PHILADELPHIA - Sued by an engineer whose part in a fatal derailment remains a question, Amtrak is attempting to turn the blame on the man.
On April 12, Amtrak filed an answer to a lawsuit filed by Brandon Bostian, the conductor of one of its trains that derailed in Philadelphia in May 2015, killing eight people. The company also filed a counter-claim against Bostian.
Amtrak opposes claims the train was under attack when the crash occurred and says Bostian failed to state causes of action under a number of federal statutes. The National Transportation Safety Board says Bostian accelerated to 106 mph as he entered a curve with a 50 mph limit.
But the NTSB says Bostian was distracted by an emergency situation with another train. Those suing Amtrak allege Bostian was using his cell phone at the time. Bostian claims a projectile caused him to become disoriented and/or unconscious.
Now, Amtrak is alleging Bostian's negligence caused the derailment at the Frankford Junction curve.
"The speed limit at this curvature of track is 50 miles per hour, a fact well known to (Bostian)," wrote Amtrak's lawyer, Richard Hohn of Hohn & Scheuerle Law Offices in Philadelphia.
"Plaintiff’s actions in the operation of the train were negligent, as the plaintiff failed to slow the train upon the approach to the Frankford Junction curve, or to take other such actions necessary to avoid derailment.”
Amtrak also is arguing Bostian’s suit failed to state a claim under the Federal Locomotive Inspection Act (FLIA), Federal Safety Appliances Act (FSAA) and contributory negligence provisions of the Federal Employers Liability Act (FELA), while demanding “strict proof” of his assertions that his train was being hit with “projectiles” when it crashed.
Bostian filed the lawsuit on Jan. 25 in the Philadelphia County Court of Common Pleas, claiming Amtrak violated FELA by not providing him a safe workplace when the train derailment occurred nearly two years ago.
“On or about May 12, 2015, and for some time prior thereto, plaintiff was employed by defendant, Amtrak, as an engineer and on that date in the performance of his duties he sustained serious, permanent and painful injuries," Bostian's suit states.
"While operating a train that was under attack by projectiles, one of which caused plaintiff to become disoriented and/or unconscious, plaintiff was caused to sustain injuries due to the negligence and carelessness of the defendant. As a result, plaintiff sustained severe personal injuries hereinafter described."
Bostian alleges Amtrak did not provide him with a safe work environment, proper training and adequate safety protection, failed to warn him of the dangerous condition and failed to correct the dangerous condition specified in the litigation.
Bostian says he sustained injuries to his head, back and legs in the derailment, in addition to post-concussion syndrome and psychological injuries. Bostian claims some or all of these injuries are permanent, that he sustained a physical or mental impairment that may prevent him from undertaking his usual duties, a loss of earning power, physical and mental anguish, fiscal and credit rating losses, and funds expended for his medical treatment.
Hohn, on behalf of Amtrak, disagreed with Bostian’s arguments, countering that his claims are preempted by federal law and that the plaintiff was responsible for the deadly crash.
To that point, Hohn introduced a brand-new counter-claim, seeking damages against Bostian for his alleged negligence in causing the accident, and denied the underlying rationale of his allegations.
“It is denied that the plaintiff sustained ‘serious, permanent and painful personal injuries’ for the reason that the defendant is without information sufficient to form a belief as to the truth thereof. It is denied that the train operated by the plaintiff was ‘under attack by projectiles’ or that the plaintiff was struck by any such projectiles. These allegations are denied for the reason that the defendant, after reasonable investigation, is without information sufficient to form a belief as to the truth thereof. Strict proof is demanded. Furthermore, the defendant denies all causation between any incident which occurred while the plaintiff was operating the train and any subsequent ‘severe personal injuries’ as alleged,” Amtrak's lawyers wrote.
The plaintiff is represented by Robert S. Goggin of Keller & Goggin in Philadelphia.
Reach Courts Reporter Nicholas Malfitano at firstname.lastname@example.org.