Lucero v. Amtrak

1 FIRST AMENDED COMPLAINT FOR DAMAGES

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Richard E. Donahoo, SBN 186957 Sarah Kokonas, SBN 262875 DONAHOO & ASSOCIATES 440 West First Street, Suite 101 Tustin, CA 92780 Telephone: (714) 953-1010 Facsimile: (714) 953-1777 [email protected] [email protected]

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

KATHLEEN LUCERO, on her own behalf and as successor in interest to FRED J. LUCERO; minors M.M.L., R.T.L. and K.A.L., by and through KATHLEEN LUCERO, SARRAH LISA LUCERO, ERIK LUCERO, VICTOR LUCERO and PAUL LUCERO, Plaintiffs, vs. NATIONAL PASSENGER RAILROAD CORPORATION, t/d/b/a AMTRAK; and DOES 1-10, inclusive Defendants.

Case No.: CV11-5267-VBF(SPx) FIRST AMENDED COMPLAINT FOR DAMAGES DEMAND FOR JURY TRIAL

1. GROSS RECKLESSNESS; 2. RESPONDEAT

SUPERIOR; 3. CONVERSION; 4. TRESPASS TO CHATTEL 5. INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS;

6. SURVIVAL

Plaintiff, Kathleen Lucero, individually and as successor in interest to Fred

J. Lucero (“Decedent” or “Mr. Lucero”), and on behalf of her minor children


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M.M.L., R.T.L. and K.A.L.; and Plaintiffs Sarrah Lisa Lucero, Erik Lucero,

Victor Lucero and Paul Lucero, complain and allege as follows:1

PARTIES

1. Plaintiff Kathleen Lucero is a resident of the County of San

Bernardino, residing in Barstow, California 92311.

2. Mrs. Lucero is the widow of the Decedent, Fred J. Lucero

(hereinafter “Mr. Lucero”). Mr. Lucero died on June 30, 2009 as a result of the

tortious conduct of the Defendants as more fully set forth hereinafter.

3. Mrs. Lucero brings this action individually, in her capacity as the

successor of interest of Fred J. Lucero, deceased, and on behalf of Mr. Lucero’s

three minor children.

4. In addition to his widow and three minor children, Mr. Lucero is

survived by four adult children, Plaintiffs Sarrah Lisa Lucero, Erik Lucero,

Victor Lucero and Paul Lucero. Mr. Lucero’s childrens’ names, ages and

addresses are as follows:

a. His daughter, M.M.L., a minor, residing in Barstow, California;

b. His daughter, R.T.L, a minor, residing in Barstow, California; and

c. His daughter, K.A.L., a minor, residing in Barstow, California ;

d. His daughter, Sarrah Lisa Lucero, residing in Hesperia, California;

e. His son, Erik Lucero, residing in Topeka, Kansas;

f. His son, Victor Lucero, residing in Topeka, Kansas; and

g. His son, Paul Lucero, residing in Topeka, Kansas.

5. Defendant, National Railroad Passenger Corporation t/d/b/a Amtrak

(“Amtrak”) is a federally chartered corporation, 100% of the preferred stock of

1 Plaintiff minor children are referred to herein by their initials, per Local Rule 79-5.4.


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which is owned by the United States government. Amtrak was incorporated

under an Act of Congress pursuant to 45 U.S.C. § 501 et seq.

6. At all times material to the events set forth hereinafter, Amtrak

Conductor Buckner and Amtrak Coach Attendant Terry Larson were employees

of Amtrak and were acting in the course and scope of their employment as such.

JURISDICTION AND VENUE

7. This civil action involves a federal question over which this Court

has original jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1349. The

federal courts have original jurisdiction in actions involving Amtrak because

such actions arise under federal law and, therefore, invoke federal question

jurisdiction. 49 U.S.C. §24301 et seq.

8. Venue is proper in this district as decedent Fred J. Lucero resided in

this district with Plaintiff and successor in interest Kathleen Lucero and their

minor children, M.M.L., R.T.L. and K.A.L.. Mr. Lucero embarked on his travel

from this district and was in transit home to this district when he suffered his

physical injuries and ultimate death as further described herein.

FACTS

9. Mr. Lucero had a history of experiencing seizures. On June 23,

2009, while visiting his adult children living in Topeka, Kansas, Mr. Lucero

experienced a tonic-clonic seizure.

10. Mr. Lucero’s seizure was followed by a postictal period during

which Mr. Lucero evidence an altered state of awareness, confusion and

delirium.

11. On Wednesday, June 24, 2009, Mr. Lucero’s sons took him to the

emergency room of Stormont-Vail Regional Health Center, 1500 S.W. 10th

Avenue, Topeka, Kansas 66604 for evaluation and treatment.


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12. After medications appeared to have caused Mr. Lucero’s symptoms

to abate, Mr. Lucero was discharged on June 26, 2009.

13. The following day, June 27, 2009, Mr. Lucero’s family noted that he

was behaving unusual, so they took him back to Stormont-Vail for evaluation

and Mr. Lucero was admitted into the hospital.

14. On June 27, 2009 Mr. Lucero was diagnosed as stable from a

seizure standpoint. On June 28, 2009 at approximately 12:15 pm Mr. Lucero was

discharged from the hospital and was advised to follow up with his primary

doctor in California as needed.

