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Railroad Injury Blog

Could Some Railroads Soon Be Immune from Lawsuits?

Wednesday, May 23, 2018

Recently we have heard from several railroaders about the potential for state-affiliated railroads to be granted immunity from lawsuits, including Federal Employers’ Liability Act (FELA) and Federal Railroad Safety Act (FRSA) claims.This is in response to a recent decision from the United States Court of Appeals for the Third Circuit, holding that New Jersey Transit is an arm of the State of New Jersey, and is therefore entitled to immunity from lawsuits under the 11th Amendment to the U.S. Constitution.That case was Karns v. Shanahan, 879 F.3d 504 (3d Cir. 2018). The Karns decision could have negative implications for state-affiliated railroads across the country, such as Metro-North, PATH, and Amtrak.

The Karns case is being appealed, and will hopefully be overturned. Our firm is working to overturn Karns by establishing a strong record in lower courts, so it is important to bring claims forward now. However, if New Jersey Transit’s argument is accepted, it will mean that the most dangerous commuter railroad in the country (according to FRA data), will be able to avoid liability for the injuries and deaths that it causes. In 2016, the Associated Press reported that, “NJ Transit had a significantly higher accident rate…than the rest of the nation’s 10 largest commuter railroads.”The railroad would also be immune from actions to enforce collective bargaining agreements under the Railway Labor Act. As a result, the railroad would not have the incentive that is created by lawsuits to improve safety. This lack of incentive to improve safety would make injuries and deaths on the railroad more likely, both for employees and the traveling public.

In 1989, the same court that decided Karns held that New Jersey Transit did not have 11th Amendment immunity. That case was Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). Hopefully other courts that decide this issue will recognize that the Fitchik decision was the right one.The consequences of deciding that New Jersey Transit and other state-affiliated railroads are immune from suit would be dire. It would essentially exempt these railroads from federal laws and regulations, not just the FELA and FRSA.  Employees will no longer be protected by OSHA, or wage and hour laws. The railroads would no longer be bound by the Americans with Disabilities Act, Federal Civil Rights laws, Federal Highway Safety Administration regulations, and Federal Railroad Administration regulations. These laws and regulations are intended to protect railroad employees, passengers, and those who live and work near where the railroads operate.  The potential for catastrophe is obvious, and thousands of railroad employees could lose their right to recover for their injuries.

These issues have not yet been conclusively decided, but they could be soon.  If you were injured by your railroad employer, or retaliated against for reporting an injury or making a safety complaint, it’s important to act quickly to protect your rights and contact an attorney knowledgeable in these areas of law.

Are You Being Targeted by a Railroad Double Standard?

Tuesday, August 29, 2017

It happens a lot around the railroad – double standards.  Jeff seems to always get away with wearing jewelry, but suddenly I’m the one getting busted!  Kevin’s absenteeism is much worse, but I’m the one being charged! There’s always someone hiding in the bushes watching me, but no one ever seems out to get anyone else! It’s because the railroads frequently punish employees who report injuries, hazardous safety conditions, or try to comply with their own doctor’s orders (which may include time off from work).

Protection of the FRSA

The Federal Rail Safety Act (“FRSA”) was designed to protect against exactly this kind of behavior.  The FRSA safeguards employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a safety problem, refuse to do unsafe work, or comply with a doctor’s orders, among many other things. This is called “protected activity.” A railroad who knows an employee has engaged in protected activity cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

When Railroads Violate the FRSA through "Disparate Treatment"

An effective way of proving the railroad has violated the FRSA, is showing the railroad applied a double standard to you. This is known as “disparate treatment” – that the railroad treated you more harshly than others who did the same thing. Often railroads will find any excuse to fail an employee on an efficiency test to punish them. The railroad then uses the trumped up charges from the efficiency test to suspend or terminate the employee.  If other employees were not punished for the same conduct you were punished for, or if they were punished less harshly, this is good evidence the railroad has violated your rights under the FRSA. So if you find yourself thinking: everyone else is doing it; why am I being punished? It may be because the railroad is illegally retaliating against you.

What To Do Next

If should you have any questions regarding a double standard being applied to you, please not hesitate to contact our office for a consultation. Please visit our website or download our railroad worker smart phone here. You can also reach us directly by calling 800-248-FELA.

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.

