Windom v. Norfolk Southern Railway Company

Filing 47

ORDER DENYING 37 Motion for Partial Summary Judgment. Ordered by Judge Marc Thomas Treadwell on 6/28/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PAUL WINDOM,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

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CIVIL ACTION NO. 5:10-CV-407 (MTT)

ORDER
This matter is before the Court on the Defendant’s Motion for Partial Summary
Judgment. (Doc. 37). The Plaintiff seeks to hold the Defendant liable, pursuant to the
Federal Employers’ Liability Act, for injuries allegedly suffered in the course of his
employment. The Plaintiff alleges that the Defendant violated the Safety Appliance Act
(SAA) because the “high-rail vehicle” (a vehicle that can operate on both roadways and
railroad tracks) the Plaintiff was using at the time he was injured did not comply with the
SAA sill step requirements. The Defendant argues that the SAA does not apply to highrail vehicles that are being operated on the roadway. For the reasons discussed below,
the Motion is DENIED. (Doc. 37).
I. PROCEDURAL AND FACTUAL HISTORY
The relevant facts are not in dispute. At the time of the incident, the Plaintiff was
employed by Defendant Norfolk Southern Railway Company. As part of his job, the
Plaintiff drove a welding truck. (Doc. 37-1 at 1). This welding truck is considered a
high-rail vehicle because it can be operated both on the roadway and on Norfolk

Southern’s railroad line. At the time of the Plaintiff’s injury, he was parked at a gas
station in Vienna, Georgia. The Plaintiff alleges that he injured himself while
descending from the welding truck. Specifically, he asserts that a step on the truck was
bent causing him to lose his footing.
After the dispositive motions deadline expired, the Defendant realized that the
Plaintiff intended to combat a contributory negligence defense by alleging that the
Defendant’s vehicle was not compliant with the SAA, and, thus, the Defendant was
strictly liable for the Plaintiff’s injuries. The Court permitted the Defendant to move for
partial summary judgment on the sole issue of whether the SAA was applicable to the
high-rail vehicle operated by the Plaintiff at the time of the injury.
II. SUMMARY JUDGMENT STANDARD
Summary judgment must be granted if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material facts and that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). “A factual dispute is genuine only if ‘a reasonable jury could return a
verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop.,
941 F.2d 1428, 1437 (11th Cir. 1991)). Further, the burden rests with the moving party
to prove that no genuine issue of material fact exists. Info Sys. & Networks Corp., 281
F.3d at 1224. The district court must “view all evidence in the light most favorable to the
nonmoving party, and resolve all reasonable doubts about the facts in its favor.” Id.

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III. DISCUSSION
A.

The Federal Employers’ Liability Act and Federal Safety Appliance Act
FELA provides, in relevant part, that:
[e]very common carrier by railroad … shall be liable in
damages to any person suffering injury while he is employed
by such carrier in commerce … for such injury or death
resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason
of any defect or insufficiency, due to its negligence, in its
cars, engines, appliances, machinery … or other equipment.

45 U.S.C. § 51. FELA was passed as “a response to the special needs of railroad
workers who are daily exposed to the risks inherent in railroad work and are helpless to
provide adequately for their own safety.” Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326,
329 (1958) (internal citations omitted). However, FELA is not a strict liability statute,
and in order for a plaintiff to prevail on a claim under FELA, he must show that employer
negligence played some part in producing the injury for which damages are sought.
Tootle v. CSX Transp., Inc., 746 F. Supp. 2d, 1333, 1337 (S.D. Ga. 2010). Thus, to
recover under FELA, the injured railroad employee must show that (1) he was injured
within the scope of his employment for the railroad, (2) his employment was in
furtherance of the railroad’s business, (3) the employer was negligent, and (4) the
employer’s negligence “played some part in causing the injury” for which he seeks
compensation. Marshall v. Grand Trunk Western Railroad Co., 2011 WL 4344305, *8
(W.D. Mich.).
The third element—negligence—can be established if a plaintiff proves that the
railroad company violated the SAA. The SAA imposes an absolute duty on railroads,
and a violation of an SAA regulation is negligence per se. Id. at *9; see also Lilly v.
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Grant Trunk Western Railroad Co., 317 U.S. 481 (1943). Thus, a violation of the SAA
does not itself confer a right of action on a plaintiff; however, it will provide the basis of a
claim if a plaintiff can prove the violation. Id. at *8 (citing Beissel v. Pittsburg & Lake
Erie Railroad Co., 801 F.2d 143, 145 (3d Cir. 1986)).
The relevant SAA provision provides:
Except as provided in subsection (c) of this section … a
railroad carrier may use or allow to be used on any of its
railroad lines—(1) a vehicle only if it is equipped with—… (B)
secure sill steps and efficient hand brakes…”

49 U.S.C. § 20302 (a)(B) (emphasis added). The Defendant does not contest the
Plaintiff’s factual allegation that the record contains sufficient evidence of a violation of
the SAA sill step requirements. Instead, the Defendant contends that the SAA is not
available to the Plaintiff because the welding truck was not being operated on a railroad
line at the time of the incident.
B.

The SAA’s Applicability
The SAA applies to vehicles that “a railroad carrier may use or allowed to be

used on any of its railroad lines.” 49 U.S.C. § 20302(a). The Defendant asserts that the
language “its railroad lines” limits the application of the SAA to instances where high-rail
vehicles, in this case welding trucks, are operated on the actual railway, rather than a
roadway. The Plaintiff cites Beissel v. Pittsburgh & Lake Erie Railroad Co., 801 