Straight Track #149: FELA 101

FELA 101

James Foley
Hoey & Farina Attorney
1-888-425-1212

Hoey & Farina publishes this weekly email newsletter to better inform railroaders and their families of the issues affecting their working lives. As part of the firm's information mission, last month we published an article explaining in detail the federal law governing railroad workers, the Federal Employers' Liability Act (FELA). See Straight Track #144: What is The FELA?

This month we wanted to share with you in detail the legal requirements in order to bring a FELA lawsuit. While necessarily steeped in "legalese", this information is important so railroaders are more informed of the legal process, which will enable them to better protect their legal rights.

There are three basic requirements that an injured railroad worker must establish to recover damages under the FELA. The requirements are:

In order to recover for injuries under the FELA, railroad employees must show that, at the time of the accident, they were acting in the "scope of their employment." What exactly is the "scope" of a railroader's duties?

Most simply "scope of employment" means that the accident and/or injury must have occurred in the course of the railroader's employment with the railroad. The FELA does not require that the accident happen on railroad property, as long as the injury occurs in the furtherance of the railroad's employment.

Of course, when members are injured while working at their regular job, there is no question that they are covered. However, there are many instances in which employees who have been injured are covered by the FELA even though their activities at the time were not directly related to their normal job duties. This can occur, for example, when members are on railroad property going to and from their locomotive, or when they are having lunch or on a rest period.

Employees also can be within the scope of their employment when they voluntarily undertake a task which is not part of their regular job. In one case, an engineer was injured while replacing a bulb in the engine's head lamp. It was not part of his job, and he undertook it voluntarily, but since the company was benefiting from his activity, he was within the scope of his employment.

Whether employees are within the scope of their employment depends on whether or not the railroad stands to benefit, either directly or indirectly, from such activity. The FELA does not cover activities undertaken by an employee for a private purpose and having no causal relationship with his employment. Therefore, such non-work related activities as fighting and horseplay are not covered by the FELA. Generally, under the law the employee is protected while he is at any place off or on railroad property where he has been sent by his employer. But the issue is not always clear cut. One court held that an injured railroad engineer, who had climbed back aboard the cab to retrieve his personal checkbook, was not covered by the FELA when the locomotive was struck by another locomotive. Generally, however, an employee is covered from the time he or she steps on to railroad property until signing out and for a reasonable period of time after.

Many railroaders ask how the FELA applies to them when they are being transported in connection with their tour of duty. Since the FELA is a negligence statute, a railroad is liable to an employee who is injured while deadheading only when the railroad's negligence - or the negligence of the person or firm providing the transportation - contributes in whole, or in part, to the accident causing the injury. This means that the railroad is liable only if (1) the operator of the deadhead vehicle bears some fault for causing the accident or (2) defective transportation equipment is a contributing factor. If these factors are not met, the injured employee is limited in his or her recovery to what is available under the applicable automobile insurance laws and policies.

For this reason, railroaders who deadhead should protect themselves by purchasing sufficient underinsured and uninsured automobile coverage, so that they may recover from their own insurer if there is no negligence on the part of the railroad or the transporter, and in case the negligent party does not have liability insurance, or has insufficient liability insurance coverage.

As a result of several court decisions on this issue, almost all of the duties of railroad workers are interpreted as being in furtherance of commerce between the states, which would satisfy the interstate commerce requirement of an FELA claim.

Occasionally, a railroad, or a third party under contract with the railroad, will challenge a FELA claim on interstate commerce grounds. The courts examine whether in very broad terms whether any of the work is in furtherance of commerce between the states. In the vast majority of cases, the court will find that the work is performed in furtherance of interstate commerce.

Unlike state Worker's Compensation laws which provide benefits on a no-fault basis, the FELA is based on the principles of fault. To recover damages in this type of claim, the injured worker must establish that the railroad caused or in some way, contributed to the accident.

Under the FELA, negligence is defined as the railroad's failure to exercise reasonable care in its obligation to the employee, such as providing a safe place to work, proper tools and equipment to do the job, or adequate training.

Courts have held that the railroad's negligence does not have to be the sole cause of the accident, and as long as the carrier was at fault - even in the slightest degree - the railroader has a right to bring a FELA claim.

Additionally, prompt notice to the railroad after a work-related injury is required under the FELA. While not a FELA requirement, completion of a written accident report form is generally advised, keeping a copy for your records.

An important concept to keep in mind when thinking about proving the railroad's negligent in providing an unsafe working condition is the issue of comparative fault. After the railroad is determined to be negligent in causing injury to a worker, the railroad cannot use as a complete defense the fact that the injured worker was partly responsible for causing the accident. However, the negligence of the injured worker is taken into account when determining the amount of monetary damages that the worker is entitled to receive under the FELA. For example, if the railroad was negligent in causing an injury which is worth $100,000, and it is determined that the injured worker was 10% comparatively negligent in contributing to the cause of the injury, the monetary damages would be reduced by 10%, or $10,000. The railroad, in this example, would be liable to pay the injured worker $90,000.

GET LEGAL ADVICE

Above all else, it is important to remember that we, as Designated Legal Council, have been appointed by your union to offer free legal advice. While you may not need a lawyer in your particular circumstances, you do need legal advice. And we, the attorneys and staff of Hoey & Farina, are here to provide legal advice.