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Railroad Injury Blog

FELA Death Benefits – After the Worst Thing Happens

Thursday, May 07, 2020

Railroading is a dangerous business – there is no doubt about it. I’ve heard many people say that railroad operating rules are written in blood. But sometimes, even if you do everything right, the worst thing imaginable can still happen. Planning ahead for that possibility is the responsible thing to do, and there is no time like the present to share with your spouse or other loved ones, what they need to know in the event of a railroader’s death at work. This is especially true now, when this article is being published, as the coronavirus pandemic spreads.

If a railroader dies from injuries (or illness) sustained at work, the FELA allows the deceased railroader’s “personal representative” (sometimes called an “executor” or “administrator”) to bring a lawsuit under the FELA. Only certain people are entitled to recover damages in the event of a railroader’s death. First are the surviving spouse and children of the railroader – this includes adult children. If there is no spouse or children, then the employee’s parents can recover. If there are also no parents, then the railroader’s next of kin are entitled to recover, but only if they are “dependent” on the railroader financially.

The damages available for a railroader’s death are somewhat limited, and can create unreasonable results. For example, if a young unmarried railroader is killed instantaneously by an oncoming train, there may be limited damages available for the grieving parents. Let’s look at the damages available, and then I will explain why. Here is what can be recovered for a railroader’s death:

 

  1. The loss of support and other financial benefits they would have received from the deceased railroader (generally speaking, this means wages, money, and benefits like health insurance);
  2. Loss of services the deceased railroader would have provided to them (generally speaking, this means household chores and child care);
  3. If the plaintiffs include minor children, the loss of the railroader’s care, attention, instruction, training, advice and guidance;
  4. Any pain and suffering experienced by railroader before they died; and
  5. The reasonable expense of medical care needed by the railroader before they died. (However, in most cases, the railroader’s medical expenses have been paid by the railroad.)

Assuming the grieving parents in my example above were employed and not relying on the railroader’s income or services, you can see how the damages they could recover would be very limited if their son or daughter was killed instantaneously and did not experience any pain or suffering. The same scenario would unfortunately apply to grieving adult children, who are no longer dependent on their parents’ wages or services. Another unreasonable result is that the emotional pain and suffering of the deceased railroader’s loved ones is not taken into account at all. The grief of those left behind is unfortunately not counted by the FELA.

It is also important to remember that, like any other FELA claim, we will have to be able to prove at least “slight negligence” on the part of the railroad in causing the death. The railroad will almost always argue that the railroader was the cause of their own death, so it is important to have attorneys who understand railroading and how the railroads will try to twist the facts against their own deceased worker. The railroad may also try to make a quick lowball offer to the grieving family to avoid litigation; again it is important for an attorney to be consulted so that family members understand the full value of their potential claim. If you have questions about any of the information discussed above, or would simply like an attorney to talk with your spouse or loved one, please contact us at hdavid@bsgfdlaw.com or 410.769.5400.

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA

Tuesday, April 14, 2020

Part II – Slack Action: How the FELA Can Protect You If You Contract the Coronavirus.

The railroads' refusal to undertake even the most basic safety measures is going to bunch down the consist until the slack runs out and has dangerous consequences. Railroaders will get sick. So many railroaders are asking us right now: does the FELA protect railroaders who contract the coronavirus at work?

The FELA requires proof of "slight" negligence on the part of the railroad. This includes that the railroad was aware of a dangerous condition, but failed to take reasonable steps to correct it. There can be no doubt that the railroads know about the dangers created by the coronavirus, and know about the steps that could be taken to help the problem (like sanitizing equipment). This is especially true given the petitions filed with the FRA by both SMART and the AAR.

The FELA also requires proof of something called “causation” – meaning we would have to prove that the railroad's failure to take appropriate safety measures caused you to contract coronavirus. This is difficult, but not impossible. The railroads have refused the reasonable precautions suggested by SMART as well as those being suggested by employees on the ground. We know from government officials like the CDC that those measures, if implemented, would protect employees.

