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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

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.

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