Injury Cases

January 18, 2014

Train Safety: What is Taking so Long?

We have already written a couple of posts about Positive Train Control, which the CEO of Metrolink described as “perhaps the most important safety innovation in our lifetime”. (The first article explained how Positive Train Control can prevent several types of deadly train accidents and the delays in implementing it. The second article discussed whether Positive Train Control could have prevented the recent New York commuter train derailment which killed 4 people and injured dozens more.) If you did not read those articles, here is the deal in a nutshell: Following a 2008 Metrolink train crash in California, legislation was passed to require Positive Train Control and the implementation deadline was 2015. But with that date looming, most railroad companies are claiming they can’t meet the deadline.

Now, here is the latest. Following that same 2008 train crash, the National Transportation Safety Board began pushing the Railroad Administration to install cameras in train cabs to record drivers. The thought being this would deter dangerous behavior like texting while operating the train, sleeping, etc. Additional cameras would face outward to record the tracks for hazards. And, in the event of a crash, both sets of cameras would help investigators determine the cause of the accident. But to date, the Railroad Administration has not even proposed a rule (the first step in the process) to make the installation of these cameras mandatory.

Following the New York commuter train accident in December, two United States senators have publicly called out the Railroad Administration for its delay in implementing the rule. And now, finally, the Railroad Administration says they will move on the rule sometime later this year.

December 3, 2013

Could Positive Train Control Have Prevented New York Train Derailment?

by The Law Offices of John Day, P.C.

Last Sunday morning a New York commuter train bound for Manhattan’s Grand Central Station derailed on a sharp curve killing 4 innocent people, critically injuring 11 people and injuring another 46 passengers. While the NTSB is still investigating the accident, early information indicates the train was traveling 82 mph on a curve with a maximum speed limit of 30 mph.

While this investigation continues, it appears this tragedy could have been prevented by Positive Train Control. Positive Train Control can slow or stop a train before certain accidents occur. One type of accident that Positive Train Control is designed to prevent is speed-related derailments. Other types of accidents that can be prevented by Positive Train Control are switching errors, collisions, and track route errors.

We first told you about Positive Train Control in this post and on the Law Offices of John Day, P.C. website. Federal law requires railroad companies to implement Positive Train Control by 2015, but a push is on to extend that date to 2018 or later. To stop these preventable types of accidents, we hope Congress will refuse to grant an extension for this important safety technology that can save lives.

November 25, 2013

Technology Exists to Prevent Train Crashes. But When Will It Get Implemented?

by The Law Offices of John Day, P.C.

The good news: technology exists which will prevent a large number of serious train crashes. The bad news: implementation of this technology will likely be delayed causing commuter train passengers and others to remain at risk. Below is the background of this important issue.

In September of 2008, a Metrolink commuter train filled with passengers collided with a freight train killing 25 innocent people and injuring more than 100 others. In response to this tragedy, Congress passed the Rail Safety Improvement Act of 2008 which mandated implementation of Positive Train Control for all commuter rail lines and for freight lines hauling hazardous materials.

So what is Positive Train Control? It is technology which can stop or slow a train before certain types of accidents occur. For example, derailments caused by excessive speed, train-to-train collisions, unauthorized incursions and switching errors can all be prevented by Positive Train Control. Without question, Positive Train Control would have prevented the 2008 Metrolink accident.

November 24, 2013

What You Need To Know If You Have Been Injured In An Accident Caused By A State or Local Government Employee

by The Law Offices of John Day, P.C.

If you have been seriously injured in an accident with a state or local government employee, your case is subject to a number of special rules and procedures. Below is an explanation of two of the special rules and a practical hurdle our office sees time and time again.

The first special rule is that a local government does not have any liability if the employee who injured you was performing a discretionary function. What is the discretionary function? The discretionary function exception to liability is meant to protect the government from tort liability in situations in which special social, scientific, economic, professional or political policy issues are involved. In short, policy and planning decisions are typically protected, but operational acts in which an employee is simply following a policy or regulation are not immune from liability. (The discretionary function rules are not applicable to claims against the State of Tennessee, only local governmental entities.)

The next special rule involves damage caps. The State of Tennessee’s damages have been capped by statute at $1,000,000 per accident and $300,000 per person. Local government liability is capped by statute at $300,000 per person and $700,000 per accident. These damage caps have been not increased in over a decade and are woefully short of compensating an injury victim with serious or catastrophic damages. (Note: there is no cap on damages in cases against the federal government. However, there are other special rules applicable to that type of case as well. Search this site for information about claims against the federal government.)

October 29, 2013

Halloween Safety: Slow Down and Be Alert

by The Law Offices of John Day, P.C.

Halloween is a wonderful holiday for kids: costumes, trick-or-treating with friends, candy. But, it can also be a very dangerous holiday. A child is twice as likely to be hit and killed by a car on Halloween. Here are some steps to help avoid a tragic accident that will affect the lives of everyone involved forever:

Motorists:

1. Slow down and be vigilant in residential areas especially between the hours of 5:30 to 9:30.

October 21, 2013

Share the Road: Part 2

by The Law Offices of John Day, P.C.

