What You and Your Spouse Need to Know About FELA

by: Jay A Kaplan
Under the Federal Employer's Liability Act which is a specially created statute by the congress of the United States that pertains specifically to railroad workers, the railroad owes a continuing and non-delegable duty to use reasonable care to provide employees with a safe place to work. Additionally, the railroad owes a duty to provide reasonably safe, proper and suitable tools, equipment and machinery to their employees so that they can safely perform their assigned work tasks, a duty to promulgate and enforce safety rules, a duty to provide sufficient help to perform the assigned tasks, a duty to not order workers to perform work beyond their physical capabilities, as well as a duty to warn employees of hazardous and unsafe working conditions.

Additionally, Congress passed two other Federal Statutes that apply primarily to locomotive engineers and trainmen which impose absolute liability on the railroad without the need of proving negligence. Under the Federal Safety Appliance Act, a duty is placed upon the carrier to utilize appliances (brakes, grab irons. couplers, etc.) which operate properly and do not expose the employee to risk of harm. The mere failure of the equipment to perform or function properly as required by the Act is in itself an actionable wrong.

Similarly, under the Federal Boiler Inspection Act, the railroad shall not utilize any locomotive on its line unless all parts and appurtenances thereof are in proper working condition and are safe to operate. Under this Act conditions such as oil or grease on the catwalk or step, a non-working radio, a seat not properly fastened to the engine cab, have all been found by the courts to be violations of the Federal Boiler Inspection Act.

Under both the Federal Safety Appliance Act as well as the Boiler Inspection Act, the asserted comparative negligence of the employee is not applicable.

Under the FELA an injured worker may recover damages for past unpaid medical expenses as well as those ones he or she may reasonably incur in the future, as well as for rehabilitation expenses, for past lost earnings, as well as for future loss of earnings and earning capacity and for past and present pain and suffering.

The law regarding recoverable damages in a FELA death case is markedly different than under the standard FELA personal injury case. A cause of action for the death of a railroad employee under the FELA is brought by the personal representative for the benefit of his or her surviving spouse and children, and, if there is none, for the decedent's parents, or, if none, for the decedent's next of kin. Thus, in a wrongful death action under the FELA the personal representative of the decedent who is acting on behalf of the next of kin is entitled to receive damages for the loss of "pecuniary benefits" which the beneficiaries might have reasonable received if the deceased had not died from the injuries. Pecuniary loss under various court cases has been found to include financial contributions which the decedent would reasonable have expected to receive in the future, the loss to the children during their minority of the training, nurturing, education and guidance of the decedent as well as conscious pain and suffering prior to death.

It is also important to note that under the FELA it has been held that a spouse does not have a cause of action against the defendant railroad for loss of consortium or for loss of services rendered by the spouse in relation to the disability.

Lastly, always remember it is greatly to the benefit of the railroad to obtain from you or your spouse statements that can be later utilized by them against your interest with the deliberate intention of significantly lessening the value of your claim. In that regard you are only obligated to fill out the one page accident report required by the Collective Bargaining Agreement and that is only when you are physically and mentally capable of doing so and have the capacity to understand what you are being asked. If following your injury you are experiencing such a degree of pain or similarly suffering from the effects of medication that you are unable to concentrate properly on their questions and your answers, you should immediately tell the railroad representative, whether it be a claims agent or supervisor, that you are unable at that time to fill out the accident report.

If the railroad continues to insist that you fill out the accident report under such adverse and unfair conditions, you should immediately contact your union representative so that there will be both a competent individual and witness present to assist you in stopping the Company from violating your rights under the FELA. Similarly, your spouse should follow the same procedure, on your behalf, if you have undergone a serious injury and you are hospitalized and/or under heavy medication and the claims agent or supervisor attempts to pressure you into giving a statement. If you are unable to reach your union representative or you are in need of obtaining further explanations of any or all of your legal rights under the FELA, please call our law firm, KAPLAN LAW CORPORATION, who are Union approved FELA attorneys, toll free and at no cost or obligation at 1-800-5-KAPLAN

Union Approved F.E.L.A. Attorneys

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