By Alexis Krell

The News Tribune

A Pierce County Superior Court judge has ruled that Amtrak is strictly liable for the claim of its engineer who sued for his injuries after a deadly 2017 derailment near DuPont.

“The judge will instruct the jury that the court has already ruled that Amtrak is 100 percent at fault, what we call strict liability here,” Fred Bremseth, one of the engineer’s attorneys, told The News Tribune earlier this month.

The ruling means the trial scheduled later this year will be to determine damages, Bremseth said, without “the back and forth of the blame game.”

Engineer Steven Brown’s lawsuit, filed last year in Pierce County Superior Court, alleged he wasn’t properly trained and that technology that could have stopped the train hadn’t been installed at the time. Brown “suffered physical and emotional injuries as a result of the derailment,” according to his lawsuit.

He seeks unspecified damages for medical expenses and lost earning capacity, among other things.

The derailment of Amtrak Cascades 501 on Dec. 18, 2017 onto Interstate 5 below killed three and injured dozens during the inaugural run on the Point Defiance Bypass route, a 10-minute faster route from Seattle to Portland.

Amtrak argued in its court filing that Brown’s negligence caused the derailment.

“At a minimum, there is a genuine dispute as to whether Brown’s loss of situational awareness and failure to slow the train on the day of the incident was the sole proximate cause of the derailment, rather than Amtrak’s alleged training and service implementation failures months before the train left the station,” part of the filing said.

Superior Court Judge Karena Kirkendoll granted Brown’s motion for partial summary judgment in the case March 12, which asked her to find Amtrak “strictly liable,” and to dismiss Amtrak’s “sole cause defense.”

“The only defense to absolute liability is to prove that plaintiff was the sole cause of his own injuries,” the motion said in part. “This defense is unavailable due in part to numerous discrete acts of negligence on the part of Amtrak, its employees and numerous other entities.”

It went on to argue: “The single most important reason for summary judgment on the sole cause defense is that if Amtrak had implemented the FAST Act protections, one or both conductors would have pulled the emergency brake and prevented the derailment by stopping the train.”

Brown argued the FAST (Fixing America’s Surface Transportation) Act, signed by President Obama in 2015, requires a fail-safe where the speed limit at a curve drops by more than 20 miles per hour. The speed limit goes from 79 to 30 miles per hour at the curve on the Point Defiance Bypass route where the derailment happened, his motion said.

“Congress recognized that locomotive engineers, like airplane pilots and ship captains, sometimes lose situational awareness due to any number of factors,” the motion said. “… The new law requires the conductor on the train to provide a two-mile advance warning of the speed reduction to the engineer, and if the engineer fails to immediately respond, to activate the emergency braking system and stop the train.”

Amtrak complied with the act at other places on the Portland to Seattle track but “neglected to do so at this point in the track in the mad rush to open the new Bypass track before the end of the fiscal year,” the motion argued.

Amtrak’s filing argued Brown received required training, had prior runs on the Bypass — including three where he was “behind the throttle of the train” — and had a perfect score on the test about the route that included a question about the curve.

He knew about the speed limit, wasn’t looking for the right sign just before the accident, didn’t have a timetable in front of him because he said he’d memorized it and got a call from a supervisor right before the trip to remind him about the curve, the company argued.

“Despite these undisputed facts, Brown asks the Court to remove from the jury’s consideration all evidence of his own negligence, so that Amtrak will be denied its comparative negligence defense and the opportunity to make the basic causation argument that Brown’s operational negligence was the cause of his alleged injuries,” the filing said.

The law says Amtrak can’t “be denied its comparative negligence defense,” the filing said, unless the plaintiff “can establish that the defendant has violated one of the few statutes or regulation that were enacted specifically for the safety of employees. The FAST Act is not such a law.”

Kirkendoll disagreed, finding the section of the Fast Act in question does qualify as a safety statute under the Federal Employers Liability Act.

Amtrak’s filing went on to argue that Brown didn’t brake when the train’s overspeed alarm went off, and that instead of looking for the speed board he looked for a milepost marker, which he said was washed out by the train’s LED headlights.

Brown argued it was the first derailment of his career.

“He had a spotless safety record, so good that Amtrak chose him as the engineer on this highly publicized inaugural run,” his motion said.

It went on to argue: “it is foreseeable as a matter of law that an engineer might become confused about the location of a curve on a brand-new track segment and fail to slow his train at a curve. The FAST Act was enacted to prevent this exact thing from happening.”

The motion also noted that conductors were seated in the passenger cars during training for the new track, instead of the locomotive.

The day of the derailment there wasn’t an assistant conductor to deal with passengers on the run, which meant the conductor “attempted to attend to the excited train passengers on this inaugural trip and do his normal conductor duties at the same time,” the motion said.

The conductor “performing the work of two men on a crowded inaugural run for which he had not been trained, did not radio the engineer about the speed restriction before the train derailed.”

Brown also argued that a road foreman who was supposed to be with him on the run overslept and was replaced with a conductor trainee.

“With so many failures on the part of so many players, there is no possible way for a jury to conclude that Brown was the sole cause for this very foreseeable tragedy,” the motion said.

A National Transportation Safety Board report said Brown — who Amtrak hired in 2004 and promoted to engineer in 2013 — lost track of where he was on the route and was going more than twice the speed limit.

Amtrak should have trained the engineer better, and Positive Train Control (technology that slows down trains that are going too fast) should have been installed, the NTSB reported. It has since been put in place.

The NTSB also found Sound Transit should have better addressed the danger of the curve where the derailment happened, the state Department of Transportation should have made sure the route was safe, and the Federal Railroad Administration used substandard rail cars.

“The engineer was set up to fail,” NTSB Chairman Robert Sumwalt said at the time.