First, we will need to prove that a co-worker you came in contact with at work had coronavirus before you did. Railroaders should keep track of who they work with and when, and the names of any employees who are reported to have coronavirus or coronavirus symptoms.

Second, because the coronavirus is highly infectious and transmitted in any public place, we would have to prove that you did not contract coronavirus from someplace else. The best way to prove this is by demonstrating that no one you had contact with outside of work had coronavirus. It is important to know if anyone you have been associating with outside of work ever had coronavirus. Proving you contracted coronavirus at work can also be proven by demonstrating you were protecting yourself in your daily activities outside of work – wearing a mask and gloves in public, no non-essential travel, not getting any closer than 6 feet to anyone who you do not live with, regularly washing your hands and not touching your face, and generally following the guidelines issued by the government. Following the government’s health guidelines are important not just for your safety, but for protecting your rights under the FELA. If you continue to socialize freely outside of work, we will never be able to prove where you contracted coronavirus.

If the railroads continue to refuse basic safety measures to their employees, they will reap what they sow. If you suspect you or a co-worker has contracted coronavirus at work, contact us right away. 410-769-5400, hdavid@bsgfdlaw.com

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA – Part 1 of 3

Friday, April 10, 2020

Part I – Bad Order: the FRA is No Longer Looking Out for Your Safety, Period.

There is a mechanical defect here – a big one. As many of you may already know, the SMART Transportation Union sent an Emergency Petition to the Federal Railroad Administration – the agency whose mission is supposed to be the safe operation of trains nationwide – to address the unique safety conditions arising from the novel coronavirus (COVID-19). SMART's Emergency Petition included basic requests to impose safety standards related to: locomotive sanitation, common room sanitation, employee temperature observation, transportation to lodging facilities, how to treat employees who develop coronavirus symptoms, and a furlough recall to deal with anticipated workforce shortages.

Did the FRA grant that petition and afford workers’ these basic safety measures in these extraordinary and dangerous times? No. Instead, this Administration's FRA granted a petition from the Association of American Railroads allowing a waiver of rail safety regulations, endangering the lives of railroaders and the general public for profit. The waived safety regulations include: track inspections under Part 213, engineer qualifications on territory they are unfamiliar with, and suspending the 60-day deadline for railroads to respond to petitions to the Locomotive Engineer Review Board and the Operating Crew Review Board. None of the safety measures suggested by SMART were adopted. Somehow this Administration’s FRA deemed that suspending operational testing – where managers hide in the bushes hundreds of feet away – "is consistent with CDC guidance related to social distancing," but SMART's request for the immediate isolation of employees exhibiting coronavirus symptoms, is not. It’s outrageous!

Let your elected representatives know that an emergency like this is not the time to relax safety regulations – it simply gives the railroads that transport deadly explosive materials throughout the country permission to operate less safely at a time when the country cannot afford major rail disasters. Let them know you support the safety measures proposed by SMART. You can use this link to find out who your representatives are, and contact them.

If you suspect you or a co-worker has contracted coronavirus at work, contact us right away, we will fight for your rights under the FELA. 410-769-5400, hdavid@bsgfdlaw.com

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

How the Safety Appliance Act Enhances Your FELA Claim - Part 2

Wednesday, April 24, 2019

In Part 1 we learned that the Safety Appliance Act is a powerful tool for injured railroaders. If you are injured by the failure of the railroad to install or maintain any of the safety devices required by the Safety Appliance Act, you do not need to prove the railroad was negligent. However, you do have to prove that the railcar where the safety device failed was “in use” at the time of your injury. This may not always be an easy determination, and the facts of each individual case will determine whether a railcar is "in use." But there are some guidelines to keep in mind.

Normally, a railcar is not considered "in use" when it is undergoing maintenance. So the Safety Appliance Act does not usually apply to railroaders who are injured as the result of repair, inspection, or servicing of a train. This makes some sense so the railroad is permitted to detect and correct defective conditions during maintenance.

