1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Richard E. Donahoo, SBN 186957 Sarah Kokonas, SBN 262875 DONAHOO & ASSOCIATES 440 West First Street, Suite 101 Tustin, CA 92780 Telephone: (714) 953-1010 Facsimile: (714) 953-1777 rdonahoo@donahoo.com skokonas@donahoo.com UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA KATHLEEN LUCERO, on her own behalf and as successor in interest to FRED J. LUCERO; minors M.M.L., R.T.L. and K.A.L., by and through KATHLEEN LUCERO, SARRAH LISA LUCERO, ERIK LUCERO, VICTOR LUCERO and PAUL LUCERO, Plaintiffs, vs. NATIONAL PASSENGER RAILROAD CORPORATION, t/d/b/a AMTRAK; and DOES 1-10, inclusive Defendants. Case No.: CV11-5267-VBF(SPx) FIRST AMENDED COMPLAINT FOR DAMAGES DEMAND FOR JURY TRIAL 1. GROSS RECKLESSNESS; 2. RESPONDEAT SUPERIOR; 3. CONVERSION; 4. TRESPASS TO CHATTEL 5. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; 6. SURVIVAL

Plaintiff, Kathleen Lucero, individually and as successor in interest to Fred J. Lucero (Decedent or Mr. Lucero), and on behalf of her minor children

1 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

M.M.L., R.T.L. and K.A.L.; and Plaintiffs Sarrah Lisa Lucero, Erik Lucero, Victor Lucero and Paul Lucero, complain and allege as follows:1 PARTIES 1. 2. Plaintiff Kathleen Lucero is a resident of the County of San Mrs. Lucero is the widow of the Decedent, Fred J. Lucero Bernardino, residing in Barstow, California 92311. (hereinafter Mr. Lucero). Mr. Lucero died on June 30, 2009 as a result of the tortious conduct of the Defendants as more fully set forth hereinafter. 3. Mrs. Lucero brings this action individually, in her capacity as the successor of interest of Fred J. Lucero, deceased, and on behalf of Mr. Luceros three minor children. 4. In addition to his widow and three minor children, Mr. Lucero is survived by four adult children, Plaintiffs Sarrah Lisa Lucero, Erik Lucero, Victor Lucero and Paul Lucero. Mr. Luceros childrens names, ages and addresses are as follows: a. His daughter, M.M.L., a minor, residing in Barstow, California; b. His daughter, R.T.L, a minor, residing in Barstow, California; and c. His daughter, K.A.L., a minor, residing in Barstow, California ; d. His daughter, Sarrah Lisa Lucero, residing in Hesperia, California; e. His son, Erik Lucero, residing in Topeka, Kansas; f. His son, Victor Lucero, residing in Topeka, Kansas; and g. His son, Paul Lucero, residing in Topeka, Kansas. 5. Defendant, National Railroad Passenger Corporation t/d/b/a Amtrak (Amtrak) is a federally chartered corporation, 100% of the preferred stock of

Plaintiff minor children are referred to herein by their initials, per Local Rule 79-5.4.
2 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

which is owned by the United States government. Amtrak was incorporated under an Act of Congress pursuant to 45 U.S.C. 501 et seq. 6. At all times material to the events set forth hereinafter, Amtrak Conductor Buckner and Amtrak Coach Attendant Terry Larson were employees of Amtrak and were acting in the course and scope of their employment as such. JURISDICTION AND VENUE 7. This civil action involves a federal question over which this Court has original jurisdiction pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1349. The federal courts have original jurisdiction in actions involving Amtrak because such actions arise under federal law and, therefore, invoke federal question jurisdiction. 49 U.S.C. 24301 et seq. 8. Venue is proper in this district as decedent Fred J. Lucero resided in this district with Plaintiff and successor in interest Kathleen Lucero and their minor children, M.M.L., R.T.L. and K.A.L.. Mr. Lucero embarked on his travel from this district and was in transit home to this district when he suffered his physical injuries and ultimate death as further described herein. FACTS 9. Mr. Lucero had a history of experiencing seizures. On June 23, 2009, while visiting his adult children living in Topeka, Kansas, Mr. Lucero experienced a tonic-clonic seizure. 10. delirium. 11. On Wednesday, June 24, 2009, Mr. Luceros sons took him to the emergency room of Stormont-Vail Regional Health Center, 1500 S.W. 10th Avenue, Topeka, Kansas 66604 for evaluation and treatment. Mr. Luceros seizure was followed by a postictal period during which Mr. Lucero evidence an altered state of awareness, confusion and

3 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12. 13.

