Straight Track #156

Part I covered the holding that when railroaders get a disease (like asbestosis) because of the negligence of their Employer, and they face a 10% chance of developing cancer as a result, they are able to get paid for the emotional distress caused by fear of getting cancer. Part II of the series begins below.

The second argument made by the Railroad in Norfolk and Western Railway Co. v. Ayers was that it should be permitted to reduce the amount of money owed to Injured Railroaders under the FELA in cases where some other person or company also played a role in causing the injuries.

The Entire Railroad Industry united in asking the U.S. Supreme Court to rule that a Negligent Railroad should only have to pay a fraction of the damages caused by its carelessness, in cases where an accident is caused in part by the Railroad and in part by some other company or person.

The Railroad's best shot at winning this argument was based on the fact that Carl Butler -- one of the Plaintiffs in the Ayers case -- was exposed to asbestos when he worked for 33 years as a pipe fitter for a non-railroad employer. Butler only worked for Norfolk & Western for three months.

Butler's claim was a dream case for Railroads that wanted to argue that the amount of money they owe to Injured Railroaders under the FELA should be reduced when an injury is also caused by some other company or person. 

Norfolk & Western argued that it only caused a small part of the asbestosis and emotional distress suffered by Butler. The Railroad wanted the Judge to instruct the Jury that Butler was only entitled to payment for the harm caused by exposure to asbestos during the three months he worked for the Railroad.

This is a crucial question for Railroaders in all kinds of cases. It isn't unusual for an accident to be caused in part by a Railroad and in part by the negligence of some other company or person. According to Norfolk & Western's argument, if it only caused 10% of harm to an Injured Railroader, it should only have to pay 10% of the total amount of money ordered by a Jury Verdict. Then the Injured Railroader would have to try and collect the remaining 90% of the Jury Verdict from the other negligent persons or companies. And these other companies or persons might be broke (leaving the Railroader with payment of only 10% of the Total Jury Verdict). 

In its March 10, 2003, Opinion, the U.S. Supreme Court unanimously rejected the argument that a Railroad can reduce the amount it owes to a Railroader under the FELA when the negligence of some other person or company also caused an accident.

The FELA specifically says that when Employees are hurt by Railroad Negligence -- and the Railroad's carelessness is a cause "in whole or in part" of the injury -- the Railroad can be ordered to pay the Railroader for this harm.

As the Supreme Court explained in the Ayers case, the FELA also says that the only time a Railroad can reduce the amount it owes to an Employee who is injured as a result of the Railroad’s negligence is when the Employee was partially at fault in causing the accident. When Congress enacted the FELA, it did not create any other situations where the fault or negligence of other persons or companies can be used by a Railroad to reduce the amount the Railroad owes to an Injured Employee.

Under the unanimous ruling in the second part of the Ayers case, even if a Railroad was only 5% at fault in negligently causing a Railroad employee to suffer from a disease and emotional distress -- and other companies were 95% at fault in negligently causing these injuries -- the Railroad can be ordered to pay 100% of the damages suffered by its Employee.

This is an important ruling because the same reasoning should apply in other situations. For example, in a case handled by Hoey, Farina & Downes, a Railroader was seriously injured because of negligence by both his Employer and the driver of an automobile (a lady who didn't have much insurance). The Railroad argued that negligence by the Driver was the major cause of the accident. So the Railroad argued the Jury should have been instructed to only order the Railroad to pay for its percentage of fault. In other words, if the total damages added up to $1 million, and the Driver was 95% responsible for causing the accident, the Railroad argued it should only have to pay 5% of the total verdict. 

The Trial Judge brushed off the Railroad's argument in the case of the Underinsured Driver, and the Jury was instructed to order the Railroad to pay for 100% of the damages caused by the Railroad's negligence (even if the Driver was mostly at fault in injuring our client).

The Railroad in that case appealed, making the same argument the Railroad made in the Ayers case. But  -- at our request  -- the Court of Appeals suspended the appeal until the Supreme Court issued its ruling in Ayers.

Armed with the unanimous portion of the Ayers case, our position is that Negligent Railroads are not entitled to reduce the amount they owed to Employees under the FELA  -- even if some other person or company also played a part in causing an accident. Under the FELA, the only time a Negligent Railroad can reduce the amount the Jury decides the Railroad owes its Injured Employee is when the Employee was partially at fault in causing the accident.

In all other cases, a Railroad that negligently injures its Employees should be liable for 100% of the damages caused -- "in whole or in part" -- by the Railroad's negligence.

This decision adds up to two big victories for Railroaders. 

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