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A dispatcher’s mistake that set off a collision between a freight train and a Ford Explorer — and the plaintiffs’ attorneys’ subsequent playing at trial of the dispatcher’s taped conversation with freight train personnel — has led to a $55.72 million jury verdict in Chicago. The jury awarded damages to three members of one family who each sustained severe brain injuries during the accident. Jurors assigned liability for the collision at 60 percent for the Illinois Central Railroad Co., which owned the crossing and employed the dispatcher, and 35 percent for the Chicago Central & Pacific Railroad Co., which operated the train. The jury found the driver of the Explorer, Lilia Apulello, 5 percent responsible. The accident happened Jan. 9, 2001, at the Army Trail Road crossing in Bloomingdale, Ill., a suburb of Chicago. Illinois Central had been having problems with malfunctioning gates and warning lights at the crossing and had issued a “stop and flag” order, said plaintiffs’ attorney Timothy J. Cavanagh of Chicago’s Lloyd & Cavanagh. Under this order, all trains traveling on the track were required to come to a complete stop prior to entering the crossing. On Jan. 9, the conductor and engineer of a Chicago Central train headed toward the Army Trail Road crossing radioed ahead to the Illinois Central dispatcher, Robert Haas, who informed them that the problem with the crossing had been fixed and “that the stop and flag order was no longer in effect,” said Cavanagh. This information was incorrect. The stop and flag order was in effect, and the crossing’s gates and lights were not hooked up to the track’s approach circuit. Fifteen minutes after the erroneous communication from the dispatcher, the Illinois Central train came barreling through the crossing and hit the Explorer at 50 mph, pushing the SUV more than 400 feet and flipping it over. The Explorer rolled five to seven times, Cavanagh said, injuring passengers Fidel and Francisca Velarde and their daughter, Apulello. The Velardes, along with Apulello and her husband, Rafael, sued Illinois Central and Chicago Central, charging negligence. The contention against Illinois Central was that its dispatcher’s false information set off the collision. PROPER LOOKOUT? The contention against Chicago Central was that the company’s employees failed to keep a proper lookout, failed to stop or slow the train and failed to sound the train’s whistle, and that the train was traveling at a speed that was “greater than reasonable and proper.” At 600 feet from the crossing, Cavanagh said, the train’s conductor and engineer “saw the car going across. Neither decided to hit the brakes, until after the impact.” The Velardes also sued their daughter, charging that she had failed to keep a proper lookout. One key to proving the plaintiffs’ case, said Cavanagh, was in immediately acquiring the audiotapes of the communication between Haas and the Chicago Central engineer and conductor. “I was hired the day after the accident and went into court the following day, Jan. 11, with an emergency motion” for a protective order seeking tapes of any communications between the railroads, he said. “I wasn’t taking any chances that they wouldn’t disclose the tapes.” The plaintiffs acquired the tapes last February. At trial, Illinois Central did not deny liability, but did dispute “the degree and severity of the injuries resulting from the accident,” said company spokesman Jack Burke. The defense also claimed that Apulello was substantially responsible for the accident. Apulello was not negligent, said her attorney, Terrence Lavin of Chicago’s Lavin & Nisivaco. “Their lights and gates weren’t working. They failed to keep a proper lookout.” Also, he said, the road crossed the track at such a sharp angle that she was unable to see. The jury recently awarded Fidel Velarde $15.11 million, Francisca Velarde $6.2 million, Lilia Apulello $30.9 million and Rafael Apulello $3.95 million. On the jury’s finding that Lilia Apulello was 5 percent responsible, the awards to her and her husband were reduced to $29.4 million and $3.33 million, respectively. Prior to trial, Lavin said, there was no settlement offer. There were no settlement offers for the Velardes, either, before trial, said Cavanagh. Burke called the verdict “clearly” excessive and said the railroads will file motions to set aside or reduce the awards. Velarde v. Illinois Central Railroad Co., No. 01 L 373 (Cook Co., Ill., Cir. Ct.). To view documents related to this case, go to www.nlj.com.

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