After medications appeared to have caused Mr. Luceros symptoms The following day, June 27, 2009, Mr. Luceros family noted that he

to abate, Mr. Lucero was discharged on June 26, 2009. was behaving unusual, so they took him back to Stormont-Vail for evaluation and Mr. Lucero was admitted into the hospital. 14. On June 27, 2009 Mr. Lucero was diagnosed as stable from a seizure standpoint. On June 28, 2009 at approximately 12:15 pm Mr. Lucero was discharged from the hospital and was advised to follow up with his primary doctor in California as needed. 15. California. 16. 17. Mr. Luceros son, Erik Lucero, assisted Mr. Lucero onto the train. Amtrak Conductor Lewis Buckner and Coach Attendant Terry On June 30, 2009, at approximately 1:05 a.m., Mr. Lucero, boarded an Amtrak train in Topeka, Kansas intending to take the train home to Barstow,

Larson were present when Mr. Lucero boarded the train and, on information and belief, both Conductor Buckner and Coach Attendant Larson personally observed Mr. Lucero. 18. 19. Both Conductor Buckner and Coach Attendant Larson were aware Coach Attendant Larson assisted Mr. Luceros son, Erik, in that Mr. Lucero was disoriented and unsteady on his feet. boarding Mr. Lucero onto the train and helped direct Mr. Lucero to seats 83 and 84 located on the lower level of the 0311 coach car. 20. on his feet. Coach Attendant Larsons assistance was necessary to direct Mr. Lucero into his seat because Mr. Lucero was obviously disoriented and unsteady

4 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

21.

Erik Lucero was asked whether his father was intoxicated, to which

he responded in the negative and advised that his father was unsteady due to a health condition. 22. At no time during the boarding process did either Conduct Lewis or Coach Attendant Larson advise Erik Lucero that they would not keep an eye on Mr. Lucero nor did they inform Erik Lucero that Mr. Lucero should not ride the train unless someone was going to be riding with him in order to look out for him. 23. At no time during the boarding process did either Conductor Lewis or Coach Attendant Larson advise Erik Lucero that scores of elderly and confused passengers had fallen off of moving Amtrak trains to their deaths in the past forty years despite the fact, on information and belief, that occurrences of confused and disoriented passengers exiting moving trains and falling to their deaths or to serious injury happened with such frequency that it was an almost routine occurrence. 24. As more fully explained hereinafter, Amtrak has a forty-year history of having confused, elderly and/or disorientated passengers exit moving trains to their deaths due to doors that are unsafe and a staff that is deliberately untrained by Amtrak. Amtraks management and teams of lawyers are well aware of the fact that scores of such passengers have fallen out of Amtraks trains to their deaths, but Amtraks management and lawyers hide this fact from both the public and, more importantly, its employees who work on the front-lines riding the rails and who could protect such passengers from harm if only they were given some training and instruction as to what they should do. 25. Had Erik Lucero known that confused and disoriented passengers have a propensity and/or the ability to open the doors of moving Amtrak trains and fall to their deaths or to serious bodily injury, Erik Lucero would have never
5 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

left his father in the care of Amtrak and its employees as he did on June 30, 2010. 26. of Topeka. 27. Erik Lucero reasonably believed that the Amtrak employees working on the train would ensure the safe passage of his father from Topeka, Kansas to Barstow, California and he further reasonably believed that Amtrak and its employees would not abandon and ignore his father and allow his father in his confused and disoriented state, to wander around the train, open an exit door, and fall to his death. 28. After the train pulled out of Topeka, and despite knowing that he had an obviously disoriented passenger onboard the train, Coach Attendant Larson went to bed. 29. On information and belief, Mr. Lucero, in a confused and disoriented state, got up from his seat and exited the seating area of the coach he was traveling in. 30. Conductor Buckner came through the coach and noticed that Mr. Luceros seat was empty. Conductor Buckner presumed that Mr. Lucero was in the lounge or the restroom. 31. 32. Conductor Buckner made no effort to locate Mr. Lucero, even Sometime between 2:00 am and 3:00 a.m. on June 30, 2009, as the though he knew that Mr. Lucero was disoriented and unsteady on his feet. train passed through Florence, Kansas, Mr. Lucero, in a confused and disoriented state, mistakenly opened an exit door and fell to his death as the train was traveling approximately 79 mph. At no time did Coach Attendant Larson advise Erik Lucero that he (i.e. Larson) in fact was intending on going to sleep soon after the train pulled out

6 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

33. 34. 35.

Mr. Luceros body traveled approximately 136 feet after initially Mr. Lucero died as a result of the traumatic injuries he sustained. Despite the fact that the crew is required to walk the train and

striking the ground.

ensure passenger safety, Amtraks crew failed to realize that Mr. Lucero was not on the train for several hours. 36. In fact, it was not until approximately 8:40 a.m. on June 30, 2010, approximately six hours after Mr. Lucero would have exited the train, that a passing freight train spotted Mr. Luceros body on the tracks and notified Amtrak. 37. Amtrak Police thereafter performed what it calls an investigation into what led to the death of Mr. Lucero. Amtraks police departments investigation into Mr. Luceros death, as well as into the deaths of scores of other passengers who have fallen off of trains while confused and disoriented is not objective. Rather, the Amtrak Police routinely perform investigations into such matters that are incomplete, biased, and aimed at insulating Amtrak and its employees from liability. 38. The investigation report prepared by Amtrak Police relating to Mr. Luceros death noted, Its believed that Lucero had possibly become disoriented while onboard the train and attempted to enter a coach car door or a bathroom door, but instead accidently access the exterior door, and fell out of the train as it moved at 79MPH. 39. Upon finding Mr. Luceros body, Amtrak took possession of Mr. Luceros personal belongings, including a small black soft sided bag with clothing inside and pictures, Cell Phone, Credit Card and Identification Cards. 40. Despite repeated requests by Mrs. Lucero and/or her counsel, Amtrak has refused to return Mr. Luceros personal effects.
7 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41. herein. 42.

