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OVERVIEW OF THE FELA

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).

 

Do Railroad Office Workers Have FELA Rights?

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.

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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.https://commons.wikimedia.org/wiki/File:1980s_computer_worker,_Centers_for_Disease_Control.jpg

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.

EJL

NTSB Finds That Hoboken Train Speed Tripled Before Wreck

A deadly train crash in New Jersey on Sept. 29 that killed one and injured more than 100 underwent a rapid acceleration just before impact as it entered a busy commuter station in Hoboken NJ, according to the NTSB. 

The NTSP stated that the train was rolling into the station at a normal eight MPH, but for some reason, about 30 seconds before the crash, it sped up to at least 25 MPH.

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The engineer working the train stated that the brakes were operating normally. The emergency brakes were applied one second before impact.

The NTSB will continue to review the deadly crash and will make safety recommendations to avoid a recurrence. That could take more than a year.

The engineer told investigators that he was not using his cell phone and that the brakes had been checked before the trip. He claims no memory of the crash and remembers waking up on the floor of the cab.

There is speculation that the engineer fell asleep, but the investigation is continuing.

Our View

Our personal injury and railroad accident attorneys hope that this railroad crash in New Jersey will speed the adoption of positive train control or PTC throughout the commuter rail industry. The technology exists now to automatically slow trains that do not stop as they should, or are running well beyond speed limits for given area, but there continues to be delays in implementing this system throughout the country.

With PTC on line, this would prevent many train accidents from occurring, as well as serioius injuries and loss of life that leads to expensive lawsuits. 

 

 

 

Railroads Sluggish to Adopt Safety Technology as Deadline Passes

Many commuter and freight railroads continue to be slow to adopt safety technology that could prevent deadly crashes and derailments. This is in spite of the fact that that Congress has mandated that railroads install positive train control or PTC. 

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PTC uses digital radio signals, GPS and signals on tracks to monitor the position of trains. It has the ability to automatically stop or slow a train to prevent it from disobeying a signal. This has the potential to prevent derailments and serious accidents, including trains entering tracks that are closed for maintenance.

According to the Federal Railroad Administration, some railroads have made some progress, but many others have yet to equip a single train or track with the technology.

Congress passed the law in 2008 which gave railroads seven years to install PTC. Last year that deadline was extended for three more years. But according to Sarah Feinberg, head of the FRA,, railroads should not delay in installing the technology. Every day that goes by without PTC, she said, we are risking another serious train accident.

As of summer 2016, PTC is installed on 9% of freight route lines and 22% of passenger rail lines. Freight railroads  have also outfitted 34% of their locomotives with PTC.

However, progress varies greatly by railroad. BNSF has equipped 3/4 of its locomotives, while Union Pacific has barely equipped any of its locomotives at this point.

Our View

Our railroad accident attorneys in Virginia hope that more railroads will get PTC implemented as soon as they can. It seems wrong that the technology exists right now to greatly reduce the chances of train collisions and derailments – thereby saving many lives – yet many railroads are dragging their feet to install PTC. 

They may think they are saving money by not installing PTC, but as this $60 million verdict shows, a train derailment can be extremely costly for a railroad, both in dollar terms and in terms of its professional reputation.

FRA Issues Status Updates for Positive Train Control Progress

The Federal Railroad Administration (FRA) last week issued a status update that is calling for railroads to come out with Positive Train Control (PTC) technologies, which uses GNSS technology, as some as they are able to do so. This update also emphasizes the Obama administration’s call to send more funding to help commuter railroads to implement Positive Train Control. 

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PTC mostly uses GPS to prevent train crashes, derailments and unauthorized movement of trains into work areas, but GNSS  (Global Navigation Satellite System) is a more advanced technology.

Both Congress and railroads have been sluggish to accept and implement PTC due to cost concerns. The NTSB has recommended PTC as one of the most important safety improvements of the year. However, the NTSB has been fighting a slow battle against the industry and Congress to get the systems implemented quickly.

The NTSB has responded to the slow adoption of PTC by noting that several major railroad accidents could have been likely avoided if PTC had been implemented. One of them was the May 12, 2015 Amtrak crash in Philadelphia that killed eight.

