UNSAFE CROSSINGS: The Failure To Protect Railroad-Highway Intersections

The Long Term View - Massachusetts School of Law at Andover
A Journal of Informed Opinion
Volume 5 - Number 2 - Summer 2001


By: Harvey A. Levine (Harvey A. Levine is an independent transportation economist who is currently writing a book on grade-crossing safety in the United States. He was formerly the Vice President of Economics and Finance, Association of American Railroads and has worked for consulting firms, the US Department of Transportation, Planning Research Corporation, and the New York Central Railroad. He has taught economics and business courses at several universities and has published three books on transportation policy and railroad economics).

Think of what happens when a commercial airplane crashes and 135 lives are lost. An investigative team rushes to the scene and regularly-scheduled television programs are interrupted to announce the news. Finding the cause of the accident is paramount to the public interest. Next, imagine what would happen if four months later a similar accident occurs. Public concern would rise to alarm, and there would probably be talk of an investigation into airline safety. Then think of the unthinkable. A third plane goes down six months later, resulting in three airplane crashes and 400 lives lost in a single year. Congressional inquiries would probably be held with a focus on the effectiveness of the Federal Aviation Administration.

In stark contrast, the loss of 402 lives and many more serious injuries from accidents at railroad-highway intersections (grade-crossings) in 1999, virtually went unnoticed. We can explain the lack of public outcry with three factors. First, deaths and injuries from grade-crossing accidents often come in ones and twos and are local in nature. With few exceptions, they do not make the national news. Second, grade-crossing accidents frequently occur in rural, low-profile areas, where they are reported in small-town newspapers. In urban centers, railroad track and highways often do not meet at the same grade; they are separated by overpasses, bridges, and tunnels. Where grade crossings do exist in urban areas, many are protected with flashing lights and automated gates (barriers). Third, to the extent that the general public even thinks about grade crossings it has come to believe that irresponsible motorist behavior is by far the major reason for grade-crossing accidents. This perception has been fostered by a Federally-aided, educational program. As self-proclaimed good drivers, many motorists believe that they are not vulnerable to grade-crossing accidents.

While railroad crossings do not register on the national radar as a major public safety issue, the lack of effective protection is a prime safety issue, the lack of effective protection is a prime example of why the public despairs of government solutions to public problems. In this case, the Supreme Court failed to hold railroads responsible for determining the safety needs at their own crossings, because of rules allegedly stemming from federal funding. Further, the Department of Transportation fails utterly to enforce regulations or to advocate for accident victims. The only recourse left to victims' families is litigation, and railroads settle the majority of these cases before they reach the courts.

Scope of Accidents

In 1999 there were over 158,000 grade crossings in the United States where the highways were under the jurisdiction and maintenance of a public authority. These public crossings exist in all states; Texas heads the list. Grade crossings are extremely dangerous because their use involves uneven participants. Compared with automobiles often weighing less than two tons, freight trains average 6,500 tons and can take a mile to stop. While passenger trains are lighter than freight trains, they travel faster, up to speeds of 79 miles-per-hour -- even through grade crossings. Thus, grade-crossing accidents are overwhelmingly more catastrophic for motor-vehicles than for railroads. For example, in 1977 a passenger train struck a pickup truck at a grade-crossing in Plant City, Florida, killing the ten occupants of the truck. In 1980, a freight train collided with a tank truck in Kenner, Louisiana, resulting in six deaths, seven injuries, and significant destruction of property. And in 1995, in Fox River Grove, Illinois, a school bus was severed by an express commuter train, resulting in the death of seven students and injury to many others. In all of these cases, there were no deaths or serious injuries of on-train personnel. In 1999, there were about 3,100 incidents at railroad grade crossings. With fewer than 5,000 trains operating daily on a fixed right-of-way, and given modern technology, it is only logical to wonder why the accident rate is not lower, and thus, why people crossing railroad intersections are not better protected.

