I grew up near the Brainard Crossing and have observed a few near collisions.

Except, as noted above, there are no gates to crash through once you are on the tracks. This is not a four quadrant gate crossing.

This sounds entirely like a contingent fee personal injury lawyer fishing for an unwarranted settlement, part and parcel evidence of the need for tort reform.

Excellent points, Mouse. Personal injury cases are always on a contingent fee basis - so counsel has to get a recovery to make any money. What this illustrates is how desperate many attorneys are for business - they will take cases that not that many years ago no attorney would touch. This is a nuisance lawsuit, filed with the expectation that the defendant's insurers will offer a "cost of defense" settlement to make it go away. Wrongful death lawsuits are very expensive to defend. Another consideration is that a jury may choose to ignore the hard facts and still make an award out of sympathy. The defendants could try to get rid of the matter through a summary judgment motion on the basis that since the only witness to what happened - the decedent - isn't available to testify, whatever she saw or didn't see is pure guess, conjecture and speculation. Regretably, and I speak from experience here, VERY FEW judges have that kind of backbone - they'll use the "question of fact" and "entitled to her day in court" arguments as justification. I drive over that crossing every day - you have several minutes AFTER the gates go down before any train arrives. This type of lawsuit stinks and should be defended out of principle.

Teri:

There are ways to deal with spurious lawsuits. Illinois has a Supreme Court Rule - Rule 137 - that provides for recovery of fees and costs if the lawsuit that was filed did not have a reasonable basis in law or fact. It is ostensibly based on Federal Rule of Civil Procedure 12.(b)(6). While federal judges do apply their rule, Illinois state court judges almost never apply it, especially against bogus personal injury suits. I speak from personal experience from years being a defense litigator. I even had a judge tell me in open court he would NEVER grant a Rule 137 motion against a plaintiff's attorney because their clients have an absolute right to their day in court (i.e., counsel - tell your client to make a settlement offer). What you propose is the so-called "English Rule" - i.e., loser pays. The plaintiff's bar is vehemently against it for obvious reasons - they justify opposition on the basis that it would discourage the poor from filing meritorious lawsuits. You will never get a legislative remedy such as the "English Rule" because too many legislators take contributions from the Illinois Trial Lawyers Association or they have their own plaintiff's practice in addition to their part-time job as a legislator. It is a stacked deck - when you do get a meritless case dismissed, you have to savour it like fine wine.