Lawsuit in train deaths is beating the odds

It was a bright, sunny afternoon when three girls on spring break set off down the trail flanking the Green River in Kent.

As generations of children did before them, on April 20 six years ago, sisters Rebecca and Rachel Marturello and Rebecca's best friend, Zandra Lafley, climbed up the bank onto two sets of railroad tracks and walked onto the aging black trestle that spans the river, past a sign reading "Danger keep off bridge."

Rebecca, 14, was nearly across the trestle when she heard the whistle and saw the Amtrak train bearing down on them. She shouted a warning to the others and sprinted a few feet, leaping to safety. Rachel, an 11-year-old with cerebral palsy, and Zandra, 13, turned back and tried to run along the unevenly spaced ties where they could see the river beneath them, straining to reach the end of the confining trestle.

They leaped onto the adjoining track and then in apparent confusion, crossed back onto the path of the oncoming Amtrak train.

The deaths of the two girls are the basis of a wrongful-death lawsuit against what the victims' families call Amtrak's "corporate culture of tolerance." They want to hold the railroad accountable for the accident and force it to set standards to help avoid other train-pedestrian fatalities, especially among children.

To do so, the families face a longstanding practice of state and federal transportation agencies and Amtrak that frees train engineers from responsibility for trespassers' deaths, no matter the circumstances.

The state has no guidelines for engineers to prevent hitting pedestrians. Amtrak requires only that an engineer sound a warning signal if someone is on the tracks. The assumption is that anyone who hears the signal will get out of the way, according to the railroad.

Railroads generally take the position that people who walk onto tracks, which are private property, put themselves in harm's way by trespassing, thus negating the railroads' liability. It's a position that has been supported by state and federal transportation agencies.

Railroad accidents involving pedestrians aren't unusual — some 225 people were struck and killed by trains in Washington state alone from 1991 to 2005 — but rarely do victims' families successfully sue a railroad. That's because winning such a case in the state requires proving wanton disregard for safety on the part of the engineer — a high burden of proof.

Nonetheless, the fact that the suit filed in 2002 by Mary and Rebecca Marturello and Leeann Lafley is set to go to trial in U.S. District Court in Seattle in June represents a victory of sorts. The case apparently is the only one of its kind in the state where an appellate court has reversed the dismissal of a case against a train company.

The District Court in August 2003 found insufficient evidence that the engineer had been willfully careless and caused the girls' deaths. But in March 2005 the 9th U.S. Circuit Court of Appeals reversed the ruling, saying there appeared to be sufficient evidence for a jury to find the railroad company liable for the girls' deaths.

While neither Amtrak, its attorneys nor the engineer, Gary Reithmeir, will talk about the case, court documents show they deny being at fault for the deaths. In court documents, Amtrak says trespassing on railroad property, which the girls were doing, "courts danger." The state Utilities and Transportation Commission (UTC), which investigates rail mishaps, agrees.

But the plaintiffs believe the railroad should consider the ages of children and do everything possible to avoid an accident. And, if an engineer is alerted before an accident that there are children on the tracks — as was the case in the Kent accident — he should assume the children's behavior will be unpredictable.

On the day of the accident, railroad dispatch notified engineer Reithmeir that the engineer of a southbound train reported seeing children "playing chicken" on the trestle, court documents say. All train engineers are familiar with the potentially dangerous act, in which people dodge danger by leaping away from a moving train at the last second.

Reithmeir was a half-mile away from the trestle when he slowed the train from 79 to 65 mph after being alerted to the children up ahead, court documents say. As he approached, he saw the girls jump to the east tracks and out of harm, so he released the brake and the train accelerated onto the trestle.

But the girls jumped back onto the west tracks. Although they were only about a foot away from clearing the trestle and could have leaped to safety, they dropped into fetal positions just before being struck and killed.

"I think he [Reithmeir] made a mistake by not slowing that thing down" more, instead of just easing up on the brake, said Bob Boston, the state UTC's rail-compliance inspector, who investigated the accident. "But he thought they were going to get out of the way."

Ultimately, the girls were trespassing and responsible for their own deaths, he said.

The plaintiffs insist that if the engineer had immediately applied the brake when he received word that children were on the tracks — or even continued to brake rather than letting up on the brake when he thought the children were in the clear — the accident could have been avoided.

While freight trains, because of their weight, can take long distances to stop, the high-speed Talgo trains that Amtrak uses can stop relatively quickly, within 1,670 feet if traveling at 60 mph, according to the manufacturer's specifications.

Gene Bolin, the attorney for the victims' families, argues that Reithmeir would have had ample time and distance to stop the train before striking the girls.

BNSF Railway, which owns the railroad tracks on which the Amtrak train was traveling, requires its engineers to use the emergency brake to avoid pedestrians.

But Amtrak disputes whether its employees need to follow rules set by the owners of the railroad track, according to court documents.

In a deposition for the case, Amtrak foreman Tim Branson testified that the train company never evaluates engineer competence when fatalities occur.

There is also no requirement that an engineer be tested for substance abuse after a trespasser fatality, according to state and federal officials. Although toxicology reports were done on Zandra and Rachel after the accident, none was done on the engineer.

"The engineer who sees a trespasser on the tracks need, at most, give the trespasser a warning signal, at which point the engineer may assume the trespasser will get out of harm's way," Amtrak argued in court documents. The railroad maintains that the "engineer both blew the whistle to alert the girls to the train's presence and slowed the train's speed some 10 to 15 mph."

The girls, Amtrak points out, "crossed back into danger only after it was too late for Reithmeir to do anything."

For train engineers, accidents involving pedestrians are not an uncommon part of the job. People often misjudge the speed of trains or may not hear one of the newer, quieter trains in time to react. One engineer out of Spokane has been involved in 17 fatalities.

In fact, Reithmeir had been involved in two other fatalities before the Kent accident. The first incident happened in 1987 when he struck a 15-year-old girl at a trestle over the Nisqually River. The second was in British Columbia in 1997, when a 12-year-old boy playing chicken jumped in front of the train and was unable to jump back before being struck.

After the Kent accident, the UTC's Boston recommended in a report to his supervisor that Amtrak look into the problem of child railroad trespassers in confined spaces like trestles. But he said his agency never contacted Amtrak or made any recommendations after his lengthy report.

The UTC does not have any authority over the train-crew operating rules, Boston said. So any punitive action would come from the Federal Railroad Administration (FRA).

Steve Kulm, director of public affairs for the FRA, said it's his agency's policy not to investigate any trespasser fatality.

"It's illegal to be on private railroad property. We don't know what would be learned from a federal investigation into it," he said. "You have a train going down a track. It can't turn off to avoid a trespasser."

But the FRA did a report on the Kent accident because of its "high-profile nature," and concluded that the girls were responsible for their own deaths.

In the meantime, the survivors, Rachel, her mother, Mary Marturello, and Zandra's mother, Leeann Lafley, have tried to cope, too. After the accident, Mary Marturello suffered a heart attack and Lafley returned to drug use after a long stretch of sobriety.

Rebecca, now 20 and working at a day-care center, tries to remember happier times with her best friend, Zandra, who loved rock music and was eager to get a driver's license, and sister Rachel, a "girly girl who always wore her hair up and had earrings in."

Nothing will take the pain away, but "it does seem the engineer should have done something [more]," she said. "We were just kids."

Nancy Bartley: 206-464-8522 or nbartley@seattletimes.com