United States District Court, W.D. Virginia, Big Stone Gap Division
SCOTT B. BRALL Plaintiff,
NORFOLK SOUTHERN RAILWAY, COMPANY Defendant.
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the court on the parties'
cross-motions for partial summary judgment. See Pl's Mot.
Partial Summ. J., ECF 84; Def.'s Cross-Mot. Partial Summ.
J., ECF No. 92. For the reasons discussed below, the court
will GRANT plaintiff Scott Brail's
Motion for Partial Summary Judgment and DENY
Defendant Norfolk Southern Railway Company's
("Norfolk Southern") Cross-Motion for Partial
is employed by Norfolk Southern as a conductor. Pl's Br.
Supp. Mot. Partial Summ. J. ("Brail MSJ Br."), ECF
No. 84-1, at 2 (citing Deposition of Scott B. Brail
("Brail Dep."), ECF No. 84-2, at 6). On April 22,
2016, Brail reported to Norfolk Southern's Frisco,
Tennessee yard ("Frisco"). Def.'s Mem. Supp.
Cross-Mot. Partial Summ. J. & Opp. Pl's Mot. Partial
Summ. J. ("NSRC MSJ Br."), ECF No. 93, at 2. Brail
was part of a three-person train crew consisting of Brail,
the conductor, Don Herron, the engineer, and Travis Maxwell,
the brakeman. Id. at 3.
April 22, 2016 at 7:00 a.m., Norfolk Southern engineer Barry
Fannon certified that locomotive NS 3559 had been inspected,
complied with all federal regulations, and was safe to
operate. Brail MSJ Br. 2 (citing Videotaped Deposition of
Barry Fannon ("Fannon Dep."), ECF No. 84-3 at 18
& Ex. 2). Norfolk Southern crew T50, which was working at
Norfolk Southern's Yuma, Virginia yard
("Yuma"), used NS 3559 and Norfolk Southern
locomotive NS 3023 to perform switching operations to build a
train to be taken by the next transportation crew, T08, to
Eastman Chemical Company's facility in Kingsport,
Tennessee facility ("Eastman"). Id.
the T50 crew built the completed train, they left the train
with the rail cars coupled to a still-running NS 3559 on
track #2 at Yuma, then rode NS 3023 the short distance to
Frisco, where T50 went off duty. Id. The NS 3559-led
train was considered a "hot train, " which meant
that the next crew was not required to run an air brake test
on the cars or repeat the daily inspection. Id. The
T08 crew reported to Frisco at 2:00 p.m., and took NS 3023
from Frisco to Yuma and coupled it to NS 3559 and the
attached, loaded coal cars. Id. at 3; NSRC MSJ Br.
to Norfolk Southern, three things needed to be done before
the NS 3559 train could depart. First, Brail and Maxwell had
to ask Herron to release the
"three-step" protection they had previously
requested. NSRC MSJ Br. 4. Second, Herron need to inspect and
"set up" NS 3559. Id. at 5. Third, T08
crew needed to perform a brake test. Id.
exited NS 3023 and walked on the ground to NS 3559, where he
climbed up to the walkway of NS 3559, unlocked the cab,
flipped the breaker switch, and released the handbrake on the
locomotive to prepare the train to leave for Eastman. Brail
MSJ Br. 3. At the same time, Maxwell connected the hoses
between NS 3559 and NS 3023 and released die handbrakes on
the first three railcars. Id. Immediately before
entering the locomotive, Brail did not notice anything
unusual on the walkway and had no issues with traction. NSRC
MSJ Br. 3. Brail released the NS 3559 handbrake and took one
or two steps back on the walkway toward the nose of the
locomotive. Id. He slipped and fell, striking his
head on the nose of the engine and landing hard on his
buttocks on the walkway. Id. Maxwell found Brail
dazed and sitting on the walkway. Id.
Southern Road Foreman of Engines Anthony Thomas arrived and
found a slippery substance on the NS 3559 walkway adjacent to
the handbrake, and testified that the substance rendered NS
3559 defective. Id; Deposition of Anthony Thomas
("Thomas Dep."), ECF No. 84-6, at 40. Norfolk
Southern General Foreman of the Mechanical Department Joel
Tumlin inspected the walkway and found a slippery substance
extending from an area underneath the handbrake extended
eight to ten inches into the walkway. Brail MSJ Br. 3;
Deposition of Joel Tumlin ("Tumlin Dep."), ECF No.
84-7, at 11-13. Tumlin completed a work order reflecting that
the walkway was defective and testified that the presence of
the substance made the locomotive defective. Brail MSJ Br. 3.
Finally, Norfolk Southern Trainmaster Jerry Taylor confirmed
the presence of oil and grease on NS 3559's walkway,
photographed the condition, and testified that the substance
was a slipping and tripping hazard and made NS 3559
defective. Id. at 3-4; Deposition of Anthony Thomas
("Thomas Dep."), ECF No. 84-6, at 40.
Complaint pleads two causes of action: (1) Count I, a Federal
Employers Liability Act ("FELA") negligence claim;
and (2) Count II, a Locomotive Inspection Act
"LIA") violation, which would establish strict
liability under FELA.
Cross Motions for Partial Summary Judgment
parties move for partial summary judgment on liability for
Count II, the LIA claim. Three issues are at play. First: Was
the locomotive "in use, " as required for LIA
liability to attach? Second: Does 49 C.F.R. § 229.119(c)
govern foreign substances found on outdoor walkways? Third:
Has Brail established that there is no genuine issue of
material fact as to whether the foreign substance on NS 3559
violated Section 229.119(c)? The court answers all three
questions in the affirmative.