FIRST CLAIM FOR RELIEF Gross and Wanton Recklessness Against Amtrak and Does 1 to 10 Plaintiffs incorporate all preceding paragraphs as though set forth A common carrier, such as Amtrak, owes all of its passengers a duty

of care. A common carrier of persons for hire must use the utmost care and diligence for their safe carriage and must exercise a reasonable degree of skill to provide everything necessary for that purpose. 43. The care required of a common carrier is the highest that reasonably can be exercised consistent with the mode of transportation used and the practical operation of its business as a carrier. This requirement must be measured in the light of the best precautions which, at the time of the accident, were in common, practical use in the same business and had been proven to be effective. 44. For nearly four decades, Amtrak has had direct and certain knowledge that passengers who are elderly, confused, disoriented and/or mentally impaired have had a propensity to exit moving trains through the exit doors located on the Amtrak trains. 45. Such passengers routinely die upon impact with the ground. A few passengers have survived, and those who have survived have sustained severe and tragic injuries. 46. Amtrak has known for nearly forty years that the doors on its trains are frequently, and easily, opened while the trains are in motion. The doors are opened either by mentally confused and/or disoriented passengers, or by Amtrak employees and/or passengers who like to smoke cigarettes or get fresh air while traveling on the train.

8 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

47.

The only securing device located on the doors of the Amtrak

passenger coach is something called a dog-latch. This device is easily unlatched with the flip of a finger. 48. Moreover, it is very often the case that the dog-latches on the doors are not latched as they should be, or that they are left un-latched by passengers and/or Amtrak employees who open doors in order to smoke cigarettes or get fresh air. 49. When the door of an Amtrak train is not secured with a dog latch, the door can jostle open due to the movement of the train. Amtrak has known this fact for years. 50. Indeed, on information and belief, Amtrak installed the dog latches on the doors of its passenger coaches for the purpose of preventing the doors from being jostled open. 51. Amtrak has known for years that the simple operation of the dog latch allows even mentally impaired people the ability to easily open the doors while the train is in motion. 52. 53. engaged. 54. Other than the dog latch, there is no other type of locking mechanism or safety device utilized by Amtrak to secure the doors while the trains are moving to prevent the accidental opening of the exit doors. 55. Despite having had notice of the fact that mentally impaired, confused and/or disoriented passengers have a propensity to open doors and walk off of moving trains, Amtrak, in complete, total, and wholesale reckless disregard
9 FIRST AMENDED COMPLAINT FOR DAMAGES

Amtrak has known for years that its employees and its passengers Amtrak has known for years that the doors on the passenger coaches

very often open train doors in order to smoke or to get fresh air. can and do pop open due to the movement of the train if the dog latch is not

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to the risk of severe injury or death to which such passengers are exposed, has done absolutely nothing to either (1) secure the doors on the train so that they cannot be opened while the train is traveling at speed or (2) train its employees to protect and secure and/or remove such passengers from the train or (3) both. 56. A listing of passengers who have suffered death or serious bodily injury as a result of falling out of a moving train, thereby giving Amtrak notice of the unreasonably dangerous condition of the doors on its trains, or notice that elderly, mentally impaired, confused and/or disoriented passengers have a propensity to exit moving trains, or notice of both, is as follows: a. On or about September 2, 1972, Amtrak passenger Ralph Rhodes, age 80, exited a moving train to his death near Ipsis, California; b. On or about January 20, 1977, Amtrak passenger Cleotilde Amaya exited a moving train to her death near Vail, Arizona; c. On or about July 20, 1977, Amtrak passenger Estelle M. Hartman exited a moving train to her death near Brooks, Iowa. Investigation into Ms. Hartmans death revealed that she was an elderly person with a balance problem; d. On or about September 17, 1977, Amtrak passenger George Jones exited a moving train to his death while traveling from Washinton, D.C. to Camden, South Carolina. Amtraks investigation revealed that Mr. Jones was yelling and screaming incoherently and acting irrationally; e. On or about May 14, 1978, Amtrak passenger Jesse Mazyck exited a moving train near Wilson, North Carolina. Amtraks investigation revealed that Mr. Mazyck had an altered state of mind due to alcohol prior to exiting the train;

10 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

f. In June of 1981, Amtrak passenger Margareta Alfred exited a moving train near Auburn, California. Investigation into Ms. Alfreds death revealed that she had an altered state of mind due to being intoxicated prior to exiting the train; g. On or about September 27, 1981, Amtrak passenger James J. Morrow exited a moving train while traveling from Tampa, Florida to Columbia, South Carolina. Investigation into Mr. Morrows death revealed that Mr. Morrow was either mentally upset, heavily intoxicated or both while on the train; h. On or about October 16, 1982, Amtrak passenger Hubert Newkirk, age 68, exited a moving train near Cochise County, Arizona. Investigation revealed that he was forgetful, had a tendency to wander and had sustained an injury to his head prior to exiting the train; i. On or about February 26, 1984, Amtrak passenger Robert Edward Berry exited a moving train near Oxford, Nebraska. The investigation into Mr. Berrys death revealed that Mr. Berry had slurred speech, appeared depressed, and may have been disoriented due to medications he was taking; j. On or about March 12, 1984, Amtrak passenger Clarence E. Moore, age 84, exited a moving train near Rose Creek, Nevada. Amtraks investigation revealed that Mr. Moore was confused and disoriented while on the train; k. On or about April 15, 1984, Amtrak passenger David Adams exited a moving train near Aetna or Neoga, Illinois. Amtraks investigation revealed that an Amtrak employee thought Mr. Adams was spacey and had slurred speech;
11 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

