Judge limits Metro liability for Ft. Totten collision that killed nine, injured scores

By Spencer S. Hsu
Washington Post Staff Writer
Friday, November 5, 2010; 8:19 PM

A judge on Friday narrowed the Metro transit system's potential liability in a lawsuit brought by victims of the June 2009 crash that killed nine people, ruling that Metro can't be faulted under federal law for using older rail cars.

U.S. District Judge Reggie B. Walton said that because Metro is a quasi-government agency, it cannot be found liable for deciding to keep using the older rail cars that federal investigators found unsafe because they crumpled in crashes.

In a two-hour hearing in the District, Walton also said he would dismiss a claim that Metro failed to warn passengers of the rail car risk, unless plaintiffs find evidence by February that the transit system violated its written policies in doing so.

The decisions still allow a wrongful death suit brought by families of the eight passengers killed and dozens of those injured in the June 22, 2009, crash near the Fort Totten station to proceed. Malfunctioning track sensors allowed a Red Line train traveling at up to 50 mph to crash into the rear end of a stationary train. A separate suit by the estate of the train's operator, Jeanice McMillan, is also moving forward.

Crash victims can pursue claims that Metro was negligent for not properly maintaining track and safety systems or for ignoring alarms, and that private equipment manufacturers delivered flawed products.

Michael H. Feldman, the plaintiffs' lead lawyer, said the decision to grant Metro "sovereign immunity" for its rail-car decisions was expected. He said he was encouraged by Walton's comment that Metro's handling of alarms could be "an act of potential negligence."

Robert B. Wallace, a lawyer for the Washington Metropolitan Area Transportation Authority, said it was too soon to tell how much impact the rulings could have on victims' claims for damages or the exposure of taxpayers, who support the $2.1 billion-a-year transit system.

"It's very difficult to predict," Wallace said. "We don't have a trial expected for more than a year."

Walton ruled that the regional compact among area governments that created Metro exempts it under the federal law for decisions made by governmental entities.

Metro argued that it lacked the $500 million to $1 billion to replace older cars found to be uncrashworthy, and that it could not meet ridership demands if it retired roughly 30 percent of the rail cars in its inventory.

"It would be like having rush-hour traffic on the 14th Street Bridge 24 hours a day," Wallace said.

Plaintiffs said that after a mysterious 2005 near-crash involving three trains near Rosslyn that was later traced to the same track sensor problem the authority had an obligation to protect the public - not ignore recurring alarms.

"They chose to take the battery out of the smoke detector," Feldman said. "That's pure negligence."

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