Cobb v. Metro North Railroad Co

Filing 73

ORDER: Metro-North's Motion for Summary Judgment (Doc. No. 53 ) is hereby DENIED, and Cobb's Cross Motion for Summary Judgment (Doc. No. 64 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 08/29/2014. (Bowers, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ALPHUS COBB,
:
:
Plaintiff,
:
:
v.
:
:
METRO-NORTH RAILROAD CO.,
:
:
Defendant.
:
:
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Civil No. 3:12-cv-00661(AWT)

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Alphus Cobb brings this action against defendant
Metro-North Railroad Company (“Metro-North”) pursuant to the
Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51 et seq.
In his First Cause of Action, Cobb alleges that he was injured
as a result of Metro-North’s negligence.

In his Second Cause of

Action, Cobb alleges that Metro-North violated certain Federal
Railroad Administration (“FRA”) regulations and therefore is
strictly liable for his injuries.

Metro-North has filed a

motion for summary judgment as to both causes of action.

Cobb

has filed a cross motion for summary judgment as to the Second
Cause of Action.

For the reasons set forth below, Cobb’s cross

motion for summary judgment is being denied, and Metro-North’s
motion for summary judgment is being denied.

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I.

FACTUAL BACKGROUND
A.

Cobb’s Employment and the Incident

Cobb has been employed with Metro-North and its predecessor
railroads as a Machinist since 1974.

During his shift, Cobb was

responsible for conducting daily mechanical inspections of
multiple unit (“MU”) cars and Genesis Locomotives.

Cobb’s

regular shift was from midnight to 8:00 a.m., Monday through
Friday, in the Bridgeport Yard.
On May 16, 2009, Cobb was working an overtime shift in the
New Haven Yard.

As during his regular shift, Cobb’s

responsibilities during the overtime shift included conducting
on-board inspections of train cars in the New Haven Yard.

Cobb

ascended the exterior steps1 of Genesis Locomotive No. 226,
entered the locomotive cab and performed his inspection.

After

completing the inspection, Cobb began climbing down the same
steps.

He faced the cab door and stepped down one foot at a

time, with both hands on the vertical handholds on either side
of the ladder.

When Cobb had both feet on the bottom step, he

began to lower his left foot to the ground.

Cobb “claims to

have felt a pain starting on the right side of his neck and
right shoulder, down the center of his back” before his left

1

The court notes that the parties disagree regarding how the steps Cobb
ascended and descended should be characterized. For the purposes of this
ruling, the court will refer to the steps Cobb ascended and descended (and
the same steps on the other Genesis Locomotives) as “steps.”

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foot touched the ground.

(Local Rule 56(a)(1) Stmt. ¶ 8).

Cobb

did not slip on the step as he was lowering his foot.
Cobb climbed from ground level into rail cars every day he
worked in order to conduct on-board inspections.

Specifically,

he had conducted on-board inspections of Genesis Locomotives at
least once or twice per week since Metro-North acquired them in
1995.

Prior to the incident on May 16, 2009, Cobb had never

been involved in any incident involving climbing on or off a
Genesis Locomotive, and he had never complained to any
supervisor at Metro-North about the height of the steps or
handholds on the Genesis Locomotive.
B.

Genesis Locomotives

In 1994, Metro-North contracted with General Electric
(“GE”) to obtain five Genesis Locomotives.
Locomotive is a road power locomotive.

The Genesis

At the time Metro-North

initially ordered the Genesis Locomotives, the National Railroad
Passenger Corporation (“Amtrak”) was already using the same
locomotives, including in Metro-North territory.

After

receiving its first five Genesis Locomotives in 1995, MetroNorth obtained an additional 26 Genesis Locomotives between 1998
and 2001.

The locomotive involved in Cobb’s incident was

received by Metro-North in 2001.
In late 1997, Metro-North learned that an Amtrak conductor
had sustained an injury while riding on a Genesis Locomotive.

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The conductor had been standing on the lowest step, and when the
locomotive traveled around a curve, the conductor’s foot was
pinched by the traction link, which was located just behind the
steps.

After learning of the Amtrak incident, Metro-North

expressed concern to GE about the clearance between the steps
and the traction link.

GE agreed to review the concerns with

its Safety Specialist “to confirm FRA compliance.”
¶ 28).

(Id. at

After reviewing the concerns and conducting an

investigation, GE informed Metro-North in October 1997 that the
steps were FRA compliant.

GE also told Metro-North that Amtrak

would attempt to prevent similar injuries by placing a decal
near the steps that read: “KEEP OFF LADDER WHEN LOCOMOTIVE IS IN
MOTION.”

(Id. at ¶ 29).

In April 1998, Metro-North requested that GE raise the
lowest step of the Genesis Locomotive steps by four inches and
that GE adjust the other steps accordingly.

Because of third

rail clearance issues, lowering the steps instead of raising
them was not an option.

When the height of the steps was

raised, the vertical handholds were not modified and, instead,
were left at their original height.

Prior to the modification,

the lowest step was measured at 17.78 inches above the rail;
after the modification, the lowest step measures at
approximately 21.75 inches above the top of the rail.

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II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

Rule 56(a) “mandates the entry

of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”

Celotex Corp., 477 U.S. at

322.
When ruling on a motion for summary judgment, the court
must respect the province of the jury.
may not try issues of fact.

The court, therefore,

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v.
Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.
1975).

It is well-established that “[c]redibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of the judge.”

Anderson, 477 U.S. at 255.

Thus, the

trial court’s task is “carefully limited to discerning whether

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there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248 (internal quotation marks omitted).

A material fact is

one that would “affect the outcome of the suit under the
governing law.”

Id.

As the Court observed in Anderson: “[T]he

materiality determination rests on the substantive law, [and] it
is the substantive law’s identification of which facts are
critical and which facts are irrelevant that governs.”

Id.

Thus, only those facts that must be decided in order to resolve
a claim or defense will prevent summary judgment from being
granted.

When confronted with an asserted factual dispute, the

court must examine the elements of the claims and defenses at
issue on the motion to determine whether a resolution of that
dispute could affect the disposition of any of those claims or
defenses.

Immaterial or minor facts will not prevent summary

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judgment.

See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d

Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).

Because

credibility is not an issue on summary judgment, the nonmovant’s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence.

“[M]ere speculation and

conjecture is insufficient to defeat a motion for summary
judgment.”

Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315

(2d Cir. 1997) (internal quotation marks omitted) (quoting
Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121
(2d. Cir. 1990)).

Moreover, the “mere existence of a scintilla

of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which [a] jury could
reasonably find for the [nonmovant].”

Anderson, 477 U.S. at

252.
Finally, the nonmoving party cannot simply rest on the
allegations in his or its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine

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issue of material fact exists.
324.

See Celotex Corp., 477 U.S. at

“Although the moving party bears the initial burden of

establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward
with specific facts showing that there is a genuine issue for
trial.”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067,

1072 (2d Cir. 1993) (quotation marks, citations and emphasis
omitted).

Furthermore, “unsupported allegations do not create a

material issue of fact.”

Weinstock, 224 F.3d at 41.

If the

nonmovant fails to meet this burden, summary judgment should be
granted.
III. DISCUSSION
A.

Second Cause of Action- Strict Liability

“The Safety Appliance Acts impose an absolute duty on
railroad carriers to maintain the required safety equipment on
their vehicles.”

Beissel v. Pittsburgh & Lake Erie R.R. Co.,

801 F.2d 143, 145 (3d Cir. 1986) (citing Lilly v. Grand Trunk W.
R.R. Co., 317 U.S. 481, 485-86 (1943)).

“The SAA also

encompasses regulations enacted by the Federal Railroad
Administration.”

