ELECTRONICALLY FILED - 2018 Feb 07 4:14 PM - LEXINGTON - COMMON PLEAS - CASE#2018CP3200477

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) ELEVENTH JUDICIAL CIRCUIT
COUNTY OF LEXINGTON ) CIVIL ACTION NO. 2018-CP-32-______
)
)
)
JAMES DAYMON, )
)
Plaintiff, )
) SUMMONS
v. )
)
CSX TRANSPORTATION, INC. )
)
Defendant. )

YOU ARE HEREBY SUMMONED and required to answer the complaint herein, a copy

of which is herewith served upon you, and to serve a copy of your answer to this complaint upon

the subscriber, at the address shown below, within thirty (30) days after service hereof, exclusive

of the day of such service, and if you fail to answer the complaint, judgment by default will be

rendered against you for the relief demanded in the complaint.

Dated: February 7, 2018

(SIGNATURE PAGE TO FOLLOW)

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Respectfully submitted:

SOLOMON LAW GROUP, LLC

s/Carl L. Solomon
Carl L. Solomon (7306)
Carl@solomonlawsc.com
Daryl L. Bush (78895)
Daryl@solomonlawsc.com
Reginald C. Hair (102727)
Reginald@solomonlawsc.com
Post Office Box 1866
Columbia, South Carolina 29202
(803) 391-3120 (office)
(803) 509-7033 (facsimile)

And

POTTROFF & KARLIN, LLC

Robert L. Pottroff, KS #10220

(Pending Admission Pro Hac Vice)
Nathan L. Karlin, KS #26392
(Pending Admission Pro Hac Vice)
320 Sunset Avenue
Manhattan, Kansas 66502-3757
Phone: 785-539-4656
Fax: 785-539-1750
Email: bob@pottroff.com
Of Counsel, applying for Pro Hac Vice Email: nathan@pottroff.com
admission to this court.

Attorneys for Plaintiffs

Columbia, South Carolina

February 7, 2018

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 ELECTRONICALLY FILED - 2018 Feb 07 4:14 PM - LEXINGTON - COMMON PLEAS - CASE#2018CP3200477
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) ELEVENTH JUDICIAL CIRCUIT
COUNTY OF LEXINGTON ) CIVIL ACTION NO. 2018-CP-32-______
)
)
)
JAMES DAYMON, )
)
Plaintiff, )
) COMPLAINT
v. ) JURY TRIAL DEMANDED
)
CSX TRANSPORTATION, INC. )
)
Defendant. )

COMPLAINT FOR DAMAGES

COMES NOW, James Daymon, by and through his attorneys, and files this Complaint

as a party-plaintiff complaining of CSX Transportation, Inc., and for such cause of action would

respectfully show the Court as follows:

I. PARTIES

Plaintiff

1. Plaintiff James Daymon is an individual and resident of the State of Florida.

Defendant

2. Defendant CSX Transportation, Inc. (hereinafter, “CSX” or “Defendant

Railroad”) is a foreign corporation duly organized and existing under the laws of Virginia with

its principal place of business in the State of Florida. CSX owns and conducts railroading

business in the State of South Carolina. CSX may be served with process through its registered

agent, CT Corporation System, 2 Office Park Court, Suite 103, Columbia, South Carolina 29223.

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3. At all times pertinent hereto, all employees of CSX were acting in their individual

capacity and also as agents of CSX, within the scope of their employment and authority, and in

the furtherance of the business of CSX. All the acts and omissions of the employees of CSX are

imputed to their employer, who is liable for such acts and omissions, as well as rendering the

individual Defendant liable in their individual capacities.

II. JURISDICTION AND VENUE

4. The train wreck giving rise to this litigation occurred in Lexington County, South

Carolina.

5. Jurisdiction is proper before this Court, as this case deals with personal injuries

from a train vs. train collision and subsequent derailment that occurred within Lexington County,

in the State of South Carolina, is the subject of South Carolina common law, and Plaintiff and

Defendant CSX are residents of the State of Florida.

6. Venue is proper in this Court pursuant to § 15-7-30 of the South Carolina Code of

Laws, as amended. The incident giving rise to this litigation occurred in Lexington County,

South Carolina.