A train is certainly "in use" when it is not in need of repair or servicing and has been "okayed" by railway officials for service. When the train has already been serviced and inspected, it is "in use." A defective railcar may still be "in use" while being transported to a shop for repair. A car stopped temporarily to inspect for defects, that has not been taken out of service, may also still be “in use.” However, a defective railcar temporarily stored on ladder track may be not “in use.”

Here again, it is key to your case to have an experienced railroad attorney who can argue forcefully that the railcar that caused your injury was "in use" at the time. The law can be a "grey area" where arguments can be made on both sides.

If the railcar that causes your injury is not "in use," it doesn’t mean you lose your FELA case. It simply means that your case is not enhanced by the Safety Appliance Act, and you will have to prove the railroad was negligent in causing your injury. But establishing that your injury was a result of a violation of the Safety Appliance Act is a huge step forward in winning your case.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

How the Safety Appliance Act Enhances Your FELA Claim - Part 1

Wednesday, April 17, 2019

When a railroader gets injured on the job, the claim is always governed by the Federal Employers' Liability Act (FELA). But some FELA injury cases are enhanced by the Safety Appliance Act, a federal law first enacted in 1893. Typical FELA cases require the injured railroader to prove some negligence on the part of the railroad in causing the injury. Cases are "enhanced" by the Safety Appliance Act because, when there is a violation of the Safety Appliance Act, the railroader does not need to prove negligence on the part of the railroad. The violation of the Safety Appliance Act by itself, proves the railroader’s case. This concept is often referred to as "negligence per se" or "strict liability."

The Safety Appliance Act requires that railcars have certain safety devices installed and in proper working order. Namely, grab irons, sill steps, running boards, handholds, and ladders must be securely mounted. There can be no slippery substances on locomotive walkways, including crossover walkways. Couplers must couple and uncouple automatically, without any need for railroaders to go between cars to perform coupling or uncoupling.

The braking system must be in good working order, including any related pipes, hoses, and reservoirs. The train’s brakes must permit the engineer to perform braking without the use of handbrakes. The handbrakes themselves must also function properly. Drawbars must be properly installed and functioning correctly. These are some of the most common requirements that are violated, but there are a number of other important safety devices that must be installed and working correctly under the Federal Railroad Administration’s regulations contained at 49 CFR Part 231.

If the cause of your injury is that any of these safety devices were not installed, or not in proper working order, you have a very strong case against the railroad. Your case will be "enhanced" by the Safety Appliance Act. It is important to have an attorney who understands railroad regulations, and the laws that may help enhance your FELA case.

The other important factor to consider in determining if the Safety Appliance Act enhances your case, is whether the railcar you were working on was "in use" at the time of your injury. We'll learn more about that in Part 2.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Supreme Court Requires Injured Railroad Employees to Litigate Far From Their Homes

Monday, June 19, 2017

I wanted to write this post for our friends who work in the railroad industry because the Supreme Court recently issued a decision that affects the rights of every railroader. On May 30, 2017, the Supreme Court decided the case BNSF Railway Co. v. Tyrrell. The Court’s decision limits the states where railroad employees can file FELA lawsuits for their injuries. Prior to the Tyrrell case, railroad employees could file their FELA lawsuits against their employer in any state where the employer did business. That rule was based on interpretations of the language in the statute of the FELA itself that, “an action may be brought in a district court of the United States,” in the district “in which the defendant shall be doing business at the time of commencing such action.” The rule allowed for great convenience for injured railroad employees in bringing their lawsuits, particularly employees who are injured over the road and would like to be able to bring a lawsuit close to where they live.

Restrictions on Where Lawsuits Can Be Brought

Under the Supreme Court’s Tyrrell decision, a railroad employee may only bring a lawsuit in a state where the employee’s injury occurred, or in a state where the employer’s “affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State.” This usually means the state that is the employer’s place of incorporation, or the state where the employer has its principal place of business. The Court held that only in an “exceptional case,” will a corporate employer defendant's operations in another state “be so substantial and of such a nature as to render the corporation at home in that State.” The Supreme Court held this ruling is necessary to protect the Due Process rights of corporate employer defendants under the 14th Amendment.

