Information
Train Accident Litigation: A Primer for Insured Railroad Workers and Passengers, Pedestrians and Motor Vehicles Involved in Railraod Crossing Collisions
John D. Winer, San Francisco
A. Who Can Sue for Injuries or Death in a Train
Accident.
i. Train companies have different duties and
responsibilities depending upon whether the
plaintiff was a passenger, train worker or not
on the train.
Anyone who is injured or is a survivor of someone killed
by the negligence of a train company can sue; however, there
are three different sets of rules in train litigation
depending upon whether:
► the plaintiff was a passenger on the train.
► the plaintiff was an employee of a train
company.
► the plaintiff is a driver or passenger of a
vehicle that collides with a train or is a
pedestrian that is hit by a train.
In addition, the spouse of an injured plaintiff can also
bring his or her own lawsuit for loss of consortium damages;
that is, damages for the loss of society, comfort and care of
the injured plaintiff. See the section on Damages in this
article.
ii. A train company owes passengers utmost duty of
care.
In the case of a passenger on the train, the train company
owes the plaintiff the “utmost” duty of care because of
California “common carrier” law that will be explained in more
detail below.
iii. A train company owes ordinary duty of care
to anyone not on the train.
In the case in which the plaintiff was not on the train at
the time of the accident but, rather, was in another vehicle
or a pedestrian, general California rules of negligence apply
as will be explained below.
iv. Special rules for train company responsibility
to railroad workers.
When the injured plaintiff is an employee of the railroad,
such as a conductor or porter, special rules of law apply
under the Federal Employers’ Liability Act (FELA).
Each type of case will be dealt with separately in this
article.
B. Who Can a Person Involved in a Train Accident Sue.
Any person involved in a train accident, whether a
passenger, railroad employee, pedestrian, driver, driver of
another vehicle or a passenger in another vehicle, can sue
whatever person or entity is responsible for the train
accident. This includes not only the train company, but
drivers of other vehicles, manufacturers of the train or other
vehicles, the owner or person in possession of the site of the
accident if it was maintained in a dangerous condition and any
other person or entity as long as they are found to be at
fault and contributed to the accident.
C. Duty of a Train Company to its Passengers.
i. Common carrier liability generally.
As stated above, because a railroad company is considered
to be a common carrier, the company and its employees owe a
duty to exercise the utmost care to passengers.
This means that the railroad company must use “the utmost
care and diligence” for the safe carriage of passengers,
providing everything necessary for that purpose and a
reasonable degree of skill.
Further, the railroad company employees and company must
do all that human care, vigilance and foresight can reasonably
do under the circumstances, and is responsible for even the
slightest negligence.
However, the railroad company is not an insurer of the
safety of its passengers, and will not be found responsible
unless there is at least “some” negligence.
Further, the utmost duty of care also applies to the
maintenance and servicing of railroads. A railroad company
must exercise the utmost care to provide safe, suitable and
efficient vehicles for the conveyance of the passengers. This
extends to servicing, inspecting and maintaining the
equipment.
ii. When the duty to a passenger begins.
The railroad company’s duty to exercise the utmost care
for passenger safety begins when:
► a person puts himself or herself under the
carrier’s control or otherwise manifests an
intent to board; and
► the railroad company or its operator manifests
acceptance of the person as a passenger.
A railroad company can be found liable for the following
acts:
► attempting to load in an unsafe place.
► starting before the passenger is safely seated.
►
starting before the passenger is safely aboard.
► closing a door on a passenger.
► failing to maintain safe steps or entrances.
iii. When does the duty of utmost care to a
passenger end?
The duty of a railroad to a passenger ends, generally,
after the passenger has left the train. However, the utmost
duty of care remains until:
► the passenger has safely left the train.
► at a relatively safe place.
► out of the way of other traffic.
► no longer exposed to risks of the train’s
operation.
iv. Duty to assist passengers.
Other than the disabled, or people with special needs, the
railroad employees have no duty to assist passengers in
boarding or exiting. However, when a railroad employee does
assist a passenger in boarding or exiting, they must use due
care in doing so.
Further, a railroad employee must give special assistance
to a passenger who needs it because of age, illness or other
conditions, if this need is known or apparent to a employee.
v. Common carrier’s duty to protect passengers from
assault.
A railroad company may be liable for failing to use the
utmost care and diligence to prevent one passenger from
injuring another.
However, even under the “utmost care” standard, a railroad
company is not liable for failing to prevent an attack that it
did not know, or could not have known, was about to occur.
Further, in the case of public entities, there may be
additional immunities from liability from assaults of third
persons on passengers.
vi. Common carrier liability can extend to
maintenance of railroad stations.
