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While the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51 et seq. offers protection to all railroad employees who are injured in the course of their employment due to some negligence on the part of the railroad or its employees, engineers and trainmen who suffer injuries on locomotives that are in use (i.e. not being repaired or serviced) are given a heightened level of protection by the Locomotive Inspection Act 49 C.F.R. § 2071. We are often asked the difference between a claim for an injury under the FELA versus the Locomotive Inspection Act (LIA). There are several significant differences between general FELA claims and LIA claims. The history and purpose of the Acts are important when you are attempting to understand the difference between the coverage and protection afforded by the various Acts. Congress passed the Safety Appliance Act in 1893. It became effective in 1900. Railroads had expanded quickly following the end of the Civil War. As rail traffic increased there was also an increase in injuries to railroad workers. Many of the injuries were associated with coupling operations. In response, Congress passed the Safety Appliance Act which required automatic couplers and airbrakes to reduce the times railroad employees had to go between cars in coupling operations. (The Safety Appliance Act is now found at 49 U.S.C. § 20701 et seq.) A later amendment to the Safety Appliance Act increased its scope to require secure grab irons and hand holds on the ends and sides of rail cars.
The FELA was enacted in 1908 to address dangers encountered by all railroad workers in the course of their jobs. An injured railroad employee has a claim under the FELA if their injury was caused in some part (no matter how small) by the negligence of the railroad or its employees. This means there must be some type of negligence on the part of the railroad established by the injured employee to recover damages under the Act.
The FELA is also a comparative negligence law. 45 U.S.C. § 53 (this means an injured employee’s recovery may be reduced in proportion to their own negligence.) (If a jury or court finds an injured employee was 50 percent responsible for their injuries, the verdict or award will be reduced by 50 percent, etc.)
A predecessor to the LIA, the Ash Pan Act was passed by Congress in 1908. That Act described how ash pans were to be maintained and attached to steam locomotives. In 1911 Congress passed the Boiler Inspection Act which was applicable to all steam locomotives. The Act expanded over the years to cover all parts of a locomotive. The Act is now referred to as the Locomotive Inspection Act and is found at 49 U.S.C. § 20701. The LIA requires (1) all parts and appurtenances of a locomotive be in proper condition and safe to operate without unnecessary danger of personal injury; (2) locomotives be inspected as required by federal regulations; (3) the locomotive and its parts and appurtenances can “withstand every test prescribed by the Secretary (of Transportation). The Code of Federal Regulations (tests prescribed by the Secretary of Transportation) describe minimum safety standards for all locomotives (except steam engines) at 49 C.F.R. § 229.1. The defense of contributory negligence is not available to a railroad in a claim under the LIA according to the law at 45 U.S.C. § 53.
Courts have interpreted these laws to mean if an employee is injured on a locomotive (other than during inspection, repair or servicing) due to a defective part, that employee is entitled to recover under the LIA. Courts have held the LIA to be liberally construed in light of its purpose to protect the employees (and others) by requiring use of safe equipment. Lilly v. Grand Trunk Western RR. Co., 317 US 481 (1943). The Act has been interpreted to cover defective parts and conditions on locomotives, including the presence of foreign substances on walkways. (See Lilly).
Courts have also held an action under the LIA is based upon a violation of the statute (i.e. a defective part or condition) and a railroad cannot escape liability under the LIA by showing it used reasonable care in maintaining the locomotive. O’Donnell v. Elgin, Jolit and Eastern Ry. Co., 338 US 384, 390 (1949). The language of these laws and the court rulings interpreting them have come to mean an employee injured due to a defective part or condition on a locomotive only needs to show the defective part or condition caused their injury while they were in the course of their employment (except inspecting, repairing or serving a locomotive). The employee who shows an injury due to such a defect does not have to establish negligence on the part of the railroad, nor will their recovery be reduced if their own negligence contributed to the injury.
In an FELA case, the employee must prove the negligence of the railroad caused, or at least contributed, to his or her injury. In a case under the LIA, the employee simply needs to prove a defective part or condition on a locomotive, not being inspected, repaired or serviced, caused or contributed to his or her injury. Contributory negligence (negligence on the part of the employee) may reduce an award under the FELA; however, contributory negligence should not affect an award under the LIA. The effect of these laws is to make a recovery for an employee injured in the course of his employment due to a defective part or condition on a railroad much easier to prove once such a condition or defect is established.
