Monday, December 05, 2016

If I were a FELA attorney . . .

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William Rockefeller, the Metro-North engineer who fell asleep at the controls of Train 8808 on Dec. 1, 2013 and caused a derailment that killed four people and injured 61, is suing the railroad for $10 million.

Rockefeller says in a lawsuit filed in Manhattan federal court on Dec. 1, 2016—the third anniversary of the Spuyten Duyvil wreck—that Metro-North was negligent and careless by failing to provide him with a safe workplace. He says the railroad also failed to install automatic brakes.

Editor’s note: David Schanoes posted this piece on March 21, 2014, on his website, about four months after the accident:

If I were a FELA lawyer, I wouldn’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,, and probably Adult Friend Finder, that no matter what the circumstances, in the event of a collision or overspeed derailment, I would be able to convince a jury that all responsibility for the accident rests with the irresponsibility of the railroad to develop an effective “safety culture.”

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 necessary for safe operations, because, clearly, as this and other accidents demonstrate, training, qualification and knowing the timetable are not enough.

If the railroad did install permanent speed restriction signs, I would point out that the signs were in the same location every day 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 on 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 (C3RS), 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” and “alerts,” railroads persist in this obsolete, archaic, 19th century, military-like practice of employing, training, qualifying and 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 and 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 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.

Editor’s note: The official NTSB Probable Cause: “The National Transportation Safety Board determines that the probable cause of the accident was the engineer’s noncompliance with the 30-mph speed restriction because he had fallen asleep due to undiagnosed severe obstructive sleep apnea exacerbated by a recent circadian rhythm shift required by his work schedule. Contributing to the accident was the absence of a Metro-North Railroad policy or a Federal Railroad Administration regulation requiring medical screening for sleep disorders. Also contributing to the accident was the absence of a positive train control system that would have automatically applied the brakes to enforce the speed restriction. Contributing to the severity of the accident was the loss of the window glazing that resulted in the fatal ejection of four passengers from the train.”
















David Schanoes

David Schanoes is Principal of Ten90 Solutions LLC, a consulting firm he established upon retiring from MTA Metro-North Railroad in 2008. David began his railroad career in 1972 with the Chicago & North Western, as a brakeman in Chicago. He came to New York 1977, working for Conrail’s New Jersey Division. David joined Metro-North in 1985. He has spent his entire career in the operating division, working his way up from brakeman to conductor, block operator, dispatcher, supervisor of train operations, trainmaster, superintendent, and deputy chief of field operations. “Better railroading is ten percent planning plus ninety percent execution,” he says. “It’s simple math. Yet, we also know, or should know, that technology is no substitute for supervision, and supervision that doesn’t utilize technology isn’t going to do the job. That's not so simple.”