Crossing Protection

There are two broad types of protective devices installed at grade crossings. First, the safest type of safety device is a barrier -- more precisely, an automated crossing gate -- which is always accompanied by lights. Automated gates are installed on railroad property, and must be maintained by the owners. While accidents occur at gated crossings, studies show them to be 85-90 percent more effective than non-gated crossings. This is largely because, when properly operating, gates preclude accidents which might otherwise have happened. Incredibly, although countless billions of dollars of public funds have been expended on grade-crossing safety, and many crossings have been eliminated by an aggressive public campaign and railroad downsizing, only 20 percent of the crossings in this country are equipped with automated gates. The majority of the other crossings have crossbucks -- that is, an "x" sign with the word "railroad" printed on one diagonal and the word "crossing" printed on the other. The crossbuck is supposed to warn motorists that they are approaching a train track. If they remember the contents of their state driver's handbook, motorists would be expected to slow down and look both ways before entering the crossing. Crossbucks are located on publicly-owned highways and maintained by the road authority.

The lack of automated crossing gates puts an inordinate pressure on motorists, in that passive grade-crossing warning devices differ from the signs that motorists are used to seeing at highway intersections. Also, motorists tend to view approaching trains in much the same way they view airplanes landing at airports -- that is, with the illusion of a relatively-slow-moving vehicle. This is due to the large size of the train and the long vertical length of the train, and the way the train and track are parallel and converging on the horizon. Furthermore, when motorists using the same crossing on a daily basis are continually delayed by passing trains, they may get frustrated and take inappropriate risks. And finally, passive devices do not protect motorists from the dangers associated with downed or missing signs, elevated trackage (track humps), adverse weather, overgrown vegetation, and failure of train engineers to sound the engine's horn as the train approaches the crossing. Clearly, the installation of more automated gates, or similar barriers, would reduce grade-crossing accidents.

The Public Role

Conceptually, the public has a shared role in grade-crossing safety because public highways comprise half the grade crossings. In reality, sharing responsibility can be tenuous. In fact, until the early 1970's, the public role in grade-crossing safety was extremely narrow and somewhat vague. It consisted mainly of unpredictable and uneven funding of safety devices, and after 1967, with the possibility that significant grade-crossing accidents would be investigated by the newly-created National Transportation Safety Board (NTSB).

In 1970, the Federal government enacted legislation that among other things, provided for uniform laws, regulations, orders, and standards relating to railroad safety. Furthermore, the United States Department of Transportation (DOT) was to maintain an inventory of grade crossings and related accidents, and publish a related annual statistical report. In 1973, federal legislation was passed requiring the states -- in order to receive federal funds for grade-crossing improvements -- to conduct and systematically maintain a survey of all highways to identify safety needs at railroad crossings. The 1973 legislation began a steady stream of federal funds for the installation of safety devices at grade crossings. In 1987, the federal government began to fund Operation Lifesaver, Inc., a public awareness and educational program dedicated to ending grade-crossing accidents. And in the 1990's, Federal grade-crossing funding encompassed two five-year budgetary commitments.

Thus, the public (federal and state) commitments to grade-crossing safety came to include: (1) developing and maintaining uniform standards for railroad operations and safety devices, (2) administering an inventory of grade crossings and accidents, (3) determining safety needs at grade crossings, (4) funding the installation of safety devices at crossings, and (5) funding the education of motorists and pedestrians in regard to crossing railroad track. What was left unanswered was whether or not the publicâs rather comprehensive role relieved railroads of similar responsibilities.

Railroad Responsibility And Attitude

As concluded by a court as far back as 1837, railroads in the United States have a "public nature." While privately owned, railroads were birthed and developed with massive public aide, including: free land surveys, rights of eminent domain, massive land grants, financial aide, low-interest loans and tax exemptions. They were provided with licenses to operate exclusive rights of way. Even today railroads receive special public treatment. They are not subject to anti-trust legislation enforced by the Justice Department. They benefit from anti-strike legislation and unique bankruptcy provisions. Their employees fall under the industry's own worker's compensation, unemployment insurance, and retirement systems, rather than being under state programs and federal social security. Consequently, it is patently logical to conclude that along with the benefits of public privileges comes public responsibilities. Clearly, safe crossing of a track structure which interferes with the efficient travel of the public, is one such responsibility. However, the railroad point of view is quite different.

An illustration of the railroads' attitude toward their grade-crossing responsibility is a statement by an industry spokesman reported in the September 29, 1999 Omaha World Herald, following a judicial judgment against a railroad in a grade-crossing, accident case: "It's the state highway people who decided to put highways over the railroad tracks. They're the highway safety experts. We didn't put the highways in, and frankly, we would prefer that they not be there." Individual railroads have expressed similar views, including the point that since the public is the principal beneficiary of grade-crossing safety, it should pay for the installation of the protection. Interestingly, the federally-funded Operation Lifesaver, Inc. has supported the railroad industry's position that it is entirely the government's responsibility to determine the need for automated gates at grade crossings. The historical record of this controversial issue has largely been resolved by state tort law applied in cases involving grade-crossing accidents.