We are frequently asked by railroad employees who were injured during the use of a handbrake whether they’re covered by the FELA or if they have a case if an inspection of the brake after the injury showed it worked properly when inspected. The answers to these questions have been clearly responded to by the United States Supreme Court and well-established legal precedent.
- Injuries suffered by railroad employees operating handbrakes are covered by the FELA, 45 USC § 51, et. seq. and, if the car is “in use,” by the Safety Appliance Act, 49 USC § 20302(a)(1)(B). In this context “in use” is comparable to “in transit” (i.e. not set out for repairs or inspection). Minneapolis, St. Ry. Co. Minneapolis St. Paul Railway Companies v. Goneau, 269 US 406 (1926).
The differences between cases under the FELA versus the SAA are significant. If the car is not “in use” and the FELA is the governing law, an employee must show the railroad was negligent in some way in its maintenance, repair or inspection of the handbrake. The employee also needs show the railroad knew, or should have known, the brake was defective prior to the injury. Under the provisions of the FELA, an injured employee’s recovery may be reduced in proportion to any negligence a court or jury feels the injured employee engaged in leading to the injury (i.e., if a court feels the injured employee was 50 percent responsible for his or her injuries, the verdict will be reduced by 50 percent, and so on).
If the car is “in use” at the time of the injury, the injured employee only needs to show the brake failed to operate as intended (was “inefficient”) at the time of his injury. The landmark handbrake case is Myers v. Reading Co., 331 US 477 (1947). The Supreme Court points out in that opinion the proof to establish the railroad’s responsibility for an injury under the SAA is much simpler than under the FELA generally. The SAA “…simplifies the issue beyond that presented in the ordinary care under the Federal Employers Liability Act where the plaintiff must establish the negligence of his employer. Here it is not necessary to find negligence. A railroad subject to the Safety Appliance Act may be found liable if the jury reasonably can’t infer from the evidence merely that the handbrake which caused the injuries was on a car which the railroad was using on its line, in interstate commerce, and that the brake was not an “efficient” handbrake. Myers, 331 US at 482-83.
- A defective handbrake can be established by an injured employee’s testimony despite subsequent inspections revealing no defect.
The Myers court also discussed two recognized methods for establishing an inefficient (defective) handbrake. The first is proof of a specific defect revealed on inspection. The second is “…the testimony of the plaintiff that the brake was used in the normal and usual manner and failed to work efficiently…”. Myers at 483. According to Myers, if an employee attempts to operate a handbrake in the usual manner and is injured, his or her testimony of the failure of the brake to perform as intended is sufficient to establish a Safety Appliance Act violation for consideration by a jury or court.
There are also several common sense steps an injured employee should take if injured due to a defective handbrake. Get the number of the car so it can be identified and its repair history obtained at a later date if necessary. Report your injury to your co‑workers and the railroad as soon as practical. Get prompt and appropriate medical care. Somehow record or memorialize the steps taken leading up to and including efforts to operate the handbrake, the location of your hands and feet during the operation effort, the location of the handbrake on the car, the height and size of any brake platform, etc. Rely upon your own knowledge regarding the operation of the handbrake to determine whether a potential claim exists under the Safety Appliance Act. Inspection of the equipment after the injury is not the only way to establish a safety appliance violation according to the United States Supreme Court. If you are injured in the course of operating the handbrake take these steps to protect yourself.
The Federal Employers’ Liability Act (“FELA”), 45 USC § 51, et seq., is a humanitarian statute intended to protect railroad workers from unsafe conditions and practices associated with their occupations. Its purpose has been interpreted as to adjust and allocate the cost of work-related injuries, an inescapable expense of the railroad industry, between the worker and the railroad. Sinkler v. Missouri Pacific R.R, 356 U.S. 326 (1958). “The FELA was designed to put on the railroad industry some of the costs for legs, eyes, arms and lives which it consumed in its operations.” Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949). In Rogers v. Missouri Pacific R.R, 352 U.S. 500 at 507 (1957), the U. S. Supreme Court noted the Federal Employers’ Liability Act “was enacted because Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence … “.
