“Countless people” have crashed on the railroad tracks while biking on the streets just west of the abrupt terminus of the Burke-Gilman Trail in Ballard, and now eight of them have joined together in a lawsuit against both the Ballard Terminal Railroad and the City of Seattle.
The suit (PDF), filed by Washington Bike Law (full disclosure: Washington Bike Law advertises on Seattle Bike Blog), focuses on a high-crash stretch of NW 45th Street and Shilshole Ave NW under and near the Ballard Bridge. The plaintiff’s complaint refers to this area as “the Crash Zone,” noting the long-documented history of crashes there.
The suit alleges that the city and the railroad failed to maintain the street “in a condition that is reasonably safe for ordinary travel” and are therefore liable for damages from those injured while biking there. Each of the plaintiffs crashed in 2018, 2019 or 2020.
“Each of the Plaintiffs crashed while lawfully riding a bicycle in the Crash Zone and attempting to cross the Skewed Tracks,” the complaint states. “Each of the Plaintiffs crashed when their bicycle tires interacted with a track rail and/or flangeway gap in a manner which caused the bicycle and rider to lose dynamic stability. Upon crashing on the tracks and/or pavement, each Plaintiff suffered serious bodily injury and other damages.”
The problem is well-known, and it is a major reason why the city has pursued completion of the Burke-Gilman Trail in this area for decades. However, a group of appellants, including Ballard Terminal Railroad, have successfully delayed completion of the trail through legal action, and court battles are still ongoing. In the meantime, the street has been open and operating despite the persistent railroad track hazard. The city has made several attempts over the years to mitigate the hazard, even turning the street into a one-way street, dedicating the other lane to biking. But the lawsuit claims these design changes were not sufficient to make the street safe.
Below is the Washington Bike Law press release (PDF) announcing the lawsuit:
Washington Bike Law filed suit today on behalf of eight clients who are just a few of the countless people injured in a section of the Missing Link of the Burke-Gilman Trail the firm calls the “Crash Zone.”
The lawsuit names the Ballard Terminal Railroad (BTR) and the City of Seattle as defendants. Both have known of the danger for bicyclists crossing the railroad tracks in the Crash Zone for years, and both have had the duty to correct it but, despite their ability to make it safer, they failed to do so.
Washington Bike Law says it supports the efforts by the City and others to complete the Missing Link, but points out that the Crash Zone is not part of the Burke-Gilman Trail and that the City still has a duty to design and maintain streets that are reasonably safe for ordinary travel by bicycle, particularly in this important but infamously dangerous area for people riding bikes.
The City has an agreement with BTR that requires it to have insurance to compensate people injured as a result of the negligence of BTR or the City in the Crash Zone. Unfortunately, because of this agreement,Washington Bike Law believes that the City has less motivation to make safety improvements, since it has repeatedly taken the position that it is not financially responsible for the harm caused to so many people in the Crash Zone.
Additionally, BTR and other Ballard businesses have, for many years, used the legal system to prevent the completion of the Burke-Gilman Trail in the Missing Link. Washington Bike Law is no longer willing to wait for the Trail to provide a reasonably safe way to travel by bicycle through this important transportation corridor.
Typically, personal injury lawsuits can only provide money to make up for the harm caused by a defendant’s negligence. The danger to bicyclists in the Crash Zone, however, is so severe that Washington Bike Law argues it is a nuisance such that the Court has the power to do more than just award money; it has the power to order these defendants to take specific steps to make the area reasonably safe.
Washington Bike Law hopes that the defendants will respond by taking simple and inexpensive steps like providing more effective channelization and using a flange gap filler where bike tires keep getting caught in the tracks; and, if they do not, it argues that the Court should order them to take action to prevent additional serious injuries or deaths.
The attached Complaint filed in this matter is much longer than a typical Complaint because the complex history of the Missing Link and the many missed opportunities to fix the Crash Zone deserve a full telling.
Read the full brief, and remember that it’s just a small sampling of many hundreds of times the city and railroad have been informed of the hazards yet failed to correct them.
According to the brief, it appears the railroad has agreed to indemnify the city for any injuries or damages related to operation of the railroad on city streets, so if the suit prevails against either the city or the railroad, it could be a very expensive lesson for the railroad. Unfortunate it’s come to that rather than simply fixing the problems…
Of course, if they would stop fighting finishing the missing link, all this would be mute…
Does the railroad haul anything that really needs rails to begin with? I have a hard time believing that a small spur like that, disconnected from other tracks would be more economical to operate than just using regular old trucks that drive on the street.
I believe what’s really going on is that the company that owns the rails uses them only to run a bare minimum number of empty token trains so that they can legally claim that the railroad is active and prevent the city from ripping out the tracks. Perhaps their goal is to eventually sell the tracks to the city to tear out, but they want to force the city into paying as much money as possible when that happens.
Oh, these tracks are hardly used at all and you are correct that they are only for show. My take is that the companies keep the railroad around to make building the bike trail more difficult.
Is not the BTR connected with the BNSFRR mainline at about NW 70th Street? Does it serve Salmon Bay Sand and Gravel? I do not know the rate of use. I hear its whistle while biking. I have seen trains in motion.
The brief is extra long because the lawyers want to rely on words, internal emails, and photos to help prove their case. Sure that’ll help. BUT they’re using the same recipe that got their other cases dismissed. Remember SLUT? These are the very same attorneys that f*cked things up for bicyclists back when we had similar problems with the S. Lake Union Trolley line. The judge dismissed their clients’ cases because the lawyers cut corners. Why does no one ever mention that, when these “bike lawyers” thump their chests.