Woods v. Union Pac. R.R. Co., 162 Cal. App.

4th 571, 577 (Cal. Ct. App. 2008) (citing McGinn v. Burlington

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N. R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996)).

The

regulations, set forth in Part 231 of Title 49 of the Code of
Federal Regulations, describe the technical specifications for
the various safety appliances required on 27 different types of
rail cars.

See 49 C.F.R. § 231, et seq.

“Although the SAA does not create an independent cause of
action, an employee injured as a result of a violation thereof
may commence an action under FELA.”

Woodard v. CSX Transp.,

Inc., No. 1:10-cv-753, 2012 WL 431190, *1 (N.D.N.Y. Feb. 10,
2012).

Thus, “the Safety Appliance Acts provide the basis for

the claim, and the FELA provides the remedy.”
at 145.
suit.

Beissel, 801 F.2d

“[A] [SAA] violation is per se negligence in a FELA

In other words, the injured employee has to show only

that the railroad violated the [SAA], and the railroad is
strictly liable for any injury resulting from the violation.”
Phillips v. CSX Transp., Inc., 190 F.3d 285, 288 (4th Cir.
1999).
In his Second Cause of Action, Cobb claims that the height
of the steps on the Genesis Locomotive did not comply with FRA
regulations governing locomotive safety appliances, and
therefore Metro-North is strictly liable for his injuries.
1.

Car of Nearest Approximate Type

The parties agree that the Genesis Locomotive is not one of
the types of rail cars that is specifically described in Part

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231, but is instead a “car of special construction” as set forth
in 49 C.F.R. § 231.18.

Section 231.18 states:

Cars of construction not covered specifically in the
foregoing
sections
in
this
part,
relative
to
handholds, sill steps, ladders, hand brakes and
running boards may be considered as of special
construction, but shall have, as nearly as possible,
the same complement of handholds, sill steps, ladders,
hand brakes, and running boards as are required for
cars of the nearest approximate type.
49 C.F.R. § 231.18.

Thus, to determine whether the Genesis

Locomotive complies with the FRA regulations, the court must
determine: (1) which type of rail car is the car “of the nearest
approximate type” and (2) whether the Genesis Locomotive has “as
nearly as possible” the same complement of safety appliances as
the car of the nearest approximate type.
i.

Issue of Fact or Law

As an initial matter, Cobb argues that which car is of the
nearest approximate type and whether the Genesis Locomotive has
as nearly as possible the same complement of safety appliances
is a question of law.

In support of this contention, Cobb cites

various cases which stand for the proposition that which safety
appliance regulation applies to the Genesis Locomotive is a
question of law.

However, that proposition does not extend to

the conclusion that which car is of the nearest approximate type
and whether the Genesis Locomotive complied as nearly as
possible is a question of law.

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The parties do not dispute that the Genesis Locomotive is a
car of special construction and that 49 C.F.R. § 231.18 is the
regulation with which it must comply.

Thus, which car is of the

nearest approximate type and whether the Genesis Locomotive has
as nearly as possible the same complement of safety appliances
is a question of whether the Genesis Locomotive complies with 49
C.F.R. § 231.18.

Compliance with the applicable regulation is

ordinarily an issue of fact for the jury to determine.

See

Gasden v. Port Auth. Trans-Hudson Corp., 140 F.3d 207, 210 (2d
Cir. 1998) (whether the rail car in question complied with the
regulation that it have conveniently located handholds or
footboards was “within the purview of a jury’s fact-finding
ability . . . .”); Woods, 162 Cal. App. 4th at 578 (“[T]he
question of whether a particular safety appliance complies with
the SAA generally is a question of fact to be decided by the
trier of fact . . . .” (emphasis in original)); Foreman v. BNSF
Ry. Co., No. C10-1758Z, 2013 WL 5945803, *1 (W.D. Wash. Nov. 6,
2013) (stating that whether a safety appliance installed on a
rail car was “safe” was a question of fact for the jury).
Because the question of which car is of the nearest
approximate type to the Genesis Locomotive and whether the
Genesis Locomotive has as nearly as possible the same complement
of safety appliances is an issue of fact, if the court

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determines that there is a genuine issue of material fact as to
either issue, the dispute will be for a jury to resolve.
ii.

