THE LAST 9 SECONDS OF JODY HOLZ’S LIFE

At 11 p.m. one evening, 16-year-old Jody Holz was riding his 750cc Yamaha motorcycle on little-traveled Morgan Road in Whatcom County. Jody had previously dropped out of high school after completing the ninth grade and was supporting himself by milking cows at a local dairy farm. Burlington Northern had parked a freight train with a black tank car spanning the county road while the disengaged engines traveled to a nearby siding to pick up additional cars. Although two 10-minute flares were left at the crossing, the accident occurred after they had burned out, but before the crew had returned to pick up the train. Jody Holz collided with the tank car and died.

The critical issue turned out to be whether the train was "plainly visible" (under RCW 45.51.340) to the approaching motorcyclist who, of course, faced the standard defense instruction that a person has a duty to see that which would be seen by a person exercising ordinary care. By court order, Burlington Northern was forced to provide a tank car for accident reconstruction. An identical motorcycle was brought to the scene, and professional photographer, Rod Del Poza of Bellingham's Pyramid Productions, took photographs of the tank car illuminated only by the motorcycle's headlight from 50 to 450 feet back from the tank car in increments of 50 feet. Since a motorcycle traveling the speed limit, 35 mph, travels 50.3 feet per second, a videotape was then produced showing each black and white photograph for a computer measured exact one second interval. When played back, the videotape thus created "the last nine seconds of Jody Holz's life." The train became visible only for the last two seconds or 100 feet, far too late to avoid the collision.

Burlington Northern's liability was established through the testimony of Michael Massie, a railroad safety consultant from Salem, IL, who testified that the railroad failed to exercise reasonable care, and in fact violated Sec. 103(f) of the General Code of Operating Rules, the industry standard adopted by Burlington Northern which says: "Blocking Public Crossings. A public crossing shall not be blocked longer than five minutes when it can be avoided." All four crewmen admitted the train blocked the road for 10 to 15 minutes. The engineer testified that although the train "generally" performed its switching maneuvers in the manner recommended by Mr. Massie which did not block Morgan Road, on this and many other occasions an alternative method was used which did block the county road.

Throughout the trial, Burlington Northern denied negligence, denied that Rule 103(f) was applicable and claimed it was merely a rule to ensure that emergency vehicles are not impeded. Plaintiffs' attorney developed a theme based on the hard-line defense of Burlington Northern: "What will it take to convince Burlington Northern that they don't have the right to block county roads at night without warning?" The jury found Burlington Northern 95 percent responsible for the collision.

Since this was a post-Tort Reform Act case, Whatcom County was also brought in out of fear that otherwise the railroad would shift the liability to an empty chair. There were two theories brought against the county: that the county failed to place railroad pavement markings, and the county failed to illuminate the railroad crossing. The jury assessed two-and-a-half percent of the responsibility for the collision against Whatcom County.

After extensive deposition defendants decided not to call their accident reconstruction expert Kenneth Cottingham.

Defendants Burlington Northern and Whatcom County tried to establish contributory negligence by claiming that Plaintiff was riding without a helmet, with defective brakes, with headlights inappropriately placed in the dim position, and at an excessive rate of speed. Defense of the contributory negligence aspects of the claim were assisted by testimony of Richard Cook of Forensic Consultants in Kent. The jury found Jody Holz two-and-a-half percent contributorily negligent.

Economic loss was calculated at $225,000 by economist Robert Patton, Ph.D. The jury added $500,000 for loss of love and companionship. The total verdict was $752,600 gross; $733,785 net, compared to (the then applicable) Tort Reform Act limit of $730,058.

Plaintiffs were represented by Dean Brett of Bellingham's Brett & Coats.

The case is Holz v. Burlington Northern and Whatcom County, Whatcom County Cause No. 88-2-00603-9.

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