by Wilton H. Strickland

I love trains and railroads. There is something almost mythical about the iron horse, a creature that dates from the Industrial Revolution but still chugs along with us to perform essential work. When I was growing up in Ft. Lauderdale, Florida, I used to love riding the train at Birch State Park or playing on the giant model engine at Holiday Park, not to mention building my own train sets at home. And who can forget the inspiring story of The Little Engine That Could? I don’t get upset whenever I have to stop for a train while driving in Florida or here in Montana (railroads are practically everywhere in both states); instead, I enjoy sitting back and witnessing the behemoth rumble past me.

However fascinating trains may be, they are also rather dangerous, particularly to the people who work with them on a daily basis. Attorneys who handle personal-injury cases for plaintiffs or defendants are likely to handle a claim by an injured railroad employee at some point in their careers, so it’s a good idea to review the applicable rules. Most important is the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq., a federal statute dating from 1908 that preempts contrary state law and governs the vast majority of claims by railroad workers who are injured in the course and scope of their employment.

(Note: Some practitioners pronounce “FELA” by sounding out each letter. My professor of federal courts in law school always treated it as an acronym by pronouncing it as a single word (“fee-la”), so that’s how I approach it here.)

Scope Of FELA

FELA applies if the railroad worker brings the claim against his or her employer, and if the employer is a “common carrier” who serves the general public in interstate or international commerce. 45 U.S.C. § 51.

In other words, FELA does not control a claim against a third party who caused or contributed to the workplace injury. See Lockard v. Miss. Pac. R.R. Co., 894 F.2d 299, 302 (8th Cir. 1990). One example from a case I worked on concerned railroad workers who were injured while being transported by an independent shuttle business to their next shift, and whose claims against the business therefore were governed by state law. By the same token, however, a third-party contractor might be considered an “agent” of the railroad and create FELA liability for the railroad even if not for itself. See Keller v. St. Louis-Sw. Ry. Co., 952 F. Supp. 711, 713 (D. Kan. 1996).

FELA also does not control a claim against private carriers, “in-plant” rail facilities, or others who do not serve the general public. See Iverson v. S. Minn. Beet Sugar Coop., 62 F.3d 259, 262-63 (8th Cir. 1995); Kieronski v. Wyandotte Terminal R.R., Co., 806 F.2d 105, 108-09 (6th Cir. 1986).

Where To File A FELA Claim

FELA creates a federal cause of action, but federal courts do not have exclusive jurisdiction over such claims (unlike with copyright claims under 28 U.S.C. § 1338). Therefore, the plaintiff remains free to bring a FELA claim in state court. If the plaintiff does so, the defendant is barred from removing to federal court per 28 U.S.C. § 1445(a).

When To File A FELA Claim

The limitations period for asserting a FELA claim is 3 years from the moment the cause of action accrues. 45 U.S.C. § 56. Though accrual is not defined in the statute, case law generally applies the “discovery rule” and starts the clock ticking when the plaintiff has reason to know of the injury and its cause. See, e.g., Urie v. Thompson, 337 U.S. 163, 169-71 (1949).

How To Establish FELA Liability

Although FELA is a federal statute whose substance is governed by federal jurisprudence, state rules of procedure nevertheless control if the FELA claim is asserted in state court. See St. Louis Sw. Ry. v. Dickerson, 470 U.S. 409, 411 (1985). In point of fact, FELA is one of those unusual areas in which federal common law persists.  Contrary to popular belief, federal common law did not entirely vanish when the Supreme Court issued its landmark decision in Erie RR. Co. v. Tompkins, 304 U.S. 64 (1938). See, e.g., Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 558 (1994) (“[Our] duty is to develop a federal common law of negligence under FELA . . . .”) (Souter, J., concurring).

According to the federal common law that has developed around FELA, liability emerges if the negligence of the employer/railroad played any role, however slight, in causing the worker’s injury. See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500 (1957). This is known as the “Rogers test,” which offers broader relief to plaintiffs than a standard negligence claim does. Though generous, the Rogers test does not make FELA an insurance regime nor obligate railroads to provide absolute security to their employees. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140 (1959); Williams v. Atlanta Coast Line R.R., 190 F.2d 744, 748 (5th Cir. 1951). As the United States Supreme Court once put it:

That FELA is to be liberally construed, however, does not mean that it is a workers’ compensation statute. We have insisted that FELA “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.”

Gottshall, 512 U.S. at 543 (citation omitted).