15. On June 30, 2009, at approximately 1:05 a.m., Mr. Lucero, boarded

an Amtrak train in Topeka, Kansas intending to take the train home to Barstow,

California.

16. Mr. Lucero’s son, Erik Lucero, assisted Mr. Lucero onto the train.

17. Amtrak Conductor Lewis Buckner and Coach Attendant Terry

Larson were present when Mr. Lucero boarded the train and, on information and

belief, both Conductor Buckner and Coach Attendant Larson personally observed

Mr. Lucero.

18. Both Conductor Buckner and Coach Attendant Larson were aware

that Mr. Lucero was disoriented and unsteady on his feet.

19. Coach Attendant Larson assisted Mr. Lucero’s son, Erik, in

boarding Mr. Lucero onto the train and helped direct Mr. Lucero to seats 83 and

84 located on the lower level of the 0311 coach car.

20. Coach Attendant Larson’s assistance was necessary to direct Mr.

Lucero into his seat because Mr. Lucero was obviously disoriented and unsteady

on his feet.


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21. Erik Lucero was asked whether his father was intoxicated, to which

he responded in the negative and advised that his father was unsteady due to a

health condition.

22. At no time during the boarding process did either Conduct Lewis or

Coach Attendant Larson advise Erik Lucero that they would not keep an eye on

Mr. Lucero nor did they inform Erik Lucero that Mr. Lucero should not ride the

train unless someone was going to be riding with him in order to look out for

him.

23. At no time during the boarding process did either Conductor Lewis

or Coach Attendant Larson advise Erik Lucero that scores of elderly and

confused passengers had fallen off of moving Amtrak trains to their deaths in the

past forty years despite the fact, on information and belief, that occurrences of

confused and disoriented passengers exiting moving trains and falling to their

deaths or to serious injury happened with such frequency that it was an almost

routine occurrence.

24. As more fully explained hereinafter, Amtrak has a forty-year history

of having confused, elderly and/or disorientated passengers exit moving trains to

their deaths due to doors that are unsafe and a staff that is deliberately untrained

by Amtrak. Amtrak’s management and teams of lawyers are well aware of the

fact that scores of such passengers have fallen out of Amtrak’s trains to their

deaths, but Amtrak’s management and lawyers hide this fact from both the public

and, more importantly, its employees who work on the front-lines riding the rails

and who could protect such passengers from harm if only they were given some

training and instruction as to what they should do.

25. Had Erik Lucero known that confused and disoriented passengers

have a propensity and/or the ability to open the doors of moving Amtrak trains

and fall to their deaths or to serious bodily injury, Erik Lucero would have never


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left his father in the “care” of Amtrak and its employees as he did on June 30,

2010.

26. At no time did Coach Attendant Larson advise Erik Lucero that he

(i.e. Larson) in fact was intending on going to sleep soon after the train pulled out

of Topeka.

27. Erik Lucero reasonably believed that the Amtrak employees

working on the train would ensure the safe passage of his father from Topeka,

Kansas to Barstow, California and he further reasonably believed that Amtrak

and its employees would not abandon and ignore his father and allow his father

in his confused and disoriented state, to wander around the train, open an exit

door, and fall to his death.

28. After the train pulled out of Topeka, and despite knowing that he

had an obviously disoriented passenger onboard the train, Coach Attendant

Larson went to bed.

29. On information and belief, Mr. Lucero, in a confused and

disoriented state, got up from his seat and exited the seating area of the coach he

was traveling in.

30. Conductor Buckner came through the coach and noticed that Mr.

Lucero’s seat was empty. Conductor Buckner presumed that Mr. Lucero was in

the lounge or the restroom.

31. Conductor Buckner made no effort to locate Mr. Lucero, even

though he knew that Mr. Lucero was disoriented and unsteady on his feet.

32. Sometime between 2:00 am and 3:00 a.m. on June 30, 2009, as the

train passed through Florence, Kansas, Mr. Lucero, in a confused and disoriented

state, mistakenly opened an exit door and fell to his death as the train was

traveling approximately 79 mph.


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33. Mr. Lucero’s body traveled approximately 136 feet after initially

striking the ground.

34. Mr. Lucero died as a result of the traumatic injuries he sustained.

35. Despite the fact that the crew is required to “walk the train” and

ensure passenger safety, Amtrak’s crew failed to realize that Mr. Lucero was not

on the train for several hours.

36. In fact, it was not until approximately 8:40 a.m. on June 30, 2010,

approximately six hours after Mr. Lucero would have exited the train, that a

passing freight train spotted Mr. Lucero’s body on the tracks and notified

Amtrak.

37. Amtrak Police thereafter performed what it calls an “investigation”

into what led to the death of Mr. Lucero. Amtrak’s police department’s

“investigation” into Mr. Lucero’s death, as well as into the deaths of scores of

other passengers who have fallen off of trains while confused and disoriented is

not objective. Rather, the Amtrak Police routinely perform investigations into

such matters that are incomplete, biased, and aimed at insulating Amtrak and its

employees from liability.

38. The investigation report prepared by Amtrak Police relating to Mr.

Lucero’s death noted, “It’s believed that Lucero had possibly become disoriented

while onboard the train and attempted to enter a coach car door or a bathroom

door, but instead accidently access the exterior door, and fell out of the train as it

moved at 79MPH.”

