TUCSON (CN) - Families of two Border Patrol agents who died when a train smashed into their vehicle at a private railroad crossing say in court that the crash could have been avoided had Union Pacific learned from a nearly identical previous incident at the same crossing.
Agents Hector Clark and Eduardo Rojas Jr. were working in the desert near Gila Bend early one morning in May 2011, chasing a group of suspected marijuana smugglers, according to their widows' and families' complaint in Pima County Court.
Clark, 39, drove an unmarked Chevy Tahoe, with the 34-year-old Rojas as his passenger. They drove onto the Paloma Ranch Crossing along Interstate 8, near a siding on which an eastbound train had been stopped for several minutes. A westbound train, apparently unseen by the agents, smashed into the Tahoe. Clark
and Rojas were both pronounced dead at the scene, according to their families' complaint.
The widows, Nereida Clark and Xochitl Sayde Fregozo-Rojas, filed a wrongful death lawsuit against Union Pacific Railroad Company aka Southern Pacific, and the Paloma Irrigation and Drainage District, a state agency.
The widows say the crossing had no lights or safety devices, despite being heavily used and effectively public, and that the stopped train gave a "false and deadly sense of security to the agents while a fast-moving westbound train barreled toward the unguarded and unreasonably dangerous crossing, completely concealed behind the stopped train."
The families' attorney, Thomas Slack, told Courthouse News on Tuesday that he knows the crossing well. He represented the family of a 24-year-old father who was killed there in 2003 under similar circumstances.
"In that collision, Union Pacific again stopped a train on the siding to the east of the crossing in such dangerous proximity to the crossing as to make it appear that the train was blocking the main line (and only visible) track, and that there was no danger from trains approaching from the east," the complaint states. "Just as in the
present collision, in reality a high-speed freight train was approaching from the east next to the stopped train which struck and killed the young father of two small children." (Parentheses in complaint.)
After the 2003 incident, Union Pacific threatened to close the much-used crossing unless the nearby Paloma Irrigation and Drainage District (PIDD) agreed to pay for safety upgrades, the complaint states.
The upgrades never happened, and have not to this day, Slack told Courthouse News.
According to the complaint, the irrigation district couldn't afford to install lights and gates at the crossing, so "Union Pacific permitted PIDD to purchase increased liability insurance in the belief that the lives of crossing users who would be killed by the defendants' negligent, grossly negligent, willful, wanton, reckless, intentional and quasi-criminal disregard for the safety of the motoring public could be traded for insurance proceeds."
Slack said: "Instead of fixing the crossing, they made somebody else responsible."
Paloma Irrigation and Drainage District attorney Milton W. Hathaway Jr. told Courthouse News on Tuesday that he was still reviewing the lawsuit.
"We feel for the families and we've got a lot of discovery to do to determine why this accident occurred," Hathaway said.
Union Pacific did not return a call for comment.
An investigation by the Maricopa County Sheriff's Department concluded that Agent Clark was largely at fault. The investigator cited the stopped train as a possible contributor.
"The primary causal factor in this collision was Agent Clark's failure to stop for the stop sign, posted prior to the crossing, and check for any possible threats, prior to crossing or stopping on the rails," the accident report states.
"The stopped eastbound train was approximately one mile long, and obstructed the view of the main train tracks from the north side," the report states. "There were two locomotives attached to the rear of the eastbound train. The two locomotives attached to the rear of the eastbound train, gave the appearance that it was a stopped westbound train. Hearing a train's horn while approaching the crossing, may have led one to believe the horn sound was coming from the stopped railroad
locomotive. The stopped locomotive was located approximately 540 feet east of the crossing, and this may not have appeared to be an immediate threat."
The families general damages for wrongful death and punitive damages from Union Pacific. They are represented by Thom Slack, with Beale, Micheaels & Slack, of Phoenix.
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