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Railroad Injury Blog

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

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

The Importance Of Underinsured And Uninsured Motorist Coverage

Monday, October 01, 2012

Part of every railroader’s 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, CSX Transportation, Inc. 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 any place you work. This can often make the difference between a successful case and one that is not.

In the context of deadheading, it is important to understand that PTI is considered an agent of the railroad. This means that legally, any negligence of PTI is considered to be the negligence of the railroad. Therefore, if the PTI 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 PTI 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 PTI 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 CSXT injury report (Form PI-1A). 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.

However, what happens if the PTI 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, an 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 PTI van was stopped at a red light and was rear-ended by another vehicle? Since the PTI 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?

Consider this scenario. You are in a PTI 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!

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 or losing everything you have worked for in your career.

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

By Matt Darby

Is This Any Way To Run A Railroad? Norfolk Southern Does It Again

Friday, August 31, 2012

Once again Norfolk Southern has been found to be in violation of the whistleblower protection provisions of this FRSA. This is starting to sound like a stuck record (for those of you who remember records).

On August 28, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay two Railroaders $932,070.46 in damages, including $387,813.75 in punitive damages.

Railroader No. 1 suffered an on-the-job shoulder injury that he reported to the Railroad. As usual, Norfolk Southern alleged that he had filed a false injury report and he was fired. He was subsequently reinstated by the special Board of Adjustments. OSHA ordered Norfolk Southern to pay the Railroader $581,438.00, including compensatory damages for pain and suffering, $150,000.00 in punitive damages, $55,000.00 in attorney’s fees and $26,438.11 in back wages and benefits. Importantly, OSHA ordered Norfolk Southern to reinstate the Railroader to his proper seniority level.

Railroader No. 2 also suffered an on-the-job injury that he reported to the Railroad. He, like Railroader No. 1, was charged with making a false statement regarding his injuries. He was also subsequently discharged. The news release indicates that during the OSHA investigation it was determined that the Railroader’s injuries were not only real, but they have “caused severe medical problems involving his back, neck and shoulders, which restrict his ability to sit, stand, walk and operated machinery.” OSHA ordered Norfolk Southern to reinstate the Railroader once he is medically released to return to work. Norfolk Southern was also ordered to pay damages in the amount $350,632.35, including $150,000.00 in compensatory damages and punitive damages in the amount of $150,000.00. Attorney’s fees and medical expenses were also awarded.

Dr. David Michaels, OSHA’s Assistant Secretary of Labor for Occupational Safety and Health, was quoted as saying “Firing workers for reporting an injury is not only illegal, it endangers other workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury or possible future prevention can occur” and “Railroad workers must be able to report work-related injuries without fear of retaliation. The Labor Department’s responsibility is to protect all employees, including those in the railroad industry, from retaliation for exercising these basis worker rights. Employers who break the law will be held accountable.” So far, OSHA, at least with regard to Norfolk Southern, has been true to its word.

OSHA’s press release can be found here.

A link to a news article in the Virginian-Pilot is here.

By Matt Darby

Railroaders And Sleep

Saturday, August 25, 2012

I cannot think of any occupation where health sleep is harder to come by than in the railroad industry. Things have gotten better lately, but many railroad workers have suffered years and years of sleep deprivation. Studies are confirming that there is a significant relationship between lack of sleep and some common medical conditions. Heart disease and diabetes have been linked to poor sleep patterns. This connection is not entirely new, and certainly that fact that lack of sleep is unhealthy is well know in general. Should the railroads in this country take employee health issues into account when setting work demands? Of course. Are many employees now paying the price for their failure to do so – suffering from pre-mature heart disease and diabetes? It seems more and more likely. Give us a call if you would like to discuss your health and determine whether you may have a claim under the Federal Employers Liability Act.

Here is a link to the Harvard Medical School’s website regarding Railroaders and healthy sleep: http://www.railroadersleep.org/

By Matt Darby

Romney Vows To End Amtrak Funding

Friday, August 17, 2012

(Source: The Hill, August 15, 2012)

WASHINGTON, D.C.— Republican presidential hopeful Mitt Romney said in an interview published this week that he would eliminate federal funding for Amtrak if he is elected in November. In an interview with CNN’s Fortune Magazine, the presumptive GOP nominee identified the national passenger rail service as a program that would be on the chopping block in a Romney administration.

Full story here.

By Matt Darby

FRA Provides Grant To Study Return Of Amtrak Passenger Service Between Birmingham, Montgomery And Mobile, Alabama

Friday, August 17, 2012

On August 16, 2012, the Federal Rail Administration (FRA) issued a news release indicating that had obligated $100,000.00 to the Alabama Department of Economic and Community Affairs to study the restoration of Amtrak passenger rail service that would connect the existing portion of Amtrak’s Crescent Route at Birmingham to a possible future route between Mobile and Florida.

U.S. Transportation Secretary Ray LaHood was quoted in the news release as saying “President Obama’s support for an America built to last is putting people back to work across the country building railroads, roads, bridges and other projects that will mean better, safer transportation and strong economic foundation for years to come.”

The full news release can be found here.

By Matt Darby

OSHA Blasts Norfolk Southern Again For Whistleblower Violation

Friday, August 17, 2012

It’s getting hard to keep track of the number of times Norfolk Southern has been found to be in violation of the whistleblower protection provisions of the FRSA but it’s happened again. On August 8, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay a Railroader more than $300,000.00 in damages, including $200,000.00 in punitive damages.

The Railroader suffered an on-the-job head injury that he reported to the Railroad. He was subsequently charged with falsifying that injury and fired. The news report indicated that “OSHA found that the railroad’s investigative hearing was severely flawed and orchestrated to intentionally support management’s decision to terminate the employee.” No real surprise there.

Cindy A. Coe, OSHA’s regional administrator in Atlanta, was quoted as saying “Railroad workers throughout this country have the right to report an injury without fear of retaliation” and “The Department of Labor will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights, and employers found in violation will be held accountable.”

OSHA’s press release can be found here.

By Matt Darby

OSHA Orders $25,000 In Puntive Damages For Illegal Suspension

Friday, July 27, 2012

On July 25, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Union Pacific Railroad Company to pay a Railroader $25,000.00 in punitive damages for imposing a 10 day suspension for reporting an on-the-job injury. The Railroader suffered a serious injury that included the loss of two teeth and facial lacerations when coupled cars came apart as they were being moved in the yard. OSHA determined that the Railroad imposed the discipline even though the Railroader was not at fault. Charles Adkins, OSHA’s regional adminstrator in Kansas City stated that “While OSHA is best known for ensuring the safety and health of employees, it is also a whistleblower protection agency.”

OSHA’s press release can be found here.

By Matt Darby

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