39. Upon finding Mr. Lucero’s body, Amtrak took possession of Mr.

Lucero’s personal belongings, including a small black soft sided bag with

clothing inside and pictures, Cell Phone, Credit Card and Identification Cards.

40. Despite repeated requests by Mrs. Lucero and/or her counsel,

Amtrak has refused to return Mr. Lucero’s personal effects.


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FIRST CLAIM FOR RELIEF

Gross and Wanton Recklessness

Against Amtrak and Does 1 to 10

41. Plaintiffs incorporate all preceding paragraphs as though set forth

herein.

42. A common carrier, such as Amtrak, owes all of its passengers a duty

of care. A common carrier of persons for hire must use the utmost care and

diligence for their safe carriage and must exercise a reasonable degree of skill to

provide everything necessary for that purpose.

43. The care required of a common carrier is the highest that reasonably

can be exercised consistent with the mode of transportation used and the practical

operation of its business as a carrier. This requirement must be measured in the

light of the best precautions which, at the time of the accident, were in common,

practical use in the same business and had been proven to be effective.

44. For nearly four decades, Amtrak has had direct and certain

knowledge that passengers who are elderly, confused, disoriented and/or

mentally impaired have had a propensity to exit moving trains through the exit

doors located on the Amtrak trains.

45. Such passengers routinely die upon impact with the ground. A few

passengers have survived, and those who have survived have sustained severe

and tragic injuries.

46. Amtrak has known for nearly forty years that the doors on its trains

are frequently, and easily, opened while the trains are in motion. The doors are

opened either by mentally confused and/or disoriented passengers, or by Amtrak

employees and/or passengers who like to smoke cigarettes or get “fresh air”

while traveling on the train.


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47. The only securing device located on the doors of the Amtrak

passenger coach is something called a “dog-latch”. This device is easily un-

latched with the flip of a finger.

48. Moreover, it is very often the case that the dog-latches on the doors

are not “latched” as they should be, or that they are left un-latched by passengers

and/or Amtrak employees who open doors in order to smoke cigarettes or get

“fresh air”.

49. When the door of an Amtrak train is not secured with a dog latch,

the door can jostle open due to the movement of the train. Amtrak has known

this fact for years.

50. Indeed, on information and belief, Amtrak installed the “dog

latches” on the doors of its passenger coaches for the purpose of preventing the

doors from being jostled open.

51. Amtrak has known for years that the simple operation of the dog

latch allows even mentally impaired people the ability to easily open the doors

while the train is in motion.

52. Amtrak has known for years that its employees and its passengers

very often open train doors in order to smoke or to get fresh air.

53. Amtrak has known for years that the doors on the passenger coaches

can and do “pop” open due to the movement of the train if the “dog latch” is not

engaged.

54. Other than the dog latch, there is no other type of locking

mechanism or safety device utilized by Amtrak to secure the doors while the

trains are moving to prevent the accidental opening of the exit doors.

55. Despite having had notice of the fact that mentally impaired,

confused and/or disoriented passengers have a propensity to open doors and walk

off of moving trains, Amtrak, in complete, total, and wholesale reckless disregard


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to the risk of severe injury or death to which such passengers are exposed, has

done absolutely nothing to either (1) secure the doors on the train so that they

cannot be opened while the train is traveling at speed or (2) train its employees to

protect and secure and/or remove such passengers from the train or (3) both.

56. A listing of passengers who have suffered death or serious bodily

injury as a result of falling out of a moving train, thereby giving Amtrak notice of

the unreasonably dangerous condition of the doors on its trains, or notice that

elderly, mentally impaired, confused and/or disoriented passengers have a

propensity to exit moving trains, or notice of both, is as follows:

a. On or about September 2, 1972, Amtrak passenger Ralph Rhodes,

age 80, exited a moving train to his death near Ipsis, California;

b. On or about January 20, 1977, Amtrak passenger Cleotilde Amaya

exited a moving train to her death near Vail, Arizona;

c. On or about July 20, 1977, Amtrak passenger Estelle M. Hartman

exited a moving train to her death near Brooks, Iowa. Investigation

into Ms. Hartman’s death revealed that she was an elderly person

with a balance problem;

d. On or about September 17, 1977, Amtrak passenger George Jones

exited a moving train to his death while traveling from Washinton,

D.C. to Camden, South Carolina. Amtrak’s investigation revealed

that Mr. Jones was yelling and screaming incoherently and acting

irrationally;

e. On or about May 14, 1978, Amtrak passenger Jesse Mazyck exited

a moving train near Wilson, North Carolina. Amtrak’s investigation

revealed that Mr. Mazyck had an altered state of mind due to alcohol

prior to exiting the train;


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f. In June of 1981, Amtrak passenger Margareta Alfred exited a

moving train near Auburn, California. Investigation into Ms.

Alfred’s death revealed that she had an altered state of mind due to

being intoxicated prior to exiting the train;

g. On or about September 27, 1981, Amtrak passenger James J.

Morrow exited a moving train while traveling from Tampa, Florida

to Columbia, South Carolina. Investigation into Mr. Morrow’s

death revealed that Mr. Morrow was either “mentally upset”,

“heavily intoxicated” or both while on the train;

h. On or about October 16, 1982, Amtrak passenger Hubert Newkirk,

age 68, exited a moving train near Cochise County, Arizona.

