May 12, 2010
Welcome to the May 12, 2010, issue of Rail Update, the copyrighted and trademarked e-newsletter on developments in Federal Railroad Administration regulations and state and federal court decisions of interest to rail
industry personnel. It is written, edited, and produced by Frederick B. Goldsmith
and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.
If you wish to unsubscribe or modify your subscription details, just click on the link at the bottom of the e-mail which alerted you to the posting of this issue on our website.
If you have friends or colleagues who wish to subscribe, they can use the signup box appearing below, which also appears on the Rail Update
homepage. We will not share your e-mail address and related information with anyone. We hope you enjoy the newsletter and wholeheartedly encourage your feedback.
This issue’s photo (by Fred Goldsmith) depicts the cable-driven Monongahela Incline, a local historic landmark and one of two funiculars still operating in Pittsburgh, Pennsylvania. The Mon Incline, as it is referred to by Pittsburghers, ascends and descends Mount Washington, across the Monongahela River from downtown Pittsburgh. Its two cars operate in pairs, whenever one is ascending, the other is descending. It was built between 1869 and 1870. Operated by the Port Authority of Allegheny County, the current adult round-trip fare is $2.75, $2.00 one-way. The other Pittsburgh-area incline is the privately-run Duquesne Incline. These websites have more information about and photos of Pittsburgh's inclines:
http://web.presby.edu/~jtbell/transit/Pittsburgh/Inclines and
http://www.streetcar.org/mim/spotlight/world/pittsburgh/index.html.
G&O Personnel News
Fred Goldsmith Moderates Seminar on
Evolving Federal Court Pleading Standards
On April 21, 2010, Fred Goldsmith moderated a continuing legal education
seminar entitled, "Drafting and Challenging Federal Court Complaints:
Three Federal Judges and a Law School Professor Outline Pleading and
Motion to Dismiss Practice Post Twombly and Iqbal."
Panelists included Judge Nora Barry Fischer of the U.S. District Court
for the Western District of Pennsylvania, Judges D. Michael Fisher and
Thomas M. Hardiman of the U.S. Third Circuit Court of Appeals, and
Professor Rhonda Wasserman of the University of Pittsburgh School of
Law.
Fred Goldsmith Examines Importance of Crew Training
in his March 2010 Column in MarineNews Magazine
Link to
"Foreseeable
Emergencies: Operators Liable for Training Crews."
Fred Goldsmith Makes Guest Appearances on
"On the Road with Rocky," ESPN Radio 1250 AM
Fred was invited by host Rocky Marks to appear on his popular Pittsburgh
motorcycle-focused radio show. He'll be featured on the shows
which air
January 30 and February
13, 2010, from 8:00 to 9:00 A.M.
Tune in (or click the link on the date, above) to hear Fred discuss legal aspects of motorcycling, including
motorcycle insurance and what to do if you're involved in an accident.
G&O at the Pittsburgh Boat Show
G&O
was at the 2010 Pittsburgh Boat Show, January 21-24, 2010,
http://www.pittsburghboatshow.com, in Monroeville at the Convention
Center. If you missed us and our booth (B-39), you also missed a
chance to register for a drawing to win a free Standard Horizon submersible VHF
Marine Radio! The winner is Scott Anderson. Congrats Scott! We had a
swell time at the show, met lots of great
people, and look forward to next year's show!
Goldsmith Publishes Another Column in
Inland and Near-Shore Maritime Industry Trade Magazine, MarineNews,
on Vessel Owner's Duty of Seaworthiness
Link to the January 2010 issue of MarineNews magazine to read Fred Goldsmith's
most recent column,
"A Vessel Owner's
Warranty of Seaworthiness."
Recent Federal Railroad Administration Notices in the Federal Register
None
of note this issue.
