MARCELINE — At the end of a road just off Main Street in Marceline, bursts of purple flowers surround a memorial on the side of the Clay family home.
The engraving on the memorial stone reads, "Katawna and Snoopy 02/19/2018."
The memorial is for Katawna Clay, 9, who died in February after she was hit by a BNSF train — just a few hundred yards from her front door.
According to the family’s lawyer, Katawna set out on a misty evening for a walk with her dog, Snoopy.
Snoopy got loose and dashed across the then-quiet train tracks. Katawna chased the puppy, caught him and started walking back across the tracks to her house.
At that moment, the lawyer said, a train flew across the tracks, striking Katawna and Snoopy and killing them both on impact.
Sixteen months later, the family is in the process of filing a lawsuit against the train company, Burlington Northern Santa Fe Railway, for her death.
Deaths like Katawna’s happen almost every day in every state across America.
Historically, the most common type of rail-related death occurred at grade crossings, the intersection of road and track, according to a 2018 report by the Congressional Research Service.
Deaths at grade crossings almost always involve vehicles, with pedestrian fatalities at crossings accounting for less than 7% percent.
Between 1990 and 2016, efforts by railroads and government agencies reduced the number of deaths at grade crossings by 63% percent, according to data from Operation Lifesaver, a rail safety education group.
Although deaths at grade crossings have sharply declined, the number of pedestrian deaths on railroad property has increased in recent years. Data from the Federal Railroad Administration shows that pedestrian deaths went up 12% percent between 2017 and 2018 alone.
In the congressional report, pedestrian deaths have accounted for the majority of rail-related deaths since 1997, with no progress made to reduce them. The data indicated that 4,596 pedestrians were killed on railroad property in the last decade.
In Missouri, pedestrian deaths more than doubled between 2016 and 2018. These incidents occur primarily, although not exclusively, in heavily populated urban areas like Kansas City and St. Louis.
For eight of the last 10 years, BNSF has led or tied one other railroad company in Missouri for the highest number of pedestrian deaths. According to its website, BNSF is one of the largest freight train companies in North America with a rail network spanning 28 states and three Canadian provinces.
In Missouri, 42% percent of the miles of railroad track are owned and operated by BNSF, according to the 2012 Missouri State Rail Plan, which outlines the development plans for rail service in Missouri through 2032.
Pedestrian v. trespasser
The railroad industry calls the pedestrians killed in rail accidents “trespassers.”
“The purpose to classify them as trespassers is to classify them as doing something illegal,” said Nathan Karlin, an attorney with Pottroff & Karlin, a train accident-focused law firm in Manhattan, Kansas. “It’s a public perception reason.”
Criminal statutes were enacted, mostly during the 1970s, that would allow railroad companies to consider anyone on railroad property to be a “trespasser.”
With his partner’s 21 years of experience in rail law and seven of his own, Karlin said a majority of the pedestrian injuries or deaths occur when someone crosses tracks in the path of a train.
His firm, which is not involved in Katawana’s case, considers these people pedestrians, rather than “trespassers.”
The majority of cases his law firm’s cases takes are grade-crossing accidents, even though Karlin said it gets many more requests to take pedestrian cases.
“They’re very difficult to litigate because of the laws and because of that classification of them as trespassers,” Karlin added.
These deaths could be prevented by providing safer pedestrian crossings with enhancements such as lights and gates, he said, and fencing the train’s right-of-way in urban areas with high pedestrian traffic.
“What the railroads have not done and what they have resisted is any form of public safety fencing or reasonable pedestrian crossings at reasonable intervals,” Karlin said.
BNSF is one of the largest railroad companies in the country, with a net income of $1.25 billion in the first financial quarter of 2019, according to financial performance updates on its website.
The guidelines for separation projects state that fencing will be put up in areas deemed necessary by the company.
The statement reads: “Fencing shall be provided to safeguard the general public and prevent trespassers from entering the Railroad right-of-way and accessing the track or other Railroad structures. Each project will be evaluated on a case by case basis.”
Official accident forms completed by BNSF Railroad Company classified Katawna Clay as a “trespasser,” building an argument that the company is not liable for her death.
José Bautista, the Clays’ attorney, who is based in Kansas City, said he is in the process of filing a lawsuit against BNSF for Katawna’s death.
Bautista and his partner took on the case after a visit to Marceline, where they noticed that the town had “more than its fair share of high-speed trains going across multiple tracks, going right through the middle of town.” Homes and schools lie directly next to the tracks.
“Through most of the town, there isn’t a single fence in sight,” Bautista added.
What alarms Bautista most is that it’s not the first time someone has been killed in Marceline, and if something isn’t done to address the problem, “it’s certainly not the last.”
The only fencing by the tracks in town is on a four-block stretch between the Walt Disney Hometown Museum and an overpass. It was installed after a woman was killed in 2000 on the opposite side of the overpass where Katawna was hit, according to Marceline local and former Santa Fe Railway conductor Sam Bailey.
The railway he worked for merged with Burlington Northern Railroad in 1995 to create BNSF.
His son, Chuck Bailey, who was a conductor for Amtrak for over a decade, is in the process of moving his family from Kansas City back to his hometown of Marceline.
Katawna’s death struck the community deeply, according to Chuck Bailey. It made him think about his own three children, who live with his father, Sam, while he looks for work in the area.