10 Proven Ways to Make Your FELA Case More Valuable

Monday, January 16, 2017

The Federal Employers’ Liability Act (“FELA”) protects railroad employees who are injured due to the railroad’s negligence. Under the FELA, the railroad is still liable even if it is only slightly negligent, even if the employee assumed the risk of their injuries, and even if the employee’s own negligence contributed to their injuries.

The benefits of the FELA aren’t automatic, the employee still has to prove their case that the railroad was negligent, and that they suffered harm.We have handled cases under almost every conceivable factual situation and have seen what makes a case successful.So, we have decided to come up with some things an injured railroader can do to help make sure they recover the appropriate damages as the result of their injuries.

10 Tips To Improve the Value of Your FELA Case

Here are 10 proven ways for railroad employees to make their FELA claims more valuable:

  1. Take pictures – take pictures of the effects of your injury.This will help show how significant your injury is.
  2. Do not take video with audio – although it might seem helpful to narrate a video about your injury, your statements in the video will be used against you later.A video without audio showing the injury itself is just fine.
  3. Tell your doctors – when you get treated for your injury, explain to the doctors exactly how it happened, and that it happened at work.
  4. Ask your co-workers – did someone see the injury happen? Has anyone previously reported to the railroad the dangerous condition that injured you? These witnesses can be very helpful to your case.
  5. Stay off social media – Facebook, Instagram, Twitter, Tumblr, these are your enemies. They make money by sharing the details of your life with advertisers. Don’t let them ruin your FELA case by sharing the details of your life with the railroad. The railroad will try to use any picture or statement you make against you.
  6. Do your best to get back to work – everyone knows the best outcome for you is to get better and get back on the job. If your injury precludes you from railroad work, do your best to seek other employment that you are qualified for. FELA cases are always best for those who do their best to help themselves.
  7. But follow your doctor’s orders – if you really can’t work, then you can’t work, and you should always follow all of your doctor’s orders, a right protected under the FRSA Whistleblower law.
  8. Tell the railroad it was at fault – your employer will likely make you fill out a written statement about your injury.It will include a space to describe who was at fault. If the railroad was at fault, say so on the form.
  9. But don’t give a recorded statement – If a railroad claims agent calls you to record an oral statement about your injury, tell them to take a hike (nicely). You don’t have to give the statement, and the railroad only wants to use the statement against you.
  10. You guessed it – call a lawyer! The FELA is a murky federal statute with many twists and turns; you don’t want to try to navigate it on your own. Only lawyers experienced in FELA litigation will be able to help you with the sensitive matter and make the railroad responsible for the injury it caused.

If you should have any questions regarding a potential railroad injury case, please do not hesitate to contact our office for a consultation. Please visit our website at BermanAndDarby.com and download our railroad worker smart phone app. You can also reach us at 800-248-FELA.

The Importance Of Underinsured And Uninsured Motorist Coverage

Wednesday, July 06, 2016

Part of every railroaders daily existence is the process of deadheading from one work location to another. It is important to remember that under the Federal Employers Liability Act, the railroad is required to provide you with a reasonably safe place in which to work. This duty extends to the premises of third parties, including industry yards, hotels and any other place the railroad requires you to be in the furtherance of your work duties. Just like with most other cases, it is important that the railroad be made aware of any dangerous condition you may encounter anyplace you work. This can often make the difference between a successful case and one that is not.

Deadheading

In the context of deadheading, it is important to understand that the van company is considered an agent of the railroad. This means that legally, any negligence of the van or truck is considered to be the negligence of the railroad. Therefore, if the van driver violates a traffic rule or drives negligently, your FELA case would essentially proceed just as if the injury occurred on railroad property. This would also be true if there was some defect in the vehicle that caused or contributed to the accident. The lesson here is that if there is any aspect of the accident that was caused or contributed to by the van driver, it is important that you record that fact. For example, if the van driver was not paying attention due to the fact he appeared to be fatigued so he did not react as quickly as he could have, make sure that this fact is noted in the railroad injury report. That way, even if the main theory of the case is that another driver was negligent, the railroad will still be held in the case as a joint-tortfeasor; meaning that they would be required to pay any verdict in the case.