l. On or about July 14, 1985, Amtrak passenger Hattie Wright Datcher exited a moving train near Lemon Springs, North Carolina; m. On or about January 1, 1986, Amtrak passenger Denise M. Raglund exited a moving train near Wilminton, Delaware. Amtraks investigation revealed that prior to exiting the train, Amtraks crew was aware that Ms. Raglund was extremely confused, pacing the train, and kicking and pushing a door and that she had already once tried to open the door of the moving train before she was ultimately successful in opening the door and falling to her death; n. On June 8, 1987, Amtrak passenger Kenneth Workman exited a moving train near Cambridge, Nebraska. Amtrak learned in the investigation that followed that Mr. Workman was disoriented while aboard the train; o. On September 2, 1987, Amtrak passenger William Cudney exited a moving train; p. On May 16, 1988, Amtrak passenger Helen Hampton, age 73, exited a moving train near Fargo, North Dakota. Investigation revealed that Mrs. Hampton was suffering from the onset of senility or Alzheimers; q. On October 23, 1989, Amtrak passenger Delbert Jackson, age 82, exited a moving train near Columbiania, Ohio. Prior to exiting the train, Delbert Jackson was observed to be dazed, confused and incoherent as he wandered aimlessly around the train; r. On October 28, 1989, two Amtrak passengers, Arthur and Dorthea Kohfeld, both exited a moving train to their deaths in Middlepoint, Ohio. Numerous Amtrak employees were aware of the fact that both Mr. and Mrs. Kohfeld were confused and disoriented, but they
12 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

did nothing to protect them. The coroner concluded in his report, it is my judgment and belief that Arthur and Dorothea Kohfeld suffered accidental deaths from walking off a moving passenger train while confused and disoriented; s. On June 22, 1990, Amtrak passenger Robert Henry Houston, age 63, exited a moving train to his death near Niland, California. He was an insulin dependent diabetic who walked with a cane; t. On September 15, 1990, Amtrak passenger Edwin Peterson exited a moving train near Lewistown, Pennsylvania. Investigation into Mr. Petersons incident revealed that Mr. Peterson was unruly and obnoxious and may have been intoxicated; u. On November 29, 1990, Amtrak passenger David Carl Spencer, age 73, exited a moving train near Needles, California. Investigation into Mr. Spencers death revealed that Mr. Spencer had been acting very strange, confused and turning the overhead lights on other passengers seats prior to exiting the train; v. On January 20, 1991, Amtrak passenger Danilo Quiambao exited a moving train near Marysville, California; w. On April 18, 1991, Amtrak passenger Sven Kiilsgaard exited a moving train near Pajaro, California. Investigation into Reverand Kiilsgaards death revealed that he opened an exit door while in a confused and disoriented state as a result of being in an epileptic seizure. Passengers on the train, as well as employees, told investigators that Reverand Kiisgaard was acting strange the entire trip; x. On July 7, 1971, Amtrak passenger Howard Fredenburg, age 62, exited a moving train to his death near Grandin, North Dakota;
13 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

y. On February 3, 1992, Amtrak passenger Sylvia Langley exited a moving train near San Bernadino, California. Investigation into Ms. Langleys death revealed that she was under psychiatric care and that Amtraks crew had noticed that she was confused and out of it stopped her from opening a door on the train earlier during her trip, but the crew then abandoned her and she successfully opened the door and exited the train; z. On September 29, 1992, Robert Hall exited a moving train near Columbia, South Carolina. Investigation into Mr. Halls death revealed that he was likely suffering from acute alcohol withdrawal and was hallucinating while on the train; aa. On October 12, 1992, Sam Springer exited a moving train near Princeton Junction, New Jersey. Investigation into Mr. Springers incident revealed that he was acting very strangely while on the train and thought people were after him, i.e., he was paranoid; bb. On October 16, 1992, Florence Considine, age 57, exited a moving train near Price, Utah. Her exit from the train provided Amtrak with notice that passengers can exit the doors while the train is moving; cc. On November 23, 1992, Amtrak passenger Curtis Alex exited a moving train near Alpine, Texas. Investigation into Mr. Alexs death revealed that Mr. Alex was talking crazy, incoherent and very disoriented and that he kept talking about getting off the train and taking a cab to Houston which is 500 miles away" prior to exiting the train; dd. On December 12, 1992, Jeffrey A. Rossler exited a moving train near LaPorte County, Indiana. Investigation into Mr. Rosslers

