DEFECTS? WHAT DEFECTS?

Three examples of cases in which the railroad claimed that their post-accident inspections revealed "no defects."

Case # 1 - The plaintiff was injured when he encountered the bent platform to the right. Not knowing that the plaintiff had obtained photos of the hazardous condition, the railroad claimed that there was no defect and fixed the platform before taking photos and turning them over.

Case # 2 - The plaintiff suffered fatal injuries when he fell between moving cars while riding a cut due to the bent platform shown to the right. The railroad's post-accident inspection report included the following entries: "no defect found . . ." and "safety appliance on this is in proper limits and secured." Unfortunately for the railroad, YJB attorneys had performed an exhaustive investigation of the accident and had discovered, despite the railroad's best efforts to suppress the information, that this photo existed prior to modification to the car, which proved that the platform was bent and defective.

Case # 3 - The plaintiff lost his right leg below the knee when he fell between moving cars due to the bent and insecure ladder rung pictured to the right. Within three days of the accident, YJB attorneys sent a letter to the railroad's Vice President of Operations and its Claims Manager demanding that the car "be maintained in its accident condition without change." Despite this fact, the railroad secretly repaired and straightened the ladder rung before sending a return letter stating "the equipment involved . . . was not damaged or defective and has already been returned to service." Again, YJB attorneys had been working with the plaintiff's local union representatives and had ensured that photos were taken prior to the railroad's secret repair to document the defective condition of the ladder rung.

For years we have warned our railroad friends and clients of the aggressive and often dishonest steps that the Carriers will take in an attempt to avoid paying the damages they rightfully owe under the FELA to employees that were injured by their negligence and/or failure to provide safe and proper equipment. We have published articles in the Yaeger Report, and our attorneys and field representatives have spoken at union meetings across the country on this subject. While the three scenarios described above are a few of the more blatant incidents we have come across, the sad fact is that the improper suppression or destruction of evidence (also called "spoliation") by railroads in an attempt to avoid FELA liability is not at all an uncommon practice. This unfortunate fact was hammered home at a recent trial where one of the issues was the railroad's destruction of post-accident inspection reports documenting the defective condition of a locomotive that caused the plaintiff's injuries. At trial, a representative of the railroad testified that the failure to retain the reports was an oversight, and that such actions were rare across the system. YJB proved that claim to be untrue by providing the court with a number of orders and opinions from district and appellate courts across the country sanctioning that particular railroad for other incidents of "spoliation" of evidence.

It is critical for injured railroaders to be aware of the lengths to which the railroads will go in trying to defeat valid FELA claims, and to take steps to protect themselves. More specifically, when involved in an injury situation it is important for the employee to document any defective condition that may have contributed in any way to the accident by reporting the condition; by making sure it is observed (and photographed if possible) by others who will be able to testify as to the condition should the railroad try to pull any tricks like the ones described above; and by talking to his or her local union officials and consulting with a qualified FELA attorney at YJB. The railroads have huge Claims and Law Departments looking out for their interests. Make sure you have someone looking out for yours.

(All three of the cases above were handled by YJB Partner Bill Jungbauer.)

The FELA lawyers of Yaeger & Jungbauer Barristers, PLC invite you to contact their office for further discussion of this topic. This article is designed for general information only and should be considered neither formal legal advice nor the formation of a lawyer client relationship.