FROM THE DIRECTOR
Lexington, TN (01/98) 1997 has come and gone. We have watched the legal system this past year with anger, patience, disgust, delight and amusement as lawsuits and verdicts have been announced. Since everyone appears to be doing a top ten list for 1997, I thought I would come up with a top ten of my own. Here are the top ten lawsuits and/or notable verdicts for 1997. Each elicited one or more of the aforementioned emotions.
- The criminal conviction of Timothy McVey for the Oklahoma City bombing.
- The criminal conviction of Terry Nichols for the Oklahoma City bombing.
- The trial of the British aupair which resulted in a guilty verdict, then the overturned verdict, with a sentence of "time served".
- The O. J. Simpson civil trial and resulting verdict, with a finding of negligence in the civil case.
- Chris Morris filed a $1 Million lawsuit against the State of Michigan, claiming he caught a cold in the rotunda of the State Capitol while viewing an art exhibit there earlier in the year. No word yet on the verdict. It is rumored that an offer has been made to settle this case. Two season tickets to the Detroit Lions if he agrees to settle short of trial. If he goes to court and loses, he gets four season tickets to the Dallas Cowboys. Of course, this is an unsubstantiated rumor.
Dale L. Larsons $41,000 trial-court award was upheld by a Wisconsin appeals court, which agreed with the trial court that the Indianhead golf course in Wausau was 51% responsible for Larsons needing nine root canals and 23 dental crowns. Larson tripped on his golf spikes and fell hard on his face on a brick path outside the clubhouse, and he argued that he wouldnt have fallen if it had been a smooth concrete sidewalk rather than a brick path. The trial court had found that 49% of the accident was due to Larsons having consumed 13 drinks that evening, which left him with a blood-alcohol level of 0.28, 90 minutes after the fall.
- Andrew Daniels filed a $500,000 lawsuit against M&M/Mars Company and a Cleveland retailer because one of the Peanut M&Ms he bit down on had no peanut in it, and as a result, his teeth bit through his lip, which required his hospitalization and various surgery bills. One claim against the retailer is under the legal theory of "failure to inspect" the candy. There is a jingle that keeps running through my mind. How does it go? "Sometimes I feel like a nut".
- Julie Leach filed a lawsuit in Macomb County, Michigan (Whats with these folks in Michigan?) seeking at least $10,000 from the owners of a beagle named Patch, which Leach said was constantly enticing Leachs German Shepherd, Holly, to chase him. In 1995, during one of Patchs escapades, the pursuing Holly was run over by a car and killed. Leach says Patchs owners should pay for permitting their dog to harass Holly.
- Jamie Brooks, 18, filed a $5 Million claim against Kiowa County, Oklahoma, asserting that it is the countys fault that she became pregnant six months earlier while housed in the jail awaiting murder trial. She said the father is inmate-trusty Eddie Alonzo, who had access to the hallways and who she said impregnated her through the bars of her cell. In the interest of good taste, I will refrain from making any comments about this.
- Alex Alzalduda filed a $25,000 lawsuit against Dennis Hickey of Raymondville, Texas, alleging injuries caused by his "suddenly without warning" having tripped over Hickeys dog in the kitchen of Hickeys home. According to the lawsuit, Hickey should have warned Alzalduda that he was walking around in a kitchen "at his own risk" and that Hickey had failed to warn Alzalduda of "the dogs propensity of lying in certain areas." We are told that the dog denied involvement. When the plaintiff objected to the obvious untruth, he was told by the judge that you always let a sleeping dog lie.
- In September 1997 CSX and others was ordered to pay $2.5 Billion in punitive damages stemming from a railroad-car leak and fire in New Orleans on September 9, 1987. The punitive damages award was in addition to the separate award of $1.9 Million plus interest in compensatory damages to 20 plaintiffs. The fire from which all of this began burned itself out in 36 hours and the immediate area was evacuated overnight. 8,000 people filed claims.
The Railway Claim Services webpage is finally up and running. Please visit us at www.railway-claim-services.com
This may be the last issue of the newsletter to be delivered by mail. Past and future issues will be posted at our website. I think you will like the site. We have tried to make it user friendly. Since we will no longer be limited to space, newsletters of the future will contain more detail, something many of you have asked for.
