Negligence – Comparative fault | Massachusetts Lawyers Weekly

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Where a negligence complaint was filed after a bicyclist was struck and killed by a train, summary judgment should be awarded to the defendants because no reasonable jury could find that the bicyclist was less than 51 percent at fault.

“Rose Shumow (‘Plaintiff’), as personal representative of the estate of Moses Shumow (‘Mr. Shumow’), brings this wrongful death suit against Keolis Commuter Services, LLC. (‘Keolis’), Massachusetts Bay Transportation Authority (‘MBTA’), Nathan Drown (‘Mr. Drown’), and City of Beverly (collectively, ‘Defendants’) after a tragic incident, where Mr. Shumow was fatally struck by a commuter rail train while riding his bicycle across a pedestrian crossing at the Beverly depot station (‘Beverly Station’). Specifically, Plaintiff brings claims of negligence against Defendants and claims of gross negligence and willful, wanton, and reckless conduct against Keolis, MBTA, and City of Beverly. Plaintiff contends numerous individuals have been similarly struck by trains in Beverly, the Beverly Station lacked sufficient audible or visual warnings of approaching trains and causes a dangerous condition by allowing pedestrians to cross in front of oncoming trains, Defendant Mr. Drown, the train operator, failed to properly sound the train horn while speeding, and City of Beverly engaged in deceptive acts regarding the station’s ‘Quiet Zone’ status. …

“Defendants argue that Mr. Shumow’s negligence claims fail as a matter of law because Mr. Shumow was the sole cause of his injuries, and the danger was open and obvious such that a reasonable person in Mr. Shumow’s position would not have crossed the tracks.

“… Defendants have met their burden of proving that Mr. Shumow breached his duty of care and that his contributory negligence far exceeds fifty-one percent to bar recovery. I base my determination largely on video evidence of the accident and undisputed facts presented by the parties. …

“The videos show Mr. Shumow entering the Beverly Station platform on his bicycle, turn right briefly perpendicular to the approaching train with its bells ringing, before quickly glancing towards the train, and ignoring the train’s horn, lean left and turn his bicycle into the path of the oncoming train. From Mr. Shumow’s entry to impact, the timeframe is approximately three seconds. A jury can come to only one conclusion: Mr. Shumow was aware of the train and attempted to beat it to get across to the other side. … Here, the accident took place at about 8:15 AM at Beverly Station. The platform and pedestrian crossing were clearly visible. Mr. Shumow was familiar with Beverly Station as he had commuted most weekdays to and from this station. The videos depict the train with its bells activated and Mr. Shumow hastening to the crossing on his bicycle in a timeframe of approximately three seconds; they clearly show that Mr. Shumow did not listen, stop, and took only a split-second glance before turning into the path of the oncoming train as he ‘took the chance of crossing the track before the train could reach him.’ … No reasonable jury can conclude that Mr. Shumow did not know that a train was fast approaching; it can reach only one result: Mr. Shumow failed to take reasonable precaution at a recognized place of danger. …

“Plaintiff argues Defendants failed to follow M.G.L.c. 160, §138, which required a train to sound its whistle at least 1,320 feet before a public grade crossing and to continue sounding it until the engine had traversed such crossing. Plaintiff also points to M.G.L.c. 160 §138A to show that the MBTA was required to install an audible or visible warning device at the pedestrian crossing. Here, an extra audible or visible warning device or a longer whistle would not have made a difference. … Even assuming these statutes are applicable to Defendants, no reasonable jury can find from the facts of this case that Mr. Shumow was less than fifty-one percent at fault.”

Shumow v. Keolis Commuter Services, LLC, et al. (Lawyers Weekly No. 02-201-25) (13 pages) (Joun, J.) (Civil Action No. 1:22-cv-11623-MJJ) (March 31, 2025).

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