The case of a West Virginia railroad worker who was attacked by a nesting goose did not fly with a jury, which found that his employer did not negligently fail to warn him of the hazard presented by the goose.

Aaron Richards was the conductor of a CSX Transportation train which had stopped at a railyard near Ravenswood, W. Va., to pick up some cars. He was seeking nearly $24,000 in damages for the injuries he suffered when the goose attacked him as he was inspecting the train's brakes.

A jury in Huntington returned a defense verdict last week after a one-day trial of Richards' lawsuit under the Federal Employers' Liability Act (FELA), apparently agreeing with CSX that it neither knew or should have known of the goose –- even though the same bird had startled another worker in the same yard just four days before it attacked Richards.

Rick Dillon, also a CSX conductor, did not suffer any injuries from his encounter with the goose. In what may have been crucial testimony, he said he told his engineer about the incident but did not report it to a supervisor.

“You didn't think the incident was a big deal?” CSX attorney Marc E. Williams (Huddleston Bolen, Huntington) asked him.

“Right,” he replied.

Richards' attorney says Dillon should have been trained to report the prior attack. “That would have allowed the [goose's] nest to be removed or marked” as a hazard, William Kvas (Hunegs LeNeave & Kvas, Minneapolis), told On Point.

FELA requires employers to provide a reasonably safe workplace and, as a federal appeals court 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 the seminal case of Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963), 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.

Richards testified that he was performing the brake inspection at about 1:15 a.m. on April 23, 2005 when he heard a hissing noise. “As I crouched down, [the goose] came up toward the side of my face,” he said. “It had its wings up. I fell backwards and twisted my ankle on the ties and debris.”

CSX removed the nest from the yard after the attack on Richards. “[I]t was a hazard,” a supervisor testified in a deposition. “We had to get rid of it.” Evidence showed that the nest was not newly constructed.

Dillon's run-in with the goose also occurred at night. If CSX had at least marked the area of the nest with orange cones, Kvas says, “An employee, working in the rain and darkness, would at least be aware of the location of a potential hazard."

But the lack of evidence that management knew of the prior incident may ultimately have doomed Richards' case. “What evidence exists showing there was a hazard?” Williams asked in his closing argument. "None. You have to gauge the case and the railroad's conduct on what information was known beforehand.”

Despite the verdict, Kvas is hoping that the case “will cause CSX to revisit its procedures for warning employees about potential hazards. After all, CSX admitted that there was nothing that Mr. Richards could have done to prevent this accident.”

By Matthew Heller
7/28/09