Boston University is still providing defense testimony in a civil action suit filed by the parents of a College of General Studies student who was killed in 2005 after being struck by a commuter rail near her West Campus dormitory, an attorney for the plaintiff said.
Jean Ferguson and William Shattuck – the parents of then-freshman Molly Shattuck – filed the original complaint against BU in November 2006 for “failing to maintain and repair” a hole in the fence behind the Track and Tennis Center through which Shattuck and then-CGS sophomore Andrew Voluck accessed the track on which they were killed Feb. 9, 2005 slightly before 1 a.m.
According to the complaint, BU “knew or should have known” that students frequented the tracks to take walks, especially at night, and used the hole in the fence to get there.
“One of the issues in the case is BU’s knowledge of the fact that BU students sometimes went on or near the tracks,” said an attorney for the plaintiff, Lisa Arrowood, of Todd and Weld, LLP. “Several people have been deposed who either were on the tracks themselves or nearby.”
BU filed for dismissal of all six charges made against the university, but received notification May 2 that the motion was rejected, with the exception of the charge of negligent infliction of emotional distress on behalf of each parent, said BU spokesman Colin Riley.
“Without physical proximity to the accident or temporal proximity to the events which led to [Shattuck’s] death, the plaintiffs fail to state a claim,” said Justice Janet Sanders in her decision on the motion for dismissal, adding the plaintiffs did not indicate in their complaint where, when and how they learned of their daughter’s death.
The driver of the train was deposed, as well as each of Shattuck’s parents, for at least one day, and “many more depositions are scheduled,” Arrowood said. The depositions began this summer.
Arrowood said she does not expect a trial for at least another year, and there have been no settlements as of Dec. 10.
The plaintiffs are also suing CSX Transportation, the Massachusetts Bay Commuter Railroad Company, the MBTA and Harvard University – which owns the rail yard known as Beacon Yards – for “failing to maintain and repair the fence alongside Beacon Yards or to take other measures to prevent, warn and/or discourage students from accessing the train tracks,” the complaint states.
Although BU, Harvard and CSX failed to decide who was responsible for maintenance of the fence, BU hired a contractor to repair it seven months after the accident.
The three defendants agree, however, that they have “no duty to warn of open and obvious dangers,” such as “walking on railroad tracks in the middle of the night,” Sanders’s memorandum states.
Massachusetts courts have found that an owner’s duty to its patrons “does not end abruptly at the boundary line” and that under certain circumstances, responsibility “may extend to adjacent property owners,” according to the memorandum.
Ferguson and Shattuck also filed suit against Brian Fitzpatrick, the operator of the train that struck the students, for “failing to sound the emergency horn when he witnessed Molly Shattuck on the tracks prior to impact.”
The complaint states the train did not have its lights fully illuminated because it was passing westbound traffic on Storrow Drive. It also says the sound of the engine, which was at the back of the train, was muffled by snow on the rail bed, making it difficult for Shattuck or Voluck to hear the train’s approach.
Riley declined to comment further on details and BU’s position in the case.