In Nashville and other cities across Tennessee, pedestrian traffic has increased as more and more people have chosen to live in an urban environment that allows for easy walks to work, restaurants, bars, museums, and retail centers. Tennessee is also blessed with many beautiful roadways which walkers, joggers and runners use for exercise.

Now that the lovely fall weather is here and more people are getting out and about, let’s familiarize ourself with our basic rights and responsibilities as motorists and pedestrians:

1. Pedestrians have the right of way at all intersections and driveways.

October 20, 2013

Share the Road: Part One

by The Law Offices of John Day, P.C.

With summer’s sweltering temperatures coming to an end, more Tennessee bicyclists and runners will take to the streets. So, it is a good time for all of us to remember our respective rights and responsibilities on the roadway. In Part One, we will start with bicyclists and Part Two will cover pedestrians.

Under Tennessee law, every person riding a bicycle is granted the same rights as operators of motor vehicles. Of course, bicyclists also owe certain duties. For instance, bicycle operators and passengers under age 16 must wear a helmet. All bicyclists must obey traffic signs and signals and the bike must be equipped with a head lamp and rear reflectors if riding at night. In addition, if a bicyclist is traveling at less than the normal speed of traffic, the bicyclists should ride as close as practicable to the right-hand curb or edge of roadway.

Conversely, motorists must respect the bicyclists right to be on the roadway and treat the bicyclist in the same manner it would another motor vehicle. This means using proper signals, passing only where it is permitted and when it can be done safely, not tailgating or following too closely, etc.

October 17, 2013

Football, Felonies, and Sports Bars Who Serve Alcohol to Drunks

by The Law Offices of John Day, P.C.

Sports bars can be a great place to watch a football game: huge televisions, multiple games on at one time, wings, pizza and beer. In the fall, it is easy to see how an entire Saturday or Sunday afternoon can be spent at the bar watching college or professional football. Of course, if you have spent the day drinking, you have no business driving yourself home. Unfortunately, people do so, and innocent people become victims of drunk drivers and the bars that over-serve them.

In our last blog post, we discussed the criminal penalties for first time DUI, which is a misdemeanor. But if a drunk driver harms someone, in many circumstances, the conduct can rise to a felony. If a drunk driver is found guilty of vehicular assault (serious injury to another person by a DUI driver), then the offender has committed a Class D Felony which can result in license revocation from 1 to 5 years (a restricted license is not available), jail time of 2 to 12 years, a $5,000.00 fine and other costs such as attorney fees, bail, etc. Vehicular Homicide (a fatal crash caused by a DUI with a .08 BAC or more) is a Class B felony and is punishable by 8 to 30 years in prison and a fine of up to $25,000.00. Aggravated Vehicular Assault While Driving Intoxicated is a Class A Felony (requires proof of prior DUI offenses) and is punishable by 15 to 60 years in prison and a fine of up to $50,000.00.

In addition to criminal penalties for the drunk driver, the bar or restaurant faces misdemeanor charges if it serves alcohol to someone who is visibly intoxicated. The bar or restaurant that serves who over-served alcohol to a visibly intoxicated person who gives into a car and hurts others may be responsible for any harm caused by the drunk driver such as the victim’s medical bills, pain and suffering, lost wages, etc. This area of the law is called dram shop or liquor liability law. To learn more about the legal liability of bars and restaurants , follow the link.

July 30, 2013

Pedestrian Deaths and Injuries Increasing, Nationwide and in Tennessee

by The Law Offices of John Day, P.C.

Pedestrian deaths in traffic accidents nationally increased from 4109 in 2009 to 4432 in 2011, according to the United States Department of Transportation.

Deaths to men numbered deaths to women (3086 versus 1345) and 19% of the deaths were a result of hit and run accidents.

In Tennessee, 1221 pedestrians (including skateboarders, people on roller skates, etc.) were injured or killed in traffic accidents in 2010. Davidson County, Tennessee had 275 of those injuries and deaths. There were 83 pedestrian deaths in Tennessee in 2011; the number actually dropped to 68 deaths in 2012. Unfortunately, the 2013 death rate for Tennessee pedestrians in increasing. As of the date of this blog post, 46 pedestrian deaths have occurred. At this same time in 2012, only 35 deaths had occurred.

July 17, 2013

Train Accidents in Tennessee

by The Law Offices of John Day, P.C.

The recent train derailment in Quebec, Canada caused me to investigate how many train accidents we have had recently in Tennessee.

In the first four months of 2013, there have been twelve incidents involving trains in Tennessee. Seven of those incidents involved derailments, the largest of which occurred in Lawrence County shortly after the first of the year. Fortunately, no personal injury occurred, but the estimate of property damage was $175,000. Only one locomotive and four cars derailed in that incident, which occurred at a relatively low rate of speed.

Two collisions of railroad cars have occurred since January 1, 2013, but each of them occurred in railway yards.