John Cooper of Cooper Hurley Injury Lawyers has chaired the FELA litigation group of the American Association of Justice, the largest plaintiff’s attorney organization in the United States, since 2011.
FELA is the Federal Employers Liability Act, a federal law that was enacted in 1908 to protect and compensate railroad workers who are injured on the job, as long as the worker can prove that the railroad was at least partly legally negligent in causing the injury.
In this article written for the AAJ, John Cooper, describes an important Supreme Court decision in Virginia concerning railroad crossing accidents.
As a Virginia railroad accident attorney, I have litigated numerous crossing accident cases where a motorist is killed or seriously injured crossing the tracks at a private crossing with sight obstructions. There are many more private crossings than public crossings in Virginia and freight trains going 45 miles an hour or Amtrak trains flying at 75 miles an hour routinely run through places that were previously more isolated and rural but now are becoming more developed (private crossings with public features).
Often the sight lines at private crossings are neglected by the railroads’ track department. A major problem in getting justice for crossing wreck victims in Virginia, is our rule that any contributory negligence is a complete bar to recovery. Almost every driver hit at a crossing can be accused of some potential contributory fault, and if the driver is dead, it makes it even harder for the family in a wrongful death case to show that the driver acted reasonably for their own safety in approaching the crossing.
The recent decision in the case of RGR v. Settle, Virginia Supreme Court Case No. 130633 decided on October 31, 2014, is an incredibly useful and favorable analysis of the issues in an obstructed crossing wreck. The case is procedurally unusual in that the Virginia Supreme Court after ruling against the motorist by finding contributory negligence as a matter of law, reversed itself after a rehearing which is quite rare. The lengthy opinion provides lots of insight for the plaintiff’s lawyer on rebutting contributory negligence and considering causes of actions and potential defendants.
The underlying facts involve a dump truck driver killed when crossing Norfolk Southern tracks where lumber had been piled up by an adjacent landowner creating a sight obstruction which went partially into the railroad’s right of way within 23 feet of the center of the track. The plaintiff reached a $500,000.00 settlement with Norfolk Southern and went to trial
against the landowner who created the sight obstruction. The jury awarded $2.5 million to the plaintiff which was ultimately upheld through some great advocacy by the plaintiff’s lawyers, Robert Cynkar, Chris Kachouroff, and Kevin Locklin of Manassas, VA.
One key aspect of the case upholds a broad duty of safe land use so an adjacent land owner or user can be held responsible for creating a sight obstruction. The Virginia Supreme Court confirmed a general common law obligation to not use your property in a way that could foreseeably cause injury to another. The adjacent land owner knew or should have known that the way they were stacking their lumber created a sight obstruction which caused a danger for motorists at this private crossing. The dissent derided this upholding of duty as creating an obligation of non-negligence toward all mankind rather than a specialized duty to a particular person based on traditional premises liability concepts of the relationship of the injured to the land user. The Court here though just reaffirmed an established concept that “one has a duty to exercise ordinary care in the use and maintenance of one’s property to prevent injury to the others.”
The other critical facet of RGR v. Settle is creating a jury issue on contributory negligence by proving the death trap faced by motorists, especially operators of large trucks, when they are crossing railroad tracks with sight obstructions. The plaintiff and their experts showed how once the driver could see the train, the nose of the vehicle is already at the railroad tracks within the zone of danger, 15 feet from the near rail, where you may be hit by the train or things hanging off of the train cars extending beyond the width of the railroad track itself.
In Virginia, there is no duty to stop when approaching railroad tracks but only to look and listen. The motorist must look and listen in a way as a reasonable person would have, and to stop if they perceive, or should have perceived, a train coming which makes crossing dangerous.
There are many Virginia crossing accident cases where the Virginia Supreme Court has essentially substituted their judgment for that of the jury saying that reasonable people could not disagree about the facts and that the driver blindly drove in front of the train. The plaintiff needs to show that there are contested facts to be determined by the jury including what the plaintiff likely could have seen, and when. If you cannot see the train until you are already in a position of danger, then the crossing is a death trap, especially for a big vehicle like a dump truck which has a harder time stopping and speeding up than a passenger car. The dissent in this case took the unreasonable position that if this was a death trap where the plaintiff could not see the train until it was too late then he should not have used the road.
Ignoring the practicalities of real life is reflected in many court’s ruling on contributory negligence as a matter of law. However, we as plaintiff’s lawyers in crossing cases need to have the right experts and the right information to help the judges understand the dangers of these private crossings with sight obstructions and not just automatically blame the victim.
The RGR v. Settle opinion is a great read even if you do not do crossing accident cases. The case shows how important it is to plead boldly, to present a strong case, and to pursue justice persistently.
If you have been injured on a railroad crossing or if you have lost a loved one, call Cooper Hurley Injury Lawyers for a free consultation at 757.45.0077.