Richmond family said guardrail at railroad crossing cause of fatal accident

RICHMOND, Calif. (KGO) -- A 22-year-old Richmond man who planned to teach music to underprivileged children will never get the chance. This past March he died at a railroad crossing in an accident that had nothing to do with an oncoming train. The family's attorney says a dangerous guardrail killed the young man.

Despite on-site meetings next to the guardrail in question, one agency didn't remove it until after the fatal accident.

Anthony Tuaumu Vaili's family called him Tupu, a cute nickname with a regal meaning - King. "To describe him seems like an exaggeration but it's all true," his sister Flo Tuaumu said.

Flo says he spent nearly all his time in church.

After a full night and day volunteering in March, Anthony drove his family home from church at 6 p.m. Flo says he fell asleep at the wheel and crashed into a guardrail in front of a railroad crossing gate at Regatta Boulevard and 34th Street. One of the guardrail's steel beams pierced his head. "Being a religious person I immediately started to cry out to God that I wasn't ready for a challenge this big," Flo said.

According to the traffic collision report, the steel guardrail surrounded and protected the crossing gate. After the accident, the California Public Utilities Commission put in a plastic barrier. CPUC confirms drivers of large trucks having difficulty navigating this turn were likely striking the gate, causing damage. The agency says these types of rail barriers are installed by railroads to prevent damage to railroad gates. However, CPUC also says according to its recent records, paperwork to install the steel barrier was not filed. CPUC says it doesn't know who installed it or when.

"When I first got out of that car and I looked at that guardrail, something is up to me," Anthony's brother Enoch Tuaumu said.

CPUC says any unauthorized alterations at railroad crossings are immediately noticed by staff during inspections, but despite CPUC staff being there three times between 2008 and 2013, the undocumented guardrail remained in place. According to Google's Street View images, the guardrail was there eight months before a CPUC December 2008 inspection. In 2011, one horizontal beam had already been knocked off the guardrail and was on the ground. CPUC says its next on-site meetings were in January 2012 and February 2013. The Federal Railroad Administration, City of Richmond and at least three railroad companies with vested interests in the crossing were also there.

The unauthorized guardrail remained in place. A picture from May 2014 reveals an orange safety cone. And that broken horizontal beam that was in the road in 2011 is now gone. Less than one year later, Anthony's accident occurred.

According to the traffic collision report, when he crashed into the guardrail, the remaining horizontal steel beam broke off and went through his windshield. "This was truly an accident waiting to happen," attorney Brian Kabateck said.

Kabateck is filing a wrongful death and negligence lawsuit on the family's behalf. It names Contra Costa County, the city of Richmond and Richmond Pacific Railroad. "Nobody is taking responsibility, but everybody let Anthony down," he said.

After the accident, CPUC replaced the remaining damaged guardrail with a temporary plastic crash barrier.

CPUC says it "provides the same functionality." Anthony's brother wonders why the safer plastic alternative protecting the crossing gate wasn't there all along. "If there was what's there now, which is just these plastic barrier things, he'd be walking around," Enoch said.

Anthony's family honors him by spending their time in church. His sister says Tupu would want them to find peace and answers. "I think he would want us to follow through to make sure it didn't happen to anyone else," she said.

Richmond Pacific Railroad leases the rail line from Union Pacific. In an emailed statement, Union Pacific said Richmond Pacific under contract is "obligated to inspect and maintain the tracks and the crossing."

Richmond Pacific Railroad did not respond to ABC7 News' calls or emails.

The Federal Highway Administration in an emailed statement put the responsibility "for installing hardware such as barriers" on the owner of the road. It's not clear who owns the road where this barrier existed.

Neither Contra Costa County nor the city of Richmond would answer ABC7 News' questions because of the pending lawsuit.

An attorney for the city of Richmond released a statement in an email saying: "This was a tragic accident. The city is continuing its investigation."