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  • A Foul FELA Result

    Jurors say CSX not to blame for W.Va. goose incident
    BY CHRIS DICKERSON

    HUNTINGTON, W.Va. (Legal Newsline) -- It took a jury 25 minutes to decide CSX Transportation was not responsible for a conductor's injuries resulting from a railyard run-in with a goose.

    Aaron E. Richards had filed a FELA lawsuit last year against CSX, claiming the rail giant was negligent in not removing the goose from its Keyser Receiving Yard near Ravenswood. Richards was injured April 23, 2005, at the yard when, as he was performing a brake test on a train, the goose startled him and knocked him backward.

    On Tuesday before U.S. District Judge Robert C. Chambers, Richards' attorneys argued that CSX knew or should have known the goose was a hazard to its employees. CSX attorneys, meanwhile, said the company had no prior knowledge of the goose.

    "Railroaders will tell you that when you're out on the tracks, you encounter wildlife," CSX attorney Marc Williams said during his opening remarks. "This was an accident that happened without the fault of anyone."

    During Tuesday's testimony, Richards' attorney William Kvas outlined the details of the April 23, 2005, incident and ensuing events.

    Richards was the conductor on a train from Huntington to Parkersburg. It stopped at the Keyser railyard to pick up some cars. It was rainy and just past midnight, so the unlit yard was especially dark. As Richards inspected the cars and performed a brake test on them, he heard a hissing noise.

    "As I crouched down, it came up toward the side of my face," Richards testified. "It had its wings up. I fell backwards and twisted my ankle on the ties and debris."

    After receiving help from his engineer, Richards was transported to Camden Clark Memorial Hospital in Parkersburg. Shortly thereafter, CSX managers Wayne Queen and Robert Henderson arrived at the hospital to visit Richards.

    As with any incident, Richards filled out a report. One part of that form that Williams repeatedly noted to jurors was that Richards answered no to the question "Was anyone at fault?" He filled the form out at the hospital just hours after the incident.

    Kvas also called CSX conductor Rick Dillon, who testified that he had a similar incident at the Keyser railyard just four days before Richards. Dillon said the goose flew toward him, but he wasn't injured.

    On cross examination from Williams, Dillon said he talked to his engineer about the goose run-in, but laughed it off. And he said no further report was made, but he did say he would report a potential hazard.

    "You didn't think the incident was a big deal?" Williams asked Dillon. "Right," Dillon replied.

    Queen and Henderson also testified about the hospital visit and their inspection later that day of the railyard when they removed the goose and its nest, which included eggs.

    Columbus, Ohio, physician Christopher Hyer also testified via videotaped deposition about his treatment of and surgery on Richards.

    During closing arguments, Kvas noted that railroad employees aren't covered by workers' compensation and have to come to court to see such compensation under the Federal Employee Liability Act (FELA).

    "CSX has a duty to provide a safe place to work," said Kvas, a Minneapolis attorney with the firm of Hunegs, LeNeave & Kvas. "CSX has a duty to inspect the workplace."

    In his closing, Williams reiterated that CSX didn't know of the goose and potential hazard until Richards' incident.

    "What evidence exists showing there was a hazard?" Williams, who works for Huddleston Bolen out of its Huntington office, asked. "None. You have to gauge the case and the railroad's conduct on what information was known beforehand.

    "Has the plaintiff fulfilled the burden of proof of negligence?"

    Richards was seeking nearly $24,000 in lost wages and other compensatory damages, including past and future pain and medical treatment and impairment of future earning capacity.

    U.S. District Court case number: 3:08-007

    FELA FELLA COMMENT: NO COMMENT!!

    Steve Gordon
    Railroad Worker Unions | Non-Union-Designated Injury Lawyer | FELA Attorney Illinois Houston California
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

  • #2
    Richards answered no to the question "Was anyone at fault?" He filled the form out at the hospital just hours after the incident.
    Seems that his no answer to fault, may have been all the jury needed. The correct answer he should have given was "yes, CSX was at fault for allowing that hazard, and the debris into the workplace".
    NS should not require warm up exercises. We get enough exercise jumping to conclusions, flying off the handle, running down our bosses,knifing friends in the back, dodging responsibility and pushing our luck.

    Comment


    • #3
      Get the Bad Evidence out Early!

      All to often, a FELA injured worker is remiss when answering a fault question. We see this time and again.

      The defense hammers home to the jury that the first thoughts are the most reliable and, not until a lawyer is hired, does a fault theory surface. Practically speaking, an injured worker is not thinking that what they put down is going to come back and bite them. The learned practitioner needs to voir dire (ask the juror panel) about this constantly from the beginning of the trial through the end. This mollifies the effect of the defense when it comes out [usually in the examination of the plaintiff].

      My belief has always been to get the "bad stuff" out first to take the wind out of the sails of the defense. Plus, if explained properly, the jury may actually throw themselves [figuratively] in between the defense and the plaintiff when the defense tries to beat the plaintiff up on the stand about his omission of the fault question. When this happens, the defense better prepare themselves for sure defeat.