7. Pursuant to 49 U.S.C. § 20106, this case was appropriately brought in state court

rather than federal court. Plaintiff reserves the right to amend this Complaint as needed to

further establish why this case was appropriately brought in the Court of Common Pleas,

Eleventh Judicial Circuit, Lexington County, South Carolina. All allegations herein related to

Defendant Railroad are based upon and should be interpreted to state causes of action seeking

damages under state law for personal injury or property damage, based upon one or more of the

following:

a. Defendant Railroad has failed to comply with the Federal standard of care
established by a regulations or orders issued by the Secretary of Transportation

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(with respect to railroad safety matters), or the Secretary of Homeland Security
(with respect to railroad security matters), covering the subject matter as provided
in subsection (a) of 49 U.S.C. Section 20106;

b. Defendant Railroad has failed to comply with its own plans, rules, or standards
that Defendant Railroad created pursuant to a regulation or order issued by either
of the Secretaries; or

c. Defendant Railroad has failed to comply with State laws, regulations, and orders
that are not incompatible with subsection (a)(2) of 49 U.S.C. Section 20106.

8. All allegations set forth in this Complaint are based upon information and belief.

9. All allegations set forth in each of the paragraphs in this Complaint are

incorporated by reference into each of the other sections and paragraphs contained in this

Complaint, as if fully set forth therein.

III. FACTS AND ALLEGATIONS

10. In the early hours of Sunday morning, February 4, 2018, Plaintiff was riding as a

passenger on an Amtrak train commonly referred to as the Silver Service (hereinafter the “Silver

Service Train”), which originated in New York, New York, with its destination in Miami,

Florida.

11. The Silver Service Train was traveling southbound through Cayce, Lexington

County, South Carolina.

12. The Silver Service Train was operating over a set of railroad tracks owned,

maintained, and operated by CSX.

13. The railroad signals which the Silver Service Train was operating pursuant to

were maintained and controlled by CSX. However, CSX had intentionally taken down its signal

system along this section of track prior to February 4, 2018. As a result, the railroad switches

were being manually controlled by CSX. Train operations were being manually directed by

CSX through telephone communications.

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14. Prior to the Silver Service Train’s arrival in the CSX railyard, CSX improperly

locked with a padlock the rail switch, which erroneously directed through trains, like the Silver

Service Train, into the CSX railyard onto the wrong set of tracks which were already occupied

by parked trains and railcars.

15. At approximately 2:45 a.m. on February 4, 2018, the Silver Service Train was

traveling at approximately 56 miles per hour as it was intending to pass through the CSX railyard

in Cayce, South Carolina. As a result of the improper locking of the switch by CSX, the Silver

Service Train was directed onto the wrong set of tracks which were already occupied.

16. At the same time as the Silver Service Train was directed onto the wrong set of

tracks, a CSX freight train was idling on that set of tracks. The Silver Service Train’s engineer

applied the brakes in an attempt to avoid the train wreck, but his train crashed head-on into the

idling CSX freight train (hereinafter “the train wreck”). An aerial photograph which illustrates

the catastrophic nature of this train wreck is reproduced below:

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17. The violent train wreck resulted in the death of two Amtrak employees and

serious injury to well over 100 passengers of the Silver Service Train, including Plaintiff.

IV. CAUSES OF ACTION

COUNT 1
GENERAL LIABILITY ISSUES

18. Plaintiff restates and re-alleges each and every other paragraph (and

subparagraph) of this Complaint, including those paragraphs appearing above and below, and by

this reference incorporates the same as though fully set forth herein.

19. CSX has a duty to exercise reasonable care to avoid injuring or killing members

of the public. In this case CSX breached their duty by failing to exercise reasonable care.

20. As a direct and proximate result of the Defendant’s breach of this duty, Plaintiff

suffered damages, as alleged in Section V of this Complaint. All acts or omissions of Defendant

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constitutes negligence, gross negligence, negligence per se, willful and wanton conduct,

recklessness, intentional conduct, and demonstrate a reckless and intentional disregard for the

safety of the traveling public.

COUNT 2
NEGLIGENCE, NEGLIGENCE PER SE AND GROSS NEGLIGENCE OF CSX

21. Plaintiff restates and re-alleges each and every other paragraph (and

subparagraph) of this Complaint, including those paragraphs appearing above and below, and by

this reference incorporates the same as though fully set forth herein.

