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Brall v. Norfolk Southern Railway Co.

United States District Court, W.D. Virginia, Big Stone Gap Division

May 8, 2018

SCOTT B. BRALL Plaintiff,



         This 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 Summary Judgment.

         I. Background

         Brail 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.

         On 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.

         After 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. 3.

         According 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.

         Brail 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.

         Norfolk 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.

         Brail's 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.[1]

         II. Cross Motions for Partial Summary Judgment

         Both 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.

         A. Summary Judgment Standards

         Pursuant 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).

         In 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).

         B. The LIA and FELA

         Count 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. 1967)).

         "FELA 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).

         The LIA 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).

         C. The Locomotive Was "In Use" Under the LIA

         A 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 ...

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