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Railroad Injury Blog

Sequestration Will Reduce Certain RRB Benefits

Tuesday, March 05, 2013

The United Transporation Union (UTU) indicated on its website today that certain Railroad Retirement Board (RRB) benefits will be reduced because of sequestration. Because of the mandatory budget cuts that went into place on March 1, 2013, RRB unemployment and sickness benefits will be reduced by 9.2 percent. Daily unemployment benefits will be reduced to just under $60 while daily sickness benefits will drop to $55.34. Budgetary reductions will not effect the payment of RRB retirement, survivor and/or disability benefits. A link to the UTU article can be found here.

By Matt Darby

MD Appellate Court Upholds Jury’s Verdict In FELA Case Involving Injured Railroader

Thursday, February 28, 2013

Today the Maryland Court of Appeals issued a decision favorable to an injured Railroader that was represented by BSGFD in a FELA claim. In that case, a Baltimore City jury awarded the Rairoader 1.24 million dollars to compensate him for injuries he sustained to knees as a result of his employment as an locomotive engineer. The Railroad filed an appeal with the Maryland Court of Appeals in an attempt to have that award overturned. The appellate court ruled in favor of the Railroader and held that the Railroad had failed to prove that his claim that he developed knee injuries as a result of walking on large ballast was precluded by federal law.

By Matt Darby

NTSB Indicates That Goodwell, OK Train Crash Could Have Been Prevented

Wednesday, February 27, 2013

The National Transportation Safety Board (NTSB) indicated yesterday that the June 24, 2012 collision involving two Union Pacific trains that occurred near Goodwell, Oklahoma could have been prevented by positive train control (PTC). Three Railroaders were killed as a result of that collision. A link to the NTSB’s website regarding that investigation can be found here. A link to the NTSB’s preliminary report can be found here.

By Matt Darby

Contributory And Comparitive Negligence In FELA Cases

Saturday, February 23, 2013

As I indicated last week, to recover damages in a Federal Employers’ Liability Act (FELA) case, there is a requirement that the Railroad act negligently in producing a Railroader’s injuries. See here. Contributory negligence is a similar concept except that it’s an action or inaction on the part of the Railroader which leads in some manner to his/her own injury. In determining whether a Railroader was contributory negligence a determination is made as to whether he/she took, or failed to take, actions which a reasonably prudent person would have taken under the circumstances. If there is a finding that Railroader acted negligently and that negligence played any part in bringing about his/her own injuries that person will be deemed to be contributorily negligent.

A determination of contributory negligence does not bar a Railroader from recovering damages for his/her injuries. It does result in a reduction of damages in proportion to the amount of negligence attributed to the injured Railroader. This is the concept of comparative negligence. If the finder-of-fact (usually a jury) determines that the Railroader was contributorily negligent, it then must determine the percentage to which the Railroader’s own negligence contributed to his/her injuries. That percentage of negligence is then used to reduce the Railroader’s damages. For example, a jury determines that a Railroader is entitled to damages for his/her injuries in the amount of $1,000.000.00. The jury also makes the determination that the Railroader was contributorily negligent in causing his/her own injuries and that contributory negligence contributed 25% to those injuries. The Court would then reduce the damage award by 25% to $750,000.00.

The real importance of the concepts of contributory and comparative negligence is the fact that a Railroader can recover damages for his/her injuries event if he/she was partially at fault in causing them.

By Matt Darby

CSXT’s Accident And Fatality Record

Thursday, February 21, 2013

Today the Baltimore Sun published a graphic concerning CSXT’s accident and fatality record in Maryland and nationwide.

That data can be found here.

By Matt Darby

Negligence And FELA Claims

Friday, February 15, 2013

Unlike state workers’ compensation claims that compensate injured workers’ for their injuries, the Federal Employers’ Liability Act (“FELA”) requires that a determination be made that a Railroad was negligent in causing an injury to a Railroader. The mere fact that a Railroader was injured during work does not automatically entitle him or her to recover damages from the Railroad. Railroads often argue that they are not an insurer of their employee’s safety.

Under the FELA, negligence is defined as the failure to use the same degree of care which persons of ordinary prudence would use in the circumstances of a given situation. It can be the doing of something which a reasonably prudent person would not have done or failing to do something which a reasonably prudent person would have done under the circumstances. Part of acting reasonably requires the Railroad to guard against risks and dangers of which it knew or by the exercise of due care should have known. Also, the degree of care required by the Railroad varies with the risk. The greater the chance of risk to the safety of an employee, the greater required level of care.

Some examples of a Railroad’s negligence are as follows: 1) a Railroad’s failure to properly train its employees to perform a certain type of work duty that results in a Railroader’s injury; 2) a Railroad’s failure to remove debris from its rail yard; 3) a Railroad’s failure to inspect it equipment for defects; and 4) a Railroad’s failure to have an ergonomic program to protect its employees from repetitive trauma injuries (That particular issue was addressed in an earlier blog post that can be found here).

By Matt Darby

AAR Announces Railroad Investments And New Hires

Wednesday, February 13, 2013

In a press release dated February 6, 2013, the American Association of Railroads (AAR), a railroad industry trade group, announced that the nation’s freight railroads intend to invest an estimated $24.5 billion dollars in 2013 to build and maintain America’s freight railroads. The press release also indicated that freight railroads estimate that that they will hire more than 11,000 employees this year. The press release can be found here.