14 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

incident revealed that Mr. Rossler was a manic depressive who was in need of medication; ee. On May 21, 1993, Edward L. Gray, III, age 27, exited a moving train to his death between Baltimore, Maryland and Philadelphia, Pennsylvania; ff. On December 24, 1993, Amtrak passenger Ilo Ike Eischeid, age 74, exited a moving train near Yuma, Arizona and was found by police wandering around the interstate bleeding; gg. On April 11, 1994, Min Soeny exited a moving train near Elizabethtown, New Jersey. Amtrak crew described Min Soey as a crazy person who was acting in a bizarre manner, talking to himself, looking under other passengers seats; hh. On May 4, 1994, Amtrak passenger Elbert Gross, age 69, exited a moving train to his death while taking a trip between Hartford, Connecticut and Evergreen, Alabama. Mr. Gross was noted to have had a disoriented state of mind while riding the train; ii. On May 25, 1994, Amtrak passenger Eleanor Kiesendahl exited a moving train near Lakot, North Dakota. Amtrak learned in its investigation that Mrs. Kiesendahl had been pacing up and down the train for quite some time and that she started going through different individuals bags and baggage; jj. On September 15, 1994, Amtrak passenger Robert Harris, age 87, exited a moving train near Yuma, Arizona. Investigation into Mr. Harris death revealed that he was acting agitated while on-board the train and was talking nonsensically; kk. On November 22, 1994, Amtrak passenger Autholia Delce exited a moving train near China, Texas;
15 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ll. On July 18, 1995, Amtrak passenger John Williams exited a moving train near Leetsdale, Pennsylvania; mm. On September 27, 1995, Amtrak passenger Frank Vojcak exited a moving train near Bluestem, Washington. Prior to his death, Mr. Vojcak had tried to jump from the train and was stopped by Conduct Collins who locked the door. Mr. Vojcak was noted to be agitated and depressed and was telling everyone that he was going to hell. Later, he was noted to be disorientated as to his whereabouts and was thinking that he was on a bus in the Chicago area; nn. On March 24, 1996, Amtrak passenger Tom Whitestone exited a moving train near Anniston, Alabama; oo. On March 28, 1996, Amtrak passenger Victor Gust, age 76, exited a moving train near DHanis, Texas. Investigation revealed that he was acting strangely and pacing back and forth inside the train before his exit; pp. On or about July 31, 1996, Amtrak passenger Charles Whitworth exited a moving train near Holbrook, Arizona. A memorandum prepared August 3, 1996 by Amtrak employee George Cantley discussed comments made during a meeting of Amtrak employees held during the investigation into Mr. Whitworths death. The memo stated, The point was made by those present during the interview that occurrences with elderly/senile/mentally unstable passengers have been happening with such regularity as to have become routine"; qq. On or about September 19, 1996, Amtrak passenger William Swanson, age 54, exited a moving train near Hammond, Indiana;
16 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

rr. On or about February 27, 1997, Amtrak passenger Randall Harris exited a moving train in Saronville, Nebraska. Investigation into the incident revealed that Mr. Harris had been wandering around the train, talking incoherently and the untrained Amtrak employees had isolated and abandoned him in his room instead of getting him care or sitting with him; ss. On April 6, 1997, Amtrak passenger Herbert Sudds exited a moving train that was traveling from Florida to Cleveland; tt. On April 17, 1997, Amtrak passenger Gerhardt Soyck exited a moving train near Texarkana, Arkansas; uu. On June 2, 1997, Amtrak passenger Maurice Fisher exited a moving train near Ottowa County, Ohio. Witnesses observed the 87-year-old Mr. Fisher acting bizarre on the train for some time prior to him walking off the train; vv. On March 8, 2000, Amtrak passenger Helen Dorens exited a moving train; ww. On August 3, 2002, Amtrak passenger James R. Allen suffered a heart attack while a passenger on an Amtrak train. Due to the wholly inadequate training Amtrak provides to its employees, or the pressure that management places upon its employees to get trains to their destinations on time and to not stop trains for any reason, including life-and-death emergencies, or both, the train did not stop for over 20 minutes during which time Mr. Allen died; xx. On May 7, 2003, Amtrak passenger Ronald Donis exited a moving train Illinois to California; yy. On June 24, 2007, Amtrak passenger Roosevelt Sims, age 65, was suffering from diabetic shock while riding the train. Amtraks
17 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57.

employees kicked him off of the train without food, water, or means of communication at or near the Bootleggers Crossing which was located in the middle of a 800,000 acre national forest near Williams, Arizona because they felt he was being unruly. zz. On April 29, 2008, Amtrak passenger Joseph Pineda exited a moving train; aaa. On or about August 18, 2010, Amtrak passenger Agostinho Carlos Sadi, age 51, exited a moving train near Troy, Montana and fell to his death; bbb. On September 9, 2010, Amtrak passenger Barbara Arteta, age 63, exited a moving train while the train was traveling near Sanford, Georgia. Investigation revealed that Mrs. Arteta suffered from Parkinsons disease and was unsteady on her feet; On information and belief, there are other incidents involving confused and/or disoriented passengers exiting Amtraks trains to their death and/or to serious bodily injury that provide Amtrak with further notice that such passengers have a propensity to exit moving trains. 58. On information and belief, Amtrak has had an opportunity to learn about the propensity of mentally confused passengers exiting its trains not only as a result of the numerous dead bodies that have lined its tracks over the past decades, but also as a result of litigation filed by the passengers survivors. Such cases have included cases brought by: Ralph Rhodes Estate; Estelle Hartmans Estate; Odell R. Jones; Jesse Mazycks Estate; James J. Morrows Estate; Hubert NewKirks Estate; Robert Berrys Estate; Hattie Datchers Estate; Denise Raglunds Estate; Helen Hamptons Estate; Danilo Quiambaos Estate; Sven Kiilsgaards Estate; Alex Curtis Estate; Eleanor Kiesendahls Estate; Robert Harris Estate; Herbert Sudds Estate.
18 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

59.