From Tort to Supreme Law

Where railroads have been the defendants in grade-crossing accidents before the courts, decisions have run the gamut -- from no railroad fault to full railroad fault, with a number of cases resulting in shared blame. There have been far more settlements than judicial decisions. Causes of accidents have included poor geometric design (alignment, profile and sight distance) of the crossing, inadequate railroad maintenance, human error on the part of a railroad and/or motorist, and equipment failure. Furthermore, the lack of crossing gates has been ruled to be a contributing factor in many accidents, and the prime cause in other cases. Railroads could have been partly, or fully, responsible for the lack of a gate at the crossing.

In the 1980's, a major railroad appealed a decision in a case where it was held responsible for not installing crossing gates, and the matter was taken up by the Supreme Court. The issue was whether or not the federal government's role in determining safety needs at railroad grade crossings pre-empted state tort law, which could require railroads to fulfill similar safety responsibilities. In its 1993 decision, the Court found for the plaintiff because federally-funded safety devices had not been installed at the crossing at issue, but it was clear that the concept of pre-emption had been established. Further clarity came in the year 2000, when the Supreme Court concluded that when a state installs warning devices using federal funds, a federal standard of adequacy is established, and state tort law that addresses the same subject is displaced. The Court went on to conclude that, "What States cannot do -- once they have installed federally funded devices at a particular crossing -- is to hold the railroad responsible for the adequacy of those devices."

So even if states used their federal monies to install low-cost crossbucks at each of its crossings, railroads would be absolved of responsibility for the selection, funding, and installation of safety devices at their own crossings. As a result, the public would have to rely on federal and state programs, procedures, funds, and agencies for the major share of protection from unstoppable trains at railroad-highway intersections. Given the limitations of the public process for providing grade-crossing safety, this hardly seems adequate.

Into The Public Labyrinth

The public role in providing grade-crossing safety was designed to provide minimum -- not adequate -- safety. The level of federal funding is somewhat arbitrary -- subject to the whims of Congress -- and not based on safety needs. Similarly, federal funds are allocated to States on the basis of such non-safety need criteria as: number of grade crossings, population levels, and rural delivery and intercity mail-route mileages. Once the states receive their federal funds they do not follow any uniform standard for choosing how and where they spend their monies. In some cases, states do not use all of their grade-crossing funds on grade-crossing projects. Even where the monies are used for grade-crossing safety, which crossings receive funding is subject to political interference and pressure.

Aside from having limited objectives, the public process of providing grade-crossing safety is characterized by a lack of accountability. Without accountability, there is far less motivation to fulfill responsibility. The states are required to do little more than develop a ranking of grade crossings by their alleged levels of danger, and then to use their federal funds to install, at a minimum, a warning device at those crossings. There is no entity other than the states, to determine if the installed devices are adequate. There is no national standard of adequacy. The federal government does not evaluate the states' individual determinations of grade-crossing needs. And, following the Court's pre-emption decision, tort law cannot be used to make determinations of safety inadequacy.

The railroads also have no accountability within the public process, even though it is only the railroads which pass through grade crossings on a daily basis and therefore have the ability to observe near-accidents and dangerous conditions. The railroad contribution is to serve on state-administered diagnostic teams which are to determine grade-crossing safety needs, but such service is uneven, does not necessarily have stated expectations, and is void of ensuing evaluations. This official, limited railroad role does not stop railroads from using their influence to sway public representatives to their points of view. A case in point are two messages of the educational organization Operation Lifesaver, Inc. With its board of directors primarily composed of railroad representatives, the organization claims -- without evidence -- that motorists are to blame for grade-crossing accidents in nearly every case, and that automated gates do little to protect motorists at grade crossings. It is little wonder that Operation Lifesaver Inc.'s first, and now departed, director believes that it "was organized primarily for the purpose of serving the railroad industry."

