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Woman hit by train at hazardous crossing settles suit - brain injury causes permanent disability

May 2nd, 2007 by Erich Vieth

Confidential Settlement of Christina Bova v. Union Pacific Railroad Company, et al.

Submitted by John G. Simon and Amy Collignon Gunn of Simon٠Passanante, P.C.

The passenger in a car that was struck by a train at a railroad crossing with a history of malfunctions and accidents settled her suit after the court ruled she would be allowed to present punitive damages evidence at trial.

In her lawsuit, Christina Bova claimed Union Pacific Railroad Company failed to properly maintain and test the crossing equipment located near the intersection of Knox Avenue and Manchester Avenue in the City of St. Louis. As a result, the crossing gate malfunctioned, failing to come down until after the car in which Bova was riding was already on the train tracks, placing the car directly in the path of an oncoming train.

Bova, 28 at the time of the accident, was riding in a car driven by her Metropolitan St. Louis Sewer District co-worker, Vito Viviano. They were returning to work after lunch on Dec. 27, 2002. The car headed east on Manchester, then stopped at a red light at the intersection of Manchester and Knox. The railroad tracks run parallel to Manchester Avenue but are concealed behind a line of trees. After the light turned green, Viviano turned right onto southbound Knox Avenue.  The railroad tracks crossed Knox Avenue.

According to Bova’s attorneys, the crossing gate arm was not down when Viviano drove onto the train tracks in front of the Amtrak train. Union Pacific denied Mrs. Bova’s allegations. The Amtrak engineer, who was also a defendant in the case, claimed the gate arm properly lowered and Viviano tried to drive around it because he was in a hurry to return to work.  Neither Mrs. Bova nor Mr. Viviano could recall the collision.

The plaintiff disputed the railroad’s claims. Viviano denied that he was in a hurry to return to work and Viviano’s supervisor confirmed there was no need to rush. In addition, an independent eye witness testified that the gate arm was not down when Viviano tried to cross the tracks. The other independent eyewitnesses to the accident could not testify whether the gate was down when the car entered the crossing. Finally, the evidence derived from Viviano’s speedometer and the black box in his vehicle revealed that he was only traveling 11 miles per hour at the time of the collision.

The plaintiff asserted that the engineer contributed to the accident because he failed to keep a careful lookout. Based upon information pulled from the train’s event data recorder, the plaintiff’s experts determined that the engineer did not apply the train’s emergency brake until 54 feet after the crash and did not sound his horn until a split second prior to impact. The train’s speed was approximately 50 miles per hour as it entered the crossing.

When the car was hit by the train, Bova was thrown from the vehicle. She suffered catastrophic and permanent brain injuries. She spent five weeks in the hospital, another three months in rehabilitation as an inpatient, and seven weeks in the Special Brain Injury Unit at Missouri Rehabilitation Center. Bova currently receives therapy two times each week from the Center for Head Injury Services and she needs lifelong, 24-hour care.

As a result of her injuries, Bova, a high school graduate who had taken college courses, was unable to return to her job as a clerk for MSD. She is legally blind, can no longer walk without assistance, read, tell time, bathe independently, shop, or live on her own. Her past medical bills exceeded $695,557.00. Bova’s life care planner estimated that her future costs of car would top $7,991,748.80. It was estimated that Bova’s lost wages exceeded one million dollars.

In addition to actual damages, the plaintiff also requested punitive damages based on the history of malfunctions and accidents at the crossing as well as the admission of a Union Pacific employee that the railroad failed to test the gate to make sure the timing was working correctly despite the report of a gate mishap only two hours before Bova’s accident. The railroad motion for summary judgment on the issue of punitive damages was denied by the court which meant Bova would be able to present punitive damages evidence at trial.

The earlier incident - at approximately 10:00 a.m. on the same day Bova was injured - involved a Coca-Cola tractor-trailer truck. The truck driver turned south from Manchester Avenue onto Knox Avenue. The driver testified that it wasn’t until he reached the last crossing gate that the warning bells rang, the lights flashed and the gate came down, all at about the same time. The gate wedged between the cabin and the trailer of the truck. The gate was torn off as the truck continued to drive through the crossing in order to get out of the path of an oncoming train.

The railroad’s signal maintainer testified that if the lights and bells activated at the same time that the crossing arm came down on the Coca-Cola truck, the signal wasn’t working properly. The signal maintainer testified that he replaced the crossing arm after the truck driver’s accident and tested it to see if the arm raised and lowered. He did not, however, test the system to determine if the warning signals and crossing guard arms were correctly timed to give drivers notice of an oncoming train.  The train involved in the Bova collision was the very next train to pass through the Knox Avenue Crossing after this mishap.

There was a long list of mishaps and collisions at the crossing. On Dec. 5, 1993, there was a collision between a Ford Tempo and a Union Pacific train. On March 9, 1994, a Union Pacific train hit a Ford Ranger. On June 15, 2001, a southbound tractor-trailer was struck by an Amtrak train. Less than a year after Bova’s accident, on Aug. 9, 2003, a Ford  F150 was hit by a Union Pacific train.
There were also several reports that the crossing wasn’t working correctly in the year before Bova’s accident, including:

On Oct. 10, 2001, the gates were down but there was no train;
On Jan. 10, 2002, a school bus was hit by the gates after the warning lights came on at the same time as the gate;
On May 30, 2002, there was no train present, one gate was up and one was down;
On July 11, 2002, a gate arm was knocked off;
On Aug. 8, 2002, the gates were down but there was no train;
On Aug. 9, 2002, a gate arm was knocked off; and
On Oct. 15, 2002, the gate arm was knocked off.

Bova agreed to a confidential settlement with Union Pacific on Aug. 25, 2006. Bova also entered into confidential settlement agreements with the Amtrak engineer and Viviano.

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