The Kiilsgaard v. Amtrak litigation is illustrative of Amtraks

reckless disregard of the safety of its passengers and provided Amtrak certainty of facts as to the defective nature of its doors. 60. Following the death of Reverend Kiilsgaard on April 18, 1991, a lawsuit was filed against Amtrak at No. 93318, Superior Court of the State of California, County of Monteray. The Kiilsgaard v. Amtrak action eventually tried to non-jury verdict before the Honorable Richard M. Silver in March and April of 1997. 61. In the Courts Statement of Decision filed August 12, 1997, Judge Silver found as a fact that Sven Kiilsgaard suffered from a seizure disorder that resulted in confusion, disorientation, impaired perceptions and confusion as to surroundings. 62. Judge Silver also found as a fact that Prior to this accident defendant [i.e. Amtrak] was on notice that, notwithstanding instructions to the contrary, on occasions employees would negligently to secure the dog latch; that the dog latch had a tendency to move, or migrate during train operations; and that on occasion passengers would open the door or window to smoke or get fresh air. 63. Judge Silver found as a fact prior to this accident, defendant was, or should have been, aware of numerous older and/or mentally confused persons who had fallen from the moving train from the types of doors here in question. 64. Judge Silver received evidence of several incidents involving passengers who had exited moving trains and concluded, based upon the evidence, These incidents were admitted and considered only to the extent that they put defendant on notice of falls from trains by elderly, mentally confused, or intoxicated passengers and the need to review and consider door and or other safety concerns for such passengers.
19 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

65.

Judge Silver found as a fact, The evidence established that a

covering over the lock, appropriately marked and secured, better signing, and some type of mechanism (e.g. a light, a snap locking chain or alarm bell) could have been installed without compromising safety in the event of a train accident and which would have prevented a person in a confused or disorientated state from opening the exit doors by mistake. The weight of the evidence established that these devices were well within the technological ability of defendant to install and, in fact, have been in use on some of defendants (sic) trains for many years. 66. Judge Silver found as a fact, Based on the evidence presented the above indicated changes are feasible, are used on other public transit, and would have prevented this plaintiff and others from confusing the exit doors with others in the vicinity. 67. Judge Silver found as a fact, The Court finds by a preponderance of the evidence, that defendant breached its duty to plaintiff by its failure to act to take reasonable steps to secure the door as indicated above. Further, the Court finds that the cost of this would not unreasonably interfere with interstate commerce and that this matter is not preempted by federal laws. 68. Judge Silver found as a fact that Amtraks own expert witness, Dr. Allan Dorosin, testified that it is common for epileptics experiencing seizure activity to feel a tremendous compulsion to exit from wherever they are located; to try to get out; to find a place of security, like a bathroom. 69. Importantly, Judge Silver found as a fact, Notwithstanding the information available to [Amtrak] regarding the pattern of these accidents, they took no action whatsoever to either investigate whether the doors could be more safely secure or, in fact, to do anything to prevent the doors from being accidently opened while the trains were moving.
20 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

70. Amtrak. 71.

Amtrak appealed the verdict entered against it in Kiilsgaard v. In an opinion filed June 30, 1999, the Court of Appeal of the State

of California, Sixth Appellate District, affirmed the trial courts verdict. On information and belief, Amtrak did not take any further appeal in the Kiilsgaard v. Amtrak litigation. 72. In addition to being put on notice that elderly, confused and/or mentally impaired passengers have a propensity to exit moving trains through doors that are easily opened by the numerous deaths of such passengers and the numerous lawsuits it has faced, Amtrak has also been put on notice as a result of its own internal investigation into these accidents. 73. For example, during the investigation that followed the death of Charles Whitworth, Amtrak employee George Cantley issued an August 3, 1996 memorandum that discussed a meeting Mr. Cantley had with Amtraks crew. The memorandum stated, in part, The point was made by those present during the interview that occurrences with elderly/senile/mentally unstable passengers have been happening with such regularity as to have become routine. 74. The horrific and tragic death of Mr. Lucero was caused by the a. Despite having certain knowledge that mentally confused and disoriented passengers have a propensity to exit its moving trains, Amtrak deliberately failed to inform and train its employees of such propensities and deliberately failed to educate them on how to identify individuals who may need special assistance or attention or who may not be suitable passengers; b. Despite having certain knowledge that mentally confused and disoriented passengers have a propensity to exit its moving trains,
21 FIRST AMENDED COMPLAINT FOR DAMAGES

