United States District Court, E.D. Tennessee, Knoxville
case is before the undersigned pursuant to 28 U.S.C. §
636(c), Rule 73 of the Federal Rules of Civil Procedure, and
the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 22].
before the Court is Defendant's Motion for Summary
Judgment [Doc. 31]. The Motion is ripe for adjudication.
Accordingly, for the reasons set forth below, the Court finds
Defendant's Motion [Doc. 31] well taken,
and the same will be GRANTED.
action arises under the provisions of the Federal
Employers' Liability Act, 45 U.S.C., §§ 51 et
seq. Plaintiff worked for Defendant from 1992 to April 29,
2016, when he was terminated. [Doc. 31-1 at 3]. Plaintiff
claims that on April 29, 2016, he was injured when making
repairs to a freight car. Specifically, Plaintiff alleges
that he was underneath the car when without warning, the car
shifted about eight inches at his location. [Doc. 1 at ¶
14]. Plaintiff scrambled to get out from under the car when
his hard hat struck the car. [Id. at ¶¶
15-16]. Plaintiff alleges his injury was caused by
Defendant's negligence. [Id. at ¶ 23]. He
further pleads as follows: (1) Defendant failed to furnish
Plaintiff with a reasonably safe place in which to work; (2)
Defendant failed to furnish Plaintiff with reasonably safe
equipment with which to perform his assigned duties; (3)
Defendant failed to furnish Plaintiff with reasonably
necessary and proper personal protective equipment; (4)
Defendant failed to furnish Plaintiff with necessary and
proper supervision in the performance of his assigned duties;
(5) Defendant failed to properly train employees in operation
of electric hydraulic jacks; (6) Defendant failed to warn
Plaintiff of reasonably foreseeable hazardous conditions
existing with Defendant's equipment; (7) Defendant
allowed unsafe practices to become the standard practice; and
(8) Defendant failed to provide Plaintiff with the proper
tools and equipment. [Id. at ¶ 24].
primary dispute between the parties is whether this injury
actually occurred. Plaintiff claims that he was injured
during the stabilization process, while Defendant denies that
Plaintiff was injured. According to Plaintiff's
deposition testimony, on the day of the alleged incident,
April 29, 2016, Plaintiff was working with Samuel Sifers
(“Sifers”), and their assignment was to repair a
freight car. [Doc. 31-1 at 10]. Plaintiff testified that he
participated in the jacking of a railroad car over hundred
times prior to the incident and that he knows how to do it.
[Id. at 13].
testified that on April 29, his specific assignment was to
change the inside wheelset on a locomotive at the L-3
location. [Id. at 12]. Plaintiff testified that
prior to changing the inside wheel, he performed safety lifts
as required. [Id. at 24]. Safety lifts entail
raising the jacks to various heights and letting them down to
ensure that there are no problems. [Id.]. Plaintiff
explained, “We would apply weight to the base with the
weight of the car. That weight would stay on the jack pads
and the jacks for three minutes.” [Id.].
Plaintiff stated, “After three minutes, the car is
lowered, and paying close attention to your jacks to
determine if there's any movement inward, outward, side
to side.” [Id.]. Plaintiff stated that he and
Sifers performed three safety lifts, and there were no
problems. [Id. at 83].
clarified during his deposition, “At the third safety
lift prior to the freight car clearing the center pin-before
it clears the center pin is when you can check for tension
against the center pin in either direction, side to side,
forward reverse.” [Id. at 25-26]. Plaintiff
stated that the car sat for three minutes, and then he went
under the car to check the tension against the center pin.
[Id. at 26]. Before he could check the tension on
the center pin, the car shifted to the right side at his
location about eight inches. [Id. at 27, 34].
Plaintiff yelled, “The car is falling.”
[Id. at 32]. Plaintiff stated that when he raised
up, he struck the top of his hard hat on the frame of the
testified that he and Sifers assessed what took place, and
Sifers looked underneath the car and saw that the center pin
was bent. [Id. at 41]. Plaintiff testified that
after the incident, he saw the left side jack leaning inward,
but the right side jack appeared to be level or straight up.
[Id. at 33]. The left side jack was not bent but was
leaning. [Id.]. Plaintiff testified that this
incident occurred when he was testing the car as opposed to
pushing the truck out. [Doc. 56-1 at 26]. Plaintiff stated
that after the incident, he got under the car again.
[Id. at 27]. Plaintiff stated that later when he was
putting away the supplies, he noticed a tear in the aluminum
pad about four inches in length perpendicular to the rail.
[Id. at 37]. Plaintiff acknowledged that he did not
report his injury to Defendant. [Id.].
mentioned above, Defendant disputes that the incident
occurred. Defendant claims that on April 29, 2016, Plaintiff
and Sifers changed the outer wheelset. Whether Plaintiff and
Sifers were changing an inner wheelset (as Plaintiff
originally testified) or the outer wheelset (as Defendant
alleges) is important because both parties acknowledge that
Plaintiff would not go underneath the car if he was repairing
the outer wheelset. See [Doc. 31-1 at 33] (Plaintiff
testifying that he would not need to get underneath the car
if he was changing the outer wheelset). Plaintiff
explained during his deposition the procedure for changing
the outer wheelset:
We apply chains capable of lifting the side frames. The jacks
are still applied to the side of the car. We'll raise the
jacks with chains applied to the front of a side frame,
hooked to the side frame. As the car goes up, so does the
side frame, which allows the wheel to come out on its own.
[Doc. 56-1 at 18] (hereinafter, the “Chain
Method”). When using the Chain Method, the center pin
does not need to be removed. [Id.].
