Straight Track #153

The custom and practice was to use a jackhammer or a "Hilte." After sustaining a back injury, undergoing surgery and a regime of physical therapy, he was returned to work without restrictions. The company doctor, however, failed to order a functional capacity exam, which was the railroad's standard practice. 

On his first week back on the job, he was assigned to dig a trench. His back began to hurt and he informed his foreman. The foreman ordered him to continue digging, but tells the railroader to "take your time." Despite heeding the foreman's advice, the railroader re-injured his back. 

The above scenario is filled with railroad negligence. First, there was an improper tool, and second there was an assignment beyond the man's capability. The topic of this edition of Straight Track covers the second type of railroad negligence: "negligent assignment." 

What's The Law?

Under the FELA, a railroad has a duty to assign employees to work for which they are reasonably suited. A railroad breaches that duty if it negligently assigns an employee to perform work beyond his capacity. The railroad is negligent if it knew, or should have known, that its assignment exposed the employee to an unreasonable risk of harm. The key words here are the railroad's knowledge that the job assignment exposed the employee to an unreasonable risk of harm. Many times, it is the employer's prior knowledge of an employee's physical condition that is central to a claim for negligent assignment. 

Railroaders should know that the negligent act in a claim for negligent assignment is NOT the employer's maintaining a physically demanding work environment. Rather the railroad must not place an employee into a job position that the railroad knows, or should know, is dangerous to that employee. The bottom line is, as in most FELA cases, you must make the railroad aware -- give them notice -- of your physical capabilities, or lack thereof. 

With that being said, there have been cases where railroaders who suffered injury on the job after being assigned to a more physically demanding task have been allowed to maintain a claim -- but only after evidence was produced that showed that the railroad knew, or should have known, that the assignment would create the unreasonable risk of additional harm. Often this arises when too few people are assigned to the task. Lifting beyond a person's capacity also often arises as an issue, but it is a very difficult one to prove. 

The Case of The Used-Up Machinist

To further illustrate the concept of negligent assignment, take the real life story of another Illinois railroader. This particular rail began his career in 1966 as a maintenance mechanic, or machinist. As most of the readers well know, the duties of a machinist involve heavy labor, lifting, climbing bending, kneeling, standing and twisting while working with heavy and bulky equipment and engine parts. Three years into the job, the railroader severely strained his back while lifting a 150-pound diesel head. He sought and received medical care from the railroad. 

After this incident, however, the railroad continued to assign the railroader to the position of machinist. About eight years later, the railroader again severely strained his back while repairing a locomotive engine. Astonishingly, even after this second incident, the railroad again assigned the railroader to the position of machinist. Finally nearly 13 years after the initial injury, and after being repeatedly re-assigned to the strenuous job of machinist, the railroader could no longer work because of his back pain. The railroad simply used up this man and spit him out. 

The railroader brought suit and claimed that the railroad had a duty to provide him with a safe place to work, and that railroad breached that duty through various acts of negligence, causing him to suffer severe back injuries. While the railroad tried to keep the railroader from having his day in court, the judge rightly allowed his case to proceed and to allow the jury to determine whether the acts of the railroad constituted negligent assignment. 

Types of Negligent Assignment Situations

How can the railroad be held responsible for negligent assignment? If the railroad is aware of your physical vulnerability, or should be aware, and orders you to do work beyond your capability, your case would go to a jury. If you are physically fit, but too few people are assigned to the task, the railroad could well be responsible. Finally there are those tasks, such as manually pulling 200 spikes, where the amount of work assigned is too great and therefore could constitute negligent assignment. 

As you may infer, negligent assignment cases can get very complicated very quickly. For this reason, it is critical to seek legal advice from experienced Designated Legal Counsel. These union approved lawyers, including us at Hoey, Farina & Downes, have been appointed by your union to offer free legal advice. Please give us a call to discuss a negligent assignment matter, or any other issue you may be facing.

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