Straight Track #258: Don't Slip Up

Prepare for the Winter Months

Alan J. Fisher, Attorney
Hoey & Farina, P.C.
afisher@hoeyfarina.com

The season will change soon from fall to winter and 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.

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.

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.

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.

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.

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 some 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 in the past? How will it respond to them this winter?

If you are injured at work this winter, or have any other FELA related questions, call us at 888-425-1212.