“We could do (fencing) like they do in the big cities, and we could fence it off. In Kansas City, we’ve got miles of fencing. ... For the most part, it’s reduced a lot of pedestrian incidents to have that initial barrier to keep you from getting there,” Bailey said.
“And that’s personal responsibility on the (company).”
Grade-crossing deaths have proved easier for the railroad industry to address than pedestrian deaths.
The Congressional Research Service report pointed out that train derailments and collisions tend to make headlines, but less attention has been given to pedestrian deaths, even though the latter represents a greater portion of rail-related deaths than derailments and collisions combined.
“Efforts to reduce grade-crossing deaths focus on education of an identifiable population — automobile drivers, particularly young drivers,” the report noted. “Those killed while trespassing, on the other hand, are not an easily identifiable population subset.”
The rail industry has focused much of its efforts on Operation Lifesaver, a national nonprofit funded primarily by the federal government. According to the report, Operation Lifesaver has been “proven” to reduce rail-grade deaths, but “no progress” has been made on trespasser deaths.
The Federal Railroad Administration provides safety data on pedestrian deaths broken down by year, state and railroad. The three railroads with the highest pedestrian deaths in Missouri — BNSF, Union Pacific and Amtrak — were all asked about pedestrian safety for this news report.
“The safety of our customers, employees and public is our top priority,” Amtrak public relations manager Marc Magliari said in email. “Amtrak has a police department with a national safety mission and a partnership with Operation Lifesaver.”
The email also included information about the Amtrak police department’s safety campaign called StayOffTheTracks.org. In addition, rail safety tips were listed in the email.
Union Pacific media contact Tim McMahan said the company uses public safety campaigns and different forms of messaging to emphasize that “the only safe place to cross a railroad track is at a (pedestrian) crossing.”
BNSF public affairs director Andy Williams provided a brochure from 2019 about grade-crossing safety. In the brochure, trespassing is mentioned briefly.
When asked over email about trespassing specifically, Williams responded by providing links to Operation Lifesaver and the FRA’s railroad trespassing fact sheet.
This epidemic is no secret to the federal government.
An FRA strategy report on preventing “trespassing” describes the findings of a team that measured the economic benefits of reducing these accidents.
It found that between 2012 and 2016, “trespassing” fatalities and injuries cost the public $43 billion plus another $56 million for travel delays. It’s important to note that these figures do not account for unquantifiable costs such as lost productivity and emotional distress.
Railroad Administration senior public affairs specialist Warren Flatau, based in Washington, D.C., has worked for the administration since 1997 and has served in his current position since 2003. He acknowledged that the administration recognizes the upward trend of these deaths.
“The FRA’s responsibility, I think, is to take steps or efforts to reduces its occurrence,” Flatau said.
Fencing has been left to the discretion of the states and the railroad companies. Flatau said it would be tricky to craft a federal mandate on fencing for railroad companies to abide by, and the FRA hasn’t done so.
Flatau added that nearly all decisions to add new signs or fencing are a state or local responsibility. According to the strategy report, “trespassing on railroad property is a law enforcement issue governed by state and local law, which limits FRA’s authority to address the issue.”
However, the strategy report also acknowledges that the administration has failed to address the causes of this issue using a “national, proactive approach” and has historically depended on regional staffing and resources to handle safety issues on a case-by-case basis.
The Missouri Department of Transportation works with all local jurisdictions throughout the state to improve safety at public crossings, MoDOT’s railroad administrator Eric Curtit said.
“We take into account trespasser activities at each crossing as we evaluate them and act appropriately afterward to try and reduce it through things like fencing, signage, those kinds of things, or enforcement and education,” he said.
Meanwhile, the railroad industry has spent at least $323 million lobbying the federal government about train-related issues since 2010, according to the Center for Responsive Politics. Safety regulations are listed as an issue railroad companies have lobbied for.
BNSF has rapidly increased the amount it’s spent on lobbying, from $433,385 in 2000 to $3.3 million in 2018, according to the center’s lobbying data. The data also shows that Missouri legislators on both sides of the aisle received $39,000 in campaign contributions from BNSF in 2018.
U.S. Rep. Sam Graves, R-Missouri, who represents Marceline in Congress, received $34,000 from Berkshire Hathaway, the company that owns BNSF, during his 2018 campaign. The company was his largest contributor for that campaign cycle.
Katawna’s mother, Melony Clay, believes railroad companies could easily address pedestrian deaths on their tracks.
“They don’t want people on their property? Put something there to keep people off your property,” she said. “It’s that simple.”
According to Bautista, it would be unreasonable to require a railroad to put up fences across every mile of track, but it would be reasonable to target high-traffic locations.
“Where it is needed are places like Marceline, where you have multiple tracks — not just one — with high-speed trains … going straight through town,” Bautista said. “I mean it’s really going through the backyard of some of these people.”
Multiple attempts were made to reach BNSF representatives by email and phone about the issue of fencing in Marceline, but BNSF did not address those questions. McMahan of Union Pacific addressed a few of the reasons why railroads do not have fencing adjacent to their tracks.
“You couldn’t fence that property if you got that many miles of property,” he said. “Plus it would be detrimental to wildlife and other things. So we couldn’t fence the property.”
Regardless, Melony Clay worries that another child in Marceline could suffer the same fate as her daughter if a solution isn’t implemented by BNSF soon.
“It’s their greed that keeps them from (putting up a fence),” she said. “They don’t want to spend the money, but at what cost?”