      The novice practitioner sometimes tries to "avoid" bad evidence. I think this is a grave miscalculation.

      Steve Gordon
      FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
      Steve Gordon
      Gordon, Elias & Seely, L.L.P.
      FELA Lawyer
      FELA Lawyer Blog
      Serving Injured Railroad Employees Nationwide
      Call for a FELA Lawyer 24/7/365
      800-773-6770

      Comment


      • #4
        FELA, Foul & The Profession of Advocacy

        Goose Attack Tests Railroad Worker Injury Law

        A West Virginia railroad worker is causing a bit of a flap in his industry by suing his employer for failing to protect him from an unusual workplace hazard –- a nesting goose.

        Aaron Richards is seeking more than $75,000 for injuries suffered in an alleged goose attack at a CSX Transportation railyard near Ravenswood, W. Va. While performing a brake inspection on a train, he alleges in a complaint filed earlier this month,
        a goose which was previously known by Defendant to have nested in its yard area suddenly jumped out from under one of the railcars, striking Plaintiff, and causing him to fall resulting in injuries.
        “[T]he injuries and damages sustained by Plaintiff were caused by the negligence of Defendant in violation of the Federal Employers' Liability Act,” Richards says.

        The suit has inspired plenty of ridicule, with one contributor to a train workers' online message board saying the plaintiff's lawyer -– W. Michael Frazier of Huntington, W. Va. -- is “the real goose ... looking for a golden egg.”

        The skeptics ignore the generosity of FELA, which requires employers to provide a reasonably safe workplace. As the 6th U.S. Circuit Court of Appeals has said, “[T]he plaintiff in a FELA case may reach the jury with only circumstantial evidence of very slight employer negligence playing a part in producing the plaintiff's injury.” Dewalt v. Consolidated Rail Corp., 869 F.2d 1489 (1989).

        In a seminal case, the U.S. Supreme Court upheld a jury award to a railroad crew foreman who lost both of his legs after suffering an insect bite.

        “The evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from” a stagnant, vermin-infested pool near where the foreman had been working, the court said in Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963).

        CSX denies any negligence in a pro forma answer to Richards' complaint, saying “the alleged incident underlying Plaintiff's claim was not reasonably foreseeable by Defendant.”

        But geese have a reputation for aggressively defending their territory. And if CSX knew Richards' alleged attacker was on its property, that could be enough to establish liability.

        “It is the responsibility of the railroad to make that yard a safe place to work and if that means getting rid of the birds, they should have done it,” says another contributor to the trainorders.com website.

        The 2nd Circuit said in the case of a railroad worker bitten by a large German Shepherd mix dog that liability did not depend on whether the dog had vicious propensities, but
        whether the [railroad] knew or should have known that a large German Shepherd-mix dog was on the premises, and if so, whether an employer using reasonable care should have investigated further or taken other steps to inform and protect its employees. Gallose v. Long Island Rail Road Co., 878 F.2d 80 (1989).
        By Matthew Heller

        COMMENT:
        Everyday we humans see injuries of people in the stangest of circumstances. Some are almost comical in the way they occur. Unfortunately, the injury itself is anything but comical. A lawyer's job, no matter what, to zealously represent their client. The "zealous" part is non-negotiable and is the impetus for a lawyer to do what he/she does. It's not money...it's the requirement if his/her profession. If a lawyer does not want a case, then the decision is to be made when the client asks to hire the lawyer. A lawyer should never accept a case that they intend to half-way zealously represent the client. Does it happen? Yes.; Should it happen? Never. The lawyer asserting the goose case is to be applauded for representing his client zealously. At least he's no chicken! [Sorry..I had to!]

        Whatever happens in this case, I can already tell you the outcome will not be as a result of half-way representation.

        Steve Gordon
        FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident



        Steve Gordon
        Gordon, Elias & Seely, L.L.P.
        FELA Lawyer
        FELA Lawyer Blog
        Serving Injured Railroad Employees Nationwide
        Call for a FELA Lawyer 24/7/365
        800-773-6770

        Comment


        • #5
          I have been taught that I should always mark that the the railroad is at fault. After all if that not be the case, it will surely be borne out later. Anyway if I am a safe employee, how can I be injured unless someone puts a stumbling block before me (or fails to remove it)? Moreover, the company says time and again "there are no accidents", so they clearly wanted me to be hurt and planned for it.
          Last edited by jonnyseeandoh; 07-28-2009, 06:30 PM.
          sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

          Comment


          • #6
            Perhaps CSX "goosed" him...maybe gave him "the bird"? Seriously I am sorry to hear the outcome we are conductors, not zoo keepers!
            I knew the train was on the other track that whole time, I was just testing your ass ha ha!!!

            Comment


            • #7
              Or perhaps he was just looking for the "goose that laid the golden egg."

              Comment

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