Straight Track #161: Notice, Notice, and More Notice

Notice, Notice & More Notice!
Giving Notice of Unsafe Conditions & Defective Equipment

Frank Van Bree
Hoey & Farina Of Counsel
1-88-425-1212

Every reader of Straight Track should know that under the Federal Employers' Liability Act (FELA) it is necessary to prove that a negligent act or omission by the railroad caused your injury.

Generally speaking, the railroad always counters by claiming it had no notice of any unsafe condition, unsafe procedure, or defect, as the case may be.

"Notice" to the railroad of the defective equipment or unsafe condition is critical in establishing a claim under the FELA.

For example, if the negligence of the railroad is a failure to maintain a switch in proper working order so that the handle throws smoothly, without undue or extraordinary force, the railroad may say that it had no notice of any defect in the switch. Therefore, the railroad was under no duty to repair it and was not negligent.

As the attorneys representing the injured worker, we would counter the railroad's argument by pointing out that the railroad stopped maintaining and lubricating switches on a regular basis years ago, and therefore should have known that this procedure would result in switches that were hard to line. We would also point out the duty of the railroad to inspect, and that timely inspections would have revealed the defect. The railroad would then respond that it does inspect. The argument goes back and forth.

However, if an alert railroader had filed a written report of the switch being in need of lubrication, or was out of alignment, and we had a written record of this, the negligence of the railroad in failing to take corrective measures would be established. Without the written record, the railroad can still argue that it didn�t know the switch was bad, hoping that some jury will believe it.

It would absolutely amaze you to hear of the common, longstanding unsafe conditions the railroads deny they knew anything about when they are defending an injury claim. "We have no record of that" or "nobody ever reported that," their lawyers argue. Oftentimes, we know that employees reported the unsafe condition, perhaps verbally, or discussed it at a safety meeting or wrote it in the railroad's defect book, which now the railroad would claim can't be found.

The solution to this problem is for you to not only make a written record (notice) of the defect to the carrier, but to make a copy for your union which will then be kept for future reference if someone is injured by that defective condition. Hoey, Farina and Downes has developed a carbonless form at the suggestion and with the help of a union officer. This form is in three parts -- one for the railroad, one for your union, and one for your records. Your union safety officer, usually the Legislative Representative, also keeps a copy. We also suggest that he send a letter to the railroad listing all the unsafe conditions, defects, etc. that he has received in the past month, and ask the railroad in the letter what corrective action has been taken. If he sends a copy to his state legislative representative, he would further lengthen the paper trail. In the face of such a paper trail, it would be very difficult for the railroad to convince anyone that it had no notice before the injury occurred.

We know a union representative at one yard who makes regular inspections and writes up a report that is sent to local railroad officials, his state legislative representative, his General Chairman and other local union officers. Not only is the yard a safer place to work when the railroad corrects the condition, but the report also provides us with the notice we need when the railroad's failure to take remedial action results in a injury. His effort on behalf of his members helped us secure a favorable result for our client. While you can report an unsafe condition to the railroad by any means, using an Unsafe Condition Report with its copies makes it easier for your representatives to follow up on corrective action. If the unsafe conditions are only written in a railroad�s "defect book", or similar safety reports, the railroad is given control of the information and has the opportunity to lose the materials.

You can see a copy of our recommended Unsafe Condition/ Defective Equipment Report by going to the Forms Shanty on our Web site. You can download and print it, but if you want the three-part carbonless form, you can send us a request via email. We will send these forms to you by U.S. mail. The officers of the locals, lodges, and divisions we regularly visit also have a supply of the forms and can provide them to you. As with most things, a paper trail is important and making a long one is beneficial when making an injury claim for you or one of your fellow employees.

We suggest that you keep a blank Unsafe Condition / Defective Condition Report with you at all times so that you can report the condition as soon as possible. In addition be sure to follow your own railroad�s rules in reporting defects.

Your lawyer can only work with the information he has when you are injured. You can help yourself and your lawyer by using this report. Most importantly, we are aware of many situations where this report was acted upon, the condition was corrected and nobody was injured. So help your fellow employees and yourself to create a safe place in which to work.

Above all else, it is important to remember that we, as Designated Legal Counsel, have been appointed by your union to help you. While you may not need a lawyer in your particular circumstances, you do need legal advice. The attorneys and staff of Hoey & Farina are here to answer your questions.