Court decisions interpreting FELA have held that the railroads owe a duty to provide reasonably safe and suitable tools, machinery, and appliances with which to work; to institute and oversee reasonably safe methods for the performance of work; and to warn of potential dangers and hazardous conditions.

In 1991, the Boiler Inspection Act (BIA) (also known as the Locomotive Inspection Act) was enacted. This statute, which applies principally to locomotive engineers and other operating department employees who must work in and on engine locomotives that are "in service" (not being repaired), imposed an absolute duty on a railroad carrier for violation of its requirements, which the railroad cannot escape by claiming that it exercised some degree of care.

The Act "imposes upon the carrier an absolute and continuing duty to maintain the locomotive and all parts and appurtenances thereof, in proper condition, and safe to operate... without unnecessary peril to life or limb".

Under the BIA, unlike the FELA, the possible contributory negligence of the worker himself is neither a defense nor an issue if the defendant is found to have violated the statute. It can be argued that cases of diesel exhaust exposure to railroad workers that the defendant railroad violated one or both of these Acts by failing to have the engine compartment windows and doors properly sealed so as to properly prevent the seepage of diesel exhaust fumes into the cab, or failing to install respirators, ventilators or properly working safety masks on units so as to protect the employees against continuous diesel exhaust exposure.

Further, one could argue that the violating railroad failed to properly train its workers as to what to do if exposed to significant amounts of diesel exhaust, or that it negligently failed to have an appropriate safety plan in existence for such circumstances.

Statute of Limitations on FELA Actions for Diesel Exhaust Exposure

The statute of limitations on FELA cases is three years from the first date that the injured employee either actually knew of an injury or a potential injury, or should have known of the injury.

There have been cases where the employee knew or had some reason to know that they had a problem or which they or their doctor believed was caused by their work conditions. Yet, they were reluctant to discuss it with anyone or to notify the railroad.

Unfortunately, the railroad may have the advantage if the injured worker waited so long that the railroad could successfully contend that the worker knew or should have known of the injury and therefore is precluded from filing a lawsuit and obtaining a recovery. If you have been exposed to diesel exhaust and have suffered injury, you may have a legal case.