Corporations Over People

The ruling is not only objectionable for continuing to put the “constitutional rights” of corporations above the rights of working people, but it will also have real negative impacts on railroad employee lawsuits. Now, a railroader injured over the road, far away from home, may be unable to sue their own employer in the state where they report for work. Instead, railroaders injured over the road will only be able to sue the railroad in the state where the injury happened, the state where the railroad is headquartered, or the state that is the railroad’s principle place of business. Yet another example of profits over people.

The FELA: Protection Wherever You May Roam

Thursday, March 02, 2017

At a recent railroad union meeting Attorney H. Dave Leibensperger attended there were several questions about the railroad’s responsibility when someone is injured off the work site and we thought it would be good to get some information out about this. It’s important to remember that the railroad’s duty to its employees to provide them with a safe place to work is “non-delegable,” which means they can’t push that responsibility on to anyone else – the railroad is responsible for your workplace safety no matter where you are. The buck stops with your railroad employer. We recently handled a case involving an injury on an industry sidetrack. Even though the railroad did not own or operate the industry sidetrack or property, the railroad employer was held responsible for condition of the industry’s property because it was an area where railroaders were required to perform their duties.

The Responsibility of The Railroad

There are many binding legal precedents holding the railroad’s feet to the fire. The United States Supreme Court, in Shenker v. B. & O. Ry. Co., 374 U.S. 1, 7-8 (1963), ruled that the railroad’s responsibility to provide a safe workplace applies even “when [employees] are required to go onto the premises of a third party over which the railroad has no control.” The Supreme Court ruled the railroad liable for another railroad’s negligent maintenance of mail car that injured the plaintiff. In another Supreme Court case, Sinkler v. Missouri Pac. R. Co., 356 U.S. 326 (1958), the Supreme Court ruled the railroad was liable for the negligence of another railroad’s switching crew. In Payne v. Baltimore & O. R. Co., 309 F.2d 546 (6th Cir. 1962), a federal appeals court ruled the railroad was liable for an accumulation of ash on third-party’s property that killed the plaintiff. In Cazad v. Chesapeake & O. Ry. Co., 622 F.2d 72 (4th Cir. 1980), another federal appeals court ruled the railroad was liable for an injury caused by uncovered drain culvert, again on the property of a third party. In one of the best cases for railroad employees, Empey v. Grand Trunk W. R. Co., 869 F.2d 293 (6th Cir. 1989), a federal appeals court ruled the railroad liable for an injury caused by the negligence of a hotel where the plaintiff was staying in between shifts – the plaintiff slipped on water in the bathroom because the hotel shower was poorly maintained.

Keeping Safe On The Job

So keep in mind, your railroad employer always has to keep you safe on the job – that’s their responsibility to you for all the hard work you give them. If you have an injury that appears it was someone else’s fault, it is still important to contact a lawyer because the railroad’s duty to you is “non-delegable” – it protects you anywhere you are working.

If you have any questions regarding a potential railroad injury case, contact Attorney H. Dave Leibensperger at 410-769-5406 or hleibensperger@bsgfdlaw.com
for a consultation.

Who Knew What, and When? It’s Important in FRSA Whistleblower Cases

Wednesday, November 09, 2016

The Federal Rail Safety Act (“FRSA”) whistleblower law is one of the most powerful tools in a railroad employee’s arsenal to protect themselves against harassment and intimidation at work. Next year will mark the 10 year anniversary of the implementation of this law, which was passed in recognition of the hostile work environment prevalent across the country in the railroad industry. As we approach this milestone anniversary and reflect upon our office’s extensive experience in handling these cases, I realize that the hoped-for cultural change in the rail industry is frustratingly slow. Despite significant verdicts against railroads across the country, harassment and intimidation regarding safety-related issues continues. Instead of changing behavior, the railroads are looking for new arguments to make to defeat these claims. One such argument is to allege that the key decision-makers with regard to adverse action against an employee were unaware of their safety-related protected activity. I thought it wise to discuss this railroad strategy.