Recent State & Federal Court Railroad Decisions
California Court of Appeal: Upholds $48 Million Verdict, Rules Accident Causing Worker’s Quadriplegia Within Scope of Employment
In Doi v. Union Pacific Railroad Co., 2010 WL 298387 (Cal. App. Jan. 27, 2010), the court affirmed a judgment in favor of Eric Doi on his FELA claim against UP in the amount of $48,493,120. Doi worked for UP in one of its “zone gangs,” which required Doi to work at various locations in California, Texas, New Mexico, and Arizona. On July 7, 2007, Doi’s co-worker picked him up at the
Tucson, Arizona, airport and then drove to a Wal-Mart store to purchase food and Pedialyte for work the next day. While driving from Wal-Mart to the hotel, the co-worker lost control of the company truck and it rolled over, causing Doi to suffer a cervical spine injury
leading to quadriplegia. In affirming the judgment, the appeals court found “[t]he evidence permitted a reasonable jury to conclude that the conduct in question-the trip to the Wal-Mart store to purchase food and Pedialyte for the following work day-was a necessary incident to the next day’s work, particularly in light of Union Pacific’s duty to provide its employees with a safe place to work and other surrounding circumstances, including that zone gang members could not leave the work site to obtain provisions” and thus was within the scope of employment. A request for review of the appellate court’s decision was filed with the Supreme Court of California on March 9, 2010.
New Jersey Federal District Court: Worker Not Entitled to New Trial on Damages for Pain and Suffering
In Romero v. CSX Transportation, Inc., 2010 WL 1372296 (D.N.J. Mar. 31, 2010), on February 21, 2006, Eric Romero, an employee of CSX Transportation, Inc. (“CSX”), suffered severe injuries to his right hand and forearm when they were crushed between two cars. Romero’s FELA claim proceeded to trial, and the jury awarded him $862,500 in damages, which included $82,500 for past pain and suffering and $60,000 for future pain and suffering. Following the verdict, Romero filed a motion asking for a new trial claiming the damages for pain and suffering were grossly inadequate. The district court denied the motion finding, among other things, that the record contained evidence that Romero’s constant throbbing pain stopped around
five months after the accident and that after February 2007 he no longer felt pain, he stopped taking pain medication many months before February 2007, his girlfriend testified that his pain had stopped by June 2007, and a surveillance video showed Romero repairing his vehicle, changing the vehicle’s oil, lifting a gallon of oil with the injured hand and arm, holding objects in his right hand, and playing with his daughter. In sum, the district court concluded that, based on the
above, the jury’s verdict was not against the weight of the evidence.
Supreme Court of Nebraska: Worker’s Injury, Which Occurred While Walking to Work In An Alley Owned by the City of Marysville, Kansas, Occurred Within Course and Scope of His Employment
In Holsapple v. Union Pacific Railroad Co., 776 N.W.2d 11 (Neb. Dec. 11, 2009), the Supreme Court of Nebraska found that Glenn Holsapple’s injury to his knee, sustained stepping in a hole while walking through an alleyway owned by the City of Marysville, Kansas, from a UP parking lot to the UP yard office fifteen minutes before his shift was scheduled to begin, occurred within the course and scope of his employment. Thus, the court held the trial court erred in granting summary judgment
in UP's favor.
Court of Appeals of Nebraska: Trial Court Should Not Have Granted Summary Judgment
On Plaintiff’s Claim She Developed Severe Injuries From West Nile Virus
In Deviney v. Union Pacific Railroad Co., 776 N.W.2d 21 (Neb. App. Nov. 17, 2009), Vivika Deviney
sued UP under the FELA, claiming she had contracted West Nile Virus while working as a conductor for UP at Bill, Wyoming,
in the summer of 2003. Deviney claimed that while working a late shift taking a coal train from the trainyard in Bill to the coal mines near Gillette, Wyoming, she had to get off the train and perform an inspection at East Cadaro Junction. While off the train, she claimed mosquitoes
repeatedly bit her hands and neck. There was a pond on the mine property near East Cadaro Junction. Deviney also claimed the mosquitoes were inside the Bill trainyard and that there was standing water in the trainyard from washing equipment and a pond. Deviney eventually developed headaches, diarrhea, vomiting, and nausea and was later diagnosed with WNV. Deviney suffered hearing loss, fatigue, vertigo, reduced vision, and left-side weakness. In reversing the trial court’s granting of summary judgment to UP
(which means the trial court found the case should not go to trial because UP was not negligent), the appellate court found that
fact issues existed as to whether: (1) UP breached its duty to provide Deviney with a reasonably safe place to work by not treating for mosquitoes near East Cadaro Junction and for not properly using larvicide to treat the Bill trainyard for mosquitoes as the treatments should have occurred before the mosquitoes hatched; (2) Deviney’s injuries from WNV were reasonably foreseeable to UP; and (3) the mosquito bites at work caused the WNV given the close
temporal relationship between when Deviney’s was bitten and the onset of her symptoms.