If You Are Injured In An Accident

However, what happens if the van driver was not negligent and you are injured in an accident? It is clear that you would be “covered” under the FELA, but since the railroad was not negligent, a FELA case would not be successful. Therefore, the only case you may have would be against the driver who caused the accident. What would happen if the van was stopped at a red light and was rear-ended by another vehicle? Since the van driver was not negligent, there would be no chance of a recovery under the FELA. Your only recovery would be against the other driver. That would be fine if the other driver has sufficient liability insurance limits, but what if the other driver only had minimum coverage?

It Could Happen Just Like This…

Consider this scenario. You are in a van that is rear-ended. You injure your neck and have to have surgery and miss two years from work, or maybe cannot ever return to work? The driver who caused the accident only has $20,000 in liability coverage? That means that even if you have lost wages of $250,000, you would receive $20,000 and that is all!

The Best Way To Protect Yourself

How can we avoid this outcome? The only way to protect yourself is to purchase Underinsured/Uninsured Motorist (UIM) coverage with high limits. I suggest that the limits be at least $1 million. UIM coverage applies when a motor vehicle accident occurs and the negligent driver does not have sufficient liability insurance limits to satisfy the damages you suffered as a result of the accident. The claim is then submitted to your UIM insurance company. If the case does not settle, a lawsuit can be filed just like any other personal injury case. In addition, your insurance rates cannot be increased if you pursue a UIM claim. Having sufficient UIM limits can be the difference between being completely compensated for your losses and losing everything you have worked for in your career.

When You Need Help

Please contact your Smart Transportation Division Designated Legal Counsel Matt Darby at 800-248-FELA or pmdarby@bsgfdlaw.com if you have any questions.

By Matt Darby

Partner Matt Darby Joins ARLA Board

Wednesday, May 13, 2015

Partner Matt Darby has recently been elected a board member of ARLA. ARLA, the Acadamy of Rail Labor Attorneys, is a professional association of plaintiffs’ attorneys whose practice includes the representation of railroad workers and their families under the Federal Employers’ Liability Act (FELA). To read more about ARLA click here.

By Matt Darby

Positive Train Control Update

Thursday, April 09, 2015

The April edition of Progressive Railroading has an article regarding the status of the implementation of positive train control (PTC). The article raises some serious questions as to whether the Nation’s railroads will have PTC implemented by the federally mandated December 2015 deadline.

A link to the article can be found here.

By Matt Darby

FRA To Issue Proposed Rule On Minimum Train Crew Size

Wednesday, April 09, 2014

Today the Federal Rail Administration (FRA) issued a press release indicating that it intends to issue a proposed rule requiring two-person train crews on crude oil trains and establishing minimum crew standards for other freight and passenger rail operations. FRA Administrator Joseph Szabo was quoted in the press release as stating: “We believe that safety is enhanced with the use of multiple person crews – safety dictates that you never allow a single point of failure.” He went on to state that “Ensuring that trains are adequately staffed for the type of service operated is critically important to ensure safety redundancy.”

A link to the FRA press release can be found here.

By Matt Darby

FRA Issues New Industry-Wide Advisory Concerning Speed Restrictions

Wednesday, December 11, 2013

Today the FRA (Federal Rail Administration) issued an industry-wide safety advisory concerning compliance with speed restrictions. This advisory came less than one week after the FRA issued an emergency order directed to the Metro-North Commuter Railroad (MNCW) requiring it to take steps to ensure its operators obey speed limits.

A link to the FRA’s press release regarding the advisory can be found here.

By Matt Darby

FRA Issues Emergency Order In Response To Metro-North Tragedy

Monday, December 09, 2013

On Friday, the Federal Rail Administration (FRA) issued an emergency order in response to the Metro-North Commuter Railroad (MNCW) accident that occurred on December 1st. The order requires Metro-North to modify its existing signal system to ensure speed limits are obeyed and provide two qualified employees to operate trains where the speed restrictions are in place until the signal system is updated.

U.S. Transportation Secretary Anthony Foxx is quoted in the FRA’s press release as stating: “Safety is our highest priority, and we must do everything we can to learn from this tragic crash, and help prevent future derailments.”

FRA Administer Joseph C. Szabo was also quoted as stating: “Even with a 43 percent decline in train accidents nation-wide over the past decade, we must remain steadfast and vigilant to ensure passengers and employees are safe. The public deserves better and our mission is to drive continuous safety improvements.”

The FRA’s press release can be found here.

By Matt Darby

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