Investigation revealed that he was forgetful, had a tendency to

wander and had sustained an injury to his head prior to exiting the

train;

i. On or about February 26, 1984, Amtrak passenger Robert Edward

Berry exited a moving train near Oxford, Nebraska. The

investigation into Mr. Berry’s death revealed that Mr. Berry had

slurred speech, appeared depressed, and may have been disoriented

due to medications he was taking;

j. On or about March 12, 1984, Amtrak passenger Clarence E.

Moore, age 84, exited a moving train near Rose Creek, Nevada.

Amtrak’s investigation revealed that Mr. Moore was confused and

disoriented while on the train;

k. On or about April 15, 1984, Amtrak passenger David Adams exited

a moving train near Aetna or Neoga, Illinois. Amtrak’s

investigation revealed that an Amtrak employee thought Mr. Adams

was “spacey” and had slurred speech;


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l. On or about July 14, 1985, Amtrak passenger Hattie Wright

Datcher exited a moving train near Lemon Springs, North Carolina;

m. On or about January 1, 1986, Amtrak passenger Denise M. Raglund

exited a moving train near Wilminton, Delaware. Amtrak’s

investigation revealed that prior to exiting the train, Amtrak’s crew

was aware that Ms. Raglund was extremely confused, pacing the

train, and kicking and pushing a door and that she had already once

tried to open the door of the moving train before she was ultimately

successful in opening the door and falling to her death;

n. On June 8, 1987, Amtrak passenger Kenneth Workman exited a

moving train near Cambridge, Nebraska. Amtrak learned in the

investigation that followed that Mr. Workman was disoriented while

aboard the train;

o. On September 2, 1987, Amtrak passenger William Cudney exited a

moving train;

p. On May 16, 1988, Amtrak passenger Helen Hampton, age 73,

exited a moving train near Fargo, North Dakota. Investigation

revealed that Mrs. Hampton was suffering from the onset of senility

or Alzheimer’s;

q. On October 23, 1989, Amtrak passenger Delbert Jackson, age 82,

exited a moving train near Columbiania, Ohio. Prior to exiting the

train, Delbert Jackson was observed to be “dazed”, “confused” and

“incoherent” as he wandered aimlessly around the train;

r. On October 28, 1989, two Amtrak passengers, Arthur and Dorthea

Kohfeld, both exited a moving train to their deaths in Middlepoint,

Ohio. Numerous Amtrak employees were aware of the fact that

both Mr. and Mrs. Kohfeld were confused and disoriented, but they


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did nothing to protect them. The coroner concluded in his report,

“…it is my judgment and belief that Arthur and Dorothea Kohfeld

suffered accidental deaths from walking off a moving passenger

train while confused and disoriented”;

s. On June 22, 1990, Amtrak passenger Robert Henry Houston, age

63, exited a moving train to his death near Niland, California. He

was an insulin dependent diabetic who walked with a cane;

t. On September 15, 1990, Amtrak passenger Edwin Peterson exited

a moving train near Lewistown, Pennsylvania. Investigation into

Mr. Peterson’s incident revealed that Mr. Peterson was unruly and

obnoxious and may have been intoxicated;

u. On November 29, 1990, Amtrak passenger David Carl Spencer,

age 73, exited a moving train near Needles, California.

Investigation into Mr. Spencer’s death revealed that Mr. Spencer

had been “acting very strange”, “confused” and “turning the

overhead lights on other passenger’s seats” prior to exiting the train;

v. On January 20, 1991, Amtrak passenger Danilo Quiambao exited a

moving train near Marysville, California;

w. On April 18, 1991, Amtrak passenger Sven Kiilsgaard exited a

moving train near Pajaro, California. Investigation into Reverand

Kiilsgaard’s death revealed that he opened an exit door while in a

confused and disoriented state as a result of being in an epileptic

seizure. Passengers on the train, as well as employees, told

investigators that Reverand Kiisgaard was acting strange the entire

trip;

x. On July 7, 1971, Amtrak passenger Howard Fredenburg, age 62,

exited a moving train to his death near Grandin, North Dakota;


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y. On February 3, 1992, Amtrak passenger Sylvia Langley exited a

moving train near San Bernadino, California. Investigation into Ms.

Langley’s death revealed that she was under psychiatric care and

that Amtrak’s crew had noticed that she was “confused and out of

it” stopped her from opening a door on the train earlier during her

trip, but the crew then abandoned her and she successfully opened

the door and exited the train;

z. On September 29, 1992, Robert Hall exited a moving train near

Columbia, South Carolina. Investigation into Mr. Hall’s death

revealed that he was likely suffering from acute alcohol withdrawal

and was hallucinating while on the train;

aa. On October 12, 1992, Sam Springer exited a moving train near

Princeton Junction, New Jersey. Investigation into Mr. Springer’s

incident revealed that he was acting very strangely while on the train

and thought people were after him, i.e., he was paranoid;

bb. On October 16, 1992, Florence Considine, age 57, exited a moving

train near Price, Utah. Her exit from the train provided Amtrak with

notice that passengers can exit the doors while the train is moving;

cc. On November 23, 1992, Amtrak passenger Curtis Alex exited a

moving train near Alpine, Texas. Investigation into Mr. Alex’s

death revealed that Mr. Alex was “talking crazy”, “incoherent” and

“very disoriented” and that he “kept talking about getting off the

train and taking a cab to Houston which is 500 miles away" prior to

exiting the train;

