|
|
|
ON
TRACK WITH RAILWAY CLAIM SERVICES, Inc. Volume
14 Issue RAILWAY
CLAIM SERVICES, INC.
Our 20th Year of Service FEDERAL
RAILROAD SAFETY ACT PREEMPTION IN SERIOUS JEOPARDY STUDY
ESTIMATES TOTAL QUOTE
FROM HISTORY CLASS
ACTION ARISING FROM LEAKING STRYEN MONOMER SETTLES FOR
$2 MILLION THE 14TH ANNUAL RAILROAD LIABILITY SEMINAR COLLECTIONS? RAILWAY CLAIM SERVICES, INC. WEBSITE POINTS
OF LEGAL INTEREST RCSI
INFORMATION BACKGROUND
CHECKS & 49 If
your railroad has not yet implemented 49 FEDERAL
RAILROAD SAFETY ACT PREEMPTION IN SERIOUS JEOPARDY On
This
Amendment is now part of the Rail Security Bill and the only way it can be
stopped is in the Senate/House Conference Committee.
STUDY
ESTIMATES TOTAL According
to a study of U. S. Tort costs released on “Jackpot
Justice,” prepared by the Pacific Research Institute, a San Francisco-based
free-market think tank, took into account what its authors considered to be both
direct and indirect costs of the tort system. Among
the indirect costs attributed to the tort system are those associated with
so-called defensive medicine and “lost sales of new products from less
innovation.” Those lost sales alone amounted to $367.1 billion, according to
the survey. The
National Association of Manufacturers hailed the study, which was released by
the American Justice Partnership in partnership with Pacific Research Institute.
“This study represents the most ominous figures to date on the adverse
economic impact of our runaway tort system,” said National Association of
Manufacturers President John Engler in a statement. The American Justice
Partnership is a coalition of tort reform organizations founded by the A
spokeswoman for the American Association for Justice, a Washington-based
organization that represents the trial bar, called the study “more propaganda
from big corporations seeking to evade accountability.” QUOTE
FROM HISTORY “
. . . that from these honored dead we take increased devotion to that cause for
which they gave the last full measure of devotion -- that we here highly resolve
that these dead shall not have died in vain -- that this nation, under God,
shall have a new birth of freedom -- and that government of the people, by the
people, for the people, shall not perish from the earth.”
Abraham Lincoln, CLASS
ACTION ARISING FROM LEAKING STRYEN MONOMER SETTLES FOR
$2 MILLION When
a railcar containing 24,000 gallons of styrene monomer leaked vapors into the
air in The class
action settled for $2 million. Adult
plaintiffs in Subclass A (those residents of Zone I who were either evacuated or
remained in their homes for at least one day) received $600 per day up to a
maximum of $1,800. Minor plaintiffs in Subclass A received $200 per day up to a
$600 maximum. Adult members of Subclass B (those who were merely inconvenienced
by the leak) received $175 per day to a maximum of $525. Minor members of
Subclass B received $60 per day to a maximum of $180.
Defendants reached a confidential agreement as to how to fund the
settlement (which included some $600,000 in attorney fees). The
U.S. Supreme Court decision in February 2007 to overturn a $79.5 million
punitive damages award against a tobacco company may not represent a total
victory for businesses, say some tort reform advocates. That's
because the 5-4 majority in Philip Morris USA vs. Mayola Williams held
that juries can take into account evidence of harm allegedly inflicted by a
defendant on people other than the named plaintiffs in determining the
"reprehensibility" of the defendant's misconduct. However,
wrote Associate Justice Stephen Breyer for the majority, "a jury may not go
further" and use punitive damages to punish a defendant directly for harm
to others not named in the suit. "Given the risks of unfairness...it is
constitutionally important for a court to provide assurance that a jury will ask
the right question," wrote Justice Breyer. The risks of arbitrariness,
inadequate notice and imposing one state's policies on other states made it
"particularly important" that states avoid a procedure "that
unnecessarily deprives juries of proper legal guidance," he wrote for the
majority. The
case involved a suit brought against Philip Morris by Mrs. Williams, the widow
of a longtime smoker. A jury awarded Mrs. Williams $821,000 in compensatory
damages and $79.5 million in punitive damages after her attorney asked jurors to
think about how many other people had been harmed by cigarette smoking in Philip
Morris appealed to the U.S. Supreme Court, asking the justices to decide whether
the trial court should have told jurors they could not punish the defendant for
injury to people not before the court and whether the nearly 100-to-1
punitive/compensatory ratio was "grossly excessive." The
nation's highest court returned the case to the Oregon Supreme Court.
In doing so, it declined to answer the second question and said the
Oregon Supreme Court's actions could result in a new trial or change in the
amount of punitive damages awarded. "I
think that the bottom line is there's going to be more litigation. This is
moderately good news for potential tort defendants, with the emphasis on
moderately," said Michael Krauss, a tort law expert and law professor at
the George Mason University School of Law in "That's
new—they've never said that before. That is a pro-defendant statement,"
Mr. Krauss said. But
"they did qualify this—they reiterated that harm done to other than the
plaintiffs is admissible for the purpose of deciding whether punitives should be
awarded, not for the purpose of deciding how much should be awarded," he
said. "This
distinction is going to be a very difficult one to make," said Victor
Schwartz, general counsel of the American Tort Reform Assn. in ___________________________ Do
not worry about tomorrow, for tomorrow will worry about itself. Each day has
enough trouble of its own. Matthew 6:34 ___________________________
It
is not too early to mark your calendar for the 14th Annual, Railroad
Liability Seminar to be held at Samoset
Resort in beautiful COLLECTIONS? Problems
collecting for damages? Increase
your chances of collecting that money, or reducing the total you are legally
obligated to pay. All without the
cost and delays where litigation is involved.