A FELA plaintiff bears the burden of production to show 1) that the employer/railroad was negligent; and 2) that the negligence played at least some role in causing the injury. The second part of this test often goes ignored, so it is critical to emphasize that proving negligent conduct by the railroad is not enough.

In one instructive case, a railroad worker slipped and fell from a ladder after stepping on a slippery substance coating one of the ladder’s rungs. In his FELA claim, the worker alleged that the substance must have come from the railroad yard and therefore that the railroad’s negligence was to blame for the accident. The trial court granted summary judgment to the railroad, and the appeals court affirmed, explaining that there could be no recovery even if the railroad negligently had failed to clear the oil from the railroad yard:

Even assuming that such pools of oil did accumulate at various times throughout the life of the [railroad yard] and that [the defendant] did in fact have notice of them, such assumptions alone would still fall short of sustaining [the plaintiff’s] claim. Rather, to succeed, [the plaintiff] must not only identify a dangerous condition of which the defendant was aware, but also connect that known condition to the injury. Indeed, [the defendant’s] notice of accumulated oil pools would be wholly irrelevant to [the plaintiff’s] claim absent a showing that such known conditions in fact caused his injury.

Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739, 743 (7th Cir. 2005).

Another helpful case concerned a railroad conductor who, upon investigating a train collision with a van, suffered injury when he fell down an embankment. In support of his FELA claim, the conductor argued that the railroad negligently had allowed debris to build up on the embankment, but he could not identify whether the debris or something else had caused him to fall. The employee relied heavily on the generous Rogers test and asserted that his only burden was to show that that employer had negligently failed to create a safe work environment. The trial court, however, granted the railroad’s motion for summary judgment, and the appeals court affirmed for the following reasons:

The test is whether “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.” . . . This oft-repeated Rogers test does not mean, as [plaintiff] has suggested, that FELA requires no specific evidence of causation whatsoever . . . . “It means only that in FELA cases the negligence of the defendant ‘need not be the sole cause or whole cause’ of the plaintiff’s injuries.” . . . Thus, the “relaxed causation requirement is not the same as no requirement at all,” . . . and “FELA plaintiffs still must demonstrate some causal connection between a defendant’s negligence and their injuries . . . .

[Plaintiff] testified that there was ballast and debris “in that area, where the van is,” but that he did not know whether ballast or debris made him fall. . . . In fact, Smith was unable at his deposition even to offer any hypotheses about the cause of his fall.

Smith v. Consol. Rail Corp., No. 95-3727, 1996 U.S. App. LEXIS 19126, at *7-*9 (6th Cir. June 28, 1996) (citations omitted).

Long story short, plaintiff as well as defense attorneys need to remember that both negligence and causation are vital elements to a FELA claim.

Damages Under FELA

FELA provides for damages to injured employees or, in the event of death, to their personal representatives or families. 45 U.S.C. § 51. FELA does not offer details about the types of damages that may be recovered, so federal courts again have stepped in to create common law in this area. While the decisions comprising the common law of FELA damages are too numerous to cite here, the major aspects can still be listed.

In non-fatal cases, damages can include lost wages; lost earning capacity; pain and suffering; medical expenses; and negligent infliction of emotional distress. This latter type of recovery is available if the plaintiff was in the “zone of danger” and manifests physical symptoms of the distress caused by the near impact.

In fatal cases, the personal representative has a cause of action for the benefit of the surviving spouse and children. The surviving spouse can recover for the decedent’s pain and suffering; for the value of the decedent’s lost services; and for the lost monetary contributions over the decedent’s life expectancy. Children can recover damages for a variety of lost benefits during the remaining years of their minority, such as the decedent’s care, attention, and guidance. There is, however, no recovery for loss of consortium or associated grief. If there is no surviving spouse and no children, the parents can recover for any economic damages. In the absence of parents, any next of kin who were dependent on the decedent can pursue such damages. In all cases, the recovery does not go to the estate, but rather to the designated beneficiaries.

In all cases punitive damages are not allowed. As a practical matter, though, evidence of egregious conduct by the railroad will likely motivate a jury to award greater compensatory damages, which are not capped.

Defenses Under FELA

Apart from disputing the plaintiff’s case-in-chief, FELA defendants rely on contributory negligence as the main defense, but this functions only to reduce damages rather than to deny them outright.  45 U.S.C. § 53.  Assumption of risk is not available as a defense. 45 U.S.C. § 54. And, of course, there is always the statute of limitations if the plaintiff filed too late.