dd. On December 12, 1992, Jeffrey A. Rossler exited a moving train

near LaPorte County, Indiana. Investigation into Mr. Rossler’s


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incident revealed that Mr. Rossler was a manic depressive who was

in need of medication;

ee. On May 21, 1993, Edward L. Gray, III, age 27, exited a moving

train to his death between Baltimore, Maryland and Philadelphia,

Pennsylvania;

ff. On December 24, 1993, Amtrak passenger Ilo “Ike” Eischeid, age

74, exited a moving train near Yuma, Arizona and was found by

police wandering around the interstate bleeding;

gg. On April 11, 1994, Min Soeny exited a moving train near

Elizabethtown, New Jersey. Amtrak crew described Min Soey as “a

crazy person” who was “acting in a bizarre manner”, talking to

himself, looking under other passengers’ seats”;

hh. On May 4, 1994, Amtrak passenger Elbert Gross, age 69, exited a

moving train to his death while taking a trip between Hartford,

Connecticut and Evergreen, Alabama. Mr. Gross was noted to have

had a disoriented state of mind while riding the train;

ii. On May 25, 1994, Amtrak passenger Eleanor Kiesendahl exited a

moving train near Lakot, North Dakota. Amtrak learned in its

investigation that Mrs. Kiesendahl had been pacing up and down the

train for quite some time and that she started going through different

individual’s bags and baggage;

jj. On September 15, 1994, Amtrak passenger Robert Harris, age 87,

exited a moving train near Yuma, Arizona. Investigation into Mr.

Harris’ death revealed that he was acting agitated while on-board the

train and was talking nonsensically;

kk. On November 22, 1994, Amtrak passenger Autholia Delce exited a

moving train near China, Texas;


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ll. On July 18, 1995, Amtrak passenger John Williams exited a

moving train near Leetsdale, Pennsylvania;

mm. On September 27, 1995, Amtrak passenger Frank Vojcak

exited a moving train near Bluestem, Washington. Prior to his

death, Mr. Vojcak had tried to jump from the train and was stopped

by Conduct Collins who locked the door. Mr. Vojcak was noted to

be agitated and depressed and was telling everyone that he was

going to hell. Later, he was noted to be “disorientated as to his

whereabouts” and was “thinking that he was on a bus in the Chicago

area”;

nn. On March 24, 1996, Amtrak passenger Tom Whitestone exited a

moving train near Anniston, Alabama;

oo. On March 28, 1996, Amtrak passenger Victor Gust, age 76, exited

a moving train near D’Hanis, Texas. Investigation revealed that he

was acting strangely and pacing back and forth inside the train

before his exit;

pp. On or about July 31, 1996, Amtrak passenger Charles Whitworth

exited a moving train near Holbrook, Arizona. A memorandum

prepared August 3, 1996 by Amtrak employee George Cantley

discussed comments made during a meeting of Amtrak employees

held during the investigation into Mr. Whitworth’s death. The

memo stated, “The point was made by those present during the

interview that occurrences with elderly/senile/mentally unstable

passengers have been happening with such regularity as to have

become routine";

qq. On or about September 19, 1996, Amtrak passenger William

Swanson, age 54, exited a moving train near Hammond, Indiana;


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rr. On or about February 27, 1997, Amtrak passenger Randall Harris

exited a moving train in Saronville, Nebraska. Investigation into the

incident revealed that Mr. Harris had been wandering around the

train, talking incoherently and the untrained Amtrak employees had

isolated and abandoned him in his room instead of getting him care

or sitting with him;

ss. On April 6, 1997, Amtrak passenger Herbert Sudds exited a

moving train that was traveling from Florida to Cleveland;

tt. On April 17, 1997, Amtrak passenger Gerhardt Soyck exited a

moving train near Texarkana, Arkansas;

uu. On June 2, 1997, Amtrak passenger Maurice Fisher exited a

moving train near Ottowa County, Ohio. Witnesses observed the

87-year-old Mr. Fisher acting bizarre on the train for some time

prior to him walking off the train;

vv. On March 8, 2000, Amtrak passenger Helen Dorens exited a

moving train;

ww. On August 3, 2002, Amtrak passenger James R. Allen

suffered a heart attack while a passenger on an Amtrak train. Due to

the wholly inadequate training Amtrak provides to its employees, or

the pressure that management places upon its employees to get

trains to their destinations on time and to not stop trains for any

reason, including life-and-death emergencies, or both, the train did

not stop for over 20 minutes during which time Mr. Allen died;

xx. On May 7, 2003, Amtrak passenger Ronald Donis exited a moving

train Illinois to California;

yy. On June 24, 2007, Amtrak passenger Roosevelt Sims, age 65, was

suffering from diabetic shock while riding the train. Amtrak’s


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employees kicked him off of the train – without food, water, or

means of communication – at or near the “Bootleggers Crossing”

which was located in the middle of a 800,000 acre national forest

near Williams, Arizona because they felt he was being “unruly”.

zz. On April 29, 2008, Amtrak passenger Joseph Pineda exited a

moving train;

aaa. On or about August 18, 2010, Amtrak passenger Agostinho

Carlos Sadi, age 51, exited a moving train near Troy, Montana and

fell to his death;

bbb. On September 9, 2010, Amtrak passenger Barbara Arteta,

age 63, exited a moving train while the train was traveling near

Sanford, Georgia. Investigation revealed that Mrs. Arteta suffered

from Parkinson’s disease and was unsteady on her feet;

57. On information and belief, there are other incidents involving

confused and/or disoriented passengers exiting Amtrak’s trains to their death

and/or to serious bodily injury that provide Amtrak with further notice that such

passengers have a propensity to exit moving trains.