The statute changed and modified the common law, and although the basis of liability is negligence, the FELA abolished the defenses of the fellow servant rule (45 U.S.C. § 51, and the doctrine of assumption of the risk. 45 U.S.C. § 54. The FELA also provides that contributory negligence does not bar recovery but merely diminishes the amount of damages recoverable by the injured employee. 45 U.S.C. 53. “What constitutes negligence and makes a railroad liable in damages under the FELA is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes, and is governed by the Federal Decisional Law.”: Urie v. Thompson, 339 U.S. 163 (1949). The basic inquiry in an FELA case is whether any negligence on the part of the railroad “played any part, even the slightest, in producing the injury or death for which damages are sought”. Rogers v. Missouri Pacific R.R., 352 U.S. at 506.
In 1893, Congress passed the first version of what is now called the Safety Appliance Act, followed in 1911 by the Boiler Inspection Act (also referred to as the “Locomotive Inspection Act”). The Boiler Inspection Act is now found at 49 U.S.C. § 20701, et seq., and the Safety Appliance Act at 49 U.S.C. § 20301, et seq. These acts standardized the safety requirements for many aspects of railroad operation. A plaintiff seeking damages under either the Safety Appliance Act or Locomotive Inspection Act need only prove a statutory violation and causation to establish liability on the part of the railroad. Kernan v. American Dredging Co., 335 U.S. 426, 432 (1958); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 434-35 (1949). The violation “is itself an actionable wrong, and no way dependent upon negligence and for the proximate results of which there is liability – a liability that cannot be escaped by proof of care or diligence”. O’Donnell v. Elgin, Joliet and Eastern Ry. Co., 338 U.S. 384, 390 (1949); see also Brady v. Terminal R.R. Assoc., 303 U.S. 10, 15 (1938).
The defenses of contributory and comparative negligence are not available in actions based on a violation of a safety statute such as the Safety Appliance Act or the Locomotive Inspection Act. 45 U.S.C. § 53. The fact there may have been more than one cause of an injury is immaterial as long as one of the causes is attributable to the Railroad’s negligence. Heater v. C & O, 493 F.2d 1243 (7th Cir. 1974). A railroad employee may likewise recover from his employer for any injury caused, in whole or in part, by any negligence of a fellow employee. Sinkler v. Missouri Pacific R.R., 356 U.S. 326 (1958).
While state law governs purely procedural matters in an FELA case, any matter of a substantive nature is controlled by federal law as developed in federal decisions. Norfolk and Western Rwy. Co. v. Liepelt, 444 U.S. 490 (1980). The sufficiency of the evidence is a substantive matter determined by federal precedent. Brady v. Southern Rwy. Co., 320 U.S. 476 (1943).
The right to a jury trial is “part and parcel” of the FELA. Bailey v. Cent. V. Rwy. Co., 319 U.S. 350, 354 (1943). The FELA’s liberal purposes must be kept in mind when deciding an issue and derogation of the FELA’s remedial purpose of providing workers with access to courts for redress of their injuries. Urie v. Thompson, 337 U.S. 163 (1949).
Yes, to give the briefest and clearest answer.
Any employee of a railroad corporation that engages in interstate commerce has coverage for work-related injuries and occupational illnesses under the law formally known as the Federal Employers Liability Act.
FELA was enacted in 1908 to protect railroad employees who were almost always excluded from the state-based workers’ compensation programs that were just then coming into being. While FELA procedures differ significantly from those used by workers’ comp, the intent is the same. Individuals who get hurt, killed or made sick while they were doing their jobs can seek compensation and damages for medical bills, disability, lost wages and, in the worst cases, wrongful deaths.
The first qualification for coverage under FELA is working for a company that is subject to the rules and regulations created to implement the law. So, again, yes, people who work for a railroad company but not on trains do have FELA rights.
And, of course, office workers face risks for workplace injuries and occupational illnesses. The Society for Human Resource Management, for instance, lists four of the most common physical dangers in office settings as
- Slips, trips and falls;
- Repetitive stress and strain, which are also known as ergonomic injuries;
- Fire and smoke; and
- Poor indoor air quality, ranging from particulates to fungal spores.
Railroad employees who work inside rail yard administration buildings and corporate headquarters can also be exposed to cancer-causing particulates, toxic fumes and infectious agents. The extensive use of asbestos insulation in buildings built before the 1980s and the almost constant idling of diesel-powered locomotives in freight and switching yards pose particular dangers to longtime and retired office staff.
Proving a FELA injury or illness claim is not always easy, though. Doing so requires showing that railroad, through its executives, managers or employees, acted negligently and failed to protect the injured or ill worker. Partnering with an experienced FELA attorney can help a current or retired railroad worker find, organize and present evidence of negligence. Documenting negligence makes a railroad strictly liable for settling a FELA claim or for paying a FELA award granted by a civil trial jury.
Why You Need an Experienced Railroad Derailment Lawyer When You Suffer Injuries or Lung Damage From a Train Wreck
No one can feel completely safe when a train goes off the tracks. “Train wreck” did not become shorthand for a disastrous situation for no reason.
As Virginia-based railroad injury lawyers for going on 40 years, we have seen firsthand some of the worst results from train derailments. We helped several victims of the Norfolk Southern chemical train crash in Graniteville, South Carolina (SC), that released a massive cloud of deadly chlorine gas. We also secured a $60 million award for a man who suffered permanent brain damage after a train literally flew off its tracks and crashed into the gas station service building in which our client was working.
- A Brief History of Railroad Injury Law in Virginia
- Dangers From Trains Transporting Chemicals, Oil Ever-Present
The people most likely to get injured or killed in train derailments are, of course, crew members, track workers and rail yard employees. When on-the-job accidents occur, railroad staff have undeniable rights to file claims for the payment of medical bills, lost wages, disability costs and, in the worst cases, funeral expenses and wrongful death settlements.
Railroad workers who get hurt or killed while on duty are covered by the Federal Employers Liability Act. Usually shortened to FELA, the law does much of what state workers’ compensation laws do for workers in other industries. The biggest difference is that when a railroad refuses to settle a work-related injury or death claim, the rail employee or the employee’s family must file a federal lawsuit. The case itself can be heard in a state court, but it is essential to hire an attorney who has national experience with handling FELA lawsuits.
A few reasons for this include the following:
- Federal safety laws control the actions of railroads and violating those laws automatically creates liability.
- Obtaining critical evidence and company records often requires filing requests under the federal Freedom of Information Act.
- How to identify the types and locations of records and evidence that might be destroyed or lost will not be obvious to someone working their first FELA case.
- Most railroad companies operate across state lines, giving them resources a law firm that only takes local cases will lack.
Perhaps most importantly, knowing the railroad company usually proves invaluable in successfully countering the arguments and obstructionism of the defense team in a FELA lawsuit. An attorney who has spent decades fighting for the rights of rail employees will have many connections inside a company who can confirm details about a derailment and corporate policies and procedures. An experienced FELA attorney will also be able to call upon a broad range of experts to conduct investigations and testify on his client’s behalf.
If you need information regarding your legal rights after any type of railroad accident involving injuries or deaths from a train derailment, crash or release of toxic chemicals, please contact our law firm for a free and confidential consultation.
More than 6,700 miles of railroad track exist in Virginia, and those tracks cross thousands of driveways, business lots and private roads. Nearly every one of those private railroad crossings lacks the flashing warning lights and automatic gates drivers, bike riders and pedestrians have grown to expect on public roads and highways. In fact, a majority of private railroad crossings are not even marked with stop signs or crossbucks — those black-and-white x-shaped signs that people can see long before they reach a set of tracks.
- Private Railroad Crossing Safety: Reasonable Warnings Required by State Law
- A Virginia Railroad Crossing Injury Lawyer’s Advice on Train-Car Crashes
Still, even as overall freight and passenger rail traffic has increased across the country, the number of collisions at road-level, or grade, crossings has fallen significantly over the past decade. Records kept by the Federal Railroad Administration indicate that 2,041 crashes involving trains going through grade crossings occurred during 2016. Those collisions caused 255 deaths and 843 injuries. A slight uptick in grade crossing crashes occurred in 2017, and deaths and injuries rose to, respectively, 274.