Our View

It is a shame that industry and Congress are slow to adopt PTC; bringing this technology online quickly could save many lives. Our railroad industry crash lawyers have represented clients whose families were lost in train mishaps. Also, we have reported on many train accidents where people died, such as this rear end crash between two trains in IA in 2011. That crash could have been avoided with better safety systems. 

 

FRA Final Rule Requires Better Safety Approach for Passenger Rail

The Federal Railroad Administration (FRA) has issued a final rule in August 2016 that states that passenger railroads will need to adopt more proactive safety rules to prevent serious accidents, injuries and deaths. 

The final rule issued by the US railroad regulator is called the system Safety Program. Under it, railroads are required to develop a better and quantifiable safety culture within their organizational structure. Other requirements are to identify potential safety hazards and take steps to deal with them, while also showing how they will stay in compliance with FRA regulations.

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FRA Administrator Sarah Feinberg stated that the new rule should help passenger railroads increase their safety over the next several years.

Our View

We are pleased in our railroad accident legal office in Virginia that the FRA is mandating more safety regulations for passenger railroads in the US. There have been far too many passenger rail accidents in recent years, such as the devastating Amtrak derailment in Philadelphia in 2015 that killed at least 10 and injured at least 100. 

When there is a derailment, obviously the railroad needs to take immediate actions to prevent such events from occurring again. However, there also should be much more efforts placed on improving the safety culture within the organization so that these tragedies never happen again.

Another tragedy occurred in April 2016, when an Amtrak train slammed into two workers on a track that they thought was closed for maintenance. The train hit them at full speed on their truck and they were killed instantly.

A better safety culture also will prevent these railroads for being sued for millions of dollars in a wrongful death lawsuit. We won a $60 million settlement in a train derailment case a few years ago. While we were pleased with the result, it would be better if the accident never happened with better oversight by the railroad.

 

CT Congresswoman Reintroduces Rail Safety Enforcement Act

Connecticut Congresswoman Rosa DeLauro is leading an effort on Capitol Hill to reintroduce the Rail Safety Enforcement Act, which would mandate that railroads establish and implement a Fatigue Management Plan. It also would provide railroad workers with a defined start time, or at least 10 hours notice before reporting to the job. 

DeLauro made the announcement at the West Haven CT train station on Wednesday. This was the location where a Metro-North Railroad train struck a track supervisor and killed him in May 2013.

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At the announcement, a former railroad conductor commented that the biggest safety issue in the railroad industry is ‘fatigue, fatigue and fatigue.’ Francis Ariola is now the legislative director of the Sheet Metal, Air, Rail and Transportation union’s Transportation Division. He noted that union members are plagued with constant fatigue because they have extremely unpredictable work schedules.

Ariola noted that many workers are on call 24/7 and get as little as 90 minutes notice when they have to report for work.

The fate of the Rail Safety Enforcement Act is uncertain at this time, given that it is a presidential election year.

Our View

Our Virginia railroad injury attorneys know that railroads often disregard the need for adequate rest and sound sleep for train engineers. Serious injuries and deaths often result. For example, a National Transportation Safety Board report recently found that crew member fatigue played a major role in the collision of two trains. 

Our railroad accident attorneys truly hope that the Rail Safety Enforcement Act is passed into law soon so that train engineers will be able to get the much needed rest they need to prevent many train accidents. Some train accidents lead to major accidents that leave crash victims devastated and injured for life, such as this $60 million personal injury verdict we worked in in 2000. Any law that can reduce the chances of such a terrible accident is worth it.

 

 

DC Metro Fires 20 Managers After Multiple Smoke/Fire Injuries

After several years worth of DC Metro safety incidents that have led to several deaths and dozens of personal injury lawsuits, the general manager for the trouble-plagued metro system fired 20 station managers as part of his effort to reform the system.

The general manager, Paul Wiedefeld, followed through on earlier threats to fire managers in the troubled public transit system, after a catastrophic start to the year with multiple tunnel fire and smoke incidents that sickened many passengers. Also, a smoke and fire incident in 2015 led to the death of one woman and more than 70 personal injury suits for people who were sickened by smoke.

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In that 2015 case, electrical smoke near the L’Enfant Plaza station overcame the train and killed a woman and left the other passengers needing medical attention.

The mass firings came just a few days after DC Metro introduced a new ten month repair plan called SafeTrack that will result in virtual 24/7 work on metro tracks and equipment. This will result in entire sections of the system being closed for days at a time and many instances of single tracking trains during rush hour. This will cause major delays and headaches for tens of thousands of workers, but is viewed as essential to making the system safe.

