Wrongful Death Claim For Railroad Inspector’s Suicide Held Not Compensable Under FELA, But FRSA Retaliation Claim Allowed To Proceed

In 2011, a railroad inspector was accused of trying to sabotage a train’s braking system.  With a formal hearing scheduled a week later, the inspector reported to work, then returned to his car and shot and killed himself in the railroad employer’s parking lot.  After pursuing administrative remedies, the inspector’s widow and estate brought suit alleging violations of the Federal Employers’ Liability Act (FELA) and the anti-retaliation section of the Federal Railroad Safety Act (FRSA).  The plaintiffs claimed the railroad had fabricated the sabotage allegations against her husband in retaliation for his refusing to follow company directives to ignore train defects and non-compliance.  The plaintiffs attached letters detailing various violations that the inspector had allegedly drafted but not sent to the Federal Railroad Administration (FRA) and OSHA due to a mental breakdown.  The railroad defendants filed a motion to dismiss the widow’s FELA and FRSA claims.  The U.S. District Court for the Middle District of North Carolina dismissed the FELA claim but allowed the FRSA claim to proceed.

FELA Claim

FELA imposes liability on interstate railroad companies if the company’s intentional or negligent acts cause an employee’s injury or death.  Here, the plaintiffs’ theory was that the railroad company’s misconduct caused the railroad inspector’s mental injuries and ultimately caused his self-inflicted death.  The defendants sought to dismiss the widow’s FELA claim for plaintiff’s failure to allege a compensable injury.

Although FELA generally has relaxed standards for causation so that injuries are often compensable if the employer’s negligence contributed to the injury, FELA requires that an employee’s injury or death result from a physical impact or the imminent threat of physical impact.  This requirement is known as the “zone of danger” test.  To resist defendants’ motion to dismiss, the plaintiffs argued that the facts as alleged satisfied FELA’s “zone of danger” test.  Alternatively, the plaintiffs argued the inspector’s suicide was compensable because the railroad’s actions caused an “uncontrollable impulse” to commit suicide, or that the railroad was per se liable for any injuries because it violated FRSA’s anti-retaliation provisions.  The court disagreed with each of plaintiffs’ arguments and dismissed the FELA claim for failing to allege a compensable injury.

First, the court found that, just as with physical injuries, mental and emotional injuries are compensable only if they are caused by negligent or intentional conduct that satisfies the well-established “zone of danger” test.  In other words, mental and emotional injuries are compensable only if the employer placed the employee in a “zone of danger” such that the mental injury is caused by a physical impact or “an imminent threat of physical impact.”  A self-inflicted injury on its own cannot be used to circumvent the zone of danger requirement.  For example, the court contrasted the facts as alleged in the complaint (where the suicide allegedly resulted after employer harassment) with a situation where an employee’s suicide was the result of mental damages caused after being run over by a rail car.  The court therefore found that a suicide allegedly caused only by wrongful adverse employment actions could not satisfy the zone-of-danger test.

Second, the court questioned the applicability of plaintiffs’ uncontrollable impulse argument, which relied on cases before the Supreme Court had occasion to address the zone of danger test.  Regardless, the court disagreed that the inspector’s suicide was the result of an “uncontrollable impulse.”  The court found that while the plaintiffs had alleged mental injury, instability, and incapacity, the plaintiffs never alleged that the degree of the inspector’s mental impairments rose to the level of an uncontrollable impulse.  Nor was the court willing to infer an uncontrollable impulse, especially where the inspector had drafted and intended to send letters to the FRA and OSHA, which the court took as signs of “rational conduct” leading up to the suicide.

Finally, the court rejected plaintiffs’ assertion that the railroad company should be per se liable under FELA for injuries caused by the violation of FRSA.  While the court recognized that violations of various safety acts had previously caused railroads to be found liable per se, FRSA “d[id] not easily translate to a tort standard of care.”  Therefore, the court found that FRSA’s retaliation provisions do not qualify as a safety act that may be used to establish absolute liability or negligence per se under FELA.  Moreover, the court found that even if FRSA’s anti-retaliation provision could establish liability per se under FELA, the court would still dismiss plaintiffs’ claim because it could not satisfy the zone of danger test or required causal connection between the alleged negligence and the injury.

Accordingly, the court dismissed the plaintiffs’ FELA claim for failing to allege a compensable injury under FELA.

FRSA Claim

Defendants also moved to dismiss the plaintiffs’ FRSA claim, arguing that the court did not have subject matter jurisdiction where the claim was initiated by the employee’s widow rather than the employee himself.  Noting that the extent to which a FRSA retaliation claim survives the death of a railroad employee was one of first impression, the court held that a railroad employee’s survivors may have standing to file an administrative complaint on the deceased employee’s behalf where the employee directed a survivor to file the complaint before his or her death.

The court relied primarily on FRSA’s adoption of the rules and procedures from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), which provide that an employee may “file (or have any person file on his or her behalf)” a retaliation claim.  49 U.S.C.

§ 20109(d)(2)(A) (incorporating by reference 49 U.S.C. § 42121(b)).  The defendants argued that FRSA incorporates only specific provisions of AIR21 and does not incorporate the provision allowing a person to file a claim on his or her behalf.  Although the court admitted to “having some difficulty” interpreting the statutory language, the court ultimately concluded that the language at issue was indeed incorporated – an opinion that was consistent with FRSA regulations promulgated by the Secretary of Labor at 29 C.F.R. §1982.103(a), which specifically incorporate similar language.

Although the court found that a complaint may be filed on an employee’s behalf, the court recognized that FRSA and applicable statutory and regulatory language contemplate “a living employee, or more specifically, an employee who was alive at the time he gave the directive to file the complaint.”  Thus, under the unique facts in this case (the employee allegedly drafted letters to file but never sent them, and the survivors alleged they were “properly authorized” to file the claim), the court held that whether the plaintiffs were authorized under the statute and regulations to bring a FRSA claim was an issue of fact that was sufficiently pled to withstand a motion to dismiss.

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