A West Virginia railroad worker is causing a bit of a flap in his industry by suing his employer for failing to protect him from an unusual workplace hazard –- a nesting goose.

Aaron Richards is seeking more than $75,000 for injuries suffered in an alleged goose attack at a CSX Transportation railyard near Ravenswood, W. Va. While performing a brake inspection on a train, he alleges in a complaint filed earlier this month,

a goose which was previously known by Defendant to have nested in its yard area suddenly jumped out from under one of the railcars, striking Plaintiff, and causing him to fall resulting in injuries.

“[T]he injuries and damages sustained by Plaintiff were caused by the negligence of Defendant in violation of the Federal Employers' Liability Act,” Richards says.

The suit has inspired plenty of ridicule, with one contributor to a train workers' online message board saying the plaintiff's lawyer -– W. Michael Frazier of Huntington, W. Va. -- is “the real goose ... looking for a golden egg.”

The skeptics ignore the generosity of FELA, which requires employers to provide a reasonably safe workplace. As the 6th U.S. Circuit Court of Appeals has said, “[T]he plaintiff in a FELA case may reach the jury with only circumstantial evidence of very slight employer negligence playing a part in producing the plaintiff's injury.” Dewalt v. Consolidated Rail Corp., 869 F.2d 1489 (1989).

In a seminal case, the U.S. Supreme Court upheld a jury award to a railroad crew foreman who lost both of his legs after suffering an insect bite.

“The evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from” a stagnant, vermin-infested pool near where the foreman had been working, the court said in Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963).

CSX denies any negligence in a pro forma answer to Richards' complaint, saying “the alleged incident underlying Plaintiff's claim was not reasonably foreseeable by Defendant.”

But geese have a reputation for aggressively defending their territory. And if CSX knew Richards' alleged attacker was on its property, that could be enough to establish liability.

“It is the responsibility of the railroad to make that yard a safe place to work and if that means getting rid of the birds, they should have done it,” says another contributor to the trainorders.com website.

The 2nd Circuit said in the case of a railroad worker bitten by a large German Shepherd mix dog that liability did not depend on whether the dog had vicious propensities, but

whether the [railroad] knew or should have known that a large German Shepherd-mix dog was on the premises, and if so, whether an employer using reasonable care should have investigated further or taken other steps to inform and protect its employees. Gallose v. Long Island Rail Road Co., 878 F.2d 80 (1989).

By Matthew Heller
2/29/08