Motion, Defendant submits the testimony of Sifers, who claims
that he never saw Plaintiff go underneath the car. [Doc. 31-2
at 9]. Sifers claims that on the date of the incident, he and
Plaintiff were changing the outer L4-R4 wheelset and not the
inner L3-R3 wheelset. [Id. at 11-13]. Further,
Defendant submitted an email from Plaintiff to his
supervisor, Wayne Strickland, dated April 25, 2016, a few
days prior to the alleged incident, which states,
“Called to inspect 2nd from rear car train 175,
critical hot box at R-4 location. Shop found AEX 994 L/L with
adapter sitting on top end cap @ R-4 location . . .”
[Doc. 31-3 at 17]. In addition, the Repair Track Inspection
Sheet for the AEX 000994 rail car shows that a wheel repair
at the R-4, L-4 location was made on April 29, 2016. [Doc.
31-1 at 14].
testified that the car never moved, Plaintiff did not hit his
head, and the jack was not leaning. [Doc. 31-2 at 14]. Sifers
testified that if the car leaned eight inches, it would have
fallen off the jacks and landed on the ground.
[Id.]. Sifers testified that it is never necessary
or appropriate for anyone to be underneath the rail car when
the car has been jacked. [Id. at 12]. Sifers
testified that getting underneath the car is a terminable
offense and that if Plaintiff went underneath the car, Sifers
would have told him to get out from underneath.
[Id.]. Sifers also testified that there were no
tears in the aluminum pads. [Id. at 15]. Sifers
testified that if there were tears, Defendant would have
investigated the tears and replaced the jack pads.
[Id.]. During his deposition, Sifers testified that
the aluminum jack pads were in the room, they were no tears
in either pad, and they were still in use today.
[Id. at 16-17].
Defendant's industry expert, Michael Chambers, stated as
Plaintiff claims that the car titled 8 inches, or the jack
leaned 8 inches, and if this happened, the car would have
fallen. The titling of the car and the jack leaning 8 inches
could not have happened and would be an impossibility. The
jack head is 5 and 1/8 inches in diameter, so if the car is
off the center of the jack head by approximately 3 to 4
inches, the law of physics dictates that the car will come
off the jack and fall.
[Doc. 34-1 at ¶ 6]. Chambers stated, “In fact, the
jacks remained in service and would have been taken out of
service just like the pads would have been taken out of
service if they were bent or torn in any way. Instead, the
jacks continued to be used in service.” [Id.].
Further, Strickland testified that the first time Defendant
received notice of the injury was when Plaintiff filed his
lawsuit-that is, approximately two years after it allegedly
occurred. [Doc. 31-3 at 14].
response to Defendant's Motion, Plaintiff appears to
concede that he and Sifers were not changing an inner
wheelset on the date of the incident. He submits an
3. At my deposition, I knew we had to remove the entire truck
to get the damaged wheel set out, but I could not remember
why. After I had a chance to review an actual picture of the
subject car (AEX000994 L/L) a covered hoper, I remembered
this car was not designed to use chains to remove the front
4. Most rail cars have the angle iron built into the frame of
the car, to allow you to hook a chain from the side frame up
to the angle iron. This car was not designed like that.
5. To use the chain method on this car would have been a
violation of Norfolk Southern General Rule 30 and General
Safety Rule 1200.
[Doc. 44-3 at ¶¶ 3-5]. Plaintiff also filed an
affidavit of C.F. (Tom) Rader [Doc. 44-4], stating the
same. Rader states that he has over forty (40)
years of experience as a Norfolk Southern carman and that he
has worked in the shop and on the line of road. [Id.
at ¶ 1]. Plaintiff claims that the jack gave way under
the pressure of the lift and relies on the doctrine of res
ipsa loquitur. [Doc. 44 at 7]. Further, Plaintiff argues that
there is no way to establish that the aluminum pads brought
to the depositions are the same ones that were in use in
Reply, Defendant claims that the incident as alleged is
physically impossible and relies on Michael Chamber's
affidavit in support of its position. See [Doc. 34-1
at ¶ 6] and [Doc. 56-5]. Further, Defendant submits that
the sworn statement of Terry Holloway, Defendant's former
Safety Trainer and Coordinator for the Safety Division, who
opined that if one jack leans, as Plaintiff described, the
other jack would lean. [Doc. 56-4 at 14]. Further, Defendant
submitted evidence that the Chain Method could have been used
because it was done on the exact design NS641098 H54 covered
hopper rail car. Specifically, Christopher Shorts,
Defendant's Manager of Car Maintenance Mechanical,
provides as follows:
6. It is my experience that the No. 4 outer wheel set can be
removed using an accepted and approved chaining methodology,
which Mr. Chambers supervised being performed on the NS
641098. I am familiar with H54 covered hoppers, which look
identical on the A-frame side. Based on my review of this
historical information, the railcar records maintained by
Norfolk Southern, the records of the AEX 994, as well as my
personal knowledge and extensive familiarity with H54 covered
hoppers, the AEX 994 and the exemplar NS 641098 are the exact
same model of car, built by the exact same manufacturer,
Pullman-Standard, of the exact same build year, and of the
exact same design, including holes in the A-side shear plate
that can be utilized as Mr. Chambers did with the exemplar to
chain the frame and move/replace the 4th outer wheel set
without removing the truck and without getting underneath the
jacked covered hopper. Based on the design of the identical
H54 exemplar and AEX covered hoppers, Mr. Cottle never needed
to push the truck out from underneath the jacked H54 covered
hopper to remove and replace the 4th outer wheel set because
the chaining method could be used on both cars utilizing the
holes that were specified by Pullman-Standard in the shear
plate for its H54 Ps-2CD covered hoppers, including the
exemplar and the AEX. The chaining method does not violate
Norfolk Southern rules (in fact, the General Rule 30 cited by
Mr. Cottle, was not even in effect in 2016 nor is it
[Doc. 56-6 at ¶ 6].