Under certain circumstances, a railroad company is even
responsible to utilize the utmost care in maintaining railroad
stations. The railroad company has a duty to stop its train
at a place reasonably safe for passengers to board and alight
and must use the utmost care in maintaining stations and
conducting operations in them to avoid injury to boarding or
alighting passengers.
D. Responsibility For Train Accidents That Occur at
Railroad Crossings And on Railroad Property.
i. Accidents that occur on railroad property or
involving trains but do not involve railroad
crossings.
a. Non-crossing accidents generally.
The rights of train passengers to sue a train company for
an accident which occurs anywhere have been discussed in
section “C.” There are special rules for railroad crossings
which will be discussed in section “E.”
Accidents that occur on railroad property are covered
under general California premises liability law, though there
may be special statutes and regulations that train companies
must follow that might create special responsibilities.
Basically, in those situations, a plaintiff can sue if the
property is maintained in a dangerous condition and the
dangerous condition caused plaintiff an injury.
b. Circumstances when railroads are not
responsible for dangerous condition.
The California legislature and courts have created several
exceptions that apply to railroads to the general rule that a
property owner is liable for injury resulting from a failure
to use ordinary care and skill in the management of their
property.
One of those exceptions is California Civil Code section
1714.7 which states:
“No person who was injured while getting on, or
attempting to get on, a moving locomotive or railroad car,
without authority from the owner or operator of the
railroad, or who, having gotten on a locomotive or
railroad car while in motion without such authority, is
injured while so riding or getting off, shall recover any
damages from the owner or operator thereof for such
injuries unless proximately caused by an intentional act
of such owner or operator with knowledge that serious
injury is the probable result of such act or with a wanton
and reckless disregard of the probable result of such
act.”
In other words, a person who is injured by a train, or
train property, has the same right to sue as anybody else with
the exception of all people who illegally try to “jump on
trains” who can only sue if they can prove intentional
misconduct on the part of the railroad or a railroad employee.
E. Train Accidents Involving Railroad Crossings.
i. The care owed by a train company to pedestrians
and motorists at a railroad crossing.
A railroad company and its train crew must use reasonable
care, under the circumstances, in light of the probable
danger, to avoid injury to anyone traveling on roads crossed
by the company’s tracks.
This is a duty of ordinary care (as opposed to the duty of
utmost care owed to train passengers) and it applies to both
train operation and maintenance of train crossings.
Further, it is considered wilful misconduct for a railroad
that has actual knowledge of a peril or has created a peril or
danger from which injury is a probable result to consciously
fail to act to avoid peril.
ii. Duties of train operators and crew.
a. Train operators and crew owe a duty to use
ordinary care.
A railroad company must always use ordinary care in the
movement of its trains over:
► private or public road crossings.
► places where it knows that the public
customarily crosses the tracks even if the
plaintiff is a trespasser.
b. Duty to sound warnings.
This duty of care in operating trains includes:
► the train crew must ring a bell or, except in
cities, sound a whistle for a distance of at
least a quarter mile before crossing any street,
road or highway and until the train has passed
the crossing.
This is a statutory responsibility and if it is not
followed, there is a presumption of negligence. However, this
is a minimum standard and a railroad can still be found liable
for negligence if this statute is complied with.
The fact is that the crew owes a duty to give notice of an
approaching train by all warnings reasonably necessary under
the existing conditions which include the motorist’s ability
to observe the train’s approach.
c. Reasonable speed requirement.
A train operator has a duty to conduct a train at a
reasonable speed, and there are various local statutes and
ordinances that limit the speed of trains. Violation of one
of these local speed laws is considered negligence as a matter
of law.
In more populated areas, a railroad must regulate train
speed with due regard for the safety of others considering the
location and condition of the crossing.
d. Reasonable lookout requirement.
A train crew must keep a reasonable lookout for traffic at
intersections in places where traffic should be anticipated.
The train operator has a responsibility for keeping the train
under the control reasonably necessary to cope with
“foreseeable situations.”
In fact, the California courts have held that a railroad
is responsible for the improper “lookout” of train crew
despite the existence of an automatic crossing signal.
F. Duty of a Railroad in Maintaining Crossings.
A railroad company must post signs giving a reasonable
warning of the presence of its tracks.
Failure to place warning lights or barriers at an ordinary
railroad crossing may be negligence.
Some crossing protection is mandated by the California
Public Utilities Commission. This creates a minimal standard
of care; however, greater care may be needed under the
circumstances including fencing to protect young children at
customary crossings for play areas.
The given circumstances may require the railroad company
to do more than merely comply with safety statutes or rules.
