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Straight
Track #51
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Recovering For
Emotional Stress
Frank
VanBree
Hoey & Farina of Counsel
1-888-425-1212
Whenever
a train and a motor vehicle collide at a grade crossing or a train strikes
a pedestrian, the news media usually reports the story as though only the
driver or pedestrian was injured.
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Having
been closely associated with rails for more than 35 years, I know this is
not true. Just because the
train crew was not transported from the scene in an ambulance doesn’t
mean they weren’t hurt.
Even
though the engineer knows the train could not have been stopped or slowed
in time to avoid the collision, and the conductor knows that dumping the
air from his side of the locomotive would not have done any good, both
feel terrible about what happened. They
can’t stop thinking about it. They
can’t concentrate on their jobs; they grieve for the injured or
deceased; and, there is the very human tendency to blame themselves in
some vague sort of way. Upon
occasion they become so emotionally upset that medical attention is sought
and medication prescribed. The
train crew often loses time from work.
Very
few railroads will give the crew a couple of days off with pay to help
them get over the emotional shock so that when they return to work they
can concentrate on their jobs. Most
railroads are not this compassionate and sometimes it is necessary to be
off work for a longer period in order to regain emotional stability.
It
is in these cases that the injured railroader usually calls the office
with the question, “Am I entitled to anything?”
As with most things involving your legal rights, there is no simple
yes or no answer. The
attorney usually responds, “It depends.”
Recovery
for emotional injuries under the Federal Employers' Liability Act ("FELA")
depends whether the railroad was in any way negligent in causing the
collision, and whether or not that negligence played any part in causing
the emotional injury. If
there is no railroad negligence, there is no right to recover damages
under the FELA.
The
question of whether there is a right to recover damages from the motorist
is a matter of state law which varies somewhat from state to state and is
not the subject of this article. The
topic here is only whether you can recover from the railroad under the
FELA for emotional injuries.
First,
we must determine the railroad's negligence.
If the flashers or gates malfunctioned, or were improperly designed
or programmed for train operation over that particular crossing, there is
railroad negligence. The more
common occurrence, however, is the collision at a crossing with only
passive protection, i.e., crossbucks.
Some
possible areas to look for railroad negligence include failure of the
railroad to clear brush, trees, and other obstructions to the view of an
approaching motorist, in compliance with state laws and regulations, air
brake or other mechanical malfunction which affected the train’s
response to the engineer’s commands, and occasionally the action or
inaction of one of the crew members.
For
example, if the engineer is speeding, doesn’t blow the whistle or fails
to apply the brakes, that would be railroad negligence to support a
conductor’s claim for damages for emotional distress.
But it would not support such a claim by the engineer because his
negligence might be the sole cause of the collision, thereby barring his
recovery of damages.
Unfortunately
for the emotionally distraught railroader, it’s usually not the crew or
the railroad that was negligent. In
many cases, it was the motorist or the pedestrian who was completely at
fault. If that’s the case,
the only claim possible would be one brought pursuant to state law against
the negligent party.
But
that’s not the whole story. There
are several other considerations which must be met before there can be
recovery against the negligent railroad for emotional trauma.
If the railroader sustains some physical injury in the collision,
the law allows for recovery not only for the physical injury but for the
emotional one as well. The
other condition that may apply is one where you have no physical injury
but were in what the courts have called “the zone of danger.”
Accordingly, even if you didn’t have any bodily injury, if you
reasonably believed that your life was in danger or that you were at risk
of serious bodily injury, you may be able to recover for the emotional
harm that you sustained.
An
example might better illustrate this point.
Say that you are the engineer of a train passing another train
which is approaching on the track to your left, or conductor’s side of
the locomotive. All of sudden
you see a bundle of lumber protruding from one of the approaching cars.
There’s no way to stop and you both know you’re going to hit
it. You’re afraid it might
derail your train. The conductor dives to the floor and you duck behind the
control stand. You strike the
lumber which enters your cab on the conductor’s side, but you don’t
derail. The conductor has a
sprained wrist and numerous cuts and bruises, but you escape without a
scratch. Even though you thought you were going to die, you didn’t,
but you’re an emotional wreck. You
can’t sleep, because when you do, you dream that it’s happening all
over again. You’re tired,
you’re irritable, you fight with your spouse and kids, you can’t even
think about going near a locomotive without breaking into a sweat.
You become depressed because you can see what’s happening and you
can’t do anything about it. You
see a psychiatrist for care and treatment.
You have a claim for damages because you were in “the zone of
danger” and reasonably believed you were going to be killed or sustain
serious injury.
The
conductor also has a claim for the same reasons, and also because he
sustained bodily injury. Just
as you would get medical treatment for a broken arm or a sprained back it
is most important that you get prompt treatment for your emotional or
mental injuries. Just as the bone doctor must causally relate a physical
injury to your railroad accident, the psychiatrist or psychologist must do
the same with your emotional injury.
In
our experiences, we find every case is different because the facts are
different. So, the important
thing to remember is that if you suffer an emotional injury due to a
grade-crossing collision or some other on-the-job occurrence, you should
get legal advice immediately. You
don’t have to make a medical/legal decision without help.
Call us. You may not
need or want to retain an attorney at the time, but you do need legal
advice.
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