Railroad Crossing Accident Investigations and What to expect

Railroad Crossing Accident lawyer explains what to expect in an NTSB Investigation 

            According to the Federal Railroad Administration (FRA), accidents at highway-rail grade crossings are the second leading cause of rail-related deaths in the country. Highway-rail grade crossings are where a railroad track and road intersect at ground level—i.e. at grade. These crossings present a unique set of challenges for the train engineer and the person crossing the railroad tracks. This configuration is one of the deadliest situations that ordinary folks encounter in routine driving.   

Who conducts Railroad Crossing Accident Investigations? 

            Generally, a witness at the scene will call 911 immediately after the accident. Then local law enforcement and the fire department will respond to assess the scene, render any emergency services, and notify the proper federal agency. Train conductors and engineers are trained to immediately notify the FRA or the National Transportation Safety Board (NTSB) of serious accidents. The NTSB is the lead investigatory agency for transportation accidents.

            Once the NTSB decides to investigate, it will dispatch a “go team” which consist of a variety of field specialist to collect evidence and begin analyzing important components. The “go team” usually arrives at the scene of the accident within the first few hours. The NTSB partners with other agencies and will often partner with the private entity also involved in the accident. The NTSB is required to produce a preliminary report a few weeks after it begins its investigation. The final “probable cause” report takes between 12-24 months depending on the complexity of the accident. During the period before the final report is made public, the NTSB keeps all evidence and analysis privileged.

The Final Report

            The NTSB’s final report will include important history about the operators, the companies, the facilities, and any noteworthy geographical elements. The final report will often reference witness statements, federal regulations and laws, simulation studies performed, and the mountain of evidence gathered. The primary purpose of the NTSB report is to recreate the sequence of events describing the accident and identify a probable cause to prevent a similar accident in the future.     

NTSB Investigation in Litigation

            Litigating a major transportation accident when the NTSB is conducting its investigation can present challenges. One challenge arises when the NTSB designates a private entity as a “party representative” which means the private entity conducts the investigation in connection with the NTSB and receives the same privilege protections as the NTSB. This creates an enormous hurdle to the plaintiff’s investigative efforts because the private entity assigned “party representative” status would normally be a defendant in the civil lawsuit and subject to discovery, but now the “party representative” can suppress all information by citing the NTSB privilege. This privilege can put litigation at a standstill.

            Another difficulty arises when the plaintiff wishes to use the analytical findings from the NTSB report as evidence in the civil case. The report itself is not directly admissible in a civil lawsuit and the NTSB strongly resists allowing its investigators to testify in civil cases. Moreover, because of the NTSB privilege, the plaintiff’s legal experts cannot perform their own analytical studies and as such must rely heavily on the NTSB experts.

            Notwithstanding the challenges, there are clear benefits the plaintiff could receive from the NTSB investigation. The most obvious is the depth and analysis of the NTSB investigation. For example, when the accident occurs the NTSB activates its “go team” which will gather critical evidence, obtain witness statements, and has authority to obtain privileged information from the entities involved—most of this information is gathered within the 48 hours. Without the NTSB’s quick response, victims, families, and interested parties would not have access to this information so quickly, and some critical evidence disappearances if not collected immediately.

            Another benefit is the credibility of the NTSB. Without the NTSB experts, the private litigants hire their own experts to conduct the investigation, and retained legal experts come wrapped in a cloud of suspicion. Also, the NTSB experts are usually highly trained, educated, and have no bias in favor of any entity involved in the accident.      

 Conclusion

            Attorney Holland DeKeyzer has litigated cases involving Railroad Crossing Accident investigations by the NTSB and understands how to use the benefits of the federal investigation but also understands how to navigate its challenges. Personal injury lawyers Meagan and Holland DeKeyzer have been focused on personal injury and wrongful death litigation for over ten years and have extensive experience in all aspect of litigation and jury trials. Contact DeKeyzer Law at (713) 904-4004 for a FREE consultation on your Personal Injury or Wrongful Death case.