When a collision resulting in deaths or injuries happens at a grade crossing on a public road, the question of which party caused the crash is relatively straightforward. A Virginia personal injury lawyer or wrongful death attorney will ask whether the victim entered the crossing despite seeing warning lights and encountering a lowered gate, or whether the lights and gates worked properly.
Questions over fault at private railroad crossings become much more complicated. First, Virginia law assigns the owner of a grade crossing the legal duty to “take precautions to provide for the safe movement of traffic.” Meeting that duty requires doing things like putting up signs, cutting back vegetation to maintain lines of sight along the tracks, and maintaining the roadbed under the tracks so vehicles do not get stuck. If the crossing owner has failed to do these things, the crossing owner can be held liable for a crash.
Then, the issue of who owns the private crossing arises. Railroads must sign contracts with landowners when the company lays tracks through a home’s yard or a business’ lot. That agreement will assign obligations for maintaining the crossing to either the railroad or the landowner. A Virginia plaintiff’s attorney will need to ask for and review the contract to determine which party owed the duty to protect the victim of the train crash.
Last, the Virginia railroad crossing crash attorney must confront questions related to contributory negligence. Virginia is one of just four states that block insurance claims and personal injury or wrongful death lawsuits when the victim can be found even one percent responsible for causing a crash. A Virginia case that focused on this issue determined that drivers must expect that tracks exist and have reason to believe that a train may be coming in order for a court to find contributory negligence.
Railroad accidents, derailments and fatalities have declined in Montana and other parts of the country in the past 10 years, according to data from the Federal Railroad Administration. The FRA reports that the decline is a reflection of efforts to enhance safety and by efforts in Montana specifically to communicate better with federal regulators, and to detect any trends.
According to FRA data, railroad accidents fell from 198 in 2008 to 98 in 2017, which is a 55% decline. Public Service Commission Chair Brad Johnson in Montana stated that the numbers speak for themselves, and show the efforts in Montana to boost railroad safety have produced tangible results.
Johnson noted it is a multifaceted effort to improve safety in the state that has done the job. Burlington Northern Santa Fe Railroad (BNSF) and Montana Rail Link officials stated their companies have made strong efforts to enhance safety, mostly through increased reporting, supervision and improving technology.
Montana Rail Link also reported that the company today has a stronger safety culture. The company actively promotes control, recognition and elimination of hazards, and also has a work environment where all workers attempt to contribute to success in rail safety.
BNSF has 2300 employees in the state and a payroll of $175 million. It has 2600 miles of track in Montana, and it handles more than two million cars per year. Of those, 300,000 rail cars come from grain elevators and other facilities in Montana.
Montana Rail Link runs 20 trains per day and hauls 420,000 carloads of freight each year. It has 900 miles of track in the state and has 1200 workers.
Railroad accidents and incidents have been falling at a faster rate in Montana than in most other states in the Northwest. Of the eight states in that part of the country, Alaska and Wyoming are the only ones that have seen a greater decline in railroad accidents.
Our railroad accident and FELA attorneys in Virginia are pleased to read that railroad safety is being improved in Montana and in other parts of the country. When there is a railroad accident, such as a derailment, pedestrian crossing, car crossing or other such rail mishap, there can be very serious and fatal injuries. Our railroad accident lawyers once settled a railroad accident claim for $650,000 where our client, a worker for CSX, was injured when she fell off a rail car when the train hit a hostler truck that pulled onto the track in front of the train.
An Amtrak train traveling from New York City to Miami slammed into a freight train in the early morning hours of Feb. 4, killing at least two people and injured 116 others. Thousands of gallons of fuel also were spilled.
Amtrak stated that the train was carrying eight crew and 139 passengers when it struck a CSX train near Cayce, South Carolina at 2:35 AM. Both of the dead worked for Amtrak, according to South Carolina Governor Henry McMaster at a news conference. Video of the scene appeared to show the CSX train was on the correct track, while the Amtrak train was not, the governor added.