22. CSX is responsible for inspecting and maintaining its rail tracks, including the

switches where this train wreck occurred to ensure it is safely and properly aligned. This

includes ensuring its switches are aligned correctly so trains are operating on the correct set of

tracks.

23. CSX is also responsible for proper dispatching of trains over its tracks.

24. The train wreck described in this Complaint is a direct and proximate result of

CSX’s negligence, gross negligence, negligence per se, reckless disregard, and/or willful and

wanton conduct in:

a) Failing to properly align railroad track switches which resulted in the Amtrak
Train operating over the incorrect set of tracks.

b) Failing to ensure the railroad switches were properly aligned prior to the Silver
Service Train’s arrival pursuant to federal regulations 49 C.F.R. Part 218 et seq.,
common law, and CSX’s own rules created pursuant to such regulations;

c) Failing to properly maintain the rail signals where this train wreck occurred;

d) Failing to warn the Silver Service Train of the improperly aligned switch where
this train wreck occurred;

e) Failing to properly maintain a dispatch system to properly direct trains, such as

the Silver Service Train, pursuant to federal regulations 49 C.F.R. Parts 220 and
241, common law, and CSX’s own rules;

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f) Failing to have adequate and reasonable safeguards in place to notify the Amtrak
Train in a timely manner that it was on the incorrect track and there was an
impending train wreck with a stopped freight train. This includes, but is not
limited to failing to timely installation of Positive Train Control;

g) Failing to halt rail operations over this track or place a speed restriction on this
section of track when CSX’s train signals were intentionally taken down and it
had improperly aligned a switch;

h) Failing to adequately instruct, train and test its employees on the safe and correct
operation of its switches;

25. In addition to currently known misconduct of CSX, Plaintiff seeks to develop

such additional facts during discovery in this litigation to further establish the extent to which

CSX has engaged in negligent, grossly negligent, willful and wanton conduct that caused the

train wreck.

26. As a direct and proximate result of CSX’s wrongful conduct as alleged herein,

Plaintiff suffered damages, as alleged in Section V of this Complaint.

COUNT 3
INTENTIONAL DISREGARD FOR PUBLIC SAFETY

27. Plaintiff restates and re-alleges each and every other paragraph (and

subparagraph) of this Complaint, including those paragraphs appearing above and below, and by

this reference incorporates the same as though fully set forth herein.

28. The conduct of CSX in all of the aforementioned allegations was willful and

wanton and demonstrated a reckless disregard for the safety of the traveling public. CSX has

intentionally elected to disregard legal duties owed to the traveling public.

29. CSX has demonstrated a pattern of conduct by failing to enforce its own policies

and procedures as well as federal and state laws providing for the safety of the public. This

pattern of conduct has condoned and ratified the conduct of its employees and agents to

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disregard duties owed to the traveling public.

30. CSX has made a deliberate decision that it will be cheaper to pay compensatory

damages for claims resulting from train wrecks and derailments than to install and maintain an

appropriate train control system.

31. “The NTSB issued its first recommendation calling for automatic train control in

1970; 20 years later in 1990, the need for a safety redundancy system on railroads still existed,

and positive train separation (which was renamed positive train control in 2001) was first placed

on the Safety Board's Most Wanted List. In March 2005, the NTSB held a symposium on PTC to

reinvigorate the dialogue between the railroad industry and state and federal agencies on issues

relevant to the implementation of PTC systems.” See https://www.ntsb.gov/news/events/Pages/2013_Train-

Control_FRM.aspx.

32. The CSX tracks were not equipped with Positive Train Control (“PTC”). In 2008,

Congress mandated the implementation of PTC as a result of the tragic 2008 train wreck in

Chatsworth, California, between a Metrolink passenger train and a Union Pacific freight train. In

that train wreck 25 people were killed and 135 others were injured. See

https://en.wikipedia.org/wiki/2008_Chatsworth_train_collision.

33. In 2015, CSX and the other major freight railroads defied the Rail Safety

Improvement Act of 2008 by threatening an industry-wide shut down if they were required to

implement Positive Train Control by the December 31, 2015, deadline. Congress and President

Obama relented and moved the deadline to December 31, 2018. Prior to this train wreck

involving the Silver Service Train in Lexington County, South Carolina, CSX had already

announced that “they won't make the 2018 deadline for full implementation of positive train

control.” See http://www.ttnews.com/articles/norfolk-southern-csx-say-they-wont-make-2018-

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deadline-train-control-safety-system.