Finally, the highest ranking federal officials responsible for grade-crossing safety are political appointees who serve relatively short terms, and who have little, if any, background in matters of safety. In fact, a number of the Federal Railroad Administrators within DOT previously worked for railroads and/or became employed by railroads after public service. Other secured their positions after serving as legislative aides and/or political operatives. This is not to conclude that all Federal safety administrators are either inept or have been inadequate leaders. Rather, it is to suggest that safety experience was not a prerequisite for heading up the country's major railroad-safety agency.

A Case Study of Ineptitude

The aftermath of a traumatic grade-crossing accident can speak volumes about not only the cause of the accident, but also about the safety processes which were supposed to prevent the accident in the first place, including the predispositions of the agencies administering those processes. Two unfortunate families who came to understand these relationships are the Curtis (Ron and Dorothy) and Latherow (Don and Peggy) families, residents of rural communities in western Illinois. On September 26, 1999, each family lost a teenaged son when the car they shared was crushed by an Amtrak train traveling at 78 miles-per-hour through a grade crossing in McLean County, Illinois. What followed was a tragedy after a catastrophe.

When the Curtis and Latherow families received the phone call from the coroner's office that their sons had been killed, they were also told that the boys' bodies could not be released without approval of the freight railroad which owned the tracks. As it turned out, their sons had complete autopsies to check for alcohol, drugs, and physical impairments, while alcohol tests were not given to the uninjured train engineer or conductor. During the hectic hours after receiving the news, Mrs. Curtis heard that the boys tried to circumvent the automated gate at the crossing. While driving irresponsibly was out of character for two boys who were honor students and community role models, what other explanation was there? After all, in reporting the accident, the local newspaper stated that the crossing gates and warning lights were properly functioning at the time of the accident. The newspaper's account was based on the freight railroad's accident report submitted to DOT, stating that the gates and lights were working at the crossing. Similarly, after arriving at the scene of the accident, DOT filed a report stating that the male driver was reported to have driven around or through the gate. When DOT arrived at the accident scene, it had dismissed Illinois authorities from investigating the accident, and subsequently called the NTSB to inform that agency that it was not needed as there was nothing unusual about the accident. Unfortunately, the railroad and DOT reports received indirect support when an Illinois state police representative made an inappropriate and wrong assumption that the teenagers were probably unfamiliar with the area. DOT also conveyed the message that an experimental, secondary safety system, which was being tested by the state of Illinois, had been turned off for months as it was being repaired. Although the experimental system operated independently from the crossing gate, it contained a video camera which was allegedly deactivated with the experimental apparatus; thus, a recording of the accident was not available.

In the following days, the truth emerged. The first sign was a newspaper reporter phoning the families to inform them that DOT was rescinding its position in view of public outcries. A number of eyewitnesses had come forward -- people in cars in front of, and behind, the Curtis/Latherow car, and other people who had observed the accident while standing nearby. All provided information to the state police that the automated gates had remained in an upright position before, during, and after the accident. The train engineer claimed he did not notice whether the gate was up or down. Soon thereafter, the families learned from the coroner's office that the camera had been working and that a tape of the accident was available. At about the same time, an Amtrak representative paid a surprise visit to the Curtis home and claimed that although his railroad had never been liable in any similar accident, it would work with the family to resolve the matter. No mention was made as to how many accident cases Amtrak had settled prior to trial, or the fact that the freight railroad had been held accountable for accidents in prior cases.

In the ensuring months, the entire accident story unfolded, thanks to eye witnesses, the coroner's office, and a state police report. An hour after the accident, the police noticed two railroad employees at the accident scene, in the shed that contained the controls for both the automated gate and experimental safety device. They did not have permission to be there and were asked to leave. As it turned out, one of those individuals had been in the shed during the afternoon preceding the accident and had shut off the power to the automated gate as he calibrated the independent experimental device. In this sense, while the gates and the experimental netting operated independent of one another, they had a relationship because they shared a control shed. The railroad maintenance employee had informed his employer of his actions the day after the accident, but the railroad did not come forward with this information. Subsequently, the police report concluded that the crossing gates were not functioning at the time of the accident, and the coroner's report concluded that the boys' deaths were accidental but avoidable, due to either mechanical failure or human error on the part of the freight railroad.

Incredibly, and months later, an eight-page DOT investigative report concluded that the exact cause of the crossing failure could not be determined. DOT acknowledged that its accident investigations were typically sparse and very narrowly focused, in that its expertise was largely limited to examining mechanical equipment, not delving into human error or criminal wrong-doing.

