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Sixth Circuit Proclaims FRSA Preempts FELA Claim in Ballast Injuries Claim

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  • Sixth Circuit Proclaims FRSA Preempts FELA Claim in Ballast Injuries Claim

    The Sixth Circuit Federal Court of Appeals held, on March 18, 2009, that the Federal Railroad Safety Act (FRSA) preempts a FELA claim wherein the railroad employee's injury was caused by oversized ballast. The Sixth Circuit covers the states of Ohio, Kentucky, Michigan and Tennessee only. However, this opinion is not well reasoned and is literally terrible law and precedent. I have attached the Nickels v. Grand Trunk Western Railroad Co., 560 F.3d 426 (6th Cir. March 18, 2009) case for your review in Word format with highlights.

    Although a lower federal court in another jurisdiction (Arkansas), one month before Nickels was decided, held the exaxt opposite.

    In Davis v. Union Pacific R. Co., 598 F. Supp 2d 955 (E.D.Ark- Feb. 18, 2009), the Federal District Court hela a railroad employee's action against his employer under the Federal Employer's Liability Act (FELA) was not precluded by the FRSA, according to the federal district court. Davis had injured his left ankle and left knee while walking on loose ballast near a service track in a rail yard. Davis claimed that UP had violated FELA by negligently failing to provide him with a safe place to work. UP challenged Davis' claim just as Grand Trunk did in the Nickels case, asserting that Davis' FELA claim was barred under the FRSA because the Secretary of Transportation had promulgated regulations relating to ballast. Davis argued that FRSA was not applicable because the ballast regulations covered track safety, not employee walkways or walkway conditions, which was the focus of the employee's claim.The Davis court held that if inconsistencies existed, the FRSA would supersede the FELA based on the policy embodied in the FRSA to ensure uniformity in law pertaining to railway safety. However, there were no inconsistencies between the two federal statutes in this case, since the ballast regulations covered track safety, and did not address employee walkways or walkway conditions. Thus, Davis' FELA claim related to the Union Pacific's failure to provide a reasonably safe workplace by failing to provide safe walkways on which employees, such as Davis, may perform their work duties and was, therefore, not precluded by the FRSA. The Davis opinion is also attached in Word with highlights.


    As the Davis opinion points out there are certain factual situations where the FRSA should, and has, pre-empt a FELA claim, e.g. train speed, crossing design, etc. However, the "pre-emption doctrine" is usually relied upon where a state claim, such as negligence, is in conflict with a federal statute. Here you have two (2) federal statutes and the words "preemption" should not really be even utilized. Nevertheless, some courts still use it [See Fn. 1 in the Davis opinion]. As Davis states, "when faced with two federal statutes, court must reconcile them. “To the extent that they are inconsistent, the FRSA will supersede the FELA based on the policy embodied in the FRSA to ensure uniformity in law pertaining to railway safety.” Id. at 957.

    The language at issue is as follows:
    § 213.101 Scope
    This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of rails.
    § 213.103 Ballast; general.
    Unless it is otherwise structurally supported, all track shall be supported by material which will-
    (a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
    (b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;
    (c) Provide adequate drainage for the track; and
    (d) Maintain proper track crosslevel, surface, and alinement.
    49 C.F.R. §§ 213.1, 213.101, 213.103.

    The Davis court had no problem reconciling this language with a FELA claimant alleging that Union Pacific was negligent in providing too large a ballast on a walkway area. Judge Brian Miller easily stated," [I]t is obvious when reading the regulation that it “is concerned with the track and its immediately adjoining area and not with railroad yards. The obvious concern, moreover, is with the safety of the train, the prevention of derailments, and not the quality of the work place provided for employees.” Id. at 959.

    Morover, the Davis case involved a one time event versus the Nickels case which involved a repetitive trauma claim. As such, there was no way in the world that the counsel for Grand Trunk could have proved that Nickels did not sustain some of his injury over time walking on the walkway sections having ballast.

    I can only say that the one or both of two things were present in the Nickels case: (1) a hostile to an injured worker court and/or (2) poor lawyering. I have tried to see where the Nickels counsel has filed a Petition for a Writ of Certiorari to the U.S. Supreme Court and I cannot find where they have. I hope I have just missed it as this opinion should not be left to stand as it is currently.

    Steve Gordon
    Arkansas FELA/Railroad Worker Injuries Lawyer | Little Rock Attorney | Pine Bluff AR Arkadelphia Train Accident

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