I woudn't have anything to do with myself, for one, not that FELA lawyers don't provide a useful, and historically necessary, function. They do, but look, evolution is filled with the fossils of creatures, large and small, that at one time provided a useful and historically necessary function. I wouldn't want to be any of those either.
But let's just suppose I was. Well, right about now, I'd be launching a new advertising campaign. That campaign would contain my personal guarantee, delivered in a nifty downloadable video available on LinkedIn, YouTube, Facebook, Tumblr, Match.com, and probably Adult Friend Finder, that no matter what the circumstances, in the event of collision or overspeed derailment I would be be able to convince a jury that all responsibility for the accident rests with the irrresponsibility of the railroad to develop an effective "safety culture."
And here's how I would do it:
If for example, the locomotive was equipped with a deadman pedal but no alerter, I would argue that the failure to install an alerter, thereby placing all responsibility on my client to stay awake and pay attention without external, and continuous, prompting was an unreasonable burden on my client.
Next if the railroad had installed alerters on its locomotives but did not install "approach permanent speed restriction" and "permanent speed restriction" signs at a location where there was a required deceleration of 20 mph or more from the previous authorized speed, I would argue that the failure to install these signs deprived my client of external aids so necessary for safe operations as clearly, as the result of this and other accidents demonstrate, training, qualification, knowing the timetable were not enough.
If the railroad did install permanent speed restriction signs, I would point out that the signs were in the same location everyday and the same color, and consequently would become just part of the ambient background, "present" but not "functioning" given the well known tendency of human beings to get accustomed to an ever present source of irritation, like perhaps a foul odor, and carry on as if it were not there.
Then, if the railroad did have alerters and did deploy permanent speed restriction signs, and did operate with a cab signal driven automatic speed control system, I would argue that the failure of the railroad to install a code in the rail where a lower speed was required by the track geometry; a code that would trigger an automatic penalty brake application if my client failed to control the speed of the train, created a stressful situation where my client had to respond to alerters, pay attention to approach permanent speed restriction signs and to permanent speed restriction signs and initiate the brake application.
If the railroad had installed such a code for its system, I would argue that doing that was intimidating for my client who had to respond within 6 seconds to the new signal/speed requirement or be penalized for failure by a penalty brake application, when we all know, according consultants from here there and everywhere, that penalties are counterproductive and prevent employees from honestly reporting safety problems.
If the railroad had not reached agreement with the labor organizations over the creation of a confidential close-call reporting system, I would point out that such inability was indicative of the railroad's unjust culture where punishment was more important than education .
Finally, if the railroad did have alerters, permanent speed restriction signs, cab signals with speed control that enforced permanent and temporary civil speed restrictions, and did have a C3RS in place, I would argue that my client is blameless because for 170 years, railroads have known that human beings are prone to failure, and despite that knowledge, despite countless studies detailing the capacity of human beings to ignore, to disregard, "reminders" "warnings" "alerts," railroads persist in this obsolete, archaic,19th century, military like practice of employing, training, qualifying, supervising human beings to run trains when all human beings are inclined to failure. The fact that human beings at railroads do the hiring, training, qualifying, supervising of my client, and those just like my client, i.e. other human beings, indicates just how little regard the railroad has for the safety of the other other human beings who utilize their services. Case closed--if I were a FELA attorney.
To err is human, to forgive divine, but to award damages of which I get 30-40%, that's justice.
March 21, 2014
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