58. On information and belief, Amtrak has had an opportunity to learn

about the propensity of mentally confused passengers exiting its trains not only

as a result of the numerous dead bodies that have lined its tracks over the past

decades, but also as a result of litigation filed by the passenger’s survivors. Such

cases have included cases brought by: Ralph Rhodes’ Estate; Estelle Hartman’s

Estate; Odell R. Jones; Jesse Mazyck’s Estate; James J. Morrow’s Estate; Hubert

NewKirk’s Estate; Robert Berry’s Estate; Hattie Datcher’s Estate; Denise

Raglund’s Estate; Helen Hampton’s Estate; Danilo Quiambao’s Estate; Sven

Kiilsgaard’s Estate; Alex Curtis’ Estate; Eleanor Kiesendahl’s Estate; Robert

Harris’ Estate; Herbert Sudds’ Estate.


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59. The Kiilsgaard v. Amtrak litigation is illustrative of Amtrak’s

reckless disregard of the safety of its passengers and provided Amtrak certainty

of facts as to the defective nature of its doors.

60. Following the death of Reverend Kiilsgaard on April 18, 1991, a

lawsuit was filed against Amtrak at No. 93318, Superior Court of the State of

California, County of Monteray. The Kiilsgaard v. Amtrak action eventually

tried to non-jury verdict before the Honorable Richard M. Silver in March and

April of 1997.

61. In the Court’s Statement of Decision filed August 12, 1997, Judge

Silver found as a fact that Sven Kiilsgaard suffered from a seizure disorder that

resulted in “confusion”, “disorientation”, “impaired perceptions” and “confusion

as to surroundings.”

62. Judge Silver also found as a fact that “Prior to this accident

defendant [i.e. Amtrak] was on notice that, notwithstanding instructions to the

contrary, on occasions employees would negligently to secure the ‘dog latch’;

that the ‘dog latch’ had a tendency to move, or ‘migrate’ during train operations;

and that on occasion passengers would open the door or window ‘to smoke’ or

get ‘fresh air.’”

63. Judge Silver found as a fact “…prior to this accident, defendant was,

or should have been, aware of numerous older and/or mentally confused persons

who had fallen from the moving train from the types of doors here in question.”

64. Judge Silver received evidence of several incidents involving

passengers who had exited moving trains and concluded, based upon the

evidence, “These incidents were admitted and considered only to the extent that

they put defendant on notice of falls from trains by elderly, mentally confused, or

intoxicated passengers and the need to review and consider door and or other

safety concerns for such passengers.”


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65. Judge Silver found as a fact, “The evidence established that a

covering over the lock, appropriately marked and secured, better signing, and

some type of mechanism (e.g. a light, a snap locking chain or alarm bell) could

have been installed without compromising safety in the event of a train accident

and which would have prevented a person in a confused or disorientated state

from opening the exit doors by mistake. The weight of the evidence established

that these devices were well within the technological ability of defendant to

install and, in fact, have been in use on some of defendants (sic) trains for many

years.”

66. Judge Silver found as a fact, “Based on the evidence presented the

above indicated changes are feasible, are used on other public transit, and would

have prevented this plaintiff and others from confusing the exit doors with others

in the vicinity.”

67. Judge Silver found as a fact, “The Court finds by a preponderance of

the evidence, that defendant breached its duty to plaintiff by its failure to act to

take reasonable steps to secure the door as indicated above. Further, the Court

finds that the cost of this would not unreasonably interfere with interstate

commerce and that this matter is not preempted by federal laws.”

68. Judge Silver found as a fact that Amtrak’s own expert witness, Dr.

Allan Dorosin, testified that “…it is common for epileptics experiencing seizure

activity to feel a tremendous compulsion to exit from wherever they are located;

to try to get out; to find a place of “security,” like a bathroom.”

69. Importantly, Judge Silver found as a fact, “Notwithstanding the

information available to [Amtrak] regarding the pattern of these accidents, they

took no action whatsoever to either investigate whether the doors could be more

safely secure or, in fact, to do anything to prevent the doors from being

accidently opened while the trains were moving.”


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70. Amtrak appealed the verdict entered against it in Kiilsgaard v.

Amtrak.

71. In an opinion filed June 30, 1999, the Court of Appeal of the State

of California, Sixth Appellate District, affirmed the trial court’s verdict. On

information and belief, Amtrak did not take any further appeal in the Kiilsgaard

v. Amtrak litigation.

72. In addition to being put on notice that elderly, confused and/or

mentally impaired passengers have a propensity to exit moving trains through

doors that are easily opened by the numerous deaths of such passengers and the

numerous lawsuits it has faced, Amtrak has also been put on notice as a result of

its own internal investigation into these accidents.

73. For example, during the investigation that followed the death of

Charles Whitworth, Amtrak employee George Cantley issued an August 3, 1996

memorandum that discussed a meeting Mr. Cantley had with Amtrak’s crew.

