Defense Verdict in FELA Case

Following a five-day trial a federal jury in South Dakota granted the railroad a defense verdict in a FELA case. Plaintiff, a 56 year-old track inspector with 15 years of service, alleged he received extensive injuries to his shoulder, arm, and ribs when he attempted to remove a large deer carcass off the tracks, lost his balance, and slid and fell down the ballast embankment. Plaintiff claimed the railroad was negligent by: failing to provide him with adequate training, equipment and working conditions; failing to enforce reasonable rules, customs, practices, policies and procedures for his protection; failing to provide him with adequate work support from other employees; and requiring him to perform the tasks when the railroad knew or had reason to know that such tasks were likely to cause him injury.  The employee required surgical intervention for his injuries and did not return to work. He sought damages for past wage loss, loss of future earning capacity and reduced work-life expectancy.

At trial, defense counsel focused on the proper body mechanics and lifting techniques provided to plaintiff and the lack of notice to the railroad of prior falls or incidents to suggest a need to modify the railroad’s practice or provide special tools for the task of removing deer carcasses from railroad tracks. The evidence at trial showed that plaintiff likely lost his balance and fell in the process of a routine work task undertaken by him and others hundreds of times without incident and could be performed safely.

Although plaintiff filed a motion for new trial, the United States District Court for the District of South Dakota, Western Division, upheld the jury’s verdict. Subsequently, plaintiff was ordered to pay for the railroad’s expenses and fees after its motion was granted in full.

Order Denying Plaintiff’s Motion for New Trial

Varner v. BNSF Ry. Co., CIV. 09-5076-JLV (D.S.D. Jul. 5, 2011), judgment affirmed.

‘Clarifying’ the Impact of the 2007 FRSA Amendment – Summary Judgment Granted to Railroad, 8th Circuit Affirms

After plaintiff drove his car into the side of a railcar stopped at an intersection, he filed a common law negligence claim in state court against the railroad alleging the warning signs at the intersection were inadequate, and alleging the railroad violated a city ordinance and state law prohibiting blocking the crossing for more than ten minutes. The railroad removed the case to federal court, and moved for and was granted summary judgment by the Honorable Richard G. Kopf, U.S. District Judge for the District of Nebraska.

The U.S. Court of Appeals for the Eighth Circuit reviewing de novo, affirmed. The railroad successfully argued that the plaintiff’s inadequacy-of-warning claims were preempted by the Federal Railroad Safety Act (“FRSA”) and no exceptions to FRSA preemption applied. The Court held that the 2007 Amendment to the FRSA applied to negligence claims alleging a railroad failed to comply with an ongoing, federal standard of care and had no effect on inadequacy-of-warning claims, including the lack of a flagman claim, where the warning devices present at the crossing were operational and funded, at least in part, by federal funds. Moreover, the Court agreed that weather conditions are statewide conditions that could be anticipated by federal regulators, and thus, did not meet the exception to preemption as an “essentially local safety hazard.” The driver’s claims related to the failure to reflectorize the railcars was preempted by federal regulations covering the subject matter of reflectorization. 49 C.F.R. §§ 224.1 through 224.111. Finally, the Court also held that the undisputed facts showed that no reasonable jury could find that the accident would not have occurred “but for” the railroad’s alleged negligence in allowing the train to block the crossing, or find that plaintiff’s injuries were a natural and probable result of such negligence. It found the facts did not establish a breach of duty on the part of the railroad and the plaintiff failed to prove causation.

Grade v. BNSF Ry. Co., 4:09CV3162, 2010 WL 4386490 (D. Neb. Oct. 28, 2010) aff’d, 676 F.3d 680 (8th Cir. 2012).

Summary Judgment Granted to Railroad in Grade Crossing Collision Claim

The railroad successfully moved for and was granted summary judgment on plaintiff’s state common law negligence claims. On dark, moonless January 6, 2008 night, the plaintiff drove his pickup into the side of a low profile flatbed railcar parked at a rural South Dakota crossbucks only crossing causing the plaintiff severe injuries. He alleged the railroad was negligence for parking the railcar at the crossing without reflective devices or providing additional warning devices or flagman at the crossing.

After removing the case to federal court, the railroad moved for summary judgment claiming that plaintiff’s claims were preempted by federal law under the Federal Railroad Safety Act (FRSA). The U.S. District Court for the District of South Dakota agreed and held that plaintiff’s claims of lack of lighting, failure to provide sufficient signs, warning signals, or automatic gates, and negligence resulting from temporarily blocked crossing were preempted. It further held that the physical qualities of the railcar, i.e. low profile, and environmental factors, i.e. dark and moonless night, were not local hazards, but statewide in character, and thus the “essentially local safety hazard” exception to FRSA preemption did not apply.

Jacob Z. Jacobson v. BNSF Ry. Co., 1:11-CV-01003, 2011 WL 6099389 (D.S.D. Dec. 7, 2011