The National Transportation Safety Board has announced that it is taking over the investigation of Monday’s fatal crash of two trains on the Washington Metro’s Red Line. The NTSB involvement can only be a good thing. First, the NTSB has significant resources and has a history of not being afraid to mix it up with the Washington Metropolitan Area Transit Administration.

I first became involved in representing train accident victims in 1996 when I represented a Baltimore, Maryland family who lost their son in the fatal Amtrak/ MARC Maryland Rail Commuter train crash on February 16, 1996 in Chase, Maryland. In that accident just outside of Washington, 12 people were killed and the NTSB conducted a very comprehensive investigation. In the 1996 accident investigation, the NTSB determined driver error and signal malfunction as the cause.

History has shown that the Washington Metropolitan Area Transit Administration does not always like to point a finger at itself. Over the past three decades, the NTSB has criticized the agency for papering over its safety deficiencies and failing to take corrective action from past mistakes. Just yesterday, Deborah A.P. Hersman, chairman designate of the NTSB, criticized the agency for failing to follow its three year old recommendation that the aging fleet be phased out or retrofitted. This week’s tragic accident marks the sixth fatal incident involving the DC Metro.
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As an experienced Maryland trial lawyer who has been regularly representing victims and their families in fatal and catastrophic train accidents since 1995, there has been an important but gradual change in Maryland law over the past several decades. This change is in the area of private v. public railroad crossings and how Maryland and other jurisdictions view them as the classification affects victims of train accidents.

The duties owed to individuals at private crossings as compared to public crossings were first enunciated by a Maryland court in Annapolis & B. S. L. R. Co. v. Pumphrey, 72 Md. 82, 19 A. 8, 9 (1890). That Court stated:
There is no statute of this state which imposes upon the (railroad) the duty to give signals of the approach of its trains to a private road or farm crossing. Numerous cases in this state and elsewhere have held that a failure on the part of a railroad company to give proper warnings of the approach of its trains to a public highway or thorofare crossing is an act of culpable negligence; but we are aware of no decision which fixes upon a defendant the like consequence for omitting such warnings as to farm crossings. On the contrary, it has been determined twice by this court that no such obligation exists.

Id.
Furthermore, Maryland traditionally held that where there was no proof of a legalized public crossing, individuals on railroad tracks were considered trespassers. Baltimore v. Welch, 114 Md. 536, 80 A. 170 (1911). The Welch Court stated:
The duty of those in charge of moving railway trains to keep a lookout for and exert care to avoid injuring persons at railway crossings and on public highways where such persons have a right to be, and may be expected to be found is entirely different from the care required of them in respect to the possible presence of trespassers on the railway tracks where, having no right to be, they are not expected to be found. We have repeatedly held . . . that those in charge of the trains have no duty to anticipate that persons will unlawfully go upon the tracks, and consequently the failure to guard in advance against the possible or probable results of such unexpected wrongful presence of persons on the tracks does not constitute negligence on the part of the railroad company whose liability to use care to avoid injuring any person so trespassing begins only when their agents are made aware of his presence and peril.

80 A. at 173 (emphasis added).
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