PITTSBURGH – An additional defendant in a lawsuit brought by a North Carolina woman, which alleged that the death of her father in a tractor-trailer/train collision was the fault of the Norfolk Southern rail company and others who allegedly failed to take proper safety measures that would have prevented the crash, has redirected liability for the fatal events at issue to their co-defendants.
Brittney Brown (as Administrator for the Estate of David Howell) of Charlotte, N.C. first filed suit in the Allegheny County Court of Common Pleas on June 8 versus Norfolk Southern Railway and Norfolk Southern Corporation of Atlanta, Ga., Watercrest Business Park of Cheswick and Watercrest, Inc. of Tarentum, plus John Does 1-2.
“On Aug. 20, 2020, at 5:13 a.m., David Howell, a tractor-trailer driver, was completing a delivery to the Watercrest Industrial complex. Before entering the complex, David was stopped at Blockdale Crossing, an intersection in the Watercrest Business Park that was privately owned by Norfolk Southern Railway and Norfolk Southern Corporation. Mr. Howell’s truck got stuck while attempting the sharp left turn that follows the crossing,” the suit said.
“As Mr. Howell attempted to navigate the turn, a mile-long, coal-filled train was approaching from behind. Because the Norfolk Southern Railway and Norfolk Southern Corporation had prevented improvements at their private crossing, there were no flashing lights, crossing arms or alarms at the crossing to notify David of the approaching train.”
The suit explained that the fully-loaded train slammed into the cab of Mr. Howell’s truck, destroying its cab and propelling his tractor into an adjacent building, and causing severe injury and Mr. Howell’s death.
“Mr. Howell’s tragic death was predictable and preventable. Norfolk Southern Railway and Norfolk Southern Corporation knowingly disregarded the long-standing dangers at Blockdale Crossing, which included at least five accidents in the last 11 years. Despite knowledge of these previous accidents, outcry from both the local Cheswick community, suggestions from government officials, and the obvious risk to human life, Norfolk Southern affirmatively prevented the crossing from being made safe thereby perpetuating the safety issues at Blockdale Crossing for years leading up to Mr. Howell’s death. These dangers have caused subsequent accidents and remain a public hazard,” the suit stated.
“Defendants failed to remove the concrete barriers that prevented tractor-trailers from turning left across the track despite knowing that these barriers prevented the successful completion of the left-handed turn into the business park to make deliveries. Norfolk Southern Railway and Norfolk Southern Corporation failed to take any safety precautions for their private crossing to protect motorists, such as installing safety warning lights, a gate, crossing arms, or proper signage identifying Blockdale Crossing as an active train crossing. These safety measures would have given Mr. Howell proper notice of the oncoming train and, therefore, would have prevented his death.”
The suit argued that Norfolk Southern Railway and Norfolk Southern Corporation are also responsible for the conduct of defendants John Doe 1 and John Doe 2, in that their actions in operating the train in question directly contributed to Mr. Howell’s death – specifically, failing to apply the train’s brakes and horn in a timely manner when they saw Mr. Howell’s truck on the train tracks.
“Watercrest Business Park and Watercrest, Inc. were complicit and responsible for the safety issues at Blockdale Crossing. Just past the train tracks, there is a sharp left turn, and jersey barriers guard the train tracks immediately before and after the crossing. The combination of the sharpness of the turn and placement of the jersey barriers makes it nearly impossible for tractor-trailers to cross over the tracks in a timely manner to avoid trains speeding through Blockdale Crossing. Mr. Howell’s death is the result of the defendants’ decade-long history of conscious-shocking disregard for the safety of motorists and the Cheswick community at large – that continues today.”
In an Aug. 9, 2022 answer, which included new matter and a cross-claim against the Watercrest defendants, Norfolk Southern denied any and all liability for the events at issue.
“Plaintiffs’ complaint fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. The answering defendants did not breach any duty, if any duty was owed, to the plaintiffs herein. The answering defendants acted at all times relevant hereto with good faith and without malice. Any damages or injuries which may have been sustained by plaintiffs were not caused nor proximately caused by or attributable to the conduct of the answering defendants,” the answer’s new matter stated, in part.
