$1.525 Million Settlement for Traumatic Brain Injury Caused by Electric Shock

This complex federal litigation required our law firm to institute civil actions against five corporations when our client, a freight conductor, sustained an electrical shock while attempting to throw a railroad switch.  The lawsuit was brought against our client’s railroad employer, the railroad employer’s parent company, the electric security fence company, the on-site private security firm, and the auto lot management company.

In April of 2014, our client was employed by a Class I railroad carrier that also owned an auto distribution lot located in South Louisiana when he sustained an electrical shock and traumatic brain injury.  The railroad, and its train crews, conducted daily railroad switching operations at the auto lot.  The railroad carrier’s national parent company oversaw and supervised the distribution of automobiles at the auto lot.  The railroad parent company contracted with an electric security fence company in 2006 to design, manufacture, and install a 7,000 volt electrified security fence at the auto lot.  The fence company routinely inspected, maintained, and repaired the electrified fence. 

The railroad parent company also contracted with an auto distribution management company to manage all automobile operations at the auto lot including loading automobiles onto the railroad cars known as “auto racks.”  The distribution company was the “eyes and ears” of the railroad companies at the auto lot.  The auto distribution company’s responsibilities included training security guards on the proper procedures for de-energizing the fence. Our client’s railroad employer contracted with a private security firm to provide 24-7 on-site security service at the auto lot. 

By agreement with the private security firm, it is the security firm’s responsibility to de-energize the electrified fence and open the train gate when railroad train crews must conduct switching operations.  All parties in the litigation agreed that de-energizing the fence for train crews was the sole responsibility of the private security firm.

On April 5, 2014 at around 10:00 p.m., our client was shocked by a 7,000 volt electrified fence while attempting to throw a “hi-lo” railroad switch.  During litigation, the evidence established that the private security firm failed to de-energize the fence.  This failure was attributed to a malfunction in the electric fence control box, which the auto distribution company had knowledge of, but failed to report to the electric fence company.  Critical to our case against the fence company, this particular fence lacked available, feasible, and inexpensive safety features that would have prevented our client from being shocked.  At one point, these safety features (flashing diodes) were installed on the fence, but were removed at the direction of the railroad carrier.  Railroad employees complained to the railroad that the “hi-lo” switch was dangerous to throw given its close proximity to the fence.  The railroad failed to take any corrective action.

Under the provisions of the Federal Employer’s Liability Act, [“FELA”], the railroad had a non-delegable duty to provide its employees with a reasonably safe work place.  As a result, the railroad carrier may be held liable for the negligence of its employees and contractual agents.  Through its parent company, the railroad carrier contracted with the private security firm, electric fence company, and auto distribution management company to carry out operational activities and services at the railroad’s auto lot.  As a result, pursuant to U.S. Supreme Court precedent, the railroad could be held liable for the negligence of each of its contractors.

Key Evidence:  The shock event was recorded on video and eye-witnessed by our client’s locomotive engineer.  Consistent with traumatic brain injury, our client experienced post-shock amnesia for about an hour.  Also, due to the weather, our client was wet from head to toe.  Quite obviously, water and electricity are not a safe combination. 

The locomotive engineer testified that immediately after our client was shocked, she could tell that something was wrong.  She observed him shaking and sweating.  When he got home that night, our client’s wife was so worried about his condition that she called an EMT crew to their home to check on him.  Over the next days, our client began to suffer severe headaches and nausea, which he reported to his terminal superintendent.  In a recorded conversation on April 11, 2014, our client reported these headaches, and when asked by the terminal superintendent if it was related to being shocked, our client responded that it was.  These facts, because they occurred at or near the time of the accident, were significant because they established that our client’s medical condition began to negatively cascade almost immediately after the shock event.

Every treating physician our client saw agreed with the diagnosis of Traumatic Brain Injury resulting from electrical shock.  Doctor’s Imaging performed an advanced MRI with diffusion tensor imaging (DTI) in November of 2014.  This advanced MRI is used in clinical settings at Harvard University, Duke University, and John’s Hopkins University.  MRI with DTI is also the leading test used to diagnose TBI in former NFL players.  The results of our client’s MRI DTI exam showed two regions of brain injury.

The Defendants argued that all of our client’s current problems were related to pre-existing conditions, particularly PTSD, sustained during Operation Enduring Freedom and Operation Iraqi Freedom.  However, we countered that argument with the following:  our client was screened for TBI when he left the military.  That screening was negative.  Our client had never suffered a head trauma, nor was he exposed to any concussive event while in the military.  Our client’s work history was supportive as well. 

Our client was diagnosed with PTSD in 2009.  Due to PTSD treatment at the VA, he was marked off of work from November 2009 to January 2010.  He was then released from PTSD treatment at the VA and cleared by the railroad medical department to return to service.  Between January 2010 to 2014, our client did not undergo any significant medical treatment or miss any extended periods of work.  In addition, from 2010 to 2014, that railroad was informed of our client’s PTSD, but nonetheless, medically cleared him to work and certified him as freight conductor, yardmaster, and locomotive engineer.  Thus, Defendants had a tough time arguing that our client was suffering from debilitating pre-existing conditions before this electrical shock event.

Our client’s treating neurological team determined that he was unable to return to work as a freight conductor, but could still carry out a job in the workforce at a light or medium duty level.

Following two years of litigation, a global settlement involving all Defendants was reached in the amount $1,525,000.00.

© 2016 by Davis, Saunders & Miller, PLC 

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