By Julia Cheever, Bay City News Service
A Berkeley woman whose legs were crushed by a train in Austria six
years ago won the right from a U.S. appeals court today, Friday, to go ahead with a lawsuit
against the Austrian railroad in federal court in San Francisco.
A panel of the 9th U.S. Circuit Court of Appeals in San Francisco said by an 8-3 vote that Carol Sachs established an adequate connection with commercial activity within the United States because she had bought a Eurail pass from an American-based company.
Sachs used the rail pass when she bought a ticket for a trip from Innsbruck, Austria, to Prague in the Czech Republic in April 2007.
She fell to the tracks through a gap in the platform as she tried to board a train and was hit by the moving train. Both her legs had to be amputated above the knee.
Sachs sued the Republic of Austria's state-owned railroad, OBB Personenverkehr AG, in U.S. District Court in San Francisco in 2008 for negligence in allegedly moving the train while she was trying to board.
The railroad company, which claimed the train was already moving when she tried to board, argued that the lawsuit should be dismissed because U.S. courts had no jurisdiction over the case.
In two earlier rulings, now-retired U.S. District Judge Vaughn Walker and a divided three-judge panel of the appeals court agreed the case should be dismissed.
But the full appeals court granted Sachs' appeal for a rehearing before an expanded 11-judge panel, which ruled in her favor today.
Judge Ronald Gould wrote in the majority opinion, "A foreign-state-owned common carrier, such as a railway or airline, engages in commercial activity in the United States when it sells tickets in the United States through a travel agent regardless of whether the travel agent is a direct agent or subagent of the common carrier."
Unless the Austrian railroad successfully appeals to the U.S. Supreme Court, the case will go back to U.S. District Court in San Francisco, where it will be assigned to a new trial judge.
The appeals court noted in a footnote, however, that "a great many issues" that were not part of the appeal remain to be resolved before the lawsuit could go to a possible trial.
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