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A colleague called me recently with questions about the rights of a railroad employee who suffers injury or death as the result of railroad negligence. The answer lies in a special statute, known as the Federal Employers Liability Act (“FELA”). FELA covers all claims resulting from the injuries or deaths of railroad workers in the course of their employment if the railroad was engaged in interstate commerce, which, is a practical matter, is pretty much all such incidents. FEMA is an exclusive remedy and supersedes state tort law. In many ways, FELA is preferable to the workers compensation laws that cover on-the-job injuries and deaths for workers in most occupations. Under workers compensation laws, there is recovery regardless of the employer’s negligence. The trade off, though, for that certainty of economic benefit, is that the amounts of moneys paid are modest, not nearly sufficient to cover the loss resulting from a disabling injury, or death.

Under FELA, the plaintiff must show that the railroad or another railroad employee was negligent. Once negligence is shown, the standard for “causation,” proving that the negligence contributed to the injury or death, is much lower than in a normal tort case. In a FELA case, as long as the employer’s negligence was related in any way, no matter how small, to the workers injury, then the case may proceed. The standard is known as the “featherweight” causation standard. The railroad may attempt to show that the employee’s own negligence contributed to his injuries. If successful, the amount of any award will be reduced by the percentage of the employee’s own negligence, a principal known as “comparative negligence.”

If the employee prevails in a non-fatal injury case, he can recover for his past and future loss of wages, the cost of past and future medical treatment, and past and future pain, suffering, and mental anguish. Proving substantial damages in a railroad death case, may be more complicated, especially if the deceased worker leaves no spouse or minor children. The estate of the worker can bring a claim for the benefit of the worker’s beneficiaries. The beneficiaries are entitled to receive an amount equal to the “contributions” the decedent would have been expected to give to the beneficiaries. Given three different workers all of the same age and earnings, the amount of expected contributions to the beneficiaries might vary widely depending on the family circumstances. If the decedent left a wife and three children, ages 3 – 8, it is easy to see that a substantial portion of the decedent’s net earnings would have gone to his children through their minority and his wife throughout his life. If, on the other hand, the fatally injured worker left no spouse and 3 adult children, the plaintiff’s attorney would have to present evidence that the adult children had an expectation of substantial contribution from the decedent. If one or more of the adult children were seriously disabled, it might be reasonable for a jury to conclude that the decedent would have contributed to that child for the child’s entire life.

While involving a special statute, FELA cases are not dissimilar from any other serious personal injury or wrongful death actions. They require on the part of the plaintiff’s attorney, knowledge of the law, attention to detail, employment of experts, and sound tactical instincts in the preparation, and trial or settlement stages of the case.

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