Holz v. Burlington Northern and Whatcom County

Dean Brett

Practice Area:Personal Injury

Outcome:$752,000 awarded from deadly collision with train

Description:16-year-old Jody Holz was riding his motorcycle on a little-traveled road in Whatcom County. Burlington Northern had parked a freight train with a black tank car spanning the county road. Jody Holz collided with the tank car and died. The critical issue was whether the train was "plainly visible" to the motorcyclist who faced the standard defense instruction that a person has a duty to see that which would be seen by a person exercising ordinary care. By court order, Burlington Northern was forced to provide a tank car for accident reconstruction. An identical motorcycle was brought to the scene, and a professional photographer took photographs of the tank car illuminated only by the motorcycle's headlight. A videotape was then produced showing each black and white photograph for a computer measured exact one second interval. When played back, the videotape thus created "the last nine seconds of Jody Holz's life." The train became visible only for the last two seconds or 100 feet, far too late to avoid the collision. Burlington Northern's liability was established through the testimony of a railroad safety consultant who testified that the railroad failed to exercise reasonable care. All four crewmen admitted the train blocked the road for 10 to 15 minutes. The engineer testified that on this and many other occasions an alternative method for switching maneuvers was used which did block the county road. Throughout the trial, Burlington Northern denied negligence, denied that Rule 103(f) was applicable and claimed it was merely a rule to ensure that emergency vehicles are not impeded. The jury found Burlington Northern 95 percent responsible for the collision. Whatcom County was also brought into the suit on two theories: that the county failed to place railroad pavement markings, and the county failed to illuminate the railroad crossing. The jury assessed two-and-a-half percent of the responsibility for the collision against Whatcom County. Defendants Burlington Northern and Whatcom County tried to establish contributory negligence by claiming that Plaintiff was riding without a helmet, with defective brakes, with headlights inappropriately placed in the dim position, and at an excessive rate of speed. The jury found Jody Holz two-and-a-half percent contributorily negligent. Economic loss was calculated at $225,000. The jury added $500,000 for loss of love and companionship. The total verdict was $752,600 gross; $733,785 net, compared to (the then applicable) Tort Reform Act limit of $730,058. The case is Holz v. Burlington Northern and Whatcom County, Whatcom County Cause No. 88-2-00603-9.

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