Summary Judgment Standards
to Rule 56(a), the court must "grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO
Corp.. 710 F.3d 209, 213 (4th Cir. 2013). When making
this determination, the court should consider "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with . . . [any]
affidavits" filed by die parties. Celotex, 477
U.S. at 322. Whether a fact is material depends on the
relevant substantive law. Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986). "Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted." Id. (citation omitted).
The moving party beats the initial burden of demonstrating
the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. If that burden has been
met, the non-moving party must then come forward and
establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the non-moving party.
Glynn. 710 F.3d at 213 (citing Bonds v.
Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed,
"[i]t is an 'axiom that in ruling on a motion for
summary judgment, the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
[her] favor.'" McAirlaids. Inc. v.
Kimberly-Clark Corp.. 756 F.3d 307, 310 (4th Cir. 2014)
(internal alteration omitted) (citing Tolan v.
Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam)).
Moreover, "[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge."
Anderson, 477 U.S. at 255. The non-moving party
must, however, "set forth specific facts that go beyond
the 'mere existence of a scintilla of
evidence."' Glynn, 710 F.3d at 213 (quoting
Anderson, 477 U.S. at 252). Instead, the non-moving
party must show that "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party." Res. Bankshares Corp. v. St. Paul
Mercury Ins. Co.. 407 F.3d 631, 635 (4th Cir. 2005)
(quoting Anderson, 477 U.S. at 249). "In other
words, to grant summary judgment the [c]ourt must determine
that no reasonable jury could find for the nonmoving party on
the evidence before it." Moss v. Parks Corp..
985 F.2d 736, 738 (4th Cir. 1993) (quoting Perini Corp.
v. Perini Constr.. Inc.. 915 F.2d 121, 124 (4th Cir.
1990)). Even when facts ate not in dispute, the court cannot
grant summary judgment unless there is "no genuine issue
as to the inferences to be drawn from" those facts.
World-Wide Rights Ltd. P'ship v. Combe Inc.. 955
F.2d 242, 244 (4th Cir. 1992).
The LIA and FELA
II of the Complaint seeks recovery under the LIA and FELA.
FELA was enacted "to provide a federal remedy for
railroad workers who suffer personal injuries as a result of
the negligence of their employer or their fellow
employees." Atchison. Topeka & Santa Fe Ry. Co.
v. BuelL 480 U.S. 557, 561 (1987). Both the LIA and FELA
should be interpreted broadly in favor of a remedy for
injured workers. See id. (FELA); Clemons v.
Burlington N. Santa Fe Ry.. CV 15-01788 SJO QCx), 2016
WL 10586284, at *9 (CD. Cal. Apr. 8, 2016) (LIA) (citing
S. Ry. Co. v. Bryan, 375 F.2d 155, 158 (5th Cir.
renders railroads liable for employees' injuries or
deaths 'resulting in whole or in part from [carrier]
negligence.'" CSX Transp.. Inc. v. McBride,
564 U.S. 685, 688 (2011) (alteration in original) (quoting 45
U.S.C. § 51). Usually, a FELA plaintiff must show that
the railroad's "negligence played a part-no matter
how small-in bringing about the injury." Id. at
705 (internal quotations omitted).
modifies this rubric. The LIA provides, in relevant part:
A railroad carrier may use or allow to use a locomotive or
tender on its railroad line only when the locomotive or
tender and its parts and appurtenances-
(1) are in proper condition and safe to operate without
unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and
regulations prescribed by the Secretary of Transportation
under this chapter; and
(3) can withstand every test prescribed by the Secretary
under this chapter.
49 U.S.C. § 20701. A FELA plaintiff may establish
negligence per se by demonstrating that the railroad
violated the LIA. See Coffey v. N.E. 111. Reg. Commuter
R.R. Corp. (Metra), 479 F.3d 472, 477 (7th Cir. 2007)
(The LIA "establishes a safety standard, the failure to
comply with that standard is negligence per se under
the FELA." (emphasis added)); Koger v. Norfolk S.
Ry. Co.. Civ. No. 1:08-0909, 2009 WL 3242068, at *2
(S.D. W.Va. Oct. 2, 2009) (citing Coffey). Once a
plaintiff establishes a violation of the LIA, he "thus
is relieved of the burden of proving negligence."
Coffey, 479 F.3d at 477 (quoting Crane v. Cedar
Rapids & Iowa City Ry., 395 U.S. 164, 166 (1969)).
The LIA joins several other acts to establish safety
standards that create strict liability under FELA. See
Fulk v. Norfolk S. Ry. Co., 35 F.Supp.3d 749, 759
(M.D. N.C. 2014) (noting FELA liability for violations of the
Boiler Inspection Act (the LIA's predecessor), the Safety
Appliance Act, and the LIA, and collecting cases).
The Locomotive Was "In Use" Under the LIA
locomotive must be "in use" before the LIA subjects
a railroad to strict liability for violations thereof. See
Miller v. CSX Transp.. Civ. No. 2:06-0113, 2007 WL
1094389, at *3 (S.D. W.Va. Apr. 10, 2007). The parties
dispute whether NS 3559 was "in use" at the time of
Brail's accident. If NS 3559 was not "in use, "
the LIA does not apply. See id Whether a locomotive was
"in use" at the time of the accident is an issue of
law. See Deans v. CSX Transp.. Inc.. 152 F.3d 326,
329 (4th Cir. 1998) ("Because the facts surrounding the
accident are not in dispute, whether the train may be deemed
to have been 'in use' at the time of the accident for
the purposes of the [Safely ...