Expert Testimony

Metro-North contends that expert testimony is required in
order to determine which car is of the nearest approximate type
and whether the Genesis Locomotive has as nearly as possible the
same complement of safety devices as the car of the nearest
approximate type.

It contends that

[a]ccurately identifying the “cars of the nearest
approximate type” requires a type-by-type comparison
of the Genesis Locomotive to the 27 types of cars
specifically described in the FRA safety appliance
regulations. Such a comparison, in turn, requires an
understanding and analysis of the technical features
of the Genesis Locomotive, as well as of the 27 other
types of cars. This analysis is well beyond the
average knowledge of a layperson . . . .”
(Def.’s Mem. Supp. Mot. Summ. J. (Doc. No. 55) at 16).
When discussing rail cars that fall into the category of
cars of special construction and how courts determine the car of
nearest approximate type are limited, the court in Foreman did
not need to determine the car of nearest approximate type
because the parties were in agreement as to which car was of the
nearest approximate type to the car of special construction at
issue.

See Foreman, 2013 WL 5945803 at *1.

In two other cases,

the court concluded, without explanation, which car was of the
nearest approximate type.

See Beissel, 801 F.2d at 146-47;

Toadvine v. Norfolk S. Ry. Co., 129 F.3d 1265, *2 (6th Cir.

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1997).

In another case, the court did not determine which car

was of the nearest approximate type, but instead concluded that
the safety appliance at issue was essentially an “additional
safety appliance[]”, and the FRA regulations did not prohibit
additional safety appliances.

See Woods, 162 Cal. App. 4th at

579.
The court has identified only one case in which a court
actually determined which car was of the nearest approximate
type to a car of special construction and explained its
reasoning.

In Feldman v. CSX Transp., Inc., 821 N.Y.S.2d 85,

90-92 (N.Y. App. Div. 2006), the court determined which car was
of the nearest approximate type to a car of special
construction.

In arriving at its decision that “a box or other

house car with roof hatches” was the car of nearest approximate
type, the court credited and relied on a FRA letter ruling.
at 91.

Id.

Although the court noted that the letter ruling was not

entitled to Chevron deference, the court stated that “the FRA’s
reasoning was valid and thoroughly considered” and that the
interpretation was “not irrational or inconsistent with the
regulations.”

Id.

Thus, the court relied on the FRA’s

interpretation.2

2

Metro-North argues that Feldman did not “resolv[e] a dispute between the
parties as to which ‘cars of nearest approximate type’ applied to a
particular car of special construction” because “the court simply cited a
case which previously had identified the car of nearest approximate type.”
(Def.’s Mem. Supp. Mot. Summ. J. (Doc. No. 55) at 15). While Feldman did

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These cases do not lead the court to conclude that expert
testimony is necessary to assist the finder of fact in
determining which is the car of nearest approximate type, and
therefore with which car it must have as nearly as possible the
same complement of safety appliances.

Metro-North cites, in

support of its position that expert testimony is necessary,
other cases in which courts have found expert testimony
necessary in the context of questions about train car design
under FELA.
at 17-18).

(See Def.’s Mem. Supp. Mot. Summ. J. (Doc. No. 55)
Additionally, Metro-North cites Federal Rule of

Evidence 702 and the accompanying Advisory Committee Notes for
the proposition that expert testimony is commonly used where an
evaluation of facts is difficult or impossible without
scientific, technical, or specialized knowledge.
However, the court is not persuaded that expert testimony
is necessary to determine the car of nearest approximate type.
Evaluating train car design is a materially different task than
determining for a particular item what is the nearest
approximate type.