For instance, ordinary care may require the railroad to
provide automatic crossing protection or a flagman at
crossings that present an unusual hazard, whether or not any
regulation so provides.
In addition to warning systems, a railroad must use due
care in the design, construction, operation and maintenance of
its signal and protective systems.
In fact, railroad employees have a duty under railroad
regulations to detect and report dangerous conditions at
railroad crossings.
G. Duty of Drivers, Motor Vehicle Passengers and
Pedestrians at Railroad Crossings.
i. Motor vehicle drivers must use reasonable care.
A driver approaching a railroad crossing is required to
look and listen with care, but is not necessarily required to
stop in absence of a stop sign or signal device.
The test is whether the driver used reasonable care to
discover a train’s approach.
ii. Pedestrians and motor vehicle drivers must use
due caution whether or not warnings.
If a driver or pedestrian disregards an automatic signal
device, crossing gate, flagman or audible warning, there is a
“presumption” that the driver or pedestrian is negligent.
However, this presumption can be rebutted by evidence that:
► the signal was not clearly visible.
► the driver reasonably believed that the signal
was activated by a stopped train.
Even if the railroad crossing does not contain any warning
signs or signals, a driver or pedestrian must still use
ordinary care when approaching railroad crossing; however, the
driver does not have to use the same amount of care as would
otherwise be necessary.
H. Accidents to Railroad Employees Special Rules and
Considerations.
i. Generally.
The Federal Employee Liability Act (FELA) is the sole and
exclusive remedy in an action by a railroad employee against
his or her employer. A lawsuit may not be brought under any
other statute.
However, unlike other industries in which a worker’s claim
against an employer is limited to minuscule benefits, the
FELA allows railroad employees the right to recover
significant damages as will be discussed below.
ii. Who does the FELA apply to.
The FELA applies to employees of any railroad engaged in
the interstate transportation of people or goods. It is
applicable even to railroad operations that are limited to a
single state if that railroad transports people or goods in
interstate commerce.
Railroad terminal companies will be subject to the FELA if
they control the movement of trains involved in the
transportation of people or goods in interstate commerce.
iii. Employer duties under the FELA.
The FELA imposes the following duties on railroad
companies:
a. Duty to provide training.
If a railroad does not train an employee properly, it can
be held liable for injuries from the inadequate training or
inexperience if it can be shown that the inadequate training
or inexperience led to the injury.
b. Duty to provide help.
As part of its duty to provide a reasonably safe
workplace, a railroad is required to make sure that a worker
does not have to perform any duties which exceed his or her
capabilities.
c. Duty to provide safe equipment.
A railroad employee can establish liability by proving
that a piece of railroad equipment that caused an injury was
not reasonably safe for the intended purpose.
d. Duty to provide safe tools.
If a railroad supplies tools that are not reasonably safe,
it is liable for injuries sustained by workers who use them.
e. Duty to enforce safety or departmental
rules.
A railroad company must make every effort to enforce rules
and regulations. Further, a railroad company cannot use the
negligence of an employee as a defense if it does not follow
its own rules.
f.
Liability for rushing workers.
Railroads will be found liable for injuries resulting from
employees who are rushed to meet work quotas.
g. Duty to inspect.
A railroad has a duty to inspect its premises to determine
that all conditions are safe. Unlike most dangerous condition
cases, a railroad employee does not have to prove that the
railroad knew or should have known of an unsafe condition --
it is presumed that the railroad knew, since it controls the
workplace and the assignments that its employees must perform.
h. Duty to guard against intentional acts.
A railroad has a responsibility to take reasonable steps
to prevent injury to its employees by intentional acts of
other employees or people outside of the company. A railroad
has to exercise this duty to take reasonable measures to
protect the plaintiff from a foreseeable danger.
iv. The defenses of a railroad company are limited
by the FELA.
Unlike most personal injury cases, the railroad in a case
involving an injured railroad worker cannot claim as a
defense:
► assumption of risk.
► the negligence of a fellow employee.
v. The unsafe place to work doctrine.
The FELA imposes on railroads the duty to use reasonable
care to provide each employee a safe place to work. This
includes reasonably safe fellow employees and reasonably safe
track, roadbed, cars, locomotives, machinery, tools or other
equipment.
It is said that this duty is absolute, continuous and
non-delegable (i.e., the railroad cannot pass it on to a
contractor).
vi. An employee must prove negligence.
In order to hold a railroad company liable, the employee
must establish that the railroad company was negligent in
causing the employee’s negligence.
The negligence standard in FELA cases is the same as under
California law which is that a person or entity is negligent
if they do something which a reasonably prudent person would
not do or fails to do something which a reasonably prudent
person would do under the circumstances.