U.S. Seventh Circuit Court of Appeals: Jury Instruction Allowing
Plaintiff in FELA Case to Recover If "Defendant's Negligence Played a Part--No
Matter How Small--In Bringing About the Injury" Was Proper; Defendant Not
Entitled to More Stringent Proximate Cause Instruction
In McBride v. CSX Transportation, Inc., 598 F.3d 388 (7th Cir.
March 16, 2010), the appeals court agreed with the trial court that the
Seventh Circuit Pattern Jury Instruction properly stated the relaxed
causation standard in FELA cases and that the trial court properly
refused the railroad's proposed instruction which would have imposed a
more difficult to surmount "proximate cause" causation standard.
U.S. Sixth Circuit Court of Appeals: Plaintiff’s Slip on Ice and Snow Not Result of Negligence
of Railroad
In Williams v. Grand Trunk Western Railroad, Inc., 2009 WL 3673095 (6th Cir. Nov. 6, 2009), Douglas Williams sued Grand Trunk under the FELA claiming the
railroad was negligent for not removing snow from the area in which he was working and because malfunctioning equipment contributed to his injury.
While connecting engines at Stanley Yard, which is owned by CSX, in Walbridge, Ohio, Williams slipped on snow while trying to push the MU cable, which had a plug full of snow, into the receiving receptacle of the third of four locomotives. The slip caused
Williams lower back injuries that prevented him from returning to work. The Sixth Circuit affirmed the district court’s granting of summary judgment in favor of Grand Trunk. In support of its decision, the
appellate court found Williams could have radioed track department personnel if he faced any unsafe conditions and that the track department would have remedied any unsafe condition, the failure of Grand Trunk to remove snow or ice from 30 to 35 miles of track in the yard does not raise the issue of negligence, and Grand Trunk never had notice of the allegedly malfunctioning MU cable-only Williams observed the malfunctioning equipment and he
failed to notify anyone of its condition.
Court of Appeals of Kentucky: Trial Court Improperly Dismissed Worker’s FELA Claim on Basis of the Statute of Limitations
In Zapp v. CSX Transportation, Inc., 300 S.W.3d 219 (Ky. App. Sep. 25, 2009), after Larry Zapp put
on evidence at trial of his bilateral carpal tunnel syndrome in his FELA case against CSX, the trial court granted CSX’s motion for directed verdict finding Zapp did not file his FELA claim within the FELA’s
three year statute of limitations. A motion for directed verdict is filed after the plaintiff presents his or her case at trial and is granted if a reasonable person could only conclude the movant, CSX in this case, is entitled to a verdict. The motion takes the case out of the hands of the jury. The appellate court, however, reversed the trial court’s decision.
It found that “although [Zapp] experienced numbness and tingling in his hands while gripping the brake and throttle, and he also testified that these work activities caused his symptoms to worsen as early as 1999,” the FELA’s 3 “year statute of limitations is only triggered when the claimant knows or reasonably should have known not only of an injury but also of its cause.” Here, Zapp never testified he knew the cause of his hand injury in 1999.
Lagniappe
Hugh Gallagher's College Application Essay
Since it is the season when many high school seniors are anxiously
awaiting word from college and university admissions committees, this
mock or real--no one is sure--essay prepared by Hugh Gallagher in the
early 1990s, which made its way around the country then via fax (yet is
now available on the Internet), should provide a welcome respite to
parents and their college and university-bound children. Gallagher
apparently attended NYU and in 1998 wrote a novel, "Teeth," which
Amazon.com carries.