Also, while the testimony of the defendant’s

expert may prove to be helpful to the jury here (and, in fact,
is required to be under Rule 702) because of the expert’s
specialized knowledge, it does not follow that expert testimony

cite a case for the proposition that hopper cars resemble box cars, the court
went on to discuss the FRA’s letter ruling and why it found the letter ruling
to be persuasive.

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is required.

It is not established as a matter of law that an

expert is required for the question at issue, and the jury here
may find the evidence proffered by the plaintiff more persuasive
than that from the defendant’s expert.
iii. Applicable Regulation
Because expert testimony is not required to determine which
car is of the nearest approximate type to the Genesis
Locomotive, the court turns to whether there is a genuine issue
of material fact as to which car is of the nearest approximate
type.

Cobb contends that “[s]team locomotives used in road

service,” as set forth in 49 C.F.R. § 231.15, are the cars of
nearest approximate type; Metro-North contends that the cars of
nearest approximate type are “[b]ox and other house cars without
roof hatches or placed in service after October 1, 1966,” as set
forth in 49 C.F.R. § 231.27.
Cobb argues that steam locomotives used in road service are
the cars of nearest approximate type to the Genesis Locomotive
because the Genesis Locomotive is a “road locomotive” that is
not used in switching service and does not have corner
stairways.3

Because the FRA Office of Railroad Safety “Motive

Power and Equipment Compliance Manual” (the “MP&E Manual”)

3

The argument that the Genesis Locomotive is not used in switching service
and does not have corner stairways is meant to support Cobb’s position that
the car of nearest approximate type is set forth in 49 C.F.R. § 231.15, and
not § 231.16 (steam locomotives used in switching service) or § 231.29 (road
locomotives with corner stairways).

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states that non-steam locomotives are required to have as nearly
as possible the same complement of safety appliances as
contained in the regulations for steam locomotives, Cobb argues
that the regulation that governs steam locomotives used in road
service should be applied to the Genesis Locomotive.

However,

Cobb does not demonstrate why the fact that the Genesis
Locomotive is a road locomotive necessarily leads to the
conclusion that a steam locomotive used in road service is the
car of nearest approximate type aside from the fact that they
are both used in road service.
Additionally, Cobb cites to a letter from Ron Hynes
(“Hynes”), Director of the FRA’s Office of Safety Assurance.

In

response to a letter from the plaintiff’s counsel asking which
regulation would apply to the placement of the vertical
handholds on the Genesis Locomotive, Hynes states that because
the “FRA understands the Genesis 2 type of locomotive to be road
power[,] . . . [the] FRA would apply the requirements at 49
C.F.R. § 231.15- Steam locomotives used in road service, as the
nearest approximate type.”

(Ex. 10 (Doc. No. 62-10) at 2).

The

plaintiff argues that the court should give deference to the
letter.
However, in support of its argument that the car of nearest
approximate type is a box and other house car without roof
hatches or placed in service after October 1, 1966, Metro-North

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also cites correspondence between itself and the FRA.

Metro-

North’s John Hogan (“Hogan”) sent an email to John Killoy
(“Killoy”) at the FRA asking which regulation applies to the
distance from the top of the rail to the first step of the
ladder on the Genesis Locomotive.

Hogan wrote,

In the CFR it spells out the height from top of rail
to bottom step for a switching locomotive (18 inches).
For Tier II it spells out the height of 22 inches from
top of rail to first step on ladder.
However- I
cannot find details specific to Tier 1.
Does it
follow Tier II or is there a section I am missing
relative to “Road Locomotives”[?]
(Ex. T (Doc. No. 55-3) at 3).

Killoy passed the question along

to Stephen Carullo (“Carullo”), a Railroad Safety Specialist at
the FRA, noting that he could not find a regulation addressing
Hogan’s question.

Carullo responded that the step Hogan asked

about “would not be considered a traditional locomotive step and
would be considered a sill step.

