A volunteer fire company in Pennsylvania has been sued for wrongful death after a mother and child were struck and killed by a passing freight train. The basis for liability was an opening in a fence on the department’s property that had been used by the public as a means to cross the tracks.
The suit was filed on August 2, 2011 by Elmer Smart, father of two year old John Smart, who was killed on October 30, 2009 when he tried to cross the tracks with his mother, Sheila Singer. Smart sued the Derry Volunteer Fire Department and Norfolk Southern Corp. alleging negligence.
The basis for the suit against Derry VFD was that the department failed to maintain and repair the fence which was on department property along the tracks. The hole is alleged to be associated with a well worn path across the tracks that was used by many area residents. Smart sued for damages on behalf of his son only, not for the death of Singer.