On February 3, a Norfolk Southern train derailed in East Palestine, Ohio. A total of 38 cars derailed, and 11 contained vinyl chloride, a hazardous cancer-causing chemical.
The National Transportation Safety Board’s initial report revealed a defect with a wheel brake that overheated, and noted that Norfolk Southern didn’t have proper operating systems in place.
Typically, train tracks have sensors to alert engineers of atypical conditions—in this case, the alert came too late.
For many, the findings illustrate the need for more stringent rail safety regulations and underscore what transportation companies can do to improve their operating systems.
This will also be a case of transportation negligence, potentially leading to catastrophic community and human impacts, and potentially affecting the livability and well-being of those exposed to the toxic chemical.
But in the absence of new laws or regulations, we already have the power of our court system to hold Norfolk Southern accountable if it did not act with reasonable care.
This power should motivate all rail companies to adopt safer systems. If a jury finds Norfolk Southern accountable and the company is hit with a costly verdict based on the evidence of the harm done, then this should motivate Norfolk Southern and all other companies to do more to improve their systems.
This is the primary reason why we have a public court system, why our jury trials are open to the public, and why their verdicts are published in open court.
Of course, jury verdicts based on the evidence are intended to help make those harmed by a wrongdoer’s conduct whole, to compensate for the harm done. But the concomitant reason for jury verdicts is to create, through financial accountability for the consequences of the wrongdoing, a deterrent against future harm.
Preventable Situations
Train derailments have always been a risk. In fact, about 1,000 derailments occur each year, according to the Federal Railroad Administration. It’s an unfortunate fact of the rail industry, and has little to do with politics or which administration controls the government.
Derailments are also an everywhere problem, meaning these incidents impact communities across the country and around the world.
Not all are as devastating as the one that took place in Ohio, but a derailment involving toxic chemicals could be a problem for any locale, causing health and environmental impacts for years to come.
While much scrutiny has been on how Norfolk Southern is dealing with the derailment cleanup, the underlying issue is how this was preventable from the start.
When evaluating the situation, the basic question is whether Norfolk Southern exercised reasonable care in how it mechanized or outfitted its trains and rails.
What kinds of systems did it build its trains with and are there better options? What kind of brake system do they have? What kind of warning or alert systems does it employ? That’s really where the most neglect is.
Furthermore, transporting hazardous materials should trigger the highest degree of safety. If Norfolk Southern failed to do that, it would, and should, be accountable to the people in the community that it harmed.
Enforcing Safety
While the complete NTSB investigation is expected to take more than a year, we already know that Norfolk Southern was probably not equipped to deal with the defect when it happened.
Two class actions have already been filed to by residents within a 10-mile range of the derailment. However, it could be months or years before we fully understand the consequences of the incident.
Nearby, residents inhaled toxic gases that were burned overnight until the residents were asked to evacuate. The health consequences could be catastrophic down the road.
The bottom line is that financial accountability for this situation, enforced by a citizen jury in a court of law, can serve as a wake-up call for the rail industry.
Unfortunately, if the case is litigated in state court, the Ohio damage caps could insulate Norfolk Southern’s liability to $500,000 no matter how many people they harm.
Accountability will motivate companies to look closely at the technology and operations systems they are using, how they respond to any kind of threat, and to do the right thing in the future so that everyone is better protected.
What’s more, Norfolk Southern has the right to defend itself, so fairness compels a jury to get to the truth of the matter weighing the evidence and arguments of both sides.
The Takeaway
While safety regulations and legislation could be a step in the right direction toward improving the rail industry, we already have laws in place and a civil jury system at the ready to address this problem.
These instruments of our democracy were designed hundreds of years ago specifically to help protect us from this kind of thing happening again.
A jury trial weighing the facts of the Ohio derailment is the small government, non-bureaucratic, and highly effective way to hold Norfolk Southern accountable while motivating other companies responsible for transporting dangerous materials to spend the time and money required to prevent similar incidents in the future.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Stuart Ratzan is founding partner of Miami-based trial firm Ratzan Weissman & Boldt, and handles the country’s most complex construction and transportation negligence cases that result in catastrophic injuries and wrongful deaths.
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