3A. ESSAY: IN ORDER FOR THE ADMISSIONS STAFF OF OUR COLLEGE TO GET TO
KNOW YOU, THE APPLICANT, BETTER, WE ASK THAT YOU ANSWER THE FOLLOWING
QUESTION:
ARE THERE ANY SIGNIFICANT EXPERIENCES YOU HAVE HAD, OR ACCOMPLISHMENTS
YOU HAVE REALIZED, THAT HAVE HELPED TO DEFINE YOU AS A PERSON?
I am a dynamic figure, often seen scaling walls and crushing ice. I have
been known to remodel train stations on my lunch breaks, making them
more efficient in the area of heat retention. I translate ethnic slurs
for Cuban refugees, I write award-winning operas, I manage time
efficiently. Occasionally, I tread water for three days in a row.
I woo women with my sensuous and godlike trombone playing, I can pilot
bicycles up severe inclines with unflagging speed, and I cook
Thirty-Minute Brownies in twenty minutes. I am an expert in stucco, a
veteran in love, and an outlaw in Peru.
Using only a hoe and a large glass of water, I once single-handedly
defended a small village in the Amazon Basin from a horde of ferocious
army ants. I play bluegrass cello, I was scouted by the Mets, I am the
subject of numerous documentaries. When I'm bored, I build large
suspension bridges in my yard. I enjoy urban hang gliding. On
Wednesdays, after school, I repair electrical appliances free of charge.
I am an abstract artist, a concrete analyst, and a ruthless bookie.
Critics worldwide swoon over my original line of corduroy evening wear.
I don't perspire. I am a private citizen, yet I receive fan mail. I have
been caller number nine and have won the weekend passes. Last summer I
toured New Jersey with a traveling centrifugal-force demonstration. I
bat 400. My deft floral arrangements have earned me fame in
international botany circles. Children trust me.
I can hurl tennis rackets at small moving objects with deadly accuracy.
I once read Paradise Lost, Moby Dick, and David Copperfield in one day
and still had time to refurbish an entire dining room that evening. I
know the exact location of every food item in the supermarket. I have
performed several covert operations for the CIA. I sleep once a week;
when I do sleep, I sleep in a chair. While on vacation in Canada, I
successfully negotiated with a group of terrorists who had seized a
small bakery. The laws of physics do not apply to me.
I balance, I weave, I dodge, I frolic, and my bills are all paid. On
weekends, to let off steam, I participate in full-contact origami. Years
ago I discovered the meaning of life but forgot to write it down. I have
made extraordinary four course meals using only a mouli and a toaster
oven. I breed prizewinning clams. I have won bullfights in San Juan,
cliff-diving competitions in Sri Lanka, and spelling bees at the
Kremlin. I have played Hamlet, I have performed open-heart surgery, and
I have spoken with Elvis.
But I have not yet gone to college.
Post-Accident Checklist:
-
If you or others are injured, call 911 for EMS and, if applicable,
local or state police, sheriff, etc.
-
If no EMS/hospital treatment is obtained, see your own doctor or
hospital Emergency Room
ASAP, as your medical condition indicates.
-
Get photos,
even with a cell phone camera, of the accident scene, vehicles, equipment,
products, involved.
-
If possible,
preserve the accident scene and any vehicles, equipment, or products, involved,
until it can be investigated.
-
Write down
the name, address, and phone number of all witnesses.
-
Immediately report
the accident orally and in writing, describing the highlights of how
all persons, vehicles, equipment, and/or products played a part.
-
Try to avoid
discussing the accident or giving a written or recorded statement until
you have the opportunity to talk to your lawyer. You can call G&O 24/7 toll free at
1-877-404-6529.
-
If a motor vehicle accident, report
it to your insurance company (but see #7),
exchange vehicle, driver, insurance information.
Reader Feedback
We truly appreciate and welcome your feedback – positive, negative, or in-between. Just e-mail
Rich Ogrodowski or
Fred Goldsmith.
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