Lawsuit Filed Against Durango Train Operator

Burg Simpson leans on wildfire experience for 416 Fire lawsuit

Two Colorado law firms are going after the operators of Durango’s historic train for its part, they claim, in sparking one of the largest wildfires in Colorado history.

Burg Simpson Eldredge Hersh & Jordine and Durango law firm Duthie Savastano Brungard are teaming up on a lawsuit filed in La Plata County District Court against the operators of the train that runs between Durango and Silverton. They claim the train company’s management was negligent in operating the train during dry conditions that led to a wildfire and damage to residents’ property. The lawsuit largely relies on a little-used statute from the old West that holds trains accountable for fires. Despite having a law on the books specifically tailored for the situation, it’s unclear how much of the damage the law will cover or how eager residents will be to go after the train company that brings tourist money to the area.

“When you take aim at the golden goose, there is some reluctance and backlash by residents there,” Burg Simpson shareholder Tom Henderson said. “We’re not suing the train, we’re suing the management of the train. We’re looking to hold the management responsible for negligence and decision-making in running the coal-fired train in these [drought condition] circumstances.”

Even plaintiff’s attorney Bobby Duthie had reservations about suing the train. Ultimately, he felt the company should be held accountable for the damage.

“Given my history here in Durango and my love for the railroad, the decision to initiate legal action was thoughtfully evaluated,” he said in a prepared statement. “As I learned about the many fires the railroad started and its decision process to run a coal-fired steam locomotive during extreme drought conditions, I was moved to act, so my fellow La Plata County and San Juan County citizens and businesses could recover their losses from the responsible parties.”

Duthie sought out Burg Simpson because of a relationship from a prior construction defects case. Henderson got involved with Duthie because of his prior experience in the unusual niche of forest fire cases. He had previously handled governmental immunity case related to the Lower North Fork Fire and later the Waldo Canyon fire among others.

The lawsuit claims the train operators, American Heritage Railways, the Durango & Silverton Narrow Gauge Railroad Company and its operator Allen Harper, were negligent and reckless in the operation of the train in dry conditions. Henderson said had the train operator made several decisions differently, the fire could have been prevented.

The 416 Fire started on June 1 and burned more than 50,000 acres of land, making it the sixth-largest wildfire in Colorado history.

To read this story and other complete articles featured in the September 10, 2018 print edition of Law Week Colorado, copies are available for purchase online.