The sill step requirements are

typically 22” preferred and no more than 24” above top of rail.”
(Ex. T (Doc. No. 55-3) at 2).

Killoy then responded to Hogan

that the FRA would apply the regulation for box and other house
cars without roof hatches or placed in service after October 1,
1966 found at 49 C.F.R. § 231.27(c)(iii) to the height of sill
steps.

(Ex. T (Doc. No. 55-3) at 2).

Additionally, Metro-North points to the report of its
expert, Phil Olekszyk (“Olekszyk”).

Olekszyk opines that “the

sill step tread on Genesis Locomotive #226 [was required] to be

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not more than twenty-four (24), and preferably not more than
twenty-two (22) inches above the top of rail.”
No. 55-4) at 11).

(Exhibit U (Doc.

The height of 22” to 24” is the height for

sill steps described in 49 C.F.R. § 231.27(c)(iii).

However,

Olekszyk does not give an opinion that box and other house cars
without roof hatches or placed in service after October 1, 1966
are the cars of closest approximate type to the Genesis
Locomotive.

Instead, Olekszyk suggests that the car of nearest

approximate type will be different depending on the type of
safety appliance in question.
Thus, there are genuine issues of material fact as to what
car is of the nearest approximate type to the Genesis
Locomotive.4

Therefore, Cobb’s cross motion for summary judgment

is being denied and Metro-North’s motion for summary judgment on
this ground is being denied.
2.

Compliance as Nearly as Possible

Metro-North contends that even if Cobb could establish
which car is of the nearest approximate type to the Genesis
Locomotive, he cannot establish a violation of the applicable
regulation without expert testimony.

Section 231.18 requires

that cars of special construction have “as nearly as possible

4

The court notes that the parties dispute whether the step on which Cobb
slipped should be considered a “sill step” or a “pilot sill step.” Because a
genuine issue of material fact exists as to which car is of the nearest
approximate type, the court does not reach the issue of whether the step is a
sill step or a pilot sill step.

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the same complement of [safety appliances] as are required for
cars of the nearest approximate type.” (emphasis added).

Thus,

Metro-North argues, Cobb needs expert testimony to show that the
Genesis Locomotive did not comply as nearly as possible with the
car of nearest approximate type.

The court disagrees.

As discussed more fully in section III.A.1, supra, the case
law suggests that a finder of fact can determine whether a car
complies as nearly as possible in the absence of expert
testimony.
In Feldman, the court determined that a “box or other house
car with roof hatches” was the car of nearest approximate type
to the car of special construction at issue.
91.

821 N.Y.S.2d at

The court then had to determine whether the running boards

on the car of special construction complied as nearly as
possible with the regulation concerning running boards for box
or other house cars with roof hatches.

The regulations provided

that, on box or other house cars with roof hatches, running
boards were required to be located “[f]ull length of car, center
of roof.”

49 C.F.R. § 231.1(c)(3).

However, on the car of

special construction in question, the running boards were
located “along the outside of the center line.”
92.

821 N.Y.S.2d at

The court held that the location of the running boards

complied as nearly as possible with 49 C.F.R. § 231.1(c)(3).
Id. at 92.

The court first noted that the running boards on the

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car at issue “[could not] physically be located down the center
of the car because the hatches are located down the center of
the car.”

Id. at 91.

The court found persuasive the reasoning

in a letter ruling from the FRA which took the position that the
car complied as nearly as possible.

The court stated, “[t]he

interpretation that such a design complies as nearly as possible
with the box car requirements is not irrational or inconsistent
with the regulations since center line hatches provide more
uniform loading and more consistent balance for the railcars.”
Id. at 91-92.

Thus the court concluded, without the aid of

expert testimony, that the car of special construction complied
as nearly as possible with the regulations for the car of
nearest approximate type.
The court also finds pertinent dictum in Gasden.

