This week's newsletter is a response to an inquiry received in our email Info Box. The philosophy of Straight Track is to provide information you can use if you sustain an injury on the job. Hoey & farina also wants to provide you with information you can use even before an injury. (See Straight Track: When In Doubt, Write It Out.)
Hopefully this article, together with earlier articles which are posted to our Web site, will help railroaders better understand a very difficult problem: violence in the work place and your employer's responsibility. To begin, I will share the initial inquiry with you:
From: Straight Track Subscriber
Sent: Nov. 24, 2002
To: Info Box Subject: trespassers
"I'm just wondering where actions by trespassers fit in with a carrier's culpability under FELA.
Case in point: Friday evening our lead locomotive was hit by something thrown or possibly shot at. While whatever it was (debris or bullet) struck the window frame, bent it, but that was the extent of any physical damage, my conductor and I wondered if something tragic would have occurred where the carrier's liability would be (if any)."
Unfortunately, while violence in the workplace is all too common, and the scenario described by the reader is just as common, your right to recover may not be.
Under the law, there is no doubt that the railroad has a duty to provide you with a "reasonably safe place to work." The railroad also has a duty to protect its employees from foreseeable criminal attacks. The key word, however, is foreseeable. The railroad can argue that a criminal act was an unforeseeable random act of violence that it could not anticipate and could not prevent. If this is the case, the railroader will not be covered by the FELA, and any costs arising from the injury would be paid out of the railroader’s pocket.
The rule is then, in order for the railroad to share responsibility for the criminal act, the event must have been something that the railroad should have anticipated. If there have been prior crimes committed in the yard, or in a parking lot, foreseeability/predictability increases. If you are on the road in a locomotive, absent some form of knowledge on the part of the railroad of a risk of harm, your ability to recover goes down.
Under the scenario described by our reader – where something is thrown at a locomotive -- different courts have come to very different conclusions about the railroad’s duty. Although all courts have recognized the duty to protect railroaders against criminal acts, many courts are divided on what is foreseeable.
An example of the difficulty in demonstrating foreseeability is a case from the Chicago area where an engineer was shot by a BB gun through the cab’s window. The Chicago-based U.S. Federal Court of Appeals denied recovery to an engineer who lost his eye after being shot by the BB gun. The Court acknowledged the data compiled by the American Association of Railroads that confirmed that shooting at trains is "depressingly common." However, the Court decided that the engineer's failure to close a locomotive window, which would have prevented the injury, also prevented his ability to recover from the railroad. In other words, the Court found that the railroad, in providing bullet proof glass, met its duty to protect its employees.
However, in a case with exactly the same facts, a Texas Court found that the railroad's failure to instruct the crew to close the window in crime areas could form the basis for liability. What these two opposite court decisions tell railroaders is that every case must be analyzed in light of what the railroad knew, or should have known, about the location where the crime occurred.
For example, crime on public transit in metropolitan areas has long been studied and is the subject of a large body of literature, which can better inform railroads and railroaders of the existing dangers on the rails. In 1998, the Volpe National Transportation Systems Center published the Transit Security Handbook. The handbook revealed startling criminal statistics from 1995 provided by the Regional Transportation Authority (RTA) of greater Chicago, which includes the CTA, Pace and Metra. In that year alone, the RTA reported that 742 violent crimes, 1,520 property crimes and two murders had occurred on its lines. In general, armed robbery was noted in the Volpe study to be "a significant problem" on rail mass transit systems. This type of information, in possession of the railroad, establishes the foreseeability of violent crime, as well as the need to take precautions to protect the riders and employees.
For railroaders, the first way to protect yourself from injury is to obtain a disability insurance policy, which would protect you in the event the injury is determined not to be under the FELA. The second way is to report to the carrier all instances of criminal activity. This protects not only yourself, but all railroaders who work along that line of tracks. Furthermore, if you are provided with personal protective equipment, or bullet proof glass, use such equipment if feasible because each case involving a criminal act must be evaluated in light of what the railroad should have known.
Each of us deals with the risk of crime on a daily basis. Hopefully, this newsletter is of some assistance in understanding the issue as it relates to railroaders. If you have any questions, please call Hoey & Farina, your Designated Legal Counsel, at 1-888-425-1212, or email us at email@example.com.