These “bike lawyers” ride bikes and talk a big game. Ask them about Anderton how many cases he’s actually taken to trial and won. Crickets. I know because I asked them a ton of questions when I got injured on my bike a few years ago. The real lawyers are the ones who advocated for bicyclists by doing the hard work and fighting behind the scenes.
Look for the ones who don’t talk much. Catherine Fleming was the attorney for the dude who got run over by a bus when his bike hit the tracks up by Boren and Jackson. She’s knocking it out for other bicyclists but she’s too busy to brag. If she got involved with this, we’d all be in better shape.
Thank you Dave. However, please remember and respect the attorneys involved. I know them and think that they’re super diligent and dedicated. Moreover, the other cases you mentioned occurred about 10 years ago. That is a long time. Those attorneys are genuine advocates for bicyclists. While their history with the SLUT cases didn’t help back then, that was at least 10 years ago. Please keep this in mind. We’re all better off when more of us are fighting for the right causes. Best wishes to you and yours!
Mr. Wilkinson is correct that, beginning in 2008, Washington Bike Law represented multiple people who crashed on the South Lake Union Trolly (SLUT) tracks and that the case was dismissed on summary judgment. I respectfully disagree with his assessment of our handling of that case, though I’ll be the first to admit that we have learned from it.
In that case public disclosures showed that the City initially planned to simply ban bikes on streets with streetcar tracks so as not to have to design streets that were reasonably safe for such vehicles. We took the deposition of SDOT’s then-director Grace Crunican and asked her about how and when the decision not to exclude bicyclists from the route was made.
She testified, “It’s news to me that, in the beginning, as you say, it was designed to—I don’t know if you used the word exclude or prohibit bicycles. I can’t think of a segment of road in the city where we prohibit bicycles, except on the interstate, and even then some avid bikers disregard that advice from the State and bike there.”
We spent years building that case and, not withstanding Director Crunican’s apparent ignorance, we had gathered so much compelling evidence that the City knew about the danger it created that we felt we did not need to hire an expert witness to testify to what we could prove through the City’s own documents and witnesses.
For instance, in 2005 Peter Lagerwey, who was then “the primary bike guy for the City” wrote in the 60% Streetcar Design Plans Comments that the NE corners of Terry Avenue and Valley Street and Fairview Avenue and Valley Street “may be fatally flawed for bicyclists.”
We took Mr. Lagerwey’s deposition where he testified that he did not see changes made prior to construction to address the issues he raised. In using the term fatally flawed, Mr. Lagerwey testified “that a cyclist could find themselves in a situation where it may not be possible to avoid getting their wheel caught in the track.” Mr. Lagerwey testified that after reviewing the final design plans, he continued to feel that falls by bicyclists at Valley and Fairview were highly foreseeable.
The City’s official speaking agent for this aspect of the lawsuit, Michael Morris-Lent, prepared a memo in 2006 in which he similarly wrote that because track crossings in certain areas were less than perpendicular, falls by cyclists were “highly foreseeable. ”
When asked in his deposition about Mr. Lagerwey’s “fatally flawed” phrase, Mr. Morris-Lent stated: “I read that fatally flawed in this location means that it’s not a place that a cyclist even I would say –well, could reasonably be expected to cross tracks if they were warned about them. The concern being, as it’s described here, how a cyclist could approach the tracks and how a cyclist could reasonably maneuver to cross the tracks at something near a 90-degree angle and, at the same time, operate with other traffic around.”
Without getting into all of the legal complexities here, we believed that the trial court improperly granted summary judgment to the City. We filed a motion for reconsideration that was not granted. We discussed appealing the dismissal with our clients, but the City had been fighting with them for years and, if we won the appeal, their cases would have been remanded to the trial court to be tried separately, raising the costs and the risks to them. Our clients in that case chose not to appeal, but the City did make safety improvements that we believe were directly attributable to our litigation.
Finally, while we have found many “smoking guns” in our latest Missing Link lawsuit, we did learn from the SLUT case, so despite this evidence, we have also retained multiple experts to add to the evidence here.
Regarding Mr. Wilkinson’s praise of attorney Catherine Fleming, we do agree with him on that and with her when she said, “We’re all better off when more of us are fighting for the right causes.”
The rail line is used weekly. The city actually owns the railroad right of way but not the railroad. It (the railroad) is entirely funded by Salmon Bay Sand and Gravel. It does in fact connect to the main line behind Un Bien on Seaview. The rail cars save between 20 and 60 semi truck trips per week.
While the crossing is somewhat dangerous it’s interesting that ‘countless’ and ‘a few’ is used to describe the number 8. There have likely been many more accidents at this particular crossing but the signs and striping make it very clear to be careful.
I’ve crashed there too, when a puddle and the darkness of nights obscured the tracks from my view. It’s super dangerous bc it’s so random and unexpected. I live in Zürich now, where there are tram tracks all over the roads and you just need to learn how to bike across them so I’m not fundamentally opposed to rail tracks embedded in paths that bikes use as well, but the lack of signage, drainage and lighting there is something that could be easily fixed and would dramatically improve the situation.
My husband just wiped out there today. Bad concussion, thank god he was wearing a helmet. At the ER waiting for a CAT scan to be safe.