In

Gasden, the plaintiff argued that the defendant’s rail vehicle
did not comply with the requirement in the regulation that it
have “[o]ne or more safe and suitable handholds conveniently
located.”

140 F.3d at 209 (quoting 49 C.F.R. § 231.25).

The

plaintiff offered evidence in the form of his deposition
testimony and affidavit that the rail vehicle lacked
conveniently located handholds and footboards, and the court
stated that a determination of whether the handholds and
footboards were “conveniently located” was “customarily within
the purview of the jury’s fact-finding ability.”

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Id. at 210.

Although Gasden dealt with the question of whether a safety
appliance was “conveniently located,” as opposed to whether a
car of special construction complied “as nearly as possible,”
both issues require the finder of fact to reach a conclusion as
to whether a safety appliance complies with the statute.

Thus,

Gasden is instructive here.
In support of its argument that expert testimony is
required, Metro-North cites to various portions of the MP&E
Manual that refer to the need for inspectors to use their
judgment in enforcing the safety appliance regulations.
Def.’s Mem. Supp. Mot. Summ. J. (Doc. No. 55) at 20).

(See

However,

the sections that Metro-North cites refer to inspectors using
their judgment in issuing civil penalty citations, not in
determining whether a safety appliance is in compliance with the
regulations.

For example, the MP&E Manual states,

In the past, FRA inspectors have taken exception to
minimal deviations from the measurements specified in
the Safety Appliance Standards on cars that have been
in service with the condition for a long period of
time without any known incident or casualty. Although
these civil penalty citations are valid from a
strictly technical and legal point of view; from a
common sense point of view, the cars operated safely
for years, so these minimal deviations do not
materially reduce safety.
(Ex. 13 (Doc. No. 62-13) at 10-5 (emphasis added)).

Whether a

safety appliance complies with the regulations is a different
question than whether a civil penalty citation should be issued

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by the FRA for non-compliance.

It is in the issuance of civil

penalty citations that the MP&E Manual directs inspectors to
rely on their professional experience and judgment.
Therefore, Metro-North’s motion for summary judgment on the
ground that Cobb has not disclosed an expert is being denied.
3.

Preclusion

Metro-North argues that because the Genesis Locomotive
complies with the FRA standards, Cobb’s FELA claim in the Second
Cause of Action is precluded.

However, because there exist

genuine issues of material fact as to whether the Genesis
Locomotive complied as nearly as possible with the regulation
for the car of nearest approximate type, as well as with respect
to which car is of the nearest approximate type to the Genesis
Locomotive, the court does not reach the issue of whether Cobb’s
FELA claim would be precluded because the Genesis Locomotive was
in compliance with the FRA regulations.

Therefore, Metro-

North’s motion for summary judgment on this ground is being
denied.
B.

First Cause of Action- Negligence

As with the FELA claim in the Second Cause of Action,
Metro-North argues that Cobb’s FELA claim in the First Cause of
Action is precluded because the Genesis Locomotive is in
compliance with the applicable FRA regulation.

For the reasons

set forth with regard to the Second Cause of Action, Metro-

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North’s motion for summary judgment as to the First Cause of
Action is being denied.5
IV.

CONCLUSION
For the reasons set forth above, Metro-North’s Motion for

Summary Judgment (Doc. No. 53) is hereby DENIED, and Cobb’s
Cross Motion for Summary Judgment (Doc. No. 64) is hereby
DENIED.
It is so ordered.
Dated this 29th day of August, 2014, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

5

In his memorandum in opposition to Metro-North’s motion for summary judgment
and in support of his cross motion for summary judgment, Cobb discusses in
depth the evidence that supports his negligence claim in the First Cause of
Action. However, because Metro-North only moved for summary judgment as to
the First Cause of Action on the ground that it is precluded because the
Genesis Locomotive was in compliance with the FRA regulations, and Cobb
himself did not move for summary judgment on the First Cause of Action, the
court does not address the facts and arguments Cobb makes in that section of
his memorandum.

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