BOSTON — The Boston Globe reports that the family of a 15-year-old Abington girl killed by a commuter train while riding her bike cannot sue the MBTA over her 1998 death, even though the crossing was a known hazard, a judge has ruled.
Suffolk Superior Court Judge Diane Kottmyer threw out the multimillion dollar wrongful death suit brought by Michael and Ellen Boyd three years ago. She ruled that neither the Massachusetts Bay Transportation Authority, which owns the trains, nor Amtrak, which operates the rail service, was responsible for the death of Kelly Ann Boyd under federal railroad laws, which are less stringent than local rules.
”We’re shocked,” Michael Boyd said last week. ”It seems they’re able to hide behind statutes that protect them. It feels to us that safety is taking a back seat. If that crossing had been designed with safety in mind, Kelly wouldn’t have paid the ultimate price. We’re definitely going to pursue this further.”
Kelly Ann, an honor student at Cardinal Spellman High School in Brockton, was dodging the flashing gates on June 24, 1998, when she was struck by an MBTA commuter train. A train had just passed heading south. She looked both ways, according to a witness, but she apparently did not notice the train approaching the Pine Street crossing from the other direction.
In her 25-page May 24 decision, Kottmyer threw out many of the family’s claims because Kelly Ann was in the crossing when she shouldn’t have been — while the gates were lowered and the warning bells activated.
But she also rejected evidence that the family thought proved the MBTA and Amtrak were reckless and responsible.
Kottmyer acknowledged that in reopening the Old Colony Line in 1997, the MBTA recognized that ”the public was not accustomed to high-speed trains traveling through these communities and that grade crossings [those at street level] presented safety issues.” Abington was the only town with double tracks at five public grade crossings.
Even though state officials ordered the MBTA to install special four-quadrant gates, which block access to the tracks from all directions, at each crossing, the MBTA had not complied. It used double gates, which met less stringent federal standards.
As part of a study conducted by the MBTA, surveillance cameras were installed at crossings in Kingston, Halifax, and Abington.
”Between May 26, and June 8, 1998, the surveillance tapes at the Wales Street crossing in Abington showed four incidents of bicyclists and one incident of a pedestrian passing around lowered gates when the warning systems were activated,” Kottmyer wrote.
The safety gates, though not the ones mandated by state lawmakers, comply with federal rules, Kottmyer said.
And evidence that the MBTA knew the crossings posed a threat — through the video surveillance tapes — is not admissible in court under federal law, she said.
Congress authorized such studies so transportation agencies could ”evaluate candidly and correct highway and railway safety hazards.” If this material were allowed to be used against them in lawsuits, the agencies would be reluctant to conduct such studies, the ruling said.
”I’m very disappointed in the decision, ” said John Flemming, the family’s lawyer. ”I think it’s wrong. The Boyds intend to appeal it.
”It would be very surprising to the ordinary layperson to learn that there could be so many technical legal issues involved when a 15-year-old is killed at a railroad crossing,” Flemming said.
”They had cameras up for at least a month prior to the occurrence and those tapes showed children on bicycles and walking… around the gates when they were down. The court decision says none of that is admissible. You can’t show that they knew and did nothing. The real facts can’t be presented in the courtroom.
”Most people would be surprised at how little accountability most railroads have.”
Michael McCormack, of the law firm McCormack & Epstein, who represented the MBTA, declined comment.
MBTA spokesman Brian Pedro said the agency has made many safety improvements since the accident, which he called ”easily the worst day on the job for me or anyone else who was at the scene.”
The MBTA removed all vegetation blocking the view down the tracks and installed ”no trespassing” signs at all railroad crossings, he said. The MBTA also moved fences to improve visibility at Pine Street and a crossing at Plymouth Street, Pedro said.
It considered installing four-quadrant gates, but concluded they were not necessary, he said.
MBTA officials also instructed local school children and school bus drivers how to navigate railroad crossings safely, he said.
The MBTA decided not to lower the speed limit on the Old Colony Line because it would increase trip times without appreciably improving safety, according to Pedro.
”We’re certainly not celebrating this decision,” Pedro said. ”The judge ruled as she saw fit, but we’re not happy. Nothing we can say will ever lessen the pain of that family.”
Opponents of the Greenbush line, which will run through neighborhoods and cross local streets on its way to Scituate, fear similar accidents in their towns, according to John Bewick, who heads Advocates for Transportation Alternatives.