34. This train wreck comes on the heels of CSX announcing 2017 fourth-quarter

profits of $4.14 billion. It is totally unjustifiable for CSX to take annual profits in the billions of

dollars and simultaneously refuse to fund Positive Train Control to protect the lives of people

who ride on its tracks.

35. CSX’s conduct as set forth herein constitutes malice.

36. As a direct and proximate result of CSX’s complete and intentional disregard for

the safety of the traveling public as alleged herein, Plaintiff suffered damages as alleged in

Section V of this Complaint.

WHEREFORE, Plaintiff prays for judgment on Count 3, and each and every other Count

of this Complaint, in his favor and against Defendant, in a fair and reasonable sum for actual

damages in excess of $75,000.00, punitive damages, costs incurred and expended herein, and

attorneys’ fees, together with prejudgment and post-judgment interest, and other relief as the

Court deems just and proper.

V. PLAINTIFF’S DAMAGES

37. Plaintiff restates each and every other paragraph (and subparagraph) of this

Complaint, including those paragraphs appearing above and below, and by this reference

incorporates the same as though fully set forth herein.

38. That as a direct and proximate result of the aforesaid acts and omissions of CSX,

Plaintiff was seriously injured as a result of blunt force trauma.

39. That as a direct and proximate result of the Defendant’s negligence, gross

negligence, negligence per se, recklessness, willful, wanton and intentional wrongful acts, as set

forth hereinabove, Plaintiff suffered permanent and long-lasting injuries both economic and non-

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economic, including, but not limited to the following:

a) The reasonable, usual and customary cost of the past, present, and future medical
care rendered to Plaintiff;

b) The increased living and medical expenses caused by the injuries suffered as a
result of the train wreck, including, but not limited to, the amount of increased
expenses as determined by a life care planner, physician or economist;

c) Lost wages and future earnings capacity;

d) Past, present, and future physical and mental pain and suffering;

e) Past, present, and future loss of enjoyment of life;

f) Past, present, and future loss of function of the body and mind;

g) Past, present, and future disability and psychological injuries;

h) Past, present, and future pain and suffering, disfigurement, inconvenience and loss
of time;

i) Property damage; and

j) In other respects as may be revealed through discovery or at trial.

40. The negligence, gross negligence, negligence per se, willful and wanton conduct,

recklessness, intentional conduct, and reckless and intentional disregard for the safety of the

traveling public of Defendant, as described hereinabove, was a direct and proximate cause of

Plaintiff’s injuries and damages hereinabove alleged, and Plaintiff has been damaged as set forth

above in an amount in excess of $75,000.00.

VI. DEMAND FOR JURY TRIAL AND RIGHT TO AMEND

41. Plaintiff demands a trial by jury on all causes of action.

42. Plaintiff specifically reserves the right to amend this Complaint.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against the Defendant as follows:

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1. Actual damages in an amount as determined by a jury;

2. Punitive damages in an amount as determined by a jury;

3. Costs and attorney’s fees; and

4. Other and further relief as the court deems just and proper.

[Signature Page Attached]

Respectfully submitted:

SOLOMON LAW GROUP, LLC

s/ Carl L. Solomon
Carl L. Solomon (7306)
Carl@solomonlawsc.com
Daryl L. Bush (78895)
Daryl@solomonlawsc.com
Reginald C. Hair (102727)
Reginald@solomonlawsc.com
Post Office Box 1866
Columbia, South Carolina 29202
(803) 391-3120 (office)
(803) 509-7033 (facsimile)

And

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POTTROFF & KARLIN, LLC
Robert L. Pottroff, KS #10220
(Pending Admission Pro Hac Vice)
Nathan L. Karlin, KS #26392
(Pending Admission Pro Hac Vice)
320 Sunset Avenue
Manhattan, Kansas 66502-3757
Phone: 785-539-4656
Fax: 785-539-1750
Email: bob@pottroff.com
Of Counsel, applying for Pro Hac Vice Email: nathan@pottroff.com
admission to this court.

Attorneys for Plaintiffs

Columbia, South Carolina

February 7, 2018

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