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| Shapiro, Washburn & Sharp

February 4, 2018 saw the second fatal Amtrak train accident involving track problems within less than two months. A passenger train traveling from Miami to New York that got onto the wrong track in Cayce, South Carolina (SC), collided with a parked and empty CSX freight train.

Two Amtrak crew members died in the wreck, and 116 passengers needed treatment for injuries that ranged from minor to severe. Multiple news outlets identified the railroad workers who lost their lives as 54-year-old engineer Michael Kempf of Savannah, Georgia (GA), and 36-year-old conductor Michael Cella of Orange Park, Florida (FL). National Transportation Safety Board and the Federal Railroad Administration will try to sort out the root cause. The early indication is that a switch from the main track to a loading track was left open inadvertently. This might not have been discerned by the Amtrak crew, but an automatic train tracking and braking system known as positive train control (PTC) might have slowed the train and minimized the collision.

A question that will naturally come up is if this accident was caused by CSX track workers or a passing train crew, would Amtrak have the responsibility for compensating victims, or would CSX?

In most parts of the country, Amtrak has leases to run its trains on a freight railroad’s tracks. Built into those contracts are provisions that Amtrak must indemnify the track owner for accidents and injuries that occur. What this means, and what the general public may not be aware of, is that Amtrak must often compensate injured or killed passengers and crew members even if the Amtrak crew did nothing wrong to cause a derailment or crash.

As a Virginia railroad injury lawyer for nearly three decades and one who has represented victims of train crashes in South Carolina, I have been involved in litigation where this issue has arisen. It is always a close call.

If the investigation produces evidence that active negligence in the form of leaving a track switch open led to this deadly train crash in South Carolina, a railroad injury attorney could file suits against both Amtrak and CSX on behalf of his or her client. Another scenario could see Amtrak settling personal injury claims from passengers and wrongful death lawsuits brought by the families of the deceased crew members and then seeking repayment from CSX.

The many legal questions concerning the cause, and financial responsibility for, the injuries and deaths from this Amtrak-CSX train crash can wait for the moment to allow a spotlight to shine on the pressing need to fully implement positive train control.

PTC automatically slows and stops passenger trains and freight trains when traffic or track conditions demand. A federal law to require PTC on all major rail lines has been in force since 2008, but rail corporations have received multiple extensions of the deadline to comply. Lawmakers are insisting that the latest deadline of December 31, 2018, is the final one, but Amtrak and CSX have both pushed back on that.

The current chairman of the NTSB, Robert Sumwalt, certainly believes that PTC would have saved a number of lives and countless hundreds of thousands, if not millions, of dollars in casualty and property costs, personal injury settlements and death claims. He said this in a press conference held hours after the tragedy in Cayce, SC, and also in the wake of an Amtrak derailment in Dupont, Washington (WA), in December 2017 that left three dead and more than 100 injured.

Still, the nation’s railroads continue to postpone PTC implementation citing prohibitive costs. But I have never seen an economic analysis of how much the companies might save by not incurring expenses from damaging property and injuring or killing people in the collisions that PTC would prevent.


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