The family of an 82-year-old woman hit and killed by a Norfolk Southern train in Orangeburg, South Carolina (SC), has reached a wrongful death settlement with the freight railroad company and the state's Department of Transportation. The fatal crash occurred at a grade crossing near the intersection of Magnolia Street and Sellers Avenue on May 13, 2011. The deceased victim had been a passenger in a car driven by her grandson that got stuck on the tracks as the train approached.
The grandson, railroad and government agency all agreed that the driver had driven through the crossing despite knowing a train was near. In fact, he went around another vehicle that had stopped to let the train pass. Where the accounts of the incident differed was that the company and SCDOT insisted the driver just wanted to avoid a delay by beating the train. The driver countered that he had a choice to make after making a left turn onto Sellers Avenue: rear-end the other car or swerve and attempt to clear the tracks.
In their wrongful death lawsuit, according to the Times and Democrat newspaper, the woman's family claimed Norfolk Southern and SCDOT "maintained and operated 'a dangerous crossing.'” Controlled only by flashing warning lights rather than gates and located in a place that does not permit several vehicles to wait in a line without blocking an intersection of busy roads, the grade crossing also appeared to have raised tracks that posed a trapping hazard for cars with low clearance.
Neither the railroad nor the state transportation department commented on the settlement reached in February 2015 under which Norfolk Southern will pay $95,000 , while SCDOT will pay $60,000. Filings with the court indicate neither defendant intends to pursue further legal actions.
Many people reading about the accident and settlement may question how the family could have any case to make since the deceased woman's grandson admitted to intentionally taking a potentially deadly risk. The response, as stated in the lawsuit and quoted by the Times and Democrat, is that "the South Carolina Department of Transportation has a duty to provide safe roads and streets for the traveling public, ... Both Norfolk Southern and the South Carolina Department of Transportation had actual or constructive knowledge of the dangerous condition at Sellers Avenue crossing, but both failed to take steps to correct this dangerous situation.”
As a Carolina personal injury and wrongful death attorney who has helped people hurt and killed in train accidents for three decades, I could not agree more. Railroad operators, track owners and government agencies have an inviolable duty to protect individuals who must cross railroad tracks. That duty extends to ensuring as many safety precautions are taken as practical, such as siting a crossing where it will not create unreasonable traffic problems. It also means making sure grade crossing are actually at-grade rather than raised or sunken.
Unclear from the reports on this settlement is whether any improvements have been made to the crossing on Sellers Avenue. If that has not happened yet, it should soon. Lives are at risk.