardi’s decision to grant summary judgment to the defendants.
“The uncontested facts showed that (Tuckson) did not have to place herself in a position of peril in order to see the oncoming train and that she simply did not look in either direction before crossing the tracks,” the justices wrote.
Chief Justice Bernette Johnson dissented from the majority.
SOURCE:
http://www.theneworleansadvocate.com/news/8972440-171/kenner-and-railroad-not-liable
SOURCE #2:
http://www.claimsjournal.com/news/southcentral/2014/04/25/247954.htm