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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.

Your Rights Under the Locomotive Inspection Act, a Helpful Tool in FELA Cases

Wednesday, May 09, 2018

When we meet with railroad engineers, they have often heard of the Locomotive Inspection Act, and ask what additional rights it provides to engineers (or any railroad employee injured on the locomotive engine). The Locomotive Inspection Act (originally called the Boiler Inspection Act) requires that railroads maintain their locomotives in a condition that is safe to operate. When they don’t, and an employee is injured because of it, the injured employee does not need to prove negligence by the railroad as part of their FELA claim.The employee only needs to prove that he or she was injured because of the railroad’s failure to maintain its locomotive. This is called strict liability. In addition, the railroad is denied any comparative negligence defense in the FELA claim. This means that even if the employee was partly at fault for the injury, the railroad is still responsible for the plaintiff’s full damages.The railroad cannot argue, as they often like to do in FELA cases that the employee’s violation of a safety rule caused or contributed to the injury.

Some examples of hazardous locomotive conditions that can result in strict liability for the railroad include slipping hazards such as grease, broken lights providing insufficient illumination, malfunctioning brakes, broken chairs, and broken grab irons. If you are ever injured on a locomotive engine, it is especially important to look around your surroundings to determine if there were any unsafe conditions on the locomotive that contributed to your injury.If so, it may be much easier for you to hold the railroad accountable in your FELA case.

Call or email me with questions:

H. David Leibensperger

hdavid@bsgfdlaw.com

410-769-5400

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.

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