Supreme Court sides with railroad in collision

By Associated Press

July 23, 2014

MADISON - A Memorial Day parade that led to a traffic jam blocking railroad tracks in a Milwaukee suburb did not amount to a specific hazard that could make the railroad company liable for striking a minivan, the Wisconsin Supreme Court ruled Tuesday.

The decision is a victory for the railroad industry, which worried that an opposite ruling could lead to railroads being liable for negligence for not slowing down under a variety of scenarios. Federal law requires trains to slow down or stop in reaction to specific hazards.

"Letters could come to the railroad asking for slow orders for events from birthday and graduation parties to family reunions, to races and marathons, all of which might happen only once a year," Justice David Prosser wrote for the majority. "Railroads would face the constant dilemma of either slowing their trains of risking prolonged litigation and potential liability."

In this case, the parade, which took place in Elm Grove in 2009, created only a "generally dangerous traffic condition," the court said in a 5-2 opinion.

While the parade itself was not a specific hazard, the minivan stuck on the tracks was, the Supreme Court said.

Elm Grove Officer John Krahn and Scott Partenfelder, of West Allis, were severely injured as they rescued Partenfelder's wife and 2-year-old child from the van. Both men were thrown from the tracks, while the child remained unharmed in his car seat. The men said they incurred hundreds of thousands of dollars in medical bills.

Partenfelder and Krahn sued Soo Line Railroad Company, a subsidiary of Canadian Pacific Railway, for negligence. They argued that the railroad should have issued an order for trains to go more slowly through the area because of the parade.

The court kept alive the question of whether the train crew was negligent in how it responded, sending that part of the case back to Milwaukee County Circuit Court.

Canadian Pacific spokesman Ed Greenberg said the railroad was still reviewing the decision and he had no comment. Robert Crivello, the attorney for Krahn, said he was considering appealing to the U.S. Supreme Court.

Crivello said he was disappointed that the state Supreme Court won't allow him to present evidence showing that the accident could have been avoided if the railroad acted on information about the parade it had been given before the event and had known from prior years.

The Milwaukee County Circuit Court ruled in favor of the railroad company, saying the parade presented only a potential hazard, so federal law protected the railroad from negligence. But the state appeals court last year reversed that ruling, saying the parade was a specific hazard.

Prosser, in reversing the appeals court decision, expressed compassion for the victims, but said, "Unfortunately, occasional accidents occur."

Chief Justice Shirley Abrahamson joined with Justice Ann Walsh Bradley in a dissent, saying the negligence claim should be allowed to go forward because the parade was a unique occurrence that was likely to result in a collision.

"It is important that trains run on time," Abrahamson wrote, "but it is more important that the people and property of the state be kept safe."