Randall E. Appleton of Shapiro, Lewis, Appleton, & Favaloro, PC in Virginia Beach, VA
Stephen G. Lowry, (Co-Counsel) of Harris, Penn, Lowry, DelCampo in Atlanta, GA
Becky W. - Legal Assistant
Roz H. - Paralegal
Herb Wooten - Investigator
Our client, a railroad engineer employed by CSX railroad, was injured when the middle row, passenger side seat in a van unexpectedly fell backward causing an injury his foot and ankle. The van transport was arranged by CSX, his employer, but was owned by PTI, who contracts with CSX to supply van transport to its workers. The engineer had previously suffered a serious injury to his right foot in a prior 2008 car accident which was treated with three surgeries, two of which were fusions of portions of his right foot, leaving him with plates and screws along the area. Nonetheless, he was working full time as an engineer with no restrictions until this new injury occurred. The van in which the engineer was injured had been detailed at a local car wash earlier in the day. The PTI employee/driver who took the van to the car wash testified he saw a car wash employee remove the passenger side seat of the middle row of the van while he waited for his ride back to the PTI office. When he returned to pick up the vehicle, the seat back was folded down, but he did not check to assure that the seat was latched back in place. The evidence presented at trial established that although the seat had been placed back in the van by the car wash employees, it had not been locked in the floor. When the seat suddenly fell backward, the engineer’s foot got entrapped under the front seat, which broke a plate and two screws in the foot. He received medical treatment and then was treated by his surgeon who had done all the prior surgical work.
Key Legal Strategies
The engineer filed suit against CSX under the provisions of the FELA, as arranging van transportation is considered an operational activity of the railroad. The engineer asserted that CSX owed him a non-delegable duty for PTI’s own negligence. CSX filed a third party claim against the car wash seeking contribution/indemnity for any verdict awarded to the Engineer against CSX, but the judge severed and separated CSX's third party claim before the FELA/railroad injury trial. The engineer's FELA claim against CSX was tried first and resulted in a jury verdict for the CSX railroad engineer in the amount of $465,000. CSX's trial against the car wash resulted in a separate verdict assessing the car wash for 50% of the amount of the engineer's verdict against CSX. One of the important lessons of the case is that CSX is responsible for any independent contractors it hires that carry out “operational activitites” of the railroad’s business. This includes van transport, overnight lodging and some other operational activities. Likewise, when CSX workers are injured on “third party” property doing their usual duties, CSX is responsible for any negligence of the other business or industry as well.
The engineer’s personal injury case was filed in an eastern USA state court based upon CSX's non-delegable duty to conduct reasonable inspections of equipment provided to its employees. CSX admitted PTI and its employees were agents of CSX and it was liable for any negligence of PTI through its employees. The engineer argued once the PTI employee saw the seat removed from the van, it would have been reasonable for him (or anyone else) to make the simple effort to see if the seat had been properly reattached to the floor of the van prior to accepting passengers. CSX argued that PTI conducted a reasonable “visual” inspection of the van.
Although the engineer had undergone three prior surgeries to his right foot as a result of the earlier car wreck, he had been released by his surgeon to return to duty without any restrictions to the foot and ankle. As a result of this new accident, the surgeon had to replace the broken hardware in the Engineer's foot with a fourth delicate and complicated surgery. Following the fourth surgery, the railroad Engineer was released with restrictions to work only at a light or seated/sedentary duty job, which prevented him from returning to duty as a CSX railroad locomotive engineer, so this injury was the straw the broke the camel’s back as they say. But, the engineer was rightly concerned about the tremendous losses he now suffered due to the carelessness of PTI, and in effect, negligence of CSX.
Our client sought assistance in locating alternative employment within his doctor’s restrictions from the South Carolina Employment Commission, Vocational Rehabilitation Department and the Veteran's Administration; however, all of his efforts were unsuccessful. The engineer was enrolled in an online educational program at the time of trial. At trial the Engineer offered the testimony of Ms. Jean Hutchinson, a vocational consultant, who testified he suffered a significant reduction in his wage earning capacity as a result of the restrictions related to his foot and ankle injuries.
CSX argued the failure of the plate and screws in the engineer's foot was the result of normal wear and tear, not the PTI van seat failure. CSX offered the testimony of the emergency room physicians and the surgeon who performed the first surgery on the foot to describe the severity of the injury in the car wreck hoping to convince the jury that the new accident was nothing significant. CSX also offered the testimony of Mr. Fred Crane, a vocational/jobs consultant employed by CSX. Mr. Crane testified the positions of train dispatcher and yardmaster offered the engineer career opportunities with little or no future wage loss, but later admitted that no such positions had been available to the engineer since his injury. Mr. Crane often testifies on behalf of CSX, against its workers, while purporting to want to help the injured CSX workers.