RAILROAD (FELA & FEDERAL RAIL SAFETY ACT) Miscellaneous Administrative Notices – Three recent Federal Railroad Administration notices that draw attention to the federal role in two localized sources of wrongful death and personal injury cases, often under the Federal Employers Liability Act (FELA) and Federal Rail Safety Act, respectively: (1) Signals WITHIN a railroad’s land and operational scope, and (2) highway-rail grade crossings.

See Federal Register notices on “proposed discontinuance or modification of a railroad signal system” by Wisconsin Central Limited (railroad) here, and “proposed discontinuance of automatic signals within traffic control systems (TSC) territory and the installation of a cab signal system without automatic wayside signals on the NS Pittsburgh Line” here.

“Importance of Clear Safety Procedures for Temporary Removal from Service of Highway – Rail Grade Crossing Warning Systems and Wayside Signal Systems.”

June 3, 2013. Notice of Safety Advisory

RAILROADS (FELA & FEDERAL RAIL SAFETY ACT) / Where (1) plaintiff in Federal Employers Liability Act claim against railroad alleged negligence based on railroad’s failure to inspect a particular switch more often than once per month, and (2) Federal Rail Safety Act prescribed inspections of specified railroad switches at specified frequencies under specified circumstances of a minimum of once per month – Held: Federal Rail Safety Act standard did NOT preempt as a matter of law a higher negligence standard to be applied under Federal Employers Liability Act.

The district court’s basic rationale: FELA is based on negligence concepts for the protection of railroad employees, and FRSA – it reasoned – was not enacted with the idea of preempting such negligence standards with a distinct federal statutory standard.  “Finding preclusion as between these two statues would thus be tantamount to concluding that with the FRSA Congress intended to reconfigure the basic structure for imposing liability under the FELA.”

Powell v. Union Pacific Railroad Company, No. Civ. 2:09-01857 (U.S. District Court for the Eastern District of California, May 2, 2013). Free copy available here.

REMARKS / Judge applying Federal Railroad Safety Act in case relating to railroad’s retaliation against employee for claiming a safety violation on the railroad’s part recognizes a major turning point in the development of such cases. COMMENT: In evaluating attorney fee award to plaintiff’s counsel the court underscores what observers had concluded: That counsel, Charlie Goetsche, Esq., has taken this statute from its earlier status as a potential means to uphold railroad employees’ rights against retaliation for safety claims and warnings – to make the Federal Railroad Safety Act a legal tool to be reckoned with in actual practice.

Barati v. Metro North Railroad, 2013 WL 1296484, (U.S. District Court for the District of Connecticut, March 27, 2013). Free copy available here.

See summary by plaintiff’s attorney relating to this fee award here

See earlier write-up by plaintiff’s attorney on this landmark case here (Under Comments, Recommended Reading, at “Railroad (Federal Rail Safety Act)”.

U.S. OSHA (ANTI-RETALIATION PROVISIONS OF FEDERAL RAIL SAFETY ACT) / U.S. OSHA acting pursuant to Federal Rail Safety Act fines Norfolk Southern Class I railroad $1.1 million upon finding (1) that NS had fired three employees in retaliation for reporting injuries, and (2) that this was a part of a pattern of conduct (“The Labor Department continues to find serious whistleblower violations at Norfolk Southern”).

Full text of news release available here.

RAILROAD (FEDERAL RAIL SAFETY ACT) / Plaintiff railroad employee sues under Federal Rail Safety Act alleging employer retaliation for his reporting an injury, and defendants contend plaintiff had not exhausted administrative remedies as FRSA requires prior to bringing action in federal district court – held: Plaintiff’s complaint to U.S. Department of Labor OSHA sufficed to exhaust administrative remedies.

To argument that plaintiff did not submit appropriate “whistle-blower” complaint to OSHA court rule that neither the statute nor regulations prescribes a form for such a complaint and requires that it be used strictly in conformity to it. 

Windom v. Norfolk Southern Railway. Co., 2013 WL 432573 (U.S. District Court for the Middle District of Georgia, February 1, 2013). Free copy available here.