reckless of Amtrak in that:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Amtrak failed to inform and train its employees of such propensities and to educate them on how to respond to such passengers and to monitor and attend to such passengers; c. Despite having certain knowledge that the doors on its trains could easily, and economically, be made safer so as to protect and prevent against mentally confused and disoriented passengers falling out of trains, Amtrak has deliberately and intentionally done nothing to make its doors safer; d. In failing to train its employee, Coach Attendant Larson, not to go to sleep and leave an elderly and confused passenger on the train; e. In failing to train its employee, Conductor Buckner, not to permit the Coach Attendant to leave Mr. Lucero alone; f. In deliberately failing to train its employees, Conductor Buckner and Coach Attendant Larson to ensure Mr. Luceros safe passage by sitting with him during the journey after the two employees elected to take Mr. Lucero on as a passenger after being made aware of his disoriented state; g. In deliberately failing to train its employees not to allow passengers such as Mr. Lucero to board the train if it is the case that such passengers, like Mr. Lucero, are going to be left alone in their confused and disoriented state during the train ride; h. In deliberately and intentionally concealing and hiding from its employees, including Conductor Buckner and Coach Attendant Larson, the fact that numerous passengers who have exhibited signs of confusion, disorientation and/or mental impairment have accidently opened the doors on moving trains and fallen from same to their death which information had it been disclosed to the
22 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 76. herein. 77. 75.

employees would have enhanced their awareness of Mr. Luceros condition and caused them to carefully observe him and prevent him from exiting the train. i. In choosing to promote its own interests in attempting to make a profit over the safety of its passengers by (1) deliberately refusing to spend money in order to train its employees about the increased risk confused, elderly and/or disoriented passengers are exposed to as a result of the dangerous doors located on the train and how to protect them from harm (2) deliberately refusing to modify the exit doors on the train to make them safer for such passengers and (3) by choosing instead to litigate the claims arising out of the deaths of such passengers because, on information and belief, paying the damages for an injury or death claim is monumentally cheaper for Amtrak than training its employees, retrofitting the doors on its trains, or both. As a direct and proximate cause of Amtraks gross and wanton recklessness, as described herein, Mr. Lucero suffered physical injuries and death, resulting in economic and non-economic damages to the Plaintiffs. SECOND CLAIM FOR RELIEF Respondeat Superior As Against Amtrak and Does 1 to 10 Plaintiffs incorporate all preceding paragraphs as though set forth Conductor Buckner and Coach Attendant Terry Larson were aware

of the fact that Mr. Lucero was disoriented, confused and unsteady on his feet at the time they witnessed him board the train.

23 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

78.

Conductor Buckner and Coach Attendant Terry Larson, on

information and belief, were aware that the exit doors on the coach could be easily opened by any passenger, including one who was confused and disoriented such as Mr. Lucero. 79. Conductor Buckner and Coach Attendant Terry Larson, on information and belief, were required pursuant to their job duties to monitor the interior of the train, to ensure that passengers were safe and secure, to be on guard for passengers who were exhibiting signs of confusion and disorientation and to protect and prevent such passengers from injury and from exiting the train in their confused and disoriented state. 80. Despite being on notice that Mr. Lucero was in a confused and disoriented state, Conductor Buckner and Coach Attendant Terry Larson recklessly failed to protect Mr. Lucero from injury, and they in fact abandoned him alone in the train in order to go to bed and/or perform other duties on the train and they did so despite the fact that it was, or should have been, reasonably foreseeable to them that Mr. Lucero would open an exit door in his confused state and exit the train to his death. 81. To the extent that the evidence learned in discovery reveals that Conductor Buckner and/or Coach Attendant Terry Larson had received any training from Amtrak regarding the propensity of confused and/or disoriented passengers to mistakenly open exit doors on trains and fall to their deaths and/or to the extent that either Buckner and/or Larson had obtained such knowledge independent of any training provided to them by Amtrak, then Buckner and Larsons conduct in failing to protect Mr. Lucero and prevent him from falling from the train despite their knowledge that he was at an increased risk of doing so in light of his confused and disoriented state was outrageous in addition to being reckless.
24 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

82.

As Amtrak was the controller and employer, Amtrak is liable for the

gross and wanton reckless conduct of its employees, Conductor Buckner and Coach Attendant Terry Larson. 83. In the course and scope of their employment for Amtrak, Buckner and Larson committed acts of recklessness that directly and proximately caused Mr. Luceros physical injuries and his ultimate death, resulting in economic and non-economic damages to the plaintiffs herein. Amtrak is liable for their acts and omissions and is responsible for the damages. THIRD CLAIM FOR RELIEF Conversion By Kathleen Lucero as Successor In Interest As Against Amtrak and Does 1 to 10 84. herein. 85. Following discovery of Mr. Luceros exit from the train and ultimate death, Amtrak took possession of Mr. Luceros personal belongings. Upon information and belief, the belongings were collected by Amtrak personnel who were specifically charged with taking possession of Mr Luceros belongings as part of investigating the circumstances surrounding the incident. 86. Despite repeated requests by Mrs. Lucero directly and through her representatives, Amtraks claims department maliciously and intentionally has refused to return Mr. Luceros personal belongings. 87. 88. Amtrak has no legal right to said belongings. Amtraks refusal to return Mr. Luceros personal effects has resulted Plaintiffs incorporate all preceding paragraphs as though set forth

in Mrs. Lucero being denied the ability to experience closure and finality following the tragic death of her husband.
25 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

89.