Let Railway Claim Services, Inc. handle these collection issues for you.
You pay nothing if RCSI fails to collect or fails to reduce the bill for
the submitted loss. Email or call
Randal Little or Dave Gardner for further information.
There is no cost if we are not successful.
Railway
Claim Services, Inc. maintains a website containing useful information for our
industry. If you haven’t visited
our website recently, you may have missed some of the content recently added. The
Code of Federal Regulations, TITLE 49—Transportation, Subtitle
B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER II--FEDERAL RAILROAD
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.
Please visit our website and click on the following link. http://www.railway-claim-services.com/waycar.htm
Railway
Claim Services’ website has the complete General Code of Operating Rules
posted for your reference. http://www.railway-claim-services.com/safety_first.htm
RCSI
also has the entire test of the FELA posted on our website:
http://www.railway-claim-services.com/waycar.htm Also,
The Occupational Safety & Health Act of 1970 is available at:
http://www.railway-claim-services.com/waycar.htm As
a part of our ongoing efforts to provide RCSI clients with information vital to
the safe and efficient operation, RCSI’s website contains the complete text of
the Emergency Response Guidebook: http://www.railway-claim-services.com/waycar.htm RCSI
is always trying to upgrade our website and make it a place for you to find the
information you need. If you have
any suggestions, comments, or questions, please feel free to contact me at your
convenience. We appreciate your
feedback.
U.S.
Supreme Court Decision on Causation in FELA Cases – On Date
decided: No.
05-746 Full
text: HERE
EMPLOYMENT
LAW (Under the Federal Employers’ Liability Act, A Single Standard of
Causation Applies When Determining Railroad Negligence and Railroad Employee
Contributory Negligence) The
United States Supreme Court unanimously held (opinion by Roberts; concurrences
by Souter and Ginsburg) that when determining liability under the Federal
Employers’ Liability Act, the same causation standard applies for railroad
negligence and railroad employee contributory negligence. Respondent
Timothy Sorrell was injured during the course of his employment for Petitioner
Norfolk Southern Railway Company ( Appeals)
affirmed, holding that the same causation standards need not apply.
The United States Supreme Court (the Court) held that a single standard
of causation applies when determining railroad negligence and employee
contributory negligence under FELA, and vacated and remanded the case to the
Court of Appeals to determine whether the error was harmless. The
Court stated that FELA claim elements derive from common law, which prescribes
the same causation standards for contributory negligence and negligence.
The Court noted that different standards would confuse juries and
complicate reducing damages proportionally. Preemption
– The Under FELA jurisprudence, to the extent a release of claims related
to work-related injuries or risks of injuries known to the employee at the time
he signs the release, it does not violate FELA or its remedial goals.
Consequently, it was proper for both the jury instruction and verdict
interrogatories to condition the validity and applicability of the release in
question on [plaintiff’s] knowledge at the time of signing. Based on the
evidence before it, the jury determined that the negotiated release barred
[plaintiff’s] claim. 2006 Trespassers
– Ten Year-Old Walks on Railroad Right-of-Way, foot severed – Alabama
Supreme Court Affirms Grant of Summary Judgment to Defense. Near a populated area in Birmingham,
Alabama, on August 2000 the then ten year-old plaintiff left his home to play
with a nine year-old friend. According to plaintiff the boys decided to walk
along NS right of way enroute to a park. As
the boys walked along the tracks a train approached, then slowed to a stop.
Testimony was presented that after the train stopped the boys began to walk
towards plaintiff’s house, but when the boys passed an open hopper car, the
plaintiff’s friend climbed the ladder on the car.
The plaintiff then stood with his right foot on the rail in order to
reach his friend and pull him down. The train then began to move and the friend
fell on top of the plaintiff, whose foot was still on the rail.
The plaintiff’s right foot was severed. The plaintiff filed suit, asserting claims for negligence,
wantonness and outrage. According to
the plaintiff, the railroad knew that children would trespass, citing a high
rate of pedestrian casualties in the area and that in the past a
trespasser-abatement program had been used in the area.
The plaintiff also claimed that the engineer failed to blow the horn
before releasing the brakes. Finally, the plaintiff faulted the defendant for
stopping the train in such a densely populated area. The railroad sought summary judgment, arguing that the only duty it
owed was to avoid wantonly or negligently injuring the trespassing children once
it discovered that they were in a position of peril.
It also argued that the boys’ contributory negligence was the sole
cause of plaintiff’s injury. In an
order without factual findings or legal analysis, the trial court granted the
defense motion. The Supreme Court of
Alabama affirmed the judgment. James
E. Laster, Jr. v. ######################################################### RCSI
welcomes your input. If you have any
questions or comments of interest to our industry, please contact either Dave
Gardner or Randal Little at Visit
the Railway Claim Services, Inc. webpage located at HYPERLINK
http://www.railway-claim-services.com 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? For
further information contact: dave_gardner@railway-claim-services.com
or randal_little@railway-claim-services.com Corporate
Offices at: Phone:
Railway
Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES. |
