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Straight
Track #248
AN ACT OF GOD
The season has changed from fall to winter. The next
several months will bring colder temperatures, and in some areas, snow
and ice. Now is the time to understand that if you slip and fall at
work, the presence of ice or snow does not by itself establish liability
against the railroad under the Federal Employers' Liability Act (FELA).
As you may know, under the FELA the injured railroader
has the burden of proof to establish that the railroad cause his injury.
A severe ice storm or heavy snow fall are referred to as an "Act of
God." An Act of God in and of itself is not a negligent act of the
railroad. You still must answer the question, "How did the railroad
create an unsafe work condition resulting in my injury?" when the
conditions involve snow or ice.
RAILROAD'S DUTY TO REMOVE SNOW
Generally, the railroad has a duty to provide stable
footing in areas in which you are required to perform your work.
However, oftentimes more is needed if the railroad is to be held
responsible for your injury. For example, it snows on Friday and you
report for work on Sunday afternoon. When you arrive at the yard, the
snow has not been shoveled or treated on the walkway, or along the
switching lead. In this scenario there may be liability against the
railroad based upon an unreasonably long time between the end of the
snow fall and the completion of snow removal operations. The railroad
also has a duty to provide a reasonably safe place to work equal to the
risks of the area. Therefore, the duty to remove snow is greater in a
yard area where the risks are greater to railroaders from such hazards.
Railroads may also have duties pursuant to its posted "Snow Removal
Plan," or other such safety rules. Thus, the railroad's failure to salt
or sand an area, or shovel or otherwise remove the snow, may be
considered railroad negligence.
YOUR "DUTY" TO REPORT PROBLEM LOCATIONS
Look at the areas around the yard office or repair
facilities. Report in writing any problems you see before you or someone
else becomes injured.
An unnatural accumulation of ice or snow, which the
railroad knew or should have known, can be the basis of FELA liability.
For example, there is no gutter at one of the repair shops, or, if there
is one, it leaks and ice collects on the sidewalk during a warm winter
day. Or, a downspout discharges water across the walkway to the yard
office and then the water freezes and remains untreated, or hidden, by a
light snowfall. In these examples, the railroad negligence is the
failure to install or repair gutters when it reasonably knew, or should
have known, that runoff from the roof would create a slipping hazard.
The resulting black ice was not apparent as you walked along or it was
covered by the new snow fall. Even though you were careful and looking
where you were walking, you fell and got injured.
Another example is a switch located in a low area that
collects water in the summer. The switch is located where you must stand
in order to line it. The area will also collect melted water in the
alternating freeze and thaw of winter. Again, even though you are being
careful, you slip and twist your knee. Here, the railroad's negligence
is the underlying condition of poor drainage, which the railroad failed
to remedy, may create liability.
YOUR "DUTY" TO REPORT PROBLEMS WITH EQUIPMENT
Not every piece of snow or ice covered equipment results
in liability against railroad. However, if the railroad gives you a
locomotive at the beginning of your run with the steps and walkways
covered with snow and ice, before accepting the locomotive, notify the
yardmaster or shop foreman of the condition and request that it be
cleaned before you attempt to board it. If your request is denied and
you are ordered to take the locomotive, as is, there may be FELA
liability if you slip and are injured.
SAFETY AT INDUSTRY LOCATIONS
Sometimes snow removal operations create dangerous
working conditions. The railroad or an industry plows the snow on a
roadway or parking lot next to a track and piles it where you must walk
or line a switch. Outside contractors or industry employees generally
have no idea how you do your job and pile the snow where it is not in
their way. Under the FELA the railroad is responsible for your safety
even if you are on an industry's property. Thus, be sure to report in
writing unsafe industry practices when you become aware of them. If the
unsafe conditions are reported and you are injured, the railroad cannot
argue that it did not have notice of the unsafe condition.
DON'T SLIP UP
These are only some of the situations that involve ice
or snow. It is important to know the circumstances surrounding your
injury under winter conditions. If you simply write on an accident
report, "I slipped on the ice or snow," your claim might slip away right
from under you. You may not be able to recover financially for your
injuries or lost time.
In many parts of the country, the first snow has already
fallen and a long winter lies ahead. How has your railroad responded to
these adverse conditions?
If you are injured at work this winter, or have any
other FELA related questions, call us at 888-425-1212.
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