By Matt Darby

The Federal Employers’ Liability Act (FELA)

Saturday, February 09, 2013

I am constantly referring the Federal Employers’ Liability Act (“FELA”) in my blogs. I thought it might be a good time to explain what it is and what it does.

The FELA provides a cause of action, or a method by which railroad employees engaged in interstate commerce, or their survivors can seek compensation for injury or death caused by the negligence of any employee or agent of a railroad or by defects in equipment caused by a railroad’s negligence. The FELA was initially enacted by Congress in 1906 in response to the high number of deaths and injuries suffered by railroaders. It was immediately declared unconstitutional by the U.S. Supreme Court. Not to be rebuffed, Congress passed the FELA again in 1908. That statute is the same law that covers and provides compensation to injured railroaders today.

Courts have interpreted the FELA to impose a lesser burden on a plaintiff than the common law. Common law proximate cause rules are relaxed meaning that the railroad’s negligence only need to have caused the injury in whole or part, a requirement that courts have interpreted to mean, to any degree, no matter how slight. This standard was reaffirmed in 2011 the case of CSX Transportation v. McBride. A jury question regarding this slight causation requirement may be created by entirely circumstantial evidence.

Under the FELA, a railroader’s contributory negligence is not a bar to recovery, but only results in a proportionate reduction of damages. This means that even if an injured railroader is partially at fault in causing his or her own injuries, he or she can still recover damages for the injuries suffered. In situations involving the violation of a safety statute, contributory negligence has no effect on the recovery. Also, the doctrine of assumption of risk is not a consideration in FELA cases.

Finally, under the FELA, an injured railroader can bring his or her lawsuit in either state or federal court. A suit brought in state court cannot be removed by the railroad to federal court.

Over the next several months I hope to explain and explore the FELA in greater detail.

By Matt Darby

Safe Place To Work

Thursday, January 31, 2013

The heart of the Federal Employers’ Liability Act (FELA) is the idea that a Railroader is entitled to a safe place to work. A Railroad has a continuous duty to exercise ordinary care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery and appliances with which to work and, in absence of knowledge or notice to the contrary, an employee may rely on the assumption that the employer exercised such care. While reality often dictates otherwise, under the law this means that a Railroader can presume that his place of work is not dangerous and it is free from hazards.

The duty to provide a safe place to work is non-delegable. That means that the Railroad cannot rely on a third-party to provide its workers with a safe place to work. This non-delegable duty to use reasonable care to furnish an employee with a safe place to work also extends beyond the Railroad’s premises and to the property of third persons used by the employees while engaged in the performance of his duties. This means that a Railroader that is injured while working at an industry is covered by the FELA. This non-delegable duty to provide a safe place to work also extends to motor vehicle accidents that occur while a Railroader is deadheading and situations where an injury occurs when a Railroader is staying overnight between shifts in a hotel that is being paid for by the Railroad.

By Matt Darby

Lower Extremity Repetitive Trauma Injuries Part 2

Tuesday, December 18, 2012

Several weeks ago, I posted a blog entry regarding Railroaders and the development of lower extremity repetitive trauma injuries. Today, I am going to explore the issue of why a Railroad might be liable for such an injury.

Improper Ballast/ Yard Maintenance

As indicated in my earlier post, one of the risk factors for the development of knee osteoarthritis is walking on uneven surfaces. Railroaders routinely walk long distances across ballast, sometimes several miles or more a day. While most Railroads have regulations that require that the ballast placed in rail yards be one inch in diameter or smaller (“walking stone”), this is often not done. Rail yards commonly have large, mainline ballast covering the walkways and other locations where Railroaders work. Anyone who routinely walks on this type of rock can attest to its instability. In addition to not providing the proper size ballast in its rail yard, Railroads frequently fail to properly maintain those areas. Failure to maintain a compacted and level walking area that is free from debris can also lead to the development of lower extremity injuries. A Railroad’s failure to use walking stone in its rail yards and properly maintain working areas can be considered its failure under the FELA to provide a reasonably safe place to work.

Lack of Ergonomics Program

Also, as indicated in my earlier post, some of the other risk factors for the development of knee osteoarthritis include repeatedly bending and stooping and working in awkward positions. Railroaders routinely bend and stoop when climbing rail cars, throwing switches and connecting air hoses. These tasks are done on a repetitive basis, sometimes hundreds of times a day. Part of providing a Railroader with reasonably safe place to work is Railroad’s obligation to have in place an ergonomics program to detect and prevent injuries caused by this repetitive work. This can be done by engaging in worksite analysis to detect the ergonomic risk factors for the development of lower extremity injuries and the subsequent modification of job tasks to reduce or eliminate those risk factors. In addition, it is necessary for a Railroad to engage in medical management so that repetitive trauma injuries can be detected. This enables to Railroad to determine the extent of a problem and also allows the Railroader to seek early medical intervention so that a potential injury can be prevented. Finally, there should be training and education on the part of the Railroad so that its workers can protect themselves from exposure to ergonomic risk factors. Despite the fact that Railroads have been aware for years that having a comprehensive ergonomics program in necessary to provide its employees with a reasonably safe place to work, they have failed to implement such programs.

Please contact your United Transportation Union Designated Legal Counsel Matt Darby at 800-248-FELA or if you have any questions.

By Matt Darby

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