BNSF Challenges Lawsuit From Engineer Who Ran For His Life From Exploding Oil "Bomb Train"

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Burlington Northern Santa Fe (BNSF) has responded defensively to the oil-by-rail lawsuit filed by former BNSF locomotive engineer Bryan Thompson, a caseย recently reported on by DeSmogBlog.

BNSF โ€” the top rail carrier of oil obtained via hydraulic fracturing (โ€œfrackingโ€) in North Dakota’s Bakken Shaleย basin โ€”ย deniedย all charges. The company also argued that some federal laws protect the company from liability for injuries allegedly suffered byย Thompson.ย 

Theย ย Answer to the Complaintย signals the likelihood of a protracted legal battle ahead.ย Lee A. Miller, a Minneapolis, Minnesota-based attorney representing BNSF against Thompson, filed the company’s responseย in Cass County, Northย Dakota.ย 

Miller argued that the damages allegedly suffered by Thompson โ€” which include Post-Traumatic Stress Disorder (PTSD) from living through and running away from the December 2013ย Casselton, North Dakota oil train explosionย โ€” wereย โ€œcaused or contributed to by Plaintiff’s own contributory or soleย fault.โ€

He also argued that the explosion occurred due to โ€œunknown causes for which BNSF is not responsibleโ€ and โ€œare the result of acts or omissions of persons, entities, or corporations other than BNSFโ€ฆover whomโ€ they have โ€œno control or right to control at the time of the allegedย incident.โ€

BNSF Responds to Former Engineer Lawsuit
Image Credit: State of North Dakota District Court; East Central Judicialย District

โ€œPreclusionโ€

Perhaps the most interesting argument โ€” or troubling, depending on your perspective โ€” made by BNSF is that other federal laws preclude the company from liability under theย Federal Employers’ Liability Actย (FELA), including the Federal Rail Safety Act. The legal challenge under FELA is the first of its kind forย oil-by-rail.

Image Credit: State of North Dakota District Court; East Central Judicialย District

โ€œThis little sleeper is the biggest danger to the public in the event of a derailment and explosion in a town which kills or injures town folk,โ€ Thomas Flaskamp, the attorney representing Thompson in this case, toldย DeSmogBlog.

โ€œEssentially, the argument under ‘preclusion’ is that a federal law such as the FELA which governs Thompson’s recovery is precluded by the railroads’ compliance with another federal law. Similarly, a claim brought under state tort laws for injury and death of state residents could be ‘precluded’ by federal laws which cover the same subjectย matter.โ€

If that defense by BNSF ends up as the game-winning clincher, it would speak volumes about how laws and policies are structured in the U.S. to favor the powerful rail industry over its workers and everydayย people.

Miller did not respond to a request for comment sent via email by DeSmogBlog. Amy McBeth, director of public affairs for BNSF, said โ€œYou will find our comments in our courtย filings.โ€

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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