Our train crash and accident lawyers in Virginia hope that DC Metro gets its act together soon. We have reported on the above tragic train disaster in 2015 before. Defective power cables generated a massive smoke cloud that overwhelmed hundreds of passengers. Passengers tried to flee the train by forcing open the doors. Power was cut off to stop the fire on the tracks, which meant that the train could not move, leaving passengers trapped.

We hope that the new safety emphasis with Metro means that there will be no more injuries and deaths, but if there is, we also hope that the injured parties will seek the counsel of experienced train accident personal injury lawyers.

 

 

 

 

FRA Announces $25 Million Funding for Rail Safety Improvements

The Federal Railroad Administration has started to take applications from local governments, states and railroads for $25 million in grants to fund their railroad safety efforts.

Applicants can ask for funds for safety upgrades to railroad crossings, tracks, tunnels, yards, bridges, etc. The grants have been made available under the 2016 Consolidated Appropriations Act.

According to US Transportation Secretary Anthony Foxx, as the population of the US grows, rail is playing a bigger role in moving people and freight around the US. “To do that safely, we must invest in our rail infrastructure,” he said last week.

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FRA stated that it would accept railroad safety funding applications until June 14.

Our railroad accident attorneys are pleased that FRA is making these funds available to upgrade railroad safety in America. Our railroad accident lawyers have represented many clients who have suffered serious injuries, or their loved ones have even died, in various types of railroad accidents.

Whenever we see the federal government improving railroad crossings it certainly is a positive, especially for railroad crossing safety. However, when a railroad that owns the tracks that run over those highway crossings is sued because of injury or death, that’s the moment that the railroad claims that they have very little or no responsibility whatsoever. What most consumers may find surprising is that the railroads often receive money from state or federal government for lights or gates at crossings and do everything they can to avoid paying for them.
Even in the face of prior injuries or deaths at the crossing, the railroads who operate on the tracks argue that it should not be their responsibility to pay for gates or lights because the public has built a highway across their Railroad right-of-way. Their position, often overlooked by the public, is that it is local, state or federal government that should improve the safety of motorists traveling across the railroad crossing.
This type of multiple party responsibility is exactly what makes civil injury or death litigation at railroad crossings complex. Indeed, most states have variable or different jury instructions in these types of cases that dictate the railroad’s responsibility at a railroad crossing collision.

Many people do not know that the railroad company that uses that crossing is responsible for maintaining the safety of the crossing. The safety gates must work and flashing lights must be operational, and all vegetation and grass needs to be regularly cut away from the tracks to not obscure driver vision.

A good railroad accident attorney with experience in the state in which the accident occurred can be invaluable in recovering damages in a lawsuit. For example, our railroad accident lawyers bring in retired railroad workers to investigate railroad crossing accidents. Using their expert testimony, we have been able to prove in some cases that appropriate precautions were not taken at some railroad crossings.

Florida Supreme Court Takes FELA Case Involving Railroad Worker Death

Almost 10 years after a CSX railroad conductor died in a remote part of Florida as he worked for the railroad, the Florida Supreme Court has agreed to take up a lawsuit about CSX Transportation’s duty to provide medical assistance.

The widow of the deceased train worker, Larry Sells, appealed to the FL Supreme Court after the First District Court of Appeal ruled for CSX in the medical negligence case. Sells died from a heart attack in August 2006 after he went to manually operate a track switch in a remote part of Clay County FL.

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A co-worker found him within two minutes and called CSX for help, but the dispatcher could not clearly communicate where the stricken man was, and the EMTs did not arrive for 35 minutes.

The lawsuit alleges that CSX did not provide a safe workplace, which should have included a lack of automated external defibrillators.

The First District Court of Appeals sided with CSX last May, stating that while CSX did have to provide prompt medical treatment once it knew the man was ill, it did not have a duty to take measures in advance to prevent such an emergency situation.

However, the widow’s attorneys argued that CSX breached its duties under the Federal Employers Liability Act (FELA) and that the appeal court ruling could have serious repercussions throughout the US.

The brief filed by the plaintiff’s attorney stated that the appeals court decision could be used by FELA employers in state and federal courts to support their failure to take preemptive measures to ensure their workers get quick medical care in an emergency.