Straight Track #179: Farina Beats BNSF On Sole Cause Defense

Farina Beats BNSF on
"Sole Cause" Defense

Steve Garmisa
Hoey & Farina Attorney
1-888-425-1212

Because of negligence by the Burlington Northern & Santa Fe Railway (BNSF), a switch crew making a shove ran over Jesus Martinez�s right foot, severely crushing it, and causing other permanent injuries.

Gambling on what is called the "sole cause" defense, BNSF made a ridiculously low settlement offer for this devastating injury. But the big gamble backfired.

Jesus Martinez -- represented by Attorney Jim Farina -- won a big victory with a ruling from a Federal Judge in Chicago.

The Judge's ruling provides a good guide to what is called the "sole cause" defense.

When an accident is caused 100% by the negligence or carelessness of an Injured Employee, the Employee is the �sole cause� of the accident, and the Railroad doesn�t have to pay a penny under the Federal Employers� Liability Act (FELA), the federal law that protects railroad workers hurt on the job.

Mr. Martinez was injured while working on a switch in the BNSF�s yard. The lookout supplied by the Railroad wasn�t properly trained, and he failed to warn Martinez of a silently approaching cut of cars.

By supplying a lookout who wasn�t properly trained, the BNSF violated safety regulations issued by the Federal Railroad Administration (FRA).

When questioned by Jim Farina under oath in a pre-trial deposition, the Railroad�s safety director admitted that the BNSF violated FRA safety regulations.

Despite these admitted violations of FRA safety rules, the Railroad � attempting to blame Mr. Martinez for the accident � argued it shouldn�t have to pay a penny for this catastrophic injury. Incredibly, the Railroad was so sure it was going to win its motion and at trial that it only offered $40,000 to settle the case!

A Federal Judge in Chicago recently ruled that the only question at trial will be:

The BNSF rolled the dice on the "sole cause" defense. However, Jim Farina successfully argued it didn�t matter that Mr. Martinez might have been a bit negligent, because the Railroad violated safety regulations.

An accident can have more than one cause. A two-car crash, for example, could be caused because one driver was driving over the speed limit, and the other driver was distracted while talking on a cell phone. Similarly, a Railroad Employee can be injured because of (1) negligence by the Railroad and (2) carelessness by the Injured Employee.

When an accident is caused by a Railroad�s negligence (in a case where the Railroad didn�t violate any safety regulations), the amount of money given to an Injured Employee will be reduced by the amount that any negligence or carelessness by the Employee contributed to causing the accident.

Suppose, for example, a jury decided that the amount of money required to compensate an Injured Railroader for an accident is $100,000. If the Railroad didn�t violate any safety regulations, and a jury decides the accident was caused 50% by the negligence of the Railroad, and 50% by the negligence of the Injured Employee, the amount of money set by the jury as full compensation will be reduced by the Injured Employee�s 50% fault. This would mean the Injured Employee would ultimately get only $50,000 from the Railroad (based on a verdict of $100,000 in damages reduced by the amount of the Injured Employee�s 50% negligence).

But an important part of the Federal Employers� Liability Act says that there is no reduction in the amount of compensation owed to an Injured Railroader if the accident is caused by the Railroad�s violation of an FRA safety regulation. This means that if an accident was caused by both a Railroad�s violation of an FRA safety regulation, and by negligence or carelessness of the Injured Employee, there will be no reduction in the amount the Railroad owes to the Employee.

In a case where the jury decides that the amount of money required to fully compensate an Injured Railroader for an accident is $100,000, for example, even if negligence by the Employee was a 95% cause of the accident, the amount of the verdict won�t be decreased if the accident was also caused by the Railroad�s violation of an FRA safety regulation.

In the Martinez case, the railroad tried to resurrect two cases from 1928 and 1932, where Judges ruled that negligence by the Employee was the "sole cause" of the accident. Despite the fact that its safety director admitted that the Railroad�s violation of FRA regulations was a cause of the accident, the Railroad argued that negligence by Martinez was the "sole cause" of the accident.

Brushing aside the Railroad�s smoke, the Judge ruled that the "sole cause" defense doesn't apply because the Railroad's safety director admitted -- when questioned by Jim Farina -- that a cause of the accident of the accident that injured Martinez was the Railroad's violation of FRA safety regulations.

A Jury might have been blinded by the Railroad's smoke, but the Judge saw right through it.

Now, unless the Railroad starts to get realistic about the amount of a fair settlement, the Martinez case will go to trial soon. And the only question for the Jury will be: