In January 2011, the media reported another death of a pedestrian struck by a train. It happens all too frequently - a suicide, an impatient train passenger, a collision between a train and a motor vehicle. Each time, the tragedy to the family of the deceased is the focal point of the news story. The reporter never mentions the tragic effects the collision has on the Engineer or Trainman - the Engineer who saw the person on the track, sounded the whistle and set the air, but could do nothing more to avoid striking the pedestrian, or the Trainman who went back, located the pedestrian and saw first hand the effects of 400,000 pounds of steel verses the human body.
Invariably, both pedestrians and drivers alike look up into the locomotives at the last second before collisions. Engineers never forget that! That is why Hoey & Farina always suggest Engineers look away when they know a collision is inevitable. We also suggest Trainmen not examine the body once it is obvious that the person is dead. Trainmen should leave that responsibility to the EMTs after they call them and provide the location.
Hoey & Farina frequently receives calls from Engineers and Trainmen involved in collisions with pedestrians or drivers, telling us they have since been having emotional problems and wonder if they have any rights if they lose time from work or need to seek psychological counseling or treatment.
WHAT, IF ANY, LEGAL RIGHTS DO AFFECTED TRAIN CREW HAVE UNDER THESE CIRCUMSTANCES?
Traditionally, at common law, there was no right to recover monetary damages for emotional distress unless the distressed individual also suffered some physical injury. That is still pretty much the law, but can vary from state to state which is why we won’t attempt to give advice relating to what rights you may have against the negligent pedestrian or motorist.
But what about under the FELA? This is a statutory remedy, not common law, designed by Congress to compensate injured railroaders for injuries sustained on the job. An emotional injury can be just as severe as a physical injury, perhaps even more so. Do you have a right then, under the FELA, to recover against your railroad employer for your emotional distress injury (sometimes called Post Traumatic Stress Disorder or PTSD)?
As with any FELA case, you must be able to prove that the railroad was negligent in some way and that this negligence was a cause in whole or in part of your injury. (Maybe the crossing warning device failed in some way, or the train brakes didn’t apply efficiently, or for some other reason.) If you sustain some physical injury, even a minor one, you also have a claim for emotional distress if that is also the result of the collision. However, just being jostled is not enough to qualify as a “minor physical injury.”
Let’s assume, then, that there is no physical injury, which would usually be the case if the train collided with a pedestrian or a small motor vehicle. Unfortunately, there is most likely no claim under the FELA - no matter how distressful the incident was for you and no matter how much trouble you are having coping with the aftermath of the collision.
“ZONE OF DANGER” EXCEPTION
There is an exception. It is what the US Supreme Court has called “the zone of danger.” It probably won’t, however, apply in the pedestrian situation or in the minor collision with the motor vehicle example referred to above. The court has said that in order to be in the zone of danger you must be in reasonable fear of serious injury or death to have a cause of action for emotional trauma where you did not also have a physical injury. For example, if you were about to collide with a cement or tanker truck, obviously, you would be in fear of death or serious injury. However, just seeing a mangled body, no matter how gruesome the injuries, does not place you in the zone of danger.
That was the holding of a U.S. Circuit Court of Appeals, and the U.S. Supreme Court refused to review the matter, thereby tacitly approving the Circuit Court’s decision.
SEEK MEDICAL ATTENTION
More that one Trainman has told Hoey & Farina that the sight of the body caused a great disruption in their lives: nightmares, flashbacks, loss of appetite, impaired concentration, or afraid to be around a train. Be aware that any or all of these symptoms require immediate consultation with a Doctor or Psychologist. Whether or not there may be an FELA claim, seek medical attention!
Hoey & Farina has also been told by some crew members, that the railroad has held “debriefing” sessions with the Claim and/or Law Departments where the crew is literally forced to relive the entire chain of events in minute detail. In some cases, the crew has been forced to watch the video recording taken from the engine camera. While the railroad has the right to generally investigate what happened, Hoey & Farina suggests that you decline to participate in these virtual reenactment sessions and ask to be taken to a medical facility immediately as you do have the right to be seen by a Doctor upon request. . However, never be insubordinate!
PROTECTING YOUR RIGHTS
If you have been involved in a collision resulting in the death of a pedestrian or driver, keep your Union Officers fully informed and seek their assistance in protecting you from unreasonably invasive questioning. And, remember, you may not need to hire a lawyer, but you do need legal advice. Hoey & Farina is available 24/7 to answer your questions and assist you in protecting your rights. Please also read: Reader's Response.