The South Carolina Amtrak crash was the second train accident involving the company in less than a week. Last Wednesday, an Amtrak train carrying Republican members of Congress to a retreat in West Virginia struck a garbage truck in rural Virginia. A sanitation worker in the truck was killed.
The cause of the latest Amtrak wreck was not clear. The NTSB stated this morning it had begun an investigation of the train crash. A railroad consultant named Steven Ditmeyer stated in a telephone interview with the New York Times that it looked as if one of the trains had not obeyed a signal.
Amtrak has had a series of high profile crashes and derailments over the last several years, which has led to harsh criticism from government officials and consumer groups. The Federal Railroad Administration reports that it has had approximately two derailments per month, which is approximately 25% of the accidents FRA reports.
Amtrak has responded to criticism that it is a safe travel option for more than 30 million passengers per year and has a strong record of safety. But after a 2016 derailment in Pennsylvania where a train hit a piece of track equipment and killed two, Amtrak acknowledged that improvements needed to be made.
Amtrak has installed postive train control (PTC) on segments of its rail network in the northeast US, which can automatically slow speeding trains or stop them if an engineer does not obey a track signal. Ditmeyer noted that PTC could have prevented this type of train crash, but CSX is not required to have their PTC system operational before the end of this year. The end of 2018 was the date set by Congress after several delays, but few railroads seem to be in a hurry to spend the time and money on the safety system, the rail consultant stated.
Our Virginia and North Carolina railroad accident attorneys are alarmed that yet another railroad crash has occurred that could have been prevented if positive train control had been installed. Just last week, we wrote a post about the Amtrak railroad crash that killed a 28 year old man in Crozet, Virginia.
Railroads have opposed PTC upgrades because of the cost, but what is a human life worth? Now two more people are dead and many more are injured in a train crash that may have been preventable. Both railroads will likely face expensive personal injury and wrongful death lawsuits, so we urge all US railroads to stop using the cost excuse and get PTC installed on its railroad tracks immediately.
The Department of Transportation stated this month that railroads must act urgently to meet a Dec. 31, 2018 deadline to adopt automatic braking technology. Transportation Secretary Elaine Chao made the statement in a letter she sent to 47 of the nation’s railroads in early January.
Chao’s urgent call to action came a few weeks after an Amtrak train derailed Dec. 18 near Seattle, killing three people. The train was going 80 MPH in a 30 MPH zone. Federal investigators are still studying what caused the train derailment. But rail experts say that Positive Train Control or PTC could have automatically slowed the train if the technology had been in operation. The system was installed on the train and tracks, but was not functioning when the crash occurred.
That deadly Washington state accident and other fatal train crashes in recent years have increased the urgency for PTC, which can slow or stop a train that is not obeying speed limits or track signals.
The Dec. 27 letter stated that the Federal Railroad Administration has been ordered to work with railroad leadership across the country to create more urgency to getting PTC installed by the end of 2018. Chao stated that getting PTC implemented on schedule is one of the most important rail safety initiatives on the DOT agenda.
Congress mandated railroads adopt PTC after a train crash in 2008 between a commuter and freight train in Chatsworth, California. That crash killed 25 people.
Chao stated that after reviewing data about PTC progress, many railroads had fallen far behind schedule and would need assistance from the federal government to meet the deadline. DOT stated that 45% of freight railroad track and 24% of passenger railroad track have PTC working. But 12 railroads stated they have less than 50% of the equipment needed by Sept. 30.
PTC provides signals between trains, tracks and dispatch centers to slow down trains that are speeding or to stop them at the appropriate signals if the engineer is not responding. The system requires PTC equipment to be installed on tracks and in train engines. Railroads have installed a lot of the technology over the last several years but too many railroads have fallen behind schedule. The federal government is concerned more serious train crashes will occur with loss of life, so they are pushing railroad companies to get everything done by the end of 2018.
Our Virginia railroad accident attorneys, who have represented train crash victims in personal injury lawsuits. support the federal government pushing railroad companies to get PTC installed as soon as possible. This advanced braking system on freight and passenger trains will save lives. Train derailments cause serious injury and death far too often, and any safety system that can prevent these accidents is worth doing.