Occasionally, when we are performing risk management surveys for our client railroads, we come across a program or idea that is so good that it should be shared. I recently came across such a program while on the property of the Rio Valley Switching Company in McAllen, Texas. In 1995 and 1996, this company had experienced a high rate of employee injuries, a situation that President Greg Cundiff found totally unacceptable. He developed an Employee Safety Initiative Program to remedy this situation.
EMPLOYEE SAFETY INITIATIVE PROGRAM
Although Mr. Cundiff has agreed to share the specifics of his program as it exists on the Rio Valley Switching Company, I will use hypothetical numbers in my explanation. This is a program that is easily understood by the employees. It ties the safety performance of the employees and the financial performance of the railroad together in one package. It is a bonus program based on 1) the number of carloads handled by the railroad, by quarter, 2) specific goals for the individual employee, and 3) goals for all employees as a group.
For the purpose of this illustration, the total number of employees is assumed to be 25 or less. If the total number of employees is over 25, a fourth category would be added entitled "Team Goals".
1) CARLOADS - In 1997, your railroad handled 3600 carloads. If 1997 had been a normal year, the goals for 1998 would be based on 1997 results. For 1998, the baseline for carloads would be 3600, with quarterly goals of 900. Your employees know what the goal is, and they know how many carloads were handled in 1997. Therefore, they know that the goal is attainable. If your railroad handles 900 or more carloads in any one quarter, the employees know that the bonus money is available.
2) INDIVIDUAL GOALS First and foremost, the individual must be accident free for the quarter. Next, he must be safety conscious. For instance, if his job requires that he wear safety glasses or some other type of personal protective equipment, then this equipment must be worn at all appropriate times. It also means that he should attend all safety functions. Weekly safety meetings should be conducted and attendance of at least 10 safety meetings per quarter would be required. A word or two about safety meetings. All safety meetings should have a sign-off sheet listing the time and date of the meeting, signatures of all attendees, topic of the meeting, safety issues discussed and disposition of those issues. This sheet should be kept on file.
You conduct safety meetings every Monday morning at 8:00 AM. If an employee makes 10 of those meetings in a quarter (of which there are 13), and has met all other criteria, he is eligible for a bonus of 2% of his quarterly gross salary. That's all there is to meeting that particular goal.
3) GROUP GOALS - The goals for the group are a little more stringent. This is based on the safety performance of the group as a whole. In order to qualify, there cannot be an employee injury, derailment, crossing accident, or any other type of "incident" during the quarter. There is some leeway given in the areas of derailments and crossing accidents, but on the whole, it is a very strict interpretation. If the railroad does not have an "incident", each employee on the railroad qualifies for a bonus of 2% of their quarterly gross salary.
BOTTOM LINE - If the carload goals have been achieved, the employee meets his individual goals, and the group goals are also achieved, each qualifying employee would be given a bonus of 4% of his quarterly gross salary.
In addition to this, there is an incentive for the employees in the event that the carloads exceed the established goal by a wide margin. In 1998, if the carloads in any quarter exceed the target by 20%, $5.00 is placed in a pool for each carload over 1080 (120% of 900). If all other criteria are met for the quarter, this money is shared equally by the employees.
The effect of this program is easily seen on the railroad. All employees I came into contact with were safety conscious. They talked safety and they practiced safety. Safety on the railroad is a habit. It is no longer thought of in terms of a program, or in terms of rules. Safety is a habit.
Unlike some other programs, the thrust of this safety program is not to punish unsafe workers, but to reward safe workers. Morale is high. Accidents are low.
I was very impressed by this Employee Safety Initiative Program. If your railroad is experiencing a high rate of employee injuries, I seriously recommend that you consider implementation of this program. If you do, please advise me of the results. If you have an alternative program that works for you, and you do not mind sharing it, please write, email or give me a call. Our goal at RCSI is control the cost of claims in our industry. Accident prevention is the most effective way to accomplish this goal.
VERDICTS & POINTS OF LEGAL INTEREST
Lets start the year off with a few cases in which the guys in the white hats prevailed.
FELA SP This chief clerk for the railroad sued over a heart attack that he suffered while at home. He claimed that recent job cuts had increased his workload and his stress level. This Texas court granted a summary judgement in favor of the railroad based on the Gottshall and Carlisle cases we have discussed here in the past. The court of appeals upheld this wise decision. Manuel C. Martinez v. Southern Pacific Transportation Co., Court of Appeals of Texas, San Antonio, No. 04-96-00878.