While the DOT report did not receive wide exposure, it generated criticism. The Illinois Commerce Commission stated that it was very apparent what happened. The Commission also felt that DOT was jealous of its investigative authority in Illinois. Following the DOT report, the Chicago Tribune ran a story of the accident investigation, raising the possibility of a railroad-government cover-up. It also cited an NTSB statement that if it had known about the gate failure, it would have made its own investigation. Subsequently, following requests from an Illinois Senator and Congressman (in response to letters from the Curtis and Latherow families), some six months after the accident investigation, the NTSB decided to conduct its own accident investigation, after considering the number of groups involved in the accident and the ensuing confusion regarding exactly what happened.

The experiences of the Curtis and Latherow families left them with a host of unanswered questions and dismay at the public process of providing grade-crossing safety. What if there were no witnesses to the accident, as is the case in many such accidents? Would the initial false accident reports have become part of the statistics published by DOT? How reliable are DOT safety statistics? How could both the freight railroad and DOT initially conclude that the boys were at fault while, in fact, the crossing gate was not working? Why was there a rush to judgment? Why did DOT simply accept the railroad's explanation for the accident? Why did DOT preclude both the Illinois authorities and the NTSB from investigating the accident? Why did NTSB automatically accept DOT recommendation not to investigate the accident when an experimental device had been installed at the crossing? Who is looking out for the needs of the victims' families? Why didn't the freight railroad come forward soon after the accident when it learned from its employee that he had shut off the crossing gate? Why was the DOT report really so limited? Mechanical failure and human error cannot be separated. Why are the very same parties who are responsible for preventing grade-crossing accidents the same entities who investigate them? Where is the accountability for the Curtis/Latherow accident? Why were federal authorities so insensitive to the needs of the victims' families? Why did the families have to use the Freedom of Information Act to acquire certain evidence? Isn't DOT supposed to be an advocate for the victims? Why did the families have to be their own advocates? And probably, of greatest importance, when a single employee accidently shuts off an electrical system which controls a crossing gate, why isn't the railroad immediately aware of this situation so that the problem can be immediately rectified? In essence, how can anyone be reasonably certain that such an accident would not happen in the future?

Impetus For Change

The needed change in the public process of providing safe grade crossings is unlikely to be initiated from the organizations within the system. These agencies tend to see only the positive impacts of their programs (like installing automated gates, closing crossings, and educating motorists), and would not likely be amenable to contrition for the deficiencies. Thus, it would appear that the impetus for change could best derive from a nation-wide, public-advocacy organization -- with input and/or support from families of grade-crossing-accident victims -- devoted to improving railroad safety in general, or grade-crossing safety in particular.

Such an organization might do well to remember the message of the Supreme Court Justice Breyer, who supported the majority decision in the pre-emption case. Justice Breyer stated that if the public processes were not sufficient to provide adequate grade-crossing safety, the relevant federal regulation could be changed to state that federal funds for grade-crossing safety is sometimes used for "minimum", as opposed to "adequate," safety devices, and that minimum installations lacked federal pre-emption. Consequently, if federal regulation recognized that the public programs were not meant to optimize grade-crossing safety, then state tort law would once again be applicable. The advantage of state tort law is that it provides an economic incentive for railroads to fulfill their responsibility for grade-crossing safety, and at the same time, is somewhat of an insurance policy against inadequate grade-crossing safety. Hopefully, DOT could be convinced that it should be an advocate for those affected by railroad operations -- including people who cross railroad track -- and ask Congress to change the law so that railroads would once again be responsible for providing safe crossing of their property.

Finally, aside from the re-installation of state tort law, DOT should itself institute changes in the public processes to ensure grade-crossing safety. The agency should adopt a goal in installing automated barriers at all crossings having paved roads through them. With railroad participation, this is a realistic financial objective, and would provide maximum safety at intersections which were important enough to have paved roads. DOT should recognize that the economic interest of railroads is but one of a number of criteria affecting grade-crossing safety decisions, and should ensure that the states receiving federal funds adopt this broad perspective. And DOT should not provide funding to Operation Lifesaver, Inc., unless that entity restricts its activities to education, eliminates railroad policy from its agenda, and reconstitutes its board of directors so that it is not dominated by railroads and their related common-interest groups.


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