Victor Bergman and John Parisi recently settled the claims of Ashley Ball, a minor, against Burlington Northern Railroad Company, arising out of a train-car collision at 167th Street in Southern Johnson County, Kansas. At the time of the collision, Ashley Ball, who was eighteen months old, was a passenger in the back seat of a 1977 Chevette driven by her mother, Stephanie.
On behalf of Ashley Ball we claimed Burlington Northern was liable because the crossing was unusually dangerous. We were prepared to prove there was inadequate sight distance due to the close proximity of the crossing to Highway 169. Because of this condition there should have been automatic gates and flashing lights to warn motorists of approaching trains. We also claimed that the train was traveling too fast for the prevailing conditions.
Several recent federal district court cases had raised a question about the validity of state common law tort actions alleging that trains were traveling at an excessive rate of speed or that the crossing was unusually dangerous. The federal circuit courts were split. The Tenth Circuit held all such cases were preempted by federal law; the Eighth Circuit held there was no federal preemption; and the Ninth and Eleventh Circuits took the position that preemption occurred only after the local governmental authority made a determination on whether increased crossing protection was warranted.
Although we successfully argued the preemption issue at the trial court, because it was pending before the United States Supreme Court in Easterwood, the trial date was postponed until after the anticipated date of the Supreme Court's decision.
The preemption issues were decided by the United States Supreme Court in Easterwood v. CSX. The Supreme Court ruled that federal law does not preempt common-law negligence cases for unreasonably dangerous crossings, unless the government is acting pursuant to a specific regulation which mandates improvement of the crossing. The Supreme Court also ruled that common-law actions alleging that a train was operating at excessive speed for the then-prevailing conditions are preempted by federal regulations setting the maximum train speeds for various classes of track.
With the issue of federal preemption resolved, settlement in the amount of $2.5 million was reached with Burlington Northern Railroad Company. With the settlement proceeds, Ashley's parents, Joseph and Stephanie Ball, will be able to care for Ashley at home and are assured that Ashley's needs will be taken care of throughout her lifetime.
A structured settlement was negotiated that will pay a guaranteed amount of $4.3 million over 20 years. If Ashley achieves a normal life expectancy of 73 years, it will pay out over $15 million to provide for her significant medical and custodial needs throughout her lifetime. The Ball case initially was filed against Burlington Northern Railroad; Johnson County, Kansas; the Kansas Department of Transportation; and Burns & McDonnell Consulting Engineers. A nominal settlement was reached with Johnson County, Kansas, and an appeal has been taken from the dismissal of the Kansas Department of Transportation and Burns & McDonnell Consulting Engineers on the issue of their responsibility to improve the crossing during the improvements to Highway 169. The firm is preparing to file another wrongful death case arising from a train-car collision in August 1992, at the rail crossing at 159th Street, which is the crossing immediately north of 167th Street on the same tracks.