FELA NS This engineer sustained an injury when he fell while dismounting from his engine. While there were no physical defects in the steps, the plaintiff filed suit under the BIA claiming that the design of the steps was defective because the middle step did not line up with the first and third steps. The railroad sought summary judgement stating that the steps complied with all applicable regulations, specifically 49CFR231.20. The trial court granted the motion reasoning that compliance with the regulation was proof in itself that the steps were properly designed. The plaintiff appealed and the Georgia Court of Appeals upheld the verdict. Key v. Norfolk Southern Railway Co., Court of Appeals of Georgia No. A97A1590.
Pedestrian CR This gentleman was walking his dogs near a Conrail crossing as a train approached. The train was traveling at about 30 mph and was in view for at least 15 seconds. As the train neared the crossing, the man and dogs were on opposite sides of the track. Well, everyone knows that a dog has more sense than to jump into the path of a moving train, so the man jumped. He suffered severe injuries, but was not killed. When he recovered, he filed suit. The railroad sought summary judgement, which the trial court denied! Did I mention that this occurred in New York? Fortunately common sense was discovered in the Appellate Division. Trial court was reversed and summary judgement granted to the Railroad. Morris Guller v. Consolidated Rail Corp., New York Supreme Court, Appellate Division, Case No. 96-10276.
Crossing Accident CSX Tractor-trailer driver drove past functioning crossing signals into the path of an oncoming train. In his deposition, the driver admitted that he did not look down the tracks until he was past the signals. The railroad asked for a summary judgement against the driver and the trucking company for damages arising from the accident. Trial court granted judgement in the amount of $461,801. CSX Transportation, Inc. v. Jessie Pollard, et al, U.S.D.C., Eastern District of Louisiana, Case No. 94-3436.
Trespasser NS This 16-year-old was struck as he was crossing railroad tracks mid-block in Springfield, Illinois. Plaintiff failed to establish that his presence on the railroad tracks was known to the train crew and he failed to establish that there was a constant or persistent use of the railroads right of way by pedestrians in the area where the accident occurred. Railroad asked for and was granted a summary judgement. Charles Reid, et al. v. Norfolk & Western Railway Co., U.S.D.C., Central District of Illinois, Case No. 96-3044.
One common thread that runs through all the cases cited above is that a jury did not decide the railroads fate.
As always, the vast majority of cases I reviewed in the past three months were not favorable to the railroads. I will share the results of these and other cases with you in the next newsletter. For now, though, lets enjoy the New Year.
BITS AND PIECES
Effective January 1, 1998, the monetary threshold for reporting accidents involving railroad equipment increases to $6,600 from $6,500. The FRA says this was done to keep pace with the rising costs of equipment and labor. Lets see. Thats about a 1.55% increase, isnt it?
In response to the collision between a UP freight train and an unattended runaway locomotive consist near Fort Worth, Texas, on August 20th, the FRA issued two Safety Advisories. Safety Advisory 97-2 deals with proper securement of unattended locomotives, cars and trains left on sidings or other tracks. FRA recommends that each railroad adopt and implement its own procedures incorporating the following measures with respect to unattended equipment:
1) Place each locomotive, car or train on a track that is protected by a permanent derail or apply a portable derail if available;
2) Apply the appropriate number of hand-brakes on cars; and
3) Fully apply all hand brakes on all unattended locomotives in the consist. If the grade exceeds one-percent, in addition chock or chain the front and back of at least one pair of wheels in the locomotive consist.
Safety Advisory 97-3 provides protection against conflicting train movements when train dispatchers and control operators authorize movements past a stop indication of an absolute signal. FRA recommends that each railroad should have a railroad operating supervisor contact each train dispatcher and control operator, and in a face-to-face meeting, inform them of the circumstances surrounding the UP accident, re-emphasize the importance of complying with existing operating rules and procedures pertaining to the authorization of train or engine movements past a stop indication, and re-emphasize rules and procedures regarding communication between dispatchers and control operators.
RCSI welcomes your input. If you have any questions or comments of interest to our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788.
Visit the Railway Claim Services, Inc. webpage. Its located at www.railway-claim-services.com
Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between. If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?
Railway Claim Services, Inc. 52 South Main Street Lexington, Tennessee
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