The memorandum stated, in part, “The point was made by those present during

the interview that occurrences with elderly/senile/mentally unstable passengers

have been happening with such regularity as to have become routine.”

74. The horrific and tragic death of Mr. Lucero was caused by the

reckless of Amtrak in that:

a. Despite having certain knowledge that mentally confused and

disoriented passengers have a propensity to exit its moving trains,

Amtrak deliberately failed to inform and train its employees of such

propensities and deliberately failed to educate them on how to

identify individuals who may need special assistance or attention or

who may not be suitable passengers;

b. Despite having certain knowledge that mentally confused and

disoriented passengers have a propensity to exit its moving trains,


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Amtrak failed to inform and train its employees of such propensities

and to educate them on how to respond to such passengers and to

monitor and attend to such passengers;

c. Despite having certain knowledge that the doors on its trains could

easily, and economically, be made safer so as to protect and prevent

against mentally confused and disoriented passengers falling out of

trains, Amtrak has deliberately and intentionally done nothing to

make its doors safer;

d. In failing to train its employee, Coach Attendant Larson, not to go to

sleep and leave an elderly and confused passenger on the train;

e. In failing to train its employee, Conductor Buckner, not to permit

the Coach Attendant to leave Mr. Lucero alone;

f. In deliberately failing to train its employees, Conductor Buckner and

Coach Attendant Larson to ensure Mr. Lucero’s safe passage by

sitting with him during the journey after the two employees elected

to take Mr. Lucero on as a passenger after being made aware of his

disoriented state;

g. In deliberately failing to train its employees not to allow passengers

such as Mr. Lucero to board the train if it is the case that such

passengers, like Mr. Lucero, are going to be left alone in their

confused and disoriented state during the train ride;

h. In deliberately and intentionally concealing and hiding from its

employees, including Conductor Buckner and Coach Attendant

Larson, the fact that numerous passengers who have exhibited signs

of confusion, disorientation and/or mental impairment have

accidently opened the doors on moving trains and fallen from same

to their death which information – had it been disclosed to the


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employees – would have enhanced their awareness of Mr. Lucero’s

condition and caused them to carefully observe him and prevent him

from exiting the train.

i. In choosing to promote its own interests in attempting to make a

profit over the safety of its passengers by (1) deliberately refusing to

spend money in order to train its employees about the increased risk

confused, elderly and/or disoriented passengers are exposed to as a

result of the dangerous doors located on the train and how to protect

them from harm (2) deliberately refusing to modify the exit doors on

the train to make them safer for such passengers and (3) by choosing

instead to litigate the claims arising out of the deaths of such

passengers because, on information and belief, paying the damages

for an injury or death claim is monumentally cheaper for Amtrak

than training its employees, retrofitting the doors on its trains, or

both.

75. As a direct and proximate cause of Amtrak’s gross and wanton

recklessness, as described herein, Mr. Lucero suffered physical injuries and

death, resulting in economic and non-economic damages to the Plaintiffs.

SECOND CLAIM FOR RELIEF

Respondeat Superior

As Against Amtrak and Does 1 to 10


herein.

77. Conductor Buckner and Coach Attendant Terry Larson were aware

of the fact that Mr. Lucero was disoriented, confused and unsteady on his feet at

the time they witnessed him board the train.


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78. Conductor Buckner and Coach Attendant Terry Larson, on

information and belief, were aware that the exit doors on the coach could be

easily opened by any passenger, including one who was confused and disoriented

such as Mr. Lucero.

79. Conductor Buckner and Coach Attendant Terry Larson, on

information and belief, were required pursuant to their job duties to monitor the

interior of the train, to ensure that passengers were safe and secure, to be on

guard for passengers who were exhibiting signs of confusion and disorientation

and to protect and prevent such passengers from injury and from exiting the train

in their confused and disoriented state.

80. Despite being on notice that Mr. Lucero was in a confused and

disoriented state, Conductor Buckner and Coach Attendant Terry Larson

recklessly failed to protect Mr. Lucero from injury, and they in fact abandoned

him alone in the train in order to go to bed and/or perform other duties on the

train and they did so despite the fact that it was, or should have been, reasonably

foreseeable to them that Mr. Lucero would open an exit door in his confused

state and exit the train to his death.

81. To the extent that the evidence learned in discovery reveals that

Conductor Buckner and/or Coach Attendant Terry Larson had received any

training from Amtrak regarding the propensity of confused and/or disoriented

passengers to mistakenly open exit doors on trains and fall to their deaths and/or

to the extent that either Buckner and/or Larson had obtained such knowledge

independent of any training provided to them by Amtrak, then Buckner and

Larson’s conduct in failing to protect Mr. Lucero and prevent him from falling

from the train – despite their knowledge that he was at an increased risk of doing

so in light of his confused and disoriented state – was outrageous in addition to

being reckless.


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82. As Amtrak was the controller and employer, Amtrak is liable for the

gross and wanton reckless conduct of its employees, Conductor Buckner and

Coach Attendant Terry Larson.

83. In the course and scope of their employment for Amtrak, Buckner

and Larson committed acts of recklessness that directly and proximately caused

Mr. Lucero’s physical injuries and his ultimate death, resulting in economic and

non-economic damages to the plaintiffs herein. Amtrak is liable for their acts

and omissions and is responsible for the damages.

