Note: This information on how personal injury attorneys handle cancer cases involving rail employees is adapted from railroad injury/FELA attorney Rick Shapiro’s July 2011 invited lecture to the American Association for Justice Railroad Law Section. Here, he shares his expertise on how railroad companies have a duty to warn their workers about known and reasonably expected dangers in rail yards and on engines, rail cars and tracks. Rick has represented FELA plaintiffs for nearly 25 years and, in 1999, coauthored the American Jurisprudence Trials volume titled Railroad Health and Safety: A Litigator’s Guide.
The Federal Employers’ Liability Act, or FELA, places a duty to warn on railroads. What this means is that Amtrak, CSX, Norfolk Southern and similar freight and passenger railroad companies can be held liable for negligence when they do not warn their employees of inherently dangerous conditions when such conditions exist or when the companies have knowledge about those conditions. The duty to warn also exists when a railroad should have known about a danger if the company were exercising reasonable care in providing a safe workplace for its employees.
This duty to warn can be invoked in a FELA lawsuit by a rail worker who suffered a injury or developed an occupational disease such as cancer after not being warned of dangerous conditions. A family member of a former railroad employee who brings a wrongful death claim under FELA can also invoke the defendant railroad’s duty to warn.
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When a railroad fails to warn one or several of its workers about a known or likely danger, the company is negligent and creates a workplace that is more dangerous than it would have been had a warning been issued. In the absence of danger warnings, any injury, death, cancer or other occupational illness may well be said to have resulted in whole or in part from the railroad’s negligence.
The often-cited decision in Terminal Rail Assoc. of St. Louis v. Howell, 165 F.2d 135 (8th Cir. 1948) established this reading of rail worker health and safety protections under FELA. Dangers railroads have historically failed to warn employees about include exposures to cancer-causing asbestos, radiation and diesel fumes. The Terminal Rail case involved doors that could cause injuries.