The Federal Employers' Liability Act, not workers' compensation. Railroad employees are excluded from the state comp system entirely. FELA lets a railroad worker sue their employer directly for negligence and recover full tort damages, and it carries a three-year deadline from the date of injury rather than the two years that governs most Texas injury claims.

The trade is fault for value. Workers' compensation pays regardless of who was at fault but pays only medical care and limited income benefits, with nothing for pain, mental anguish, or impairment. FELA requires proving the railroad was negligent, but if you do, it pays the full range of tort damages. For a seriously injured worker that difference is usually enormous.

Often more than one party. The railroad operating the train, the entity responsible for the crossing surface and warning devices, a contractor that performed maintenance or vegetation control, and sometimes a motorist all share responsibility. Crossings are jointly governed by railroads and public road authorities, and sorting out who owed what duty at that specific crossing is the first real question.

Not automatically. Claims attacking the adequacy of warning devices at a crossing can be preempted by federal law where the devices were installed with federal funding and approval, which is a genuine obstacle in some cases and no obstacle at all in others. Whether preemption applies turns on how that specific crossing was funded and approved, and it is a question that has to be researched crossing by crossing.

A loaded freight train may need more than a mile to stop from track speed, which is why these cases rarely turn on braking. They turn on the things that could have prevented the encounter: warning device adequacy, sight lines obstructed by vegetation or stored railcars, whether the horn was sounded at the required intervals, train speed relative to the crossing's classification, and whether the crossing surface itself trapped a vehicle.

Considerably more than most people expect. Locomotive event recorders log speed, throttle position, brake application, and horn and bell activation second by second. Forward-facing and often inward-facing cameras record the approach. Dispatch records, track maintenance history, and prior incident reports for the same crossing all exist. Railroads preserve this under their own procedures, and a preservation demand should go out immediately regardless.

These claims are harder because of the rules that limit what a landowner owes a trespasser, but they are not automatically lost. A well-worn path across the tracks that the railroad knew people used, a failure to sound the horn, an unfenced right of way in a populated area, or a crossing that invited pedestrian use can all change the analysis substantially.

It depends on who is bringing the claim. A FELA claim by a railroad employee runs three years from the date of injury. A crossing or trespasser claim brought by a member of the public generally runs two years under Civil Practice and Remedies Code § 16.003. Assuming the wrong one is a serious and irreversible mistake.

It will be argued, and under Texas comparative responsibility it reduces recovery rather than automatically ending the claim, unless your share passes 51 percent. There is also a factual answer worth developing: gates that cycle down for no reason, or stay down long after a train has passed, are a documented problem at some crossings and are precisely what trains drivers to stop trusting them.

Then the operator owes its passengers the heightened duty Texas applies to common carriers rather than ordinary care. If the system is publicly operated, governmental immunity and the Tort Claims Act damages caps may also apply, along with a short notice deadline that arrives long before the filing deadline does.

Three years for a FELA claim by a railroad worker. Generally two years from the incident under Civil Practice and Remedies Code § 16.003 for everyone else, and much sooner where a governmental operator requires pre-suit notice.

The firm is based in Austin and represents clients throughout Texas, primarily in Travis County, Williamson County, and Bastrop County.

Board certification by the Texas Board of Legal Specialization recognizes attorneys who demonstrate substantial experience in a specific area of law, pass a rigorous examination, and receive peer review.Brent A. Devere is Board Certified in Consumer and Commercial Law, Consumer Bankruptcy Law, Residential Real Estate Law, and Commercial Real Estate Law by the Texas Board of Legal Specialization.Working with a board-certified attorney means your case is handled by a lawyer with proven knowledge, experience, and commitment in their field.

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Yes. The firm handles most types of litigation. If your matter isn't listed among the practice areas, contact the office to discuss whether the firm can help.