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Cottle v. Norfolk Southern Railway Company

United States District Court, E.D. Tennessee, Knoxville

October 18, 2019

KEITH COTTLE, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

          MEMORANDUM OPINION

         This 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].

         Now 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.

         I. BACKGROUND

         This 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].

         The 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].

         Plaintiff 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].

         Plaintiff 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 car. [Id.].

         Plaintiff 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.].

         As 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).[1] 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.].

         In its 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].

         Sifers 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].

         Finally, Defendant's industry expert, Michael Chambers, stated as follows:

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].

         In 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 affidavit, explaining:

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 wheel set.
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.[2] 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 April 2016.

         In its 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 currently).

[Doc. 56-6 at ¶ 6].

         II. ...


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