Hoey & Farina has discussed in prior Straight Track articles “notice” to the railroad and its importance in establishing liability under the Federal Employers’ Liability Act (“FELA”). A recent decision by the Supreme Court of Tennessee denying recovery to an injured railroader illustrates how essential it is to have timely “notice” to the railroad of unsafe conditions.
To establish that the railroad was negligent and that its negligence was, in whole or in part, responsible for the injury, an injured railroader must prove:
1) The railroad had a DUTY to provide a reasonably safe place to work;
2) The railroad BREACHED that duty;
3) It was reasonably FORESEEABLE that someone could be injured by the breach of its duty; and
4) The breach of its duty was a CAUSE of the injury.
Our discussion here focuses on the FORESEEABLE requirement.
If the railroad doesn’t know about the unsafe condition, it has no duty to fix it. In the Tennessee case, a defective switch had been reported some time in the past. Five days before the injury, a track supervisor inspected the switch and found no problems with it and reported that it did not need maintenance, sweeping or graphiting. No one complained about the switch after the inspection so the Court held that the railroad had no notice of the defective switch on the day of the injury, and, therefore, the injury was not foreseeable.
It should be noted that the Court’s decision made no reference of cross examination of the track supervisor or what expert testimony there may have been, if any, about switch adjustment and operation.
While this may be an extreme case and was decided on the language of the jury instruction, it demonstrates how necessary it is to report unsafe conditions on a regular and continuing basis. It is not enough to know that a defect had been reported and believe that it need not be reported again.
Here a reviewing Court took what appears to be the self-serving report of the track supervisor and elevated it to the determining factor on the issue of notice. We do not know what any other evidence of notice there may have been, because the Supreme Court ignored it. What we do know, is that without timely notice, there was no foreseeability and no verdict for the injured railroader.
Now contrast this horrible result with what happened in Texas. In this case, the injured railroad worker had been bitten by swarms of mosquitoes resulting in encephalitis, a swelling and inflammation of the brain. There was evidence that the railroad knew about the mosquitoes and warned about West Nile virus, but did not mow the weeds or grass or repair the tamper machine the railroad employee operated. The railroader complained (“notice”) to his supervisor about the door which would not shut, a malfunctioning air conditioner and holes in the floor and walls. Thus, it was foreseeable that someone could sustain an injury from the mosquito bites, with the result that the Court affirmed a verdict for the injured railroad worker for $750,000.00.
The Texas case follows the holding of a case decided more than fifty years ago by the US Supreme Court. There, a railroader sustained a bug bite (no one knows what kind) which resulted in multiple injuries, including a leg amputation. The railroad worker was assigned to switch in a swampy area along the river in Cleveland which was known to be bug and garbage infested. The Court said it was not necessary that the bug be identified (which was the railroad’s contention), because it was foreseeable that someone could sustain injury by being assigned to work in an area which the railroad knew to be unsafe.
So, the lesson to be learned here is that it is vital to report all unsafe conditions as long as they continue to exist so that lawyers for injured railroad workers can introduce clear and convincing evidence for the jury to consider regarding notice.
The time of year is coming when it is also important to report locations and conditions that may result in an unnatural accumulation of ice when the weather gets cold and snow melts and refreezes in walkways, creating a slipping hazard. (Natural accumulations of ice and snow do not ordinarily create FELA liability. You can read more about this subject in Straight Track - Ice & Snow - Don't Let Your Claim Slip Away.)