“Although the answering defendants deny the allegations of the plaintiffs as to injuries and damages alleged, these injuries and damages, if any, were caused by the action or inaction of third-parties over whom the answering defendants had no control, nor right of control, and for whose actions the answering defendants cannot be held liable. Although the answering defendants deny the allegations of the plaintiffs as to injuries and damages alleged, these injuries and damages, if any, were caused by and are the fault of the other defendants joined or to be joined herein.”
According to Norfolk Southern, there “was no negligence, gross negligence, willful, wanton, or malicious misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or any malice (actual, legal or otherwise) on the part of the answering defendants.”
In an Aug. 25, 2022 reply to the new matter, the plaintiff has denied it in its entirety.
“These paragraph contains conclusions of law to which no response is required. To the extent any responses are required, they are denied,” the reply stated.
After an amended version of the complaint was filed on Sept. 14, and preliminary objections were filed by the Watercrest defendants on Oct. 3. These objections argued that the plaintiff:
• Failed to illustrate whether the signage and notice of train activity was part of Blockdale Crossing, and thus a responsibility of the Norfolk Southern defendants, or whether it was part of the business park, and thus an alleged responsibility of Watercrest, Inc.;
• Inappropriately averred that prior incidents have occurred at Blockdale Crossing, by stating specific matters of evidence rises to the level of impertinent matters designed to inflame a fact finder against defendants;
• Failed to plead that Watercrest, Inc. intentionally, willfully, wantonly, or recklessly, created a situation where the decedent’s vehicle would become stuck and then be hit by an oncoming train, negligently operated by the railroad company.
On Dec. 12, 2022, Allegheny County Court of Common Pleas Judge Daniel D. Regan partially sustained and partially overruled the objections in question, ruling on the above objections respectively.
“Defendant Watercrest’s first preliminary objection is overruled. Defendant’s second preliminary objection is sustained. Plaintiff is granted leave to file an amended complaint within 20 days. Defendant’s third preliminary objection is sustained. Plaintiff’s allegations of recklessness (punitive damages) are dismissed without prejudice and plaintiff may raise again following completion of discovery,” Regan said.
UPDATE
Additional defendant Charles J. Miller (doing business as “Cheswick Marina”) filed an answer, new matter and cross-claim on April 5.
“Defendant’s amended complaint to join fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. The additional defendant neither owed any duty of care relevant to the subject accident, nor did the additional defendant breach any duty of care owed to the decedent. The additional defendant neither had the right nor the duty to control the intersection at issue, nor had no ability to prevent the subject accident. Any damages or injuries which may have been sustained by plaintiffs were not caused or proximately caused by or attributable to the conduct of additional defendant,” the new matter stated, in part.
“Although the additional defendant denies the allegations of the plaintiffs as to injuries and damages alleged, these injuries and damages, if any, were caused by the action or inaction of third parties over who the additional defendant had no control and for whose actions the additional defendant cannot be held liable. Although the additional defendant denies the allegations of the plaintiffs as to injuries and damages alleged, these injuries and damages, if any, were caused by and are the fault of the other defendants joined or to be joined herein. Discovery may ultimately establish that plaintiffs’ claims may be barred or limited by comparative negligence or by the doctrine of assumption of the risk. At all relevant times herein, additional defendant did not own, operate, maintain and/or control Blockdale Crossing.”
Miller’s cross-claim instead redirected liability for the events at issue to all of his co-defendants.
For counts of negligence, corporate negligence, vicarious liability and punitive damages, the plaintiff is seeking damages, jointly and severally, in excess of $50,000,000, exclusive of interests and costs, plus such further relief as this Honorable Court deems just including, but not limited to, delay damages pursuant to Pennsylvania Rule of Civil Procedure 238.
The plaintiff is represented by Daniel N. Purtell, John J. Coyle and Daniel T. Craig of McEldrew Young Purtell Merritt, in Pittsburgh.
The defendants are represented by T.H. Lyda and Edward B. Palmer of Burns White, Kenneth J. Hardin, Sharon Rice Stritmatter and Matthew J. DeMaio of Hardin Thompson, all also in Pittsburgh, plus Alan T. Silko and Joseph Silko of Silko & Associates, in Bridgeville.
Allegheny County Court of Common Pleas case GD-22-007059
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com