Amtraks refusal to return Mr. Luceros belongings for nearly two

years has been constant, sustained and unwavering and, on information and belief, is being committed at the direction of lawyers or claims agents employed or retained by Amtrak for the purpose of either promoting Amtraks litigation position or to mentally compel Mrs. Lucero into submission and settlement, or both. 90. 91. Amtrak has converted Mr. Luceros property, resulting in economic The retention of Mr. Luceros personal effects is unlawful, FOURTH CLAIM FOR RELIEF Trespass to Chattel By Kathleen Lucero As Successor in Interest As Against Amtrak and Does 1 to 10 92. herein. 93. In the event that Amtraks refusal to return Mr. Luceros personal effects to Mrs. Lucero is not a conversion, Plaintiff asserts a cause of action for trespass to chattels. 94. Amtraks trespass to chattel is deliberate, intentional, unlawful, nonprivileged and malicious, resulting in economic and non-economic damages to the Plaintiff Kathleen Lucero warranting the imposition of punitive damages. FIFTH CAUSE OF ACTION By Kathleen Lucero as Successor in Interest Intentional Infliction of Emotional Distress As Against Amtrak and Does 1 to 10
26 FIRST AMENDED COMPLAINT FOR DAMAGES

and non-economic damages to the Plaintiff Kathleen Lucero. intentional, and malicious and warranting the imposition of punitive damages.

Plaintiffs incorporate all preceding paragraphs as though set forth

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 herein.

95. Plaintiffs incorporate all preceding paragraphs as though set forth 96. As a direct result of Amtraks conduct in refusing to return Mr. Luceros personal effects to Mrs. Lucero, Mrs. Lucero has experienced severe emotional distress. 97. Amtraks refusal to return the personal effects of Mr. Lucero to his wife, despite having no basis in law or fact to refuse to return said items, is outrageous, it violates all notions of common decency and it has prevented Mrs. Lucero from having the ability to complete the grieving process. Plaintiff has suffered economic and non-economic damages as a result and the conduct warrants the imposition of punitive damages. SIXTH CAUSE OF ACTION By Kathleen Lucero, as Successor in Interest Survival As Against Amtrak and Does 1 to 10 98. herein. 99. Kathleen Lucero is a successor in interest of the decedent and succeeds to this cause of action. She brings this complaint in the capacity of the successor in interest. Plaintiff executed and attaches hereto, concurrent with the filing of this complaint, her declaration pursuant to Code of Civil Procedure 377.32. 100. Decedent Mr. Lucero died on June 30, 2009, as a result of the personal injuries incurred in the incident which gives rise to this claim. The personal injuries included blunt force trauma and skull fracture. The cause of Plaintiffs incorporate all preceding paragraphs as though set forth

27 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

action arising out of the decedents personal injuries accrued prior to the death of the decedent, who would have been a Plaintiff in this action had he survived. 101. The personal injuries suffered by the decedent were the proximate result of the Defendants gross and wanton reckless conduct as alleged herein. Defendants conduct was malicious in that it was despicable conduct in a conscious disregard for the safety of decedent Mr. Lucero warranting the imposition of punitive damages. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray for judgment against defendants on all causes of action, and each of them, as follows: 1. Economic damages as proved at time of trial; 2. Non-economic damages as may be proved at time of trial; 3. Exemplary/punitive damages as proved at time of trial; 4. Costs of suit as permitted by law; 5. Attorneys fees as permitted by law; 6. For such other relief as may be appropriate.

Dated: August __, 2011

DONAHOO & ASSOCIATES

________________________________ By: Richard E. Donahoo Sarah L. Kokonas Attorneys for Plaintiffs

28 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JURY DEMAND Plaintiffs hereby demand a trial by jury. Dated: August _, 2011 DONAHOO & ASSOCIATES

________________________________ By: Richard E. Donahoo Sarah L. Kokonas Attorneys for Plaintiffs

29 FIRST AMENDED COMPLAINT FOR DAMAGES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
30 FIRST AMENDED COMPLAINT FOR DAMAGES

Declaration of Kathleen Lucero I, Kathleen Lucero, declare as follows: I am an adult individual and resident of the state of California. The following information is based on my personal knowledge. If called to testify I could and would competently testify as follows: 1. I am the widow of decedent Fred J. Lucero (the decedent). 2. Fred J. Lucero died on June 30, 2009 near Florence, Kansas. 3. No proceeding is now pending in California for administration of the decedent Fred J. Luceros estate. 4. Fred J. Lucero and I were married when he died on June 30, 2009. I am the decedents successor in interest and succeed to the decedents interest in the action. 5. No other person has a superior right to commence the action or to be substituted for the decedent in the pending action. 6. I declare under the penalty of perjury under the laws of the State of California and United States that the foregoing is true and correct.

Dated: June 22, 2011

________________________________ Kathleen Lucero