RAILROAD / Administrative Rule – Federal Railroad Administration proposes to require railroads to inventory to U.S. DOT all the highway-rail and pathway crossings over which they operate. Key here: Collisions at these sites a major source of railroad negligence tort suits.

New “National Highway-Rail Crossing Inventory Reporting Requirements” 

January 24, 2013, Announcement of Public Hearing and Extension of Comment Period.

This meeting follows up on a Notice of proposed rulemaking issued in the Federal Register October 18, 2012. 

“FRA is proposing to require railroads to submit information to the U.S. DOT National Highway-Rail Crossing Inventory about highway-rail crossings and pathway crossings over which they operate. These amendments, which are required by the Rail Safety Improvement Act of 2008 (RSIA), would require railroads to submit information about previously unreported and new public and private highway-rail crossings and pathway crossings to the U.S. DOT National Highway-Rail Crossing Inventory and to periodically update the Inventory.”  Continue reading

FEDERAL RAIL SAFETY ACT / Lawsuit on multiple state tort theories by motorcyclist against railroad for injuries in collision with train at rail / highway crossing – Held: Under Federal Rail Safety Act two pleaded tort claims not preempted and two other pleaded tort claims federally preempted.

Federal Rail Safety Act preempted state tort claims for (1 negligence per se, and (2) failure to warn based on alleged misclassification of tracks at crossing. Federal Rail Safety Act did not preempt state tort claims for failure to maintain safe crossing area.

Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (U.S. Court of Appeals for the 3rd Circuit, January 23, 2013). Free copy available here.

TORTS & RAILROAD / In wrongful death case arising from locomotive collision at grade crossing with auto driven by plaintiff’s decedent, trial court was correct to rule that there was a genuine issue of material fact as to whether federal preemption precluded plaintiff’s claim that traffic warning devices were inadequate as a matter of state tort law.

Indiana R. Co. v. Davidson, 2012 WL 6706934 (Indiana Court of Appeals, December 27, 2012). Free copy available here.

Who is affected? Operators of railroads and tort claimants for rail crossing warning malfunctions.

Court’s line of thought:

1. Federal preemption “attached” with respect to the adequacy of warning signs at the subject grade crossing when the grade crossing was built in 1978. Why? Because it was done with federal funds and according to federal standards. Continue reading

EMPLOYMENT, MOTOR CARRIER & RAILROAD / Two cases on railroad and motor carrier employees as whistle-blowers: Rights under federal vs. state law; administrative agency access vs. lawsuit in court.

Business Take-Away:

A “whistle-blower” case against a railroad in federal court and a similar state court case against a motor carrier in state court provide an occasion for employers and employees among railroads and motor carriers to understand federal versus state law rules; and to identify what sort of claims have access to an administrative agency versus which provide access directly to a lawsuit in federal court for money damages in front of a jury.   

Six basic points about federal “whistle-blower” or “anti-retaliation” statutes:

1. Employees of both railroads and motor carriers have access to well-defined “whistle-blower” or “anti-retaliation” remedies under federal law. (There are federal “whistle-blower” statutes in aviation too, but you can only cover so much in one blog post.)

Continue reading

RAILROAD & TORT / When Settling Suit under one Federal Rail Statute Beware Its Application to another Federal Rail Statute .

Tagliatela v. Metro-North Commuter R. Co., 2012 WL 5493618 (D.Conn. November 13, 2012) Free copy available here: Scope of release in a lawsuit: Railroad employee injured on the job and then disciplined for his alleged failure to report that injury and appear for a prescribed medical evaluation relating to the injury. Held: Employee’s release of railroad employer in FELA injury action of all claims that “arise from or out of injuries … at [injury location]” did not have the effect of releasing that employer railroad from FRSA claim relating to alleged harm to that employee accruing from railroad’s disciplinary action against him.  

Who is affected? Parties to lawsuits arising from claims under the Federal Employers Liability Act (FELA) and the Federal Rail Safety Act (FRSA).

Procedural means by which the claim of harm under FRSA was raised: Complaint to OSHA / U.S. Department of Labor.