Malfunctioning Railroad Crossing Leaves Couple With Permanent Brain Damage

On January 9, 2001, just after noon, a Chicago Central & Pacific Railroad freight train pulling three locomotives and 63 cars struck a southbound 1998 Ford Explorer at the Army Trail Road railroad crossing in Bloomingdale, Illinois. The Explorer, driven by Lilia Apulello and carrying her parents, Fidel and Francisca Velarde, was broadsided at 50 miles per hour and rolled several times.

The crossing's warning gates and lights had been out for about two weeks because snow and road salt had made them malfunction, and the track owner, Illinois Central, had been running a manual stop-and-flag procedure there while repairs were pending. On the day of the crash, a dispatcher mistakenly told the train's engineer that the signal problem had already been fixed. No one flagged the crossing, and the train came through at full speed with no working gates or lights to warn oncoming drivers.

Fidel Velarde suffered a severe traumatic brain injury with bilateral subdural hematomas that required surgery, along with fractured ribs, facial lacerations, post-traumatic stress disorder, depression, and right-side weakness that left him dependent on a cane. Francisca Velarde suffered her own severe traumatic brain injury, including a subdural hematoma and subarachnoid hemorrhage, facial lacerations, severe post-traumatic stress disorder, depression, and liver complications that required hospitalization. Both parents needed round-the-clock supervision afterward and were unable to return to their previous lives.

The Velardes sued Illinois Central Railroad Company and Chicago Central & Pacific Railroad Company in the Circuit Court of Cook County. Apulello, who was later declared legally disabled because of her own brain injuries, brought a separate, consolidated claim through her husband and a corporate co-guardian. Timothy Cavanagh, then of Lloyd & Cavanagh, represented the Velardes at trial. In February 2002, the jury found Illinois Central 60 percent at fault, Chicago Central & Pacific 35 percent at fault, and Apulello 5 percent at fault for driving into the crossing, and it awarded Fidel Velarde $15.5 million and Francisca Velarde $5.5 million, a combined $21 million, as part of a $55 million verdict that also covered Apulello's injuries and her husband's loss-of-consortium claim.

A railroad spokesman said afterward that the companies had 'never denied liability in the case' but would ask the court to reconsider the size of the award. Illinois Central and Chicago Central & Pacific appealed, arguing that a day-in-the-life video of Apulello had unfairly swayed the jury, that the fault allocation and the damages were against the weight of the evidence, and that the noneconomic damages should be substantially reduced as excessive.

The Illinois Appellate Court, First District, rejected every argument and affirmed the verdict in full on November 8, 2004, in an opinion by Justice McBride. The court held that the video was properly admitted as demonstrative evidence, that the jury's fault findings were supported by the record, and that the awards were not excessive for injuries the court called 'substantial' and 'devastating.' The $21 million verdict for Fidel and Francisca Velarde stood as entered.