Here, the reasonably prudent person standard is that of a
reasonably prudent railroad company.
vii. Railroad employees are entitled to recover
in cumulative trauma cases.
It is not uncommon for railroad employees to develop
serious injuries and illnesses over time due to the conditions
under which they work. This can include loss of hearing, lung
diseases and problems with every joint of their body.
In order for the plaintiff to recover in a cumulative
trauma case, they must prove that the railroad violated its
legal duty to provide a safe workplace. If plaintiff can
establish that the railroad failed to provide a safe
workplace, and then can prove that the railroad’s negligence
contributed to the disorder, the claimed injury or illness,
the plaintiff will prevail on liability.
viii. Standard of causation in FELA cases.
In most cases in California, a plaintiff must prove
causation by establishing that an accident was a substantial
factor in causing the plaintiff’s injury. In FELA cases, an
employee has a different test, to show that the employer’s
negligence was the “most likely cause of the injuries, or the
cause without which the injuries would not have occurred.”
The employee only needs to prove that the employer’s
negligence played some part in causing the employee’s injury.
ix. Plaintiffs can recover under the FELA for
emotional stress as well as physical injuries.
Under the FELA, plaintiffs can recover for purely
emotional injuries as well as physical injuries that cause
emotional distress in very limited circumstances.
However, in order to recover for a purely emotional
injury, a plaintiff must establish:
► some physical impact or touching no matter how
slight.
► that the emotional injury was accompanied by a
physical injury of some kind.
► an employee was present at the accident scene
and be closely related to the victim.
► that the employee was close enough to the
negligent act to fear physical harm.
x. Damages in an FELA case.
a. Injury cases under the FELA.
A railroad worker who is injured as a result of the
negligence of the train company can recover:
► medical expenses, if not paid by the railroad or
by insurance provided at the railroad’s expense.
► past and future loss of earnings.
► compensation for loss of earning capacity, i.e.,
if the plaintiff has to take a lower paying job
because of the injuries.
► compensation for pain and suffering in the past
and in the future.
b. Death cases under the FELA.
In a case in which an employee dies as a result of the
negligence of the defendant, the survivors are entitled to
recover damages for:
► pain and suffering for the period between the
injury and death.
► funeral expenses.
► that part of the decedent’s earnings which were
being contributed to their actual support.
xi. Where can an FELA action be brought.
A lawsuit involving a railroad worker suing the railroad
can be brought in any Federal district or State court where
the accident occurred. In California, plaintiffs are
generally better off in State court especially if the case can
be brought in a large city.
I. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or
despicable, he or she is entitled to recover punitive damages
which are intended to punish the wrongdoer and provide an
example for the rest of society. The focus of this type of
case is generally on the wrongdoing of the defendant as
opposed to the injury to the plaintiff. The amount of
punitive damage will vary depending upon the heinousness of
the defendant’s misconduct and its economic status. The law
recognizes that large companies have to pay more money in
punitive damages to be adequately punished than small
companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
J. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to the injury. In order
to recover these damages, a spouse must be named as a party to
the lawsuit and must have been married to the plaintiff at the
time of the injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
K. Statute of Limitations.
In any case by a railroad worker against the railroad, the
plaintiff has three years from the date of the injury or death
to bring the case. In the case of cumulative trauma, the
plaintiff has three years from the date of the discovery of
the disease and its relationship to the plaintiff’s
occupation.
However, it should be noted that if the plaintiff is suing
anybody other than the railroad, the statute of limitations is
one year like in most other cases in California.
L. Special Considerations in Retaining Experts in
Railroad Accident Cases.
Unless the railroad admits liability, most train accident
cases will require the testimony of an expert witness for
plaintiff to prevail. An expert should generally be retained
at the very beginning of the case to help with the
investigation.
In the case of railroad crossing collisions, it is
generally desirable to retain an expert who has special
expertise in the fields of crossing design and maintenance.
Further, it may also be necessary for the plaintiff to retain
an accident reconstruction expert with a specialty in train
cases, who can analyze the various factors that contributed to
the accident.
In addition, a human factors expert, i.e., an engineer
with combined engineering and psychology training, may be
useful to analyze the behavioral factors that contributed to
the accident such as perception and reaction time for both
plaintiff and the defendant and the reasonable and expected
behavior of the plaintiff as he or she approached the railroad
tracks and the reasonable or expected behavior of the train
operator in approaching the tracks or once he or she became
aware of the danger.
In addition, experts must sometimes be retained to analyze
the standards set by the railroad company for trains passing
through intersections and a study as to whether the subject
train and operator complied with those standards.
|
