{"id":27151,"date":"2014-04-23T16:26:57","date_gmt":"2014-04-23T21:26:57","guid":{"rendered":"http:\/\/deafnetwork.com\/wordpress\/?p=27151"},"modified":"2014-05-07T01:53:07","modified_gmt":"2014-05-07T06:53:07","slug":"louisiana-supreme-court-kenner-railroad-not-liable-in-deaf-womans-death","status":"publish","type":"post","link":"https:\/\/deafnetwork.com\/wordpress\/blog\/2014\/04\/23\/louisiana-supreme-court-kenner-railroad-not-liable-in-deaf-womans-death\/","title":{"rendered":"Louisiana Supreme Court: Kenner, railroad not liable in deaf woman’s death"},"content":{"rendered":"

Louisiana Supreme Court: Kenner, railroad not liable in woman’s death<\/strong><\/p>\n

DEAF WOMAN KILLED AT TRAIN CROSSING<\/p>\n

BY JIM MUSTIAN
\nJMUSTIAN@THEADVOCATE.COM
\nApril 23, 2014<\/p>\n

Kenner and the Illinois Central Railroad Co. are<\/span><\/span> 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.<\/p>\n

The high court, in a 6-1 decision last week, called the death of 58-year-old Cynthia Tuckson \u201ca tragic accident,\u201d 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.<\/p>\n

The ruling reversed an October appellate court decision that would have allowed the case to be heard by a Jefferson Parish jury.<\/p>\n

New Orleans attorney Harry E. Forst<\/span><\/span> said Tuckson\u2019s son, Donald Davis, was \u201cdistraught and upset\u201d at the ruling, which he said likely is the end of the road for the case. Tuckson\u2019s<\/span><\/span> family members could not be reached for comment.<\/p>\n

\u201cI think all he asked for was his day in court,\u201d Forst said of Davis. \u201cThat\u2019s really what he wanted, to show that the community in<\/span><\/span> fact knew<\/span><\/span> that this area, this crossing, was dangerous and should have had an active warning system. Everybody in the neighborhood knew that.\u201d<\/p>\n

The crash happened about 7:20 p.m. on<\/span><\/span> July 25, 2009 \u2014 in daylight \u2014 as Tuckson<\/span><\/span> 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<\/span><\/span> signs, as required by state law, but lacked a so-called active warning system to visually alert motorists and pedestrians of an oncoming train.<\/p>\n

In court filings, Davis contended that someone at<\/span><\/span> a park near the tracks had been trying to get his mother\u2019s attention \u201cto tell her to get off the tracks, that a train was coming.\u201d<\/p>\n

\u201cShe was deaf and she could not understand what the person was saying,\u201d Davis added. \u201cEvidently, she did not feel the vibration.\u201d<\/p>\n

Witnesses told authorities that Tuckson<\/span><\/span> had been walking backward at some point. But video footage from the train showed Tuckson<\/span><\/span> \u201cwalking steadily toward the tracks, gazing straight ahead without looking to either side,\u201d according to court documents. The train arrived at the Taylor Street crossing just as Tuckson<\/span><\/span> stepped onto the tracks.<\/p>\n

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<\/span><\/span> was killed by the impact.<\/p>\n

Tuckson<\/span><\/span> 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.<\/p>\n

Forst<\/span><\/span> acknowledged that Tuckson<\/span><\/span> bore \u201csome responsibility\u201d for the accident. \u201cThey have a film showing her walking across the crossing and she did not look,\u201d he said. \u201cBut our argument has been from the very beginning that that\u2019s not the only issue. The son really wanted to show that there were other causes to<\/span><\/span> the accident.\u201d<\/p>\n

Davis, the plaintiff, contended the intersection was \u201cextra hazardous\u201d 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.<\/p>\n

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\u2019s 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.<\/p>\n

The defendants claimed they had \u201cbreached no duty\u201d to Tuckson<\/span><\/span> and that they weren\u2019t responsible for the accident. They noted the intersection was in compliance with Louisiana law, which requires crossbucks<\/span><\/span> to be posted at all railroad crossings on public roadways.<\/p>\n

The case boiled down to a legal analysis of whether the crossing constituted a \u201cdangerous trap\u201d that the defendants had a duty to address. Judge Glenn Ansardi, of 24th Judicial District Court, ruled the crossing did not, and that Tuckson<\/span><\/span> \u201chad 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.\u201d He noted that Tuckson\u2019s view had been \u201cin no way obstructed.\u201d<\/p>\n

The state 5th Circuit Court of Appeal in Gretna last year reversed that decision, but the Louisiana Supreme Court reinstated Ansardi\u2019s decision to grant summary judgment to the defendants.<\/p>\n

\u201cThe 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,\u201d the justices wrote.<\/p>\n

Chief Justice Bernette Johnson dissented from the majority.<\/p>\n

SOURCE:<\/p>\n

http:\/\/www.theneworleansadvocate.com\/news\/8972440-171\/kenner-and-railroad-not-liable<\/a><\/p>\n

SOURCE #2:<\/p>\n

http:\/\/www.claimsjournal.com\/news\/southcentral\/2014\/04\/25\/247954.htm<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Louisiana Supreme Court: Kenner, railroad not liable in woman’s death DEAF WOMAN KILLED AT TRAIN CROSSING BY JIM MUSTIAN JMUSTIAN@THEADVOCATE.COM April 23, 2014 Kenner and the Illinois Central Railroad Co. are not liable for a 2009 crash in which a…<\/p>\n

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