In an issue of first impression, the Indiana Court of Appeals concluded a Federal Employer Liability Act claim premised on
unsafe ballast isn't precluded by Federal Railroad Safety Act regulations of ballast in a man's suit for injuries
he sustained while employed with a transportation company.
In Russell A. DeHahn v. CSX Transportation Inc., No. 79A02-0905-CV-443, CSX employee Russell
DeHahn sued his employer claiming CSX was liable under the FELA for injuries he suffered while performing inspection duties.
He had to walk on the outside of the track on the ends, in some areas that were covered with ballast – gravel placed in a
roadbed to provide a firm surface for the track and to hold the track in line. Some of the ballast rolled out from under his
feet, causing him to fall down an embankment and injure himself. The trial court granted summary judgment in favor of CSX
because it found DeHahn's expert's report and affidavit weren't timely filed and couldn't be considered. The
trial court didn't address CSX's other argument that his claim was preempted by the FRSA.
Outside of Indiana, other jurisdictions have split over whether FRSA regulations of ballast preclude a FELA-based claim premised
upon a claim of unsafe ballast. The appellate court looked to the U.S. Supreme Court's ruling in CSX Transportation
Inc. v. Easterwood, 507 U.S. 658 (1993), and cases from the Colorado Court of Appeals and Maryland Court of Special Appeals
to rule the FRSA regulation of ballast doesn't "cover" DeHahn's FELA claim that CSX was negligent in its
placement of ballast on top of the railroad ties. FRSA and FELA aren't in conflict and FRSA is more concerned with the
safety of the train and prevention of derailments.
"In light of FELA's humanitarian purpose, and the liberal construction given to effectuate this humanitarian purpose,
we cannot say that DeHahn's FELA claim that CSX was negligent by leaving ballast on top of crossties is precluded by FRSA
regulations governing ballast," wrote Judge Paul Mathias.
There is also evidence, even if DeHahn's expert's report is still excluded, that is sufficient to preclude summary
judgment. There is a genuine issue of material fact whether CSX was negligent in failing to remove the ballast from the crossties.
The appellate court reversed summary judgment for CSX and remanded for further proceedings.