Lawsuit Filed Against Durango Train Operator

Burg Simpson leans on wildfire experience for 416 Fire lawsuit

Two Colorado law firms are going after the operators of Durango’s historic train for its part, they claim, in sparking one of the largest wildfires in Colorado history.

Burg Simpson Eldredge Hersh & Jordine and Durango law firm Duthie Savastano Brungard are teaming up on a lawsuit filed in La Plata County District Court against the operators of the train that runs between Durango and Silverton. They claim the train company’s management was negligent in operating the train during dry conditions that led to a wildfire and damage to residents’ property. The lawsuit largely relies on a little-used statute from the old West that holds trains accountable for fires. Despite having a law on the books specifically tailored for the situation, it’s unclear how much of the damage the law will cover or how eager residents will be to go after the train company that brings tourist money to the area.

“When you take aim at the golden goose, there is some reluctance and backlash by residents there,” Burg Simpson shareholder Tom Henderson said. “We’re not suing the train, we’re suing the management of the train. We’re looking to hold the management responsible for negligence and decision-making in running the coal-fired train in these [drought condition] circumstances.”

Even plaintiff’s attorney Bobby Duthie had reservations about suing the train. Ultimately, he felt the company should be held accountable for the damage. 

“Given my history here in Durango and my love for the railroad, the decision to initiate legal action was thoughtfully evaluated,” he said in a prepared statement. “As I learned about the many fires the railroad started and its decision process to run a coal-fired steam locomotive during extreme drought conditions, I was moved to act, so my fellow La Plata County and San Juan County citizens and businesses could recover their losses from the responsible parties.”

Duthie sought out Burg Simpson because of a relationship from a prior construction defects case. Henderson got involved with Duthie because of his prior experience in the unusual niche of forest fire cases. He had previously handled governmental immunity case related to the Lower North Fork Fire and later the Waldo Canyon fire among others. 

The lawsuit claims the train operators, American Heritage Railways, the Durango & Silverton Narrow Gauge Railroad Company and its operator Allen Harper, were negligent and reckless in the operation of the train in dry conditions. Henderson said had the train operator made several decisions differently, the fire could have been prevented.

The 416 Fire started on June 1 and burned more than 50,000 acres of land, making it the sixth-largest wildfire in Colorado history. 

Within the complaint, the plaintiffs claim the train operators also have a diesel train, which doesn’t create as many sparks or embers, but opted not to use it. Additionally, the train operators have methods of containing fires that the trains create, but those methods were either used improperly or not at all when the fire started. Henderson said the operator uses a “pop car,” which follows the train specifically to put out fires, but because the train management had either fired or laid off pop car operators shortly before the fire started, the company had a crew that, Henderson said, didn’t know how to contain the car that quickly burned out of control. Henderson also said the train operators contracted with a helicopter service that could fight fires by dumping water on them from the air, but he said it didn’t use the helicopter service that day. 

“Any number of decisions, any one of which if not made in a negligent and careless manner likely would have meant this fire never would have started or would have been doused,” Henderson said. 

The case leans heavily on a statute from the late-1800s that states train operators are liable for wildfires they create with trains’ sparks or embers. According to Henderson, the statute hasn’t been used much since the early 1900s, though, and there are questions about how well it might cover damage to property that are indirectly related to the fires. The complaint includes additional claims of negligence and trespass.

For instance, Henderson said homeowners see decreased property value, a common result of wildfires. But there is also physical damage that comes from wildfire conditions, such as that caused by mudslides or floods that happen once fires clear vegetation from an area. The lead plaintiff in the case saw her home damaged by mud and water on two separate occasions, neither of which were covered by her insurance, Henderson said. 

Henderson said many Durango residents continue to see property damage from flooding and mudslides with each subsequent storm that hits the area.

The train operator has not yet been served in the case, and Henderson said he expects the class size to grow before then. Thus far, the plaintiffs include 10 homeowners and businesses affected by the fire. Henderson and Duthie are holding community events in Durango to educate residents about their rights regarding fires, and he expects to see more plaintiffs added under the same legal framework. 

“We know the train is beloved in the Durango-Silverton area. It is not our intent to put them out of business,” Duthie said. “However, we believe the management of the train should be held accountable for the damages they caused, which could have easily been avoided had they acted sensibly.”

— Tony Flesor

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