Conrail Can’t Shake Suits Over Derailed N.J. Train

     (CN) – Conrail may have negligently operated a freight train that dumped 25,000 gallons of vinyl chloride into a New Jersey creek when the bridge underneath collapsed, a federal judge ruled.
     When the East Jefferson Street railroad bridge buckled and collapsed on the morning of Nov. 30, 2012, a freight train derailed and plunged into Mantua Creek, in Paulsboro, Gloucester County, N.J.
     The borough soon declared a state of emergency after learning that one of the four partially submerged cars had released into the air and water 25,000 gallons of vinyl chloride, which local residents notes is a “potent human carcinogen.”
     Nearly 600 individuals were then evacuated from the area for about a week, while those living outside the danger zone were told to remain indoors until the spill was cleaned up.
     Residents and local businesses later filed 17 complaints against Consolidated Rail Corp., Norfolk Southern Railway Co. and CSX Transportation, alleging that they operated the train and maintained the bridge in a negligent and reckless fashion.
     The plaintiffs said the bridge was designed to swing open in the absence of rail traffic so as to allow water flow along the creek, and swing and lock back into place for trains to cross.
     But on Nov. 30, although a red signal allegedly warned that the rails were not properly positioned, the train went across the bridge and fell into the water below, residents claimed.
     They further alleged that, shortly before the derailment, the defendants had been notified of bridge operation problems, but failed to correct them.
     Some allegedly incurred expenses and lost income while following orders to evacuate or remain in their homes, and others said the spill left them with mental or physical harm.
     The suits were consolidated for discovery purposes in New Jersey, where U.S. District Judge Robert Kugler dismissed the strict liability claims and request for attorney’s fees of the plaintiffs claiming mental harm.
     “Because defendants are a common carrier, they cannot be held strictly liable for lawfully transporting hazardous chemicals,” the unpublished Oct. 4 ruling states.
     Kugler noted that the Second Restatement of Torts exempts from strict liability those acting “in pursuance of a public duty.”
     “Plaintiffs’ complaint does not incorporate any cause of action for which a statutory basis for attorney’s fees exists, nor have they identified any court rule that would permit recovery of such fees,” he added.
     In a separate ruling that day, Kugler also dismissed the claims for res ipsa loquitor, trespass and strict liability from the plaintiffs claiming economic harm.
     “The argument that the official evacuation and shelter orders are the direct cause of plaintiffs’ losses is misplaced,” the unpublished ruling states. “Even if these orders had not been issued, plaintiffs would have likely suffered the same degree of harm merely by acting out of reasonable caution in avoiding exposure to the hazardous materials that were released.”
     That ruling declined to dismiss this group’s negligence claims, and days later the court also declined to dismiss the negligence claims of the plaintiffs claiming physical harm.
     “Defendants protest that plaintiffs do not set forth the nature and degree of their personal injury claims in the complaint,” the unpublished ruling, dated Oct. 9, states. “However, any type of personal injury, in any degree, sustained by plaintiffs, and proximately caused by a breach of a duty owed by defendants to plaintiffs would ‘plausibly give rise to a claim for relief.'”
     Relying on his decision for the mentally harmed plaintiffs, whom he gave 14 days to amend their claims, Kugler dismissed the claims for strict liability and attorneys’ fees of the plaintiffs claiming physical harm. Those claims cannot be amended.

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