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CHICAGO — On August 5, 2020, Cavanagh Sorich Law Group partner Tim Cavanagh filed a lawsuit on behalf of Marina Maestas, whose vehicle was struck by a ballast regulator at a protected railroad crossing owned and operated by the Union Pacific Railroad Company and Metra. A ballast regulator is a large railroad vehicle that drives on the tracks like a train. Maestas had the right of way as the gates were in the up position and the crossing lights were off.

On July 29, 2020, at 10:18 a.m., Marina Maestas, 63, was stopped at the Washington St. crossing in Wheaton, Illinois, waiting for a Union Pacific (UP) pick-up truck on the tracks to pass. After the UP vehicle passed, the gates rose and the crossing lights deactivated. Maestas now had the right of way. She drove her Honda Accord northbound over the crossing when her vehicle was struck on the driver’s side by a UP ballast regulator headed eastbound at a “high rate of speed” according to the police report. The ballast regulator pushed her car 150 feet down the tracks.

Maestas was rushed to Good Samaritan Hospital, where she remains in critical condition in the intensive care unit (ICU). She suffered a head injury and significant internal injuries requiring several surgeries.

“The police report confirms that Union Pacific employees were working on the tracks at the time of the crash and that the gates and lights malfunctioned. Discovery in the lawsuit will focus on whether the malfunction was caused by human error and why required safety procedures were not followed. This crash would have been avoided had the Union Pacific operator of the ballast regulator been paying attention and not speeding. In addition, UP should have placed flag men at both sides of the crossing to stop cars while the ballast regulator passed,” Cavanagh Sorich Law Group founding partner Tim Cavanagh said. “Railroads have a heightened obligation to ensure that gates and lights are properly working.”

The lawsuit was filed in Cook County Circuit Court naming Union Pacific Railroad Company, Metra and Eric Johnsen, the operator of the ballast regulator, as defendants.

On August 7, 2020, CSLG filed an Emergency Motion for Protective Order seeking to preserve critical evidence, including the ballast regulator, videotapes, audiotapes and the control box at the crossing. The Order was granted on August 11, 2020.

According to the lawsuit, both Union Pacific and Metra operate trains at the crossing and maintain the crossing. Both defendants had a duty to safely maintain the crossing and to ensure its automatic crossing gates and flashing lights worked properly. In addition, Union Pacific should have had flag men present on both sides of the crossing if the gates and lights were not working properly.

The lawsuit also alleged Johnsen consciously disregarded public safety by:

  • operating a ballast regulator without keeping a proper lookout,
  • driving at a higher speed than was reasonable,
  • failing to decrease his speed or warn vehicles that the ballast regulator was approaching,
  • and operating railroad equipment at a time when warning devices were not functioning properly.

Cavanagh Sorich Law Group has a long history of successfully representing families in railroad cases.

In 2002, Cavanagh obtained a $55 million verdict in an Illinois railroad crossing case after an 8-million-pound train traveling 50 mph slammed into the Velarde family’s car — severely and permanently injuring everyone inside the vehicle. The crossing gates and lights were malfunctioning at the time, and a dispatcher erroneously told train operators the crossing was clear. The case set an Illinois record and was recognized by the National Law Journal as one of the top 100 verdicts in the United States in 2002.

In 2000, Cavanagh obtained a $9.1 million settlement for Hanifa Ajmeri, a woman who was a passenger in a car struck by a Canadian National train. The crash caused a brain injury and multiple fractures, causing permanent nerve damage. In discovery, Cavanagh discovered that a crossing gate was knocked down prior to the incident and had not been repaired or replaced despite the railroad being advised of the missing gate. Rules required a stop and flag procedure, but it was never communicated to the train engineer. Instead of the train stopping at the crossing (due to a missing gate) to avoid a high speed crash, the train blew through the crossing at a high rate of speed, causing the high-speed crash. The case settled on the third day of trial for a state record amount.

Both cases were against Canadian National Railroad and the Illinois Central Railroad.

“In both of those cases,” Cavanagh said, “Canadian National knew it had problems with gates and lights and failed to take safety precautions. There should’ve been a ‘stop and flag’ procedure implemented, but the railroads dropped the ball and our clients were seriously injured in high-speed crashes.”

The Hon. Moira S. Johnson of the Circuit Court of Cook County is presiding in Marina Maestas v. Northeast Illinois Regional Commuter Railroad Corporation, Union Pacific Railroad Company and Eric Johnsen, Case No. 2020-L-008271.

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