FRA Defects and Negligence Per Se in FELA/Railroad Injury Casesby Bristol Baxley
List of FRA Defects
There are many unsafe conditions that are so common to railroad employees that they often forget to mention them on their accident report. Here are 10 Common FRA Defects every injured railroad worker should be aware of and prepared to list on their accident report if they were a contributing factor to being injured:
- ‘Slipped due to Muddy Ballast’ (49 C.F.R. 213.33)
- ‘Vegetation near tracks caused me to trip’ (49 C.F.R. 213.37)
- ‘Slipped due to oil on locomotive floor' (49 C.F.R. 229.119)
- ‘RCO malfunction’ (49 USC 20701)
- ‘Failure of a co-worker to give proper car counts during a shove’ (49 CFR 218.99)
- ‘I pulled the pin lifter and cars failed to uncouple’ (49 USC 20302)
- ‘Automatic coupler failed to couple’ (49 USC 20302)
- ‘Hand brake malfunctioned’ (49 USC 20302)
- ‘Grab iron/step/ladder rung bent’ (49 CFR 231)
- ‘Failure of co-worker to follow radio rules’ (49 CFR 220.49)
If the railroad is found to be have been in violation of certain FRA rules such as the ones above, this can preclude their legal team from arguing that they were not negligent and/or arguing that the injured railroad worker negligently caused their own injury. This concept is called negligence per se.
Here is how the court summed it up in a case where we proved an FRA defect on the defendant railroad:
Eliminating the railroad’s opportunity to argue for negligence is a big win for an injured railroad worker. The first step to this is making sure to note certain dangerous conditions that qualify as FRA defects, such as the ones above, on your accident form.
Please note: When filling out your accident report, it is important to be accurate, thorough and honest.
It can be difficult to think clearly right after an injury. Use the term ‘etc.’ when describing injured body parts or unsafe conditions on your incident report, in case more information or injuries come to light later.
Keep in mind that just writing it down doesn’t necessarily prove the case. As mentioned in our last email, photos and witnesses are important as well. The railroad legal team will still argue against the FRA defect even though you write it down. But if you don’t write it down in the first place, the railroad will take advantage of that.
What if there is no FRA Defect in my case?
If there is no FRA defect then the railroad's legal department will likely argue that you were at fault for your own injury.
Understand that a great many FELA cases have been won even though the railroad made this argument. A good FELA lawyer will know the best way to help argue against any claim that you negligently caused your own injury. Filling out your accident report correctly as described here is an important first step to winning your FELA case.