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Worker loses leg, foot in industrial accident – $1,500,000 Settlement

On July 26, 2004, the 45-year-old plaintiff was working in the industrial yard of his employer, Northern Virginia Transfer Company, unloading lumber from railroad cars. A railcar with a defective brake rolled down an incline and hit another car which ran over the plaintiff, severing one leg just below the knee and also severing the foot on the other leg just below the ankle.

The car with the defective brake was placed in the Northern Virginia Transfer yard the night before by a Norfolk Southern train crew. The runaway railcar was found to have a missing part from its hand brake mechanism which caused the hand brake to fail.

Plaintiff’s experts were of the opinion that by placing this railcar in the industrial yard with a defective hand brake, Norfolk Southern violated its own rules, industry practices, Federal Railroad Administration regulations and the Federal Safety Appliance Act. Suit was filed in Henry County Circuit Court. Since the plaintiff was not an employee of Norfolk Southern, he brought suit in state court under a common law negligence theory. This state cause of action included his Federal Safety Appliance Act violation claim.

One of the key issues in the case was whether, in a state common law action involving a violation of the Federal Safety Appliance Act, the defendant could still rely on the defense of contributory negligence. Had the plaintiff been an employee of Norfolk Southern and been able to bring a Federal Employer’s Liability Act claim against the railroad, then contributory negligence would have clearly not been available to the defendant as a defense to a violation of the Safety Appliance Act.

In this case, Norfolk Southern brought a third-party action against plaintiff’s employer, Northern Virginia Transfer Company, under an indemnity agreement. Before trial, mediation was held between the three-named parties and an agreement was reached to settle the plaintiff’s case for $1.5 million with a waiver of the worker’s compensation insurance liens.

[09-T-128]

Type of Action: Common law negligence action involving a violation of the Federal Safety Appliance Act.
Injuries Alleged: Amputation of one leg below the knee and amputation of the foot below the ankle on the other leg.
Name of Case: Robert S. Riley v. Norfolk Southern Railway Company v. Northern Virginia Transfer Company
Court: Henry County Circuit Court
Tried Before: Mediation
Verdict or Settlement: Settlement
Amount: $1,500,000
Special Damages: $680,704 in past and future loss of earnings; $354,039 in past medical expenses; $294,427 in future medical expenses
Plaintiff’s Experts: Stephen M. Timko, railroad rules and work practices expert; Michael J. O’Brien, Federal Safety Appliance Act and FRA regulations expert
Plaintiff’s Attorney: H. Keith Moore, Roanoke

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