Who Knew What and When?

One of the important aspects of a whistleblower case under the FRSA is: who knew what, and when? The FRSA protects employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a hazardous safety or security condition, refuse to perform unsafe work, or provide information regarding fraud related to railroad safety, among many other things. This is called “protected activity.” One of the things an employee must prove is that his or her employer knew that the employee engaged in this conduct (engaged in “protected activity), before the employer retaliated against the employee. A railroad who knows an employee has engaged in protected activity cannot retaliate against the employee by suspending them, terminating them, or discriminating against them in any way.The railroads strategy, therefore, is to insulate the ultimate decision-maker from knowledge of the protected activity. In other words, the higher up the chain the ultimate decision-maker is, the harder it is to prove the knowledge requirement.

The View From The Bench

Conservative judges in some jurisdictions have ruled that the person who ultimately suspends or fires the employee must personally know about the employee’s protected activity for the employee to have a whistleblower case.  More liberal jurisdictions have ruled that it is enough for any manager or witness in the decision-making chain to know about the protected activity.

Either way, it is important for railroad whistleblowers to be able to state who knew what, and when.  Which managers knew you engaged in protected activity? When did they know it?How do you know they knew about it?  The more specific the whistleblower can be about this, the better, and the stronger the whistleblower’s case will be.

What Really Works in FRSA Cases

In handling these cases, we have found that it is important to employ aggressive and thorough investigation and discovery strategies. In one recent case, our office took 22 depositions of railroad employees before we uncovered the factual information which allowed us to argue that there was a clear link between the protected activity and the ultimate decision-maker’s actions. Not unexpectedly, the railroads will use every strategy and stretch the limits of credibility to conceal this information. Despite the challenges, it is important to continue to pursue whistleblower cases across the country so that at some point, the railroads realize it would be better to change their culture of harassment and intimidation rather than continue to fight these cases.

Should you have any questions regarding a potential whistleblower case, please do not hesitate to contact our office for a consultation. Please visit our website at www.bsgfdlaw.com and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).You can also reach us at 800-248-FELA.

Contributory and Comparative Negligence In FELA Cases

Thursday, October 06, 2016

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.  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.

THE SQUEAKY WHEEL GETS THE GREASE

Thursday, October 06, 2016

Everyone has heard the above adage many times and understands what it means. One wonders whether the origin of this phrase comes from the Railroad Industry. In any event, it certainly has modern applicability to a Railroaders rights under the Federal Rail Safety Act Whistleblower Provisions.

One of the strongest provisions of the Federal Rail Safety Act Whistleblower Provisions prohibits a Railroad from denying, delaying or interfering in any way with the medical treatment of an employee who was injured during the course of employment. In addition, if the injured employee requests transportation to a medical facility, as a result of an injury during the course of employment, the Railroad is required to promptly arrange to have the injured Railroad employee transported to the nearest hospital (where the employee can receive safe and appropriate medical care). However, it is incumbent upon the employee to understand these rights and to affirmatively protect them. In other words, an employee must recognize when their employer is attempting to interfere with their medical treatment. This often arises in a context of a Railroad Official’s attempt to influence emergency room treatment. It is well known among Railroad Supervisors that if an emergency room physician prescribes medication or restricts the Railroad employee for working for a period of time, the injury becomes FRA reportable. Because a significant portion of a Railroad Supervisor’s bonus is based upon minimizing FRA reportable injuries, they are highly motivated to influence the emergency room physician against prescribing medication or restricting work activities. However, the Railroad worker must enforce these rights by informing hospital personnel that no medical information is to be discussed with anyone from the Railroad. In other words, "the squeaky wheel gets the grease".

In addition, an injured employee must affirmatively request transportation to the nearest hospital if injured during the course of their employment. If this right is not requested, then the previously mentioned provisions of the Federal Rail Safety Whistleblower Act are not triggered. "The squeaky wheel gets the grease".

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