(The following article by Elizabeth Allen was posted on the San Antonio Express-News website on June 27.)
SAN ANTONIO, Texas — Two survivors of a 2004 train derailment that resulted in a deadly chlorine gas leak and four volunteer firefighters who responded to the scene have filed a federal lawsuit against the city, county and a sheriff’s deputy over the rescue effort’s management.
The tragedy that claimed four lives and injured dozens already is the subject of an earlier lawsuit filed in January by different plaintiffs, who accused Union Pacific of safety violations in connection with the disaster.
The lawsuit, filed late Monday afternoon by lawyer Phil Ross for unspecified damages, claims Deputy Kyle Coleman asserted authority he didn’t have by preventing volunteer firefighters from trying to rescue Mary and Wayne Hale, who waited, growing steadily sicker in their chlorine-infused house, for more than two hours longer than necessary.
The lawsuit also asserts that there was a “concerted effort … by Bexar County sheriff’s deputies and San Antonio police … to keep the county volunteer firefighters away from the train wreck,” while paid San Antonio firefighters could do their jobs without interference.
The city didn’t fully commit its resources to the scene at first, Ross contended at a news conference outside the federal courthouse. Yet they “pretty well took over the scene, even though they were outside their jurisdiction,” he said.
Coleman said he was taking his orders from “the command post and the (plaintiffs) are going to have to talk to them.” He added that he didn’t know who was in charge of the command post at the time.
Ed Schweninger, Bexar County District Attorney’s Office civil division chief, said he hadn’t seen the lawsuit and could not comment on it. But, he said, “typically for emergency personnel, there’s a lot of immunity from liability when trying to engage in a rescue operation.”
City Attorney Michael Bernard, who said he had taken a quick look at the lawsuit Monday, said, “The city is not liable or responsible for anything that occurred out there.”
Mayor Phil Hardberger, who had just gotten back in town late Monday afternoon and was not aware of the lawsuit, said he would look into the matter today.
The accident and resulting confusion began in far Southwest Bexar County in the pre-dawn hours of June 28, 2004. A Union Pacific train struck a Burlington Northern train, rupturing a 90-ton railcar carrying chlorine gas, releasing a white toxic rolling fog of poison.
A Union Pacific conductor, Heath Pape, and two nearby residents — Wayne’s stepmother, Gene Hale, and his stepsister Lois Koerber — died at the scene. Robbie Whitworth, Hale’s brother-in-law, who had been in the house with Wayne and Mary Hale, died four months later.
Mary Hale can still feel the burning in her throat, and frequently loses her voice.
“The chemical’s still in my system, and it’ll never get out,” she said.
Jennifer Harris, on the other hand, will never get the memories out of her head. The volunteer firefighter grew up in the area. She had been involved in the rescue effort from the beginning and had already helped save two people that day, she said. She and volunteer firefighter Michael Yanelli had a couple of possible routes to the stranded people in mind. But, the lawsuit contends, Coleman ordered the two volunteer firefighters back.
So Harris was left helplessly listening to reports of the victims calling 911. She could picture Koerber and Gene Hale, for she had seen them in their yard planting flowers only a couple of weeks before. She said she thought if she could have gotten there sooner, perhaps Whitworth would not have died. She had nightmares of the dead women appearing at the foot of her bed.
“I kind of blamed myself for a little bit,” Harris said.
The lawsuit claims that Harris’ husband, Southwest Volunteer Fire Department Assistant Chief Harold Harris, as the first to arrive at the scene, was the rightful incident commander under the local emergency agreement. It said Jennifer Harris and Yanelli had the right to decide where to go within their jurisdiction to rescue Wayne and Mary Hale. Yanelli and Southwest Volunteer Fire Chief Darrell Scraper are also plaintiffs.
Bexar County Judge Nelson Wolff, who lobbied for improved rail safety after the accident, said volunteer firefighters were miffed at the city’s actions at the time, but that the city had more resources and equipment.
“Whatever your agreement may be, for a volunteer to be there trying to direct the city of San Antonio on what to do — for a practical matter, it just doesn’t work very well,” Wolff said.
Coleman said it was the kind of situation that inevitably would lead to disagreement. “It’s one of those deals where everybody’s got a different opinion,” he said.
The suit demands additional training on the local emergency agreement for city and county law enforcement personnel.