THIRD CLAIM FOR RELIEF

Conversion

By Kathleen Lucero as Successor In Interest



herein.

85. Following discovery of Mr. Lucero’s exit from the train and ultimate

death, Amtrak took possession of Mr. Lucero’s personal belongings. Upon

information and belief, the belongings were collected by Amtrak personnel who

were specifically charged with taking possession of Mr Lucero’s belongings as

part of investigating the circumstances surrounding the incident.

86. Despite repeated requests by Mrs. Lucero directly and through her

representatives, Amtrak’s claims department maliciously and intentionally has

refused to return Mr. Lucero’s personal belongings.

87. Amtrak has no legal right to said belongings.

88. Amtrak’s refusal to return Mr. Lucero’s personal effects has resulted

in Mrs. Lucero being denied the ability to experience closure and finality

following the tragic death of her husband.


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89. Amtrak’s refusal to return Mr. Lucero’s belongings for nearly two

years has been constant, sustained and unwavering and, on information and

belief, is being committed at the direction of lawyers or claims agents employed

or retained by Amtrak for the purpose of either promoting Amtrak’s litigation

position or to mentally compel Mrs. Lucero into submission and settlement, or

both.

90. Amtrak has converted Mr. Lucero’s property, resulting in economic

and non-economic damages to the Plaintiff Kathleen Lucero.

91. The retention of Mr. Lucero’s personal effects is unlawful,

intentional, and malicious and warranting the imposition of punitive damages.

FOURTH CLAIM FOR RELIEF

Trespass to Chattel

By Kathleen Lucero As Successor in Interest



herein.

93. In the event that Amtrak’s refusal to return Mr. Lucero’s personal

effects to Mrs. Lucero is not a conversion, Plaintiff asserts a cause of action for

trespass to chattels.

94. Amtrak’s trespass to chattel is deliberate, intentional, unlawful, non-

privileged and malicious, resulting in economic and non-economic damages to

the Plaintiff Kathleen Lucero warranting the imposition of punitive damages.

FIFTH CAUSE OF ACTION

By Kathleen Lucero as Successor in Interest

Intentional Infliction of Emotional Distress



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herein.

96. As a direct result of Amtrak’s conduct in refusing to return Mr.

Lucero’s personal effects to Mrs. Lucero, Mrs. Lucero has experienced severe

emotional distress.

97. Amtrak’s refusal to return the personal effects of Mr. Lucero to his

wife, despite having no basis in law or fact to refuse to return said items, is

outrageous, it violates all notions of common decency and it has prevented Mrs.

Lucero from having the ability to complete the grieving process. Plaintiff has

suffered economic and non-economic damages as a result and the conduct

warrants the imposition of punitive damages.

SIXTH CAUSE OF ACTION

By Kathleen Lucero, as Successor in Interest

Survival



herein.

99. Kathleen Lucero is a successor in interest of the decedent and

succeeds to this cause of action. She brings this complaint in the capacity of the

successor in interest. Plaintiff executed and attaches hereto, concurrent with the

filing of this complaint, her declaration pursuant to Code of Civil Procedure

§377.32.

100. Decedent Mr. Lucero died on June 30, 2009, as a result of the

personal injuries incurred in the incident which gives rise to this claim. The

personal injuries included blunt force trauma and skull fracture. The cause of


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action arising out of the decedent’s personal injuries accrued prior to the death of

the decedent, who would have been a Plaintiff in this action had he survived.

101. The personal injuries suffered by the decedent were the proximate

result of the Defendants’ gross and wanton reckless conduct as alleged herein.

Defendants’ conduct was malicious in that it was despicable conduct in a

conscious disregard for the safety of decedent Mr. Lucero warranting the

imposition of punitive damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray for judgment against defendants

on all causes of action, and each of them, as follows:

1. Economic damages as proved at time of trial;

2. Non-economic damages as may be proved at time of trial;

3. Exemplary/punitive damages as proved at time of trial;

4. Costs of suit as permitted by law;

5. Attorneys’ fees as permitted by law;

6. For such other relief as may be appropriate.

Dated: August __, 2011 DONAHOO & ASSOCIATES

________________________________ By: Richard E. Donahoo Sarah L. Kokonas

Attorneys for Plaintiffs


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JURY DEMAND

Plaintiffs hereby demand a trial by jury.

Dated: August _, 2011 DONAHOO & ASSOCIATES

________________________________ By: Richard E. Donahoo Sarah L. Kokonas

Attorneys for Plaintiffs


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Declaration of Kathleen Lucero I, Kathleen Lucero, declare as follows: I am an adult individual and resident of the state of California. The

following information is based on my personal knowledge. If called to testify I could and would competently testify as follows:

1. I am the widow of decedent Fred J. Lucero (“the decedent”). 2. Fred J. Lucero died on June 30, 2009 near Florence, Kansas. 3. No proceeding is now pending in California for administration of the

decedent Fred J. Lucero’s estate. 4. Fred J. Lucero and I were married when he died on June 30, 2009. I am

the decedent’s successor in interest and succeed to the decedent’s interest in the action.

5. No other person has a superior right to commence the action or to be substituted for the decedent in the pending action.

6. I declare under the penalty of perjury under the laws of the State of California and United States that the foregoing is true and correct.

Dated: June 22, 2011 ________________________________ Kathleen Lucero

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Lucero v. Amtrak

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