his post reviews an older decision, a 2007 decision authored by Judge Posner of the Seventh Circuit Court of Appeals.
This case involved a Metra engineer who brought forward a lawsuit against the company (formally known as Northeast Illinois Regional Commuter R. Corp.), the lawsuit alleged negligence under the Federal Employers’ Liability Act (FELA) and a claim under the Locomotive Inspection Act. The engineer alleged that he injured his forehead after bumping into a sun visor that was facing down, after the engineer had entered the train early in the morning, while it was dark. He claimed that the light switch was located so close to the visor, and because the visor was down, that he suffered an injury.
To the first issue of a claim under FELA, which makes the railroad liable for injury which is a result “in whole or in part” of negligence by the railroad or its employees. To prevail under this theory, the railroad will be found liable if the employer’s negligence is proven in any part, even in the slightest, towards the injury suffered by the worker. Judge Posner discusses how the statute relaxes the common law’s required pleading standards in a showing of negligence. Even with that, he reasons that the issue is insufficiently pleaded. As discussed further below, a key of his analysis goes to show that the actual facts of the case were not thoroughly discussed or even investigated by the plaintiff’s attorney. “The missing link,” as Judge Posner phrases it, is that there is no evidence brought forward to demonstrate that when flipping the switch, there is any likelihood of injury. No evidence demonstrated how heavy the visor may have been, no dimensions, and no showing of even proximity.
The Locomotive Inspection Act outlines that the driver’s cab must be in a condition which will not put the crew in danger. While it is not this act specifically which creates the right to bring a claim against the railroad, it is this law that is used to justify negligence per se under FELA, under the theory that this is exactly the type of injury which was intended to be protected by the Act. Under this theory, the plaintiff does not bear the burden of proving negligence, rather the plaintiff may prevail simply by demonstrating the statutory violation. However the burden is still on the plaintiff to show causal relationship between the purported violation and the injury suffered.
While FELA is the engine that allows for the Locomotive Inspection Act to gain steam In court, Judge Posner provides an interesting analysis of the overlapping intentions and ramifications of the two statutes. Namely, he explains how at least in its application to the case at bar, the requirements under the Locomotive Inspection Act is that the driver’s cab must be in a safe condition for the workers, which is “no different” than the requirements as set forth under FELA. Posner goes on to explain that the regulations are largely the same as FELA, including that the cab is required to be safe for employees and that sharp edges must either be removed or padded. While Judge Posner’s redundancy discussion can either be interpreted to emphasize the standard or the duplicative nature of the statutory scheme, his analysis takes a slight turn. He then turns to the history of the statute, it was not passed until 1999, after the train in question was put into commission, the statute did not require retrofitting and was therefore wholly inapplicable. Judge Posner wittingly interjects “anyway the visor was padded.”
The entire opinion comes across as if it is written in a way to poke holes in the lack of evidentiary foundation. The court seems rather irked at the lack of visual or other evidence, as is noted at the close of the opinion, just one photograph was necessary to determine the merits of the case, no photograph was included.
“The case illustrates the curious and deplorable aversion of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a verbal description. We have noted this aversion in previous cases, United States v. Boyd, 475 F.3d 875, 878 (7th Cir.2007); Miller v. Illinois Central R.R., 474 F.3d 951, 954 (7th Cir.2007); United States v. Barnes, 188 F.3d 893, 895 (7th Cir.1999)—once remarking that some lawyers think a word is worth a thousand pictures. Id. A wide-angle photo of the cab (showing its layout)—or better, because an angle wide enough to take in the whole cab would create distortion, a schematic diagram or blueprint with the dimensions indicated—would have revealed at a glance whether the visor in a horizontal position, in juxtaposition with the location of the light switch, created a significant risk of the engineer’s bumping his head. And information on the weight of the visor and the material and thickness of the padding would have revealed whether the potential for injury that was created by its being in a horizontal position was sufficiently great to require the railroad to take precautions against its ever being in that position.”
It it difficult to not assume the reasoning in this opinion resulted from a culmination of cases where relatively simple evidence was not brought forward. One image or diagram would provide an idea of what was going on, while words only provide so much clarity.