COURT CASE & U.S. DOL Administrative Review Board / 2 court cases strike down management defenses to Federal Railroad Safety Act whistleblower anti-retaliation claims by covered employees. COMMENT: This follows other break-through court and agency developments under this statute – both in the courts and in U.S. Department of Labor OSHA determinations. This statute is a materially more potent tool in the hands of injured rail employees now than it was even just a year ago.

Leading lawyer in this field, Charlie Goetsche, Esq., points this out in a blog post (“More FRSA Railroad ‘Defenses’ Shot Down”) Thursday April 18 this week.

He highlights:

Battenfield v. BNSF Railway Co., Case No. 12-CV-213-JED-PJC, Slip copy (U.S. District Court for the Northern District of Oklahoma, March 26, 2013). Free copy available here.

Rudolph v. National Railroad Passenger Corporation, ARB Case No. 2009-FRS-015 (U.S. Department of Labor Administrative Review Board, March 29, 2013). Free copy 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

RAILROAD / Wrongful death action against Class I railroad for collision at railroad crossing properly pleaded under state’s negligence law principles – not subject to federal preemption.

Wrongful death action pleading various negligence claims in lawsuit for railroad equipment collision with truck of plaintiff’s decedent at rail crossing. Jury verdict for plaintiff. This is the court’s opinion accompanying an order denying defendant BNSF’s motion to overturn the jury verdict (motion for judgment as a matter of law or in the alternative for a new trial).

Skrovig v. BNSF Railway Co., 2013 WL 175466 (United States District Court for the District of South Dakota, January 16, 2013). No free copy available at time of posting.

Chief Judge Viken held that principles of South Dakota law of negligence governed the plaintiff’s claims against the BNSF and that the court upheld its earlier issuance of jury instructions consistent with that view of the law.    Continue reading

TORTS (INTENTIONAL TORT & FRAUD) & AVIATION / Intentional tort and fraud claims to recover damages allegedly resulting from the confinement of commercial airline passengers in an airplane remaining on a tarmac outside of a terminal for several hours without affording passengers food, water, clean air, and toilet facilities was preempted by the Airline Deregulation Act of 1978.

Federal preemption cut off all state law tort claims. Lengthy coverage of various case law to reach this conclusion. Gist of the opinion – at great length – went to Airline Deregulation Act of 1978 providing for federal preemption of terms of service. 

Biscone v. Jetblue Airways Corp., 2012 WL 6684688 (New York State Supreme Court, Appellate Division, Second Department, December 26, 2012). Free copy available here.

Who is affected? Passenger airlines and their passengers.

“… For the reasons that follow, we find that the plaintiff’s intentional tort and fraud claims relate to the provision of airline services and are, therefore, preempted by federal law.” Continue reading

TORTS, RAILROAD & EVIDENCE / Accident report consisting of train engineer’s statement made after an accident not admissible as a business record despite fact that such record were a railroad routine procedure – It was not “typical of entries made systematically or as a matter of routine to record events or occurrences” within the business operation.

Estate of William Ivy v. Joyce Ivy, 2012 WL 6131208 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Cited to Palmer v. Hoffman, 318 U.S. 109 (1943). Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Here the court held that an accident report did not have the status of a “business record” so as to enable the report itself to be admitted into evidence at trial despite its “hearsay” status.

Mississippi Court of Appeals noted Palmer v. Hoffman for application in a different factual context than that railroad engineer’s post-accident statement.

This is a significant point on the difference between carriers’ record keeping and true “business records” under the law of evidence.

A railroad’s filing of Form FRA F 6180.55a relating to death, injury or occupational illness, or a pilot’s writing out an “ASAP” report after a flight incident are very much part of a disciplined routine.

The “business records” exception to the hearsay rule of evidence is based on the routine record keeping being part of the “regular course of business” of the record keeper. Such regularity is deemed to ensure trustworthiness that other hearsay statement supposedly lack.

The rule of Palmer v. Hoffman indicates that an accident is not part of a carrier’s “regular course of business”. Carrier managements should act accordingly in preserving evidence – including maintaining access to witnesses after an accident – and their lawyers need to be discerning about what information will fall on what side of the line regarding accident records.


TORTS, RAILROAD & EVIDENCE / In wrongful death action arising from railroad carrier locomotive collision with plaintiffs’ decedent walking on railroad cross-ties, where (1) locomotive event recorder indicated extensive horn and bell activation, and (2) 6 eye-witnesses denied hearing any horn or bell – Denial of JNOV in favor of railroad was warranted; event recorder reading was not conclusive of those issues of fact in light of large number (6) of witnesses countering event recorder.

Illinois Central Railroad Co. v. Young, 2012 WL 6125859 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Note that the court bases its refusal to rule that the event recorder was conclusive as a matter of evidence in the fact finding process due to the large number (6) of witnesses testifying to the contrary of what the event recorder’s reading stated. Continue reading

COMMERCIAL (BUSINESS TORT) / Plaintiff aircraft purchaser made out a case of negligent misrepresentation under Missouri law against defendant overhaul provider “for failing to log or disclose previous fuel tank repairs”. This was despite absence of any direct dealings between plaintiff aircraft purchaser and defendant overhaul provider. Rationale: Overhaul provider “had a public duty created by federal aviation regulations to disclose the repairs”.

Dannix Painting, LLC v. Sherwin-Williams Co., 2012 WL 6013217 (U.S. District Court, E.D. Mo., December 3, 2012. Free copy available here.

Cited to B.L. Jet Sales, Inc. v. Alton Packaging Corp., 724 S.W.2d 669 (Missouri Court of Appeals, January 6, 1987). Free copy available here.

Who is affected? Purchasers of aeronautical goods that are subject to the Federal Aviation Regulations (14 Code of Federal Regulations); service providers obligated to make records of service on such goods under Federal Aviation Regulations. Continue reading

TORTS / What method for tort plaintiff to prove that driver of truck that hit him had violated Federal Motor Carrier Safety Regulations by “driving beyond the allowable number of hours”? (1) Evidentiary method held probative: Distance driven versus time of driving; (2) Held not probative: Mere fact that driver did not make required logbook entries (though such failure itself WAS a violation though NOT of hours of service regulation).

Markham v. Hall Worldwide Transportation, LLC, 2012 WL 6041816 (U.S. District Court, S.D. Georgia, December 4, 2012. Free copy available here.

Who is affected? Motor carriers and truck drivers subject to FMCSA hours of service rules.


“This lawsuit arises out of a traffic accident between Plaintiff, who was driving a log truck, and Jeremy Hancock (“Mr.Hancock”), who was driving a tractor-trailer owned by Defendant Hall Worldwide Transportation, LLC (“Hall”). Mr. Hancock allegedly rear-ended Continue reading