This link is to a story in the TRAINS News Wire:
http://www.trains.com/trn/default.aspx?c=a&id=2092
I know things are bigger in TEXAS, but this is rediculous!!![:-^]
I can only guess what kind of insect varmit attacked KCS’s employee, but I’ll Ed Blysard has probably not only seen one; but has also been assaulted by similar critters;[C):-)] while working down there on the bayou[|(]
Unless he got tagged by a brown recluse spider…he is full of something other than chewing tobacco![:D]
Wasps and Hornets are known to frequent outlying railroad facilities (Signal bungalow’s etc.) since they are not routinely occupied, sizable colony’s can develop. Many people have sever alergic reactions to insect bites, especially bee stings. Insect bites are a continuning source of ‘on duty injuries’ for all railroads.
That is bull on a new level. So you get stung on a train. Wasps were living in my garage door, but I didn’t sue the guy who made the garage. I just sued the previous owner of the house. [;)]
Getting stung by wasps on bare skin will usually result in swelling that will last for 48 hours. The swelling is painful, but not deadly to most people.
Are railway employees always dressed in enough clothes that they can not be stung a great deal on bare skin.
If a person were nearly undressed than the stingers could reach more places and cause more pain and agony.
Andrew
Ed -
I strongly suspect you are correct. Check out this quote from the article in the Southeast Texas Record on this litigation setting forth plaintiff employee’s allegations:
"According to the plaintiff’s original petition, Aguillard was bitten on June 20, 2004, nearly three years ago. He faults the railway with negligently failing to provide him with a safe place to work.
“As a result (of the defendants negligence, plaintiff suffered a bite/sting from an insect, an infection from that bite/sting, and injuries to his hands, arms, back and heart, including a mitral valve prolapse,” the suit said. “He has sustained injuries to the soft tissues, ligaments, tendons, muscles, blood vessels of his hands, arms and back.”"
Looks liker he is alleging some serious injuries that would be caused by poisoning. The heart valve issue particularly looks like poison. A brown recluse spider, perhaps a black widow or other poisonous insect or animal.
LC
Does this mean that if a big bites me at my current job that I can sue them for not spraying. Sure sounds like it to me. Whats the number to the lawyers office again.
It is very hard to judge the merits of such a case with so little information.
However, it may be extremely difficult to prove actual negligence on the part of the railroad in this case. Would not it be up to the employee to protect himself, to a certain degree (such as gloves, etc.), since insect bites are not uncommon outdoors?
I’d figure that in most cases insect bites would be considered an Act of God. And it will be interesting to see how the attorneys seeking a large award are able to prove the insect came from track materials and not anywhere else. And that the railroad knew of the potential problem and did nothing to mitigate it.
Of course, this is a civil case, so who knows what will happen. The burden of proof will rest on the defense, not the prosecution.
Here is my take on this whole thing. In all seriusness. I can see if the railroad the spike buckets laying around and they filled with water and then the person contracted west nile virus due to them not cleaning things up to help keep this problem away. But as far as bug bites. The railroad is out doors, you see all types of animals, bugs, reptiles, fish. You see everything there. If the railroad was to warn you about these things then where does common sence come into play. Just like the KCS told my whole hiring session when I went a few weeks ago. If you want to work in a factory or not work in the weather or elements, then this is not for you. But if you dont mind working out side, then you are at the right place. It was the persons decision what he did for the railroad, not the other way around. They applied for the job, so they should have understood what it is all about. From what I read, I would so the lawsuite would be thrown out. But, I am not the suposed injured person, nor a lawyer, or any one of importance.
What about an attack by Scorpions or Rattle Snakes?
How many Poisonous Insects, Arachnids, and Snakes could cause that sort of physical damage?
It has to be a clearly defined list once credible research is completed.
Andrew
NOTE: Nothing in this response or any other by me should be construed as legal advice. All of it is my own opinion only…
The key question here is whether damages resulted from the on property injury. If an ermployee is bitten by a bug, snake, scorpion, fire ant or other venomous creature he can make a claim IF HE SUFFERS DAMAGE (including personal injury). Just a bug bite alone isn’t gonnna get you real damages. Note that damages could include aggravation of a pre existing condition, so if you were stung by a bee and were allergic to bee stings and died of anaphlactic shock your heirs could indeed sue and win.
LC
PZ -
You are assuming a legal standard in RR employee injury cases that doesn’t exist. FELA cases involve negligence in name only. As you know FELA is a Federal law which railroaders have instead of Workers Compensation. Under FELA, even extremely minimal negligence on the railroads part is sufficient to support a finding of negligence under the case law. Thus, for purposes of legal analysis the standard of proof you propose is a paper tiger and all but the silliest cases can overcome it. In most FELA cases the real issue is damages.
Also, the burden of proof is on the plaintiff, but as pointed out above it is very light. Once plaintiff has proven negligence including the standard elements of duty owed, breach of duty owed, causation (actual and proximate) and damages then the burden shifts to the defense to prove any affirmative defenses such as contributory or comparative negligence by the plaintiff, assumption of the risk, or other av
No, that’s not the way the law works. No list required. Any on property employee injury is covered in this type of FELA case alleging an unsafe place to work. In some instances it can even refer to incidents off RR property such as riding in a cab.
LC
So, there is no real need for a clear cause.
The Railroad Company KCS is just asked to deal with the effects of the damage.
Is damage considered a one time event that will not be repeated?
Has there been a pattern of such injuries occuring in other employees?
Andrew
IMHO, when it comes to the American legal system, common sense left the building a long time ago.
(Hmmm. Should I have sued the Boy Scouts of America for all those mosquito bites? Or just my scoutmaster…[:-^])
Chuck
The law is case specific and statute specific, without FELA, or a similar statute you can’t easily sue for a bug bite.
LC
No, there must still be proof that there was a bite and that the bite caused the injury both as a matter of fact and legally (called proximate cause) and damages must be proved. It is still a higher standard of proof than the strict liability that is workers compensation under which the employer always pays for on the job injuries.
LC
I had the idea that FELA had a higher standard of proof than workers comp. Isn’t there some ongoing issues with that?
Even though it is just a clerical office, I have to carry workers comp insurance. Even though my premiums are modest, file cabinets, shelves and other items in an office present hazards. Pull out a fully loaded top drawer in a four drawer cabinet with nothing in the bottom drawers and you can get a quite heavy object falling on you foot.
Technically, yes the standard of negligence is a bit higher in FELA than Worker’s Comp which has zero negligence required (strict liability). Generally the downside risk in FELA is higher though and that is what drives most legal strategy in FELA cases. Damage awards in FELA cases are much higher because they are handled in court as tort claims rather than before a Worker’s Comp Board which has special medical cost and damage limitations built in (which was the trade off for the strict liability part).
LC
Or slipping on ice at the away from home motel, the company provided lodging. There was an article in the Omaha World Herald a few days ago about a UP conductor winning damages.
Jeff