Throop v. Conrail: $8.5 Million Recovery | 12,000 Volt Burns Result In Three Amputations

Boccardo lawyers who were senior to me were impressed by the seriousness of Steven’s injuries, but they were leery of the chances of collecting from Conrail, after D.C. law firms had turned Steven down.  In addition, Steven was reported to have had a tumultuous childhood that resulted in his attending the Army and Navy Academy, a military boarding school, in Carlsbad, California.  A place for rich kids with issues.  And there was no doubt he was trespassing on top of a boxcar.  In addition, as Californians the Boccardo lawyers knew little about electrified trains.  A lawsuit in Washington would require long trips across country.  In short, the general opinion was that there was a terrible injury but little chance of collecting against one of the largest railroads in the United States.  What no one knew, including me, was that hundreds of children living near railroad tracks had been killed and maimed by the railroad’s electric wires.

I did see something that no one else appreciated.

My father had worked for the Cleveland Electric Illuminating Company.  As a youngster I read the company’s monthly safety newsletters to employees.  My Dad was a union leader.  He held meetings in our kitchen where I heard electrical workers talk about hazards on the job.  During my college years I worked at Republic Steel, where I started at the blast furnaces, exposed to molten steel at 3,600-degrees and the heavy electrical equipment that pounded and rolled hot steel into sheets.  It only took one week at the blast furnaces for me to transfer to a lower paying and much safer job in the shipping department where I worked for three summers.  With those experiences, I knew that no one should ever get close to 12,000 volts.  That’s the power of Niagara Falls.  My gut response was “this horrendous injury never should have happened.” 

Once I saw the photo showing firemen rescuing Steven from the top of the box car, I suspected this was a provable case.  The rescue ladders were not raised to the top of the car.  These firemen knew the overhead wires were dangerous and they were not going to get close.  There was a reason.  How did they know?  What did they know?  I learned that this safety protocol had been instituted seven years earlier after a D.C. police officer had been injured attempting to rescue a child.  So began my unraveling the danger of electrified trains on the East Coast and the story of deaths and massive electrical burns that was unknown to even very successful high end D.C. personal injury law firms.  In short, they didn’t know what they didn’t know.

Electrified trains have operated on the East Coast since the early 1900’s. The electrification of the Northeast Corridor was completed with WPA money in 1934 for electric trains to carry freight and passengers from New York to Washington, D.C. 

Overhead wires known as catenaries provide power to electric motor locomotives through a pantograph, a jointed framework connecting locomotives to overhead power lines.  With 12,000 volts of direct current these locomotives can pull 100-car trains without using diesel or coal for fuel.  No coal cars, coal yards or water tenders and no fumes.

My investigation in 1978 did not have the advantage of the internet, but a search of the New York Times Index and FOIA requests to the NTSB, the Federal Railroad Administration and the Washington D.C. Redevelopment Agency delivered a short course on electrified railroads.

Conrail, a quasi-federal corporation, was created to handle freight under the Regional Rail Reorganization Act of 1973.  On April I, 1976, Conrail took over the Northeast’s railway network of seven bankrupt railroads, headed by the Penn Central, including all property, equipment and existing employees. Passenger service was delegated to a separate corporation, the National Rail Passenger Corporation, known as Amtrak.   

On May 19, 1976, Conrail contracted with Amtrak to operate the electrical system to provide power for electrically operated trains on the Eastern seaboard. 

Every employee of Conrail and Amtrak had first worked for either the Pennsylvania RR or the Penn Central, the successor to Pennsylvania and New York Central merger in 1968.  

My historical search started with the New York Times Index which uncovered an article in the Times on April 20, 1970 – a fifteen-inch story headlined “Measures Urged to Halt Electrocutions in Rail Yard.”   It reported eleven cases of severe injuries and deaths to children 9 to 14 years of age who climbed railroad equipment and contacted the overhead catenary system.  Hard to believe.  That’s what happened to Steven.  Penn-Central employees were quoted at length by the Times concerning the hazards of the catenary system, as well as a surgeon who treated children with horrendous burns.  When I called the burn doctor named in the story, I learned that the burn injuries had come to an end when the railroad erected a fence.  All it took was a fence.

There was no fencing at the parking lot next to the Conrail tracks where Steven was injured, but eight years earlier the New York train yard had been fenced.  A Times article on September 11, 1970, explained that while campaigning for the governorship of New York, former Supreme Court Justice Arthur Goldberg walked with the Bronx Burrough president directly into the unfenced Bronx train yard where 25 people reportedly had been injured and killed over three years.  That was embarrassing news for the railroad that forced the Penn-Central to fence its Bronx yard. 

What were the chances of uncovering these news stories?  I had just started my work, but excited that there was a chance of winning Steven’s case.  If fencing was the solution in New York, why not in Washington, D.C.? 

On May 14, 1971, in Washington, D.C., in a case identical to Steven’s, 14-year-old Preston Morris was killed and his rescuer, Metropolitan Police Officer Raymond Zilko, was permanently maimed.  Astoundingly, it occurred at the same location as the Throop accident.  That’s unbelievable. Identical?  That was reason why firemen did not climb to the top of the rail car to rescue Steven.  They had learned it was exceedingly dangerous.  What was uncovered next was even better.

In November of 1971, the Department of Transportation, in a Report to Congress entitled “Railroad-Highway Safety, Part I: A Comprehensive Statement of the Problem” stated:

“Catenaries are the overhead wiring system used to carry energy to electric locomotives. All of the catenary accidents in the sample data involved juveniles and all resulted in serious injury or death.  Minor catenary accidents are rare because all of them result in severe electric shock, and there is a strong probability that a fall from the top of a boxcar will follow.”

The report went on to conclude:

“While there may be a general awareness of dangers associated with catenary systems as with power lines, few people outside the railroad industry are aware that the electrical potential is so great that shocks can result without actual contacting of the wire.  The same report recommended installation of warning signs easily understood by juveniles which would indicate the potential hazard.  “For example, a catenary warning could depict a stick figure on top of a boxcar below the catenary with a lightning bolt between the wire and the child,” the report suggested. 

This was an unbelievable find and made me wonder how D.C. law firms that had missed such critical information.  How could that have happened?  Simple.  They were oblivious and were thinking like lawyers when they needed to be thinking outside of the strict legal rules.

The National Transportation Safety Board, whose offices overlook the accident location at the time, is shown in this photo.  The NTSB conducted an in-depth investigation of the 1971 death of Preston Morris and Officer Zilko’s rescue.  Think about that for a moment.  Truly unbelievable.  What were the odds to have this evidence  to make Steven’s case?

In its March 29, 1972, report, the NTSB stated:

“There are few effective warning indicators in and around the accident area and no barriers that would discourage trespassers. Compounding the hazard in the area is a parking lot on which children congregate to play. There are no positive separation barriers between the railroad and the parking lot.” The report also noted that the sole sign, a faded “No Trespassing” legend stenciled on the catenary poles in the immediate vicinity of the accident, was “inconspicuous and marginally legible, did not contain specific warnings of the types of hazards present and therefore had no hazard warning effect.”  

What are the chances of an identical event at the same location and a full NTSB report critical of the railroad failure to fence and warn more than 6 years before Steven was maimed?  I could not believe it.  Steven’s case was winnable.

What was equally surprising was that after the Morris-Zilko accident of 1971, no changes were ever made in the property by the railroad. No fences or appropriate signs were erected.

In April 1975 the U.S. Department of Transportation presented its final report on the Northeast Corridor High Speed Rail Passenger Service Improvement Project. The report contains the proposed catenary caution signs earlier suggested, which follow international signing standards. The signs designed by the Department of Transportation were never adopted by the railroad.

Thank goodness for the Freedom of Information Act opening this jackpot. What are the chances of finding a government report condemning railroad negligence?  Proving Steven’s case was getting better and better.  The public record was strong but what could be learned from railroad employees?

Conrail and its predecessors for years had taken extensive precautions when their employees were required to work close to catenary wires which were considered so dangerous that workers were not allowed to get within three feet of the wires when they were turned off.  Think about that for a second.  When off.  That’s what I learned in talking to business representatives of the Brotherhood of Railroad Trainmen.  They provided me with a copy of the Penn-Central operating rules.

Conrail adopted the Penn-Central’s Electrical Operating Rules, which prohibited any employee from getting upon, riding upon or working upon the roofs of any freight car or engine while it is under the energized catenary system. The hazard potential is so extreme that “after the catenary system has been de-energized and grounded over cars on which persons are to engage in loading and unloading material, all such persons must be warned to regard all the overhead wires as energized and that they must not allow their bodies or material of any kind to come within … three feet of the catenary system wires.” 

Wait a minute.  So dangerous that even when turned off and grounded no one was allowed within three feet?  That is hard to believe.  What is more unbelievable is that everyone working for Conrail and Amtrak, including top executives, managers and their lawyers knew this was true.  But the public was never told. The proof just in favor of Steven kept getting better and better.

In April 1978, just three months before Steven was injured, Conrail was well aware of the open, easy access to its right-of-way at the Throop accident location in Washington.

Mr. Frank DiBonaventuro, Assistant Manager for Real Estate for Conrail, wrote the Washington, D.C. Redevelopment Authority concerning the railroad’s property located between 6th and 7th Streets, S.W.: “Recent inspection of the subject property indicates you are presently subletting our property to a parking operator without the benefit of an agreement from Conrail,” stated Mr. DiBonaventuro. “‘We are aware this condition existed prior to the conveyance from Penn Central to Conrail.”  Thank you, Washington Redevelopment Authority. 

What are the chances of uncovering an admission by a defendant that it was fully aware that it’s unfenced dangerous property was being used by a parking lot next to the Air and Space Museum for years by the Penn-Central and Conrail?

Aerial photographs taken during the spring of 1978 and on-site photographs taken following the Throop accident show that Paul’s Parking operated by Paul Hinzman of Oxen HilI, Maryland, routinely parked cars, vans, campers and motorhomes adjacent to the catenary poles, within feet of Conrail’s tracks.

I gave up looking for an expert to testify for Steven when I found Mr. Fred McGrath, who operated Almac Parking, a neighbor of Hinzman’s lot. He testified that during the summer months the number of children in the area increases because of the nearby museums, and that it was not uncommon to see trains parked on the railroad tracks.  Employees of the parking lots reported that children would regularly play in the area where the trains were parked, they could be seen climbing on cars and other children had been hurt playing on boxcars at the same location.  I visited the site and took this photo.  No, I did not import the two boys in the picture.  They were out-of-state visitors, just like Steven.

On July 4, 1978, Conrail freight trains were parked on the mainline due to the closing the Potomac Yard in nearby Virginia for the Fourth of July.  Even though the electrical wires over Conrail’s tracks were not in use that day due to the closing of the Potomac Yard, the electrical power remained on.

At other locations Conrail would de-energize the catenary when a train would be parked in order to avoid injuries to children known to play in the area. That was the testimony of Charles D. Shertzer of Stewartstown, Pennsylvania, a power director and supervisor of the catenary system for Amtrak in D.C.

On the day of the accident, Conrail Police Officer Finice McCabe, noting the heavy 4^th of July traffic in downtown Washington, D.C., asked Conrail management to de-energize the catenary wires in order to avoid injuries to members of the public.  He anticipated they would be on Conrail property to watch the fireworks display on the Capitol Mall.  His request was denied because it was “regular operating procedure to keep the power on all the time” testified Joseph Gannon, Conrail tower operator. What are the chances of discovering Finice McCabe and having him testify against his employer and not covering up the fact that Conrail was on notice of the likelihood of a serious injury occurring?  God bless Finice McCabe and his prescience.  Another unbelievable fact in favor of Steven.

Throop and his playmate Robert Baum, age 13 from Lodi, climbed a standing boxcar. Baum stood atop the car and climbed down without injury. For Steven it was a different story. He climbed up next and probably never contacted the 12,000 volt overhead catenary wire.  Direct current is known to arc and Steven was standing on top of a steel box car sitting on miles of steel track.  He could not have been better grounded.

The current so severely burned Steven’s right arm and both legs they were avascular. That is the term used by burn surgeons to describe flesh that is cooked and without a blood supply.  Amputation was necessary. Dr. Carlos Silva of the Washington Medical Center Burn Unit testified that Steven’s burn injuries were among the worst he had ever seen as Chief of Services for the burn unit.  I have seen major electrical and gasoline burns in my career.  Steven’s were by far the worst.

By law, every railroad accident must be reported to the Federal Railroad Administration. In Throop’s case, the FRA had prepared a report and assigned a case number. 

Annually the agency published a compilation of train accidents in the United States. After searching ten years of FRA reports, more than 3,000 pages, no electrical accidents could be found, even though I knew there were 25 in New York, plus Preston Morris, Officer Zilko and Steven Throop’s case.  Why no mention in FRA publications?  When the FRA staff was questioned, I learned that the electrical events had not been published “because no one had ever asked for this information.”  I changed that and became the first person in the history of the FRA to ask for this data.

At my request a download of injuries and deaths caused by the catenary system was made by Stanley Ellis who maintained the FRA’s statistical database. 

FRA records showed that, during the three and one-half years before Steven’s injury, 89 similar accidents had occurred.  On average, there were more than two catastrophes a month.  Virtually all involved children climbing on standing trains parked in urban areas outside of rail yards. The average age was 13.5 years. Allinjuries resulted in death or catastrophic maiming.  Each ofthose 89 accidents had been reported to the FRA by the Penn Central, Conrail and Amtrak as required by FRA regulations.  What are the odds against uncovering such powerful and valuable evidence against the railroad?

As an incentive to prepare the FRA report quickly, Mr. Ellis and his three friends were my guests for an elegant dinner at the Lion d’ Or, the zenith of dining in D.C.  It closed in 1997.  It was a delightful evening.

At a minimum, with this record, one would expect Conrail and Amtrak to take some preventative steps. No effort was made to fence, upgrade or to otherwise maintain railroad property from a safety viewpoint since its original construction in 1934, notwithstanding the federal government’s reports and the continuing accidents.

In following up with several poor families who had lost children injured by the railroad’s power lines I learned that it was the practice of the railroad to offer these Black families an immediate settlement on the order of $100,000 to shut down the risk of the hazards becoming fodder for serious lawyers.  Grieving, poor families, and by definition unsophisticated, were intimidated and believed that they would never be able to make a case against the railroad.  That accounted for the dearth of lawsuits for deaths or injuries.

With more digging, Steven’s case got better.  There was one case that turned out to be a gold mine.

In 1979, I scoured the U.S. District Court’s file of the lawsuit filed by Officer Zilko against the Penn Central for his 1971 electrical burn injuries when he went to the rescue Preston Morris who had been electrocuted and died.  Zilko’s lawyers would not talk to me as a result of a confidentiality clause in his settlement.  It was a gag order that should be outlawed.  So, I went to the courthouse file and found a complete set of interrogatories and answers by a Penn-Central adjuster.  I also found a report of an injured boy who had suffered severe electrical burn injuries.  The file contained a photograph which showed major scarring to his cheek and neck.  He was on my list of witnesses to locate. As it turned out, I did not have to go far.

As I left the courthouse, I waited for the traffic light to change and directly next to me was a young man with major scars on his face and neck.  I introduced myself and met Jeffrey Windom Harrison, age 19, who provided me with a statement describing how he was injured climbing on a box car on June 4, 1968.   He was just seven years old. Mr. Harrison explained how an arc struck him: “You don’t need to even touch it, then WHAM.”  What are the chances of that happening?  That has to be one in ten million.

I reissued the interrogatories from the Zilko case and served Conrail.  The answers I received were signed by the same claims adjuster, now an employee of Conrail.  The same adjuster?  What are the chances of that happening? 

Conrail’s interrogatory answers claimed the corporation had nil information of other similar incidences going back 10 years, explaining that Conrail had only come into existence in 1976 and what had occurred before was unknown.  What are the odds that this would happen?  A lie that you can prove is a lie is invaluable. What a blessing.  I told you this was unfolding like a movie.  Read on.

The adjuster at his deposition admitted that he had previously been employed for years by Penn-Central, working in the same building and office and at the same desk, using the same telephone and extension.  Everything was the same, including his title and job, right down to the paint on the wall.  The only thing that had changed was the name of his employer on his paycheck. 

The adjuster’s signature on the Conrail answers to interrogatories was confirmed and the answers were verified as true and correct.  After the witness identified his signature on the verification of the Penn-Central interrogatory answers in Zilko, I took him through his answers for Conrail in Zilko and in the Throop case.  Defense counsel soon put down his pen and stopped taking notes.  It was clear to me that this lawsuit was over.  At the end of the day, I told my opponent that a settlement conference was in order.  That made sense, but first the railroad had to move for summary judgment and try to have Steven’s case dismissed based on D.C. law.  Motions for summary judgment are money makers for defense attorneys.  They are a waste of the client’s resources in my opinion, but it gives a defense lawyer the right to say that s/he has done everything to get the case dismissed and the reality is that it is going to trial and there is a risk of losing. Based on the avalanche of evidence I had collected of the railroad’s system-wide mismanagement and lying in answering discovery, the motion was denied.

Throop v. Conrail and Amtrak was filed in the United States District Court for the District of Columbia. We drew Judge Thomas A. Flannery, who in his private practice had advised Potomac Light and Power before being appointed to the bench by President Nixon.  As expected, the Conrail and Amtrak moved for summary judgment and argued that the unprotected right-of-way was not a dangerous condition under D.C. law.  The evidence in Steven’s case established with little doubt that Conrail and Amtrak engaged in system-wide negligent operation and mismanagement of the mainline from New York to D.C.  Judge Flannery did not give an inkling of his actual state of mind in denying the railroad’s motion for summary judgment other than there were provable issues of fact to be resolved.  I always suspected my argument of monumental railroad arrogance based on this unbelievable record rang a clear and resounding bell with him.  Settlement discussions soon followed.

On May 27, 1981, Judge Edward Panelli of the Santa Clara County Superior Court approved a minor’s compromise in favor of Steven, a requirement for every case involving a person under the age of 18.  Court approval in Santa Clara County was a condition of the settlement we had negotiated with Conrail.  Judge Panelli soon ascended to the Court of Appeal and then to the California Supreme Court.

Jim Boccardo reported the settlement to San Jose Mercury News reporter George Newman.  I found out from our office receptionist that I had been excluded from the press conference.  I called George, whom I knew, told him it was my case and asked him to include my name in the story.  He did.  It pays to have friends.  I also called Keith Richbourg at the Washington Post to make sure he got the story right.

On Friday, May 29, 1981, the San Jose Mercury News reported an $8.5 million settlement by Conrail for the injuries suffered by now sixteen-year-old Steven Throop, listing as Steven’s lawyers James Boccardo, William Smeed (the referring lawyer who had been unsuccessful in hiring D.C. lawyers to take Steven’s case) and Richard Alexander.  Boccardo told the Mercury reporter the recovery was the largest in the history of the county and believed to be “one of the largest anywhere on record.”  He was right on that account.  The news report also appeared in the Washington Post on the 29^th.

The next day Boccardo went ballistic when he read the Mercury article.  He charged into my office in a full four-letter rant and a threat to fire me.  Jim slammed my office door and stormed down the hall. 

Not to be out done, I responded in kind.  That was the only way to deal with Jim.  Always fight fire with fire. 
I walked into the hallway and yelled “go to hell” as a half dozen secretaries lowered their heads and returned to my office.  Before I slammed the door to my office extra hard, I told Liz Thiemann, my assistant, that I was going to do so for theatrical purposes.  She understood.  It pays to have a top hand with a cool head when you are in a fire fight. 

The law firm’s chief investigator Alton Hawkins was in Boccardo’s office when he returned. Later that day Hawk told me Jim was fuming and that he told Boccardo that firing me was not a good idea since I was the smartest lawyer in the office and had turned the Throop case, which had not interested anyone else, into an unbelievable victory, one of the best the firm had ever had.  Boccardo looked at Hawk and nodded “you’re right.”  Jim was volatile, but he also was very smart.

Just before noon Boccardo and I met in the office reception area, and he asked if I wanted to have lunch.  That was his way of apologizing.  I said “sure.”  Jim said, “you drive.”  I said, “your Rolls.”  We went to Paolo’s and had a two-vodka martini lunch.

Just another day in the Boccardo law office. 

This is Steven Throop’s story.  This article is dedicated to Steven whom I had the honor to represent.  Thank you Steven.  You are a courageous and valiant man who every day experiences the agony of a childhood mistake, but has not let it slow him down.  Today Steven lives with his daughter in Santa Cruz.  He has distinguished himself as a soulful vocalist expressing the essence of the blues he knows well with a vocal range from soaring vibrato highs to a smooth deep baritone.

Many words of thanks are in order. Testifying against your employer takes courage. Conrail patrolman Finice McCabe, who requested the catenary wires be de-energized over the 4^th of July, and Amtrak employee Charles Schertzer, who testified power had been turned off for safety purposes in other locations both did the right thing. My appreciation to Stanley Ellis of the FRA who ignored regulations and  mined the records to fully uncover this debacle.  Thank you to Mr. Justice Arthur Goldberg who walked Conrail’s Bronx Yard and shined public light on the need to fence railroad property to protect children.  Thank you to dedicated safety professionals of the Department of Transportation and the National Transportation Safety Board who in exquisite detail condemned the abject failure of Conrail and Amtrak to fence the right of way and post warning signs that conveyed the extreme hazard of its power system.

Thanks also to Judge Thomas A. Flannery who before ascending to the bench had represented a major electrical utility and knew how one operated. Without a doubt, I sensed that the story of hundreds of maimed and killed children was not going to be sealed with a dismissal from his bench.

And of course, thank you to my colleagues Elizabeth Thiemann for putting up with my early morning calls from Washington, D.C. and to my close friend and Boccardo’s chief investigator Alton “Hawk” Hawkins who shared this adventure with me. You will always be in my memory.

Thank you to James F. Boccardo for entrusting me with a recovery that was, in his words, “the largest in the history of the county” and believed to be “one of the largest anywhere on record.” 

And finally, thank you to all the lawyers who turned down Steven’s case. Without you this never would have happened and I would not have had the honor, the opportunity and the great satisfaction of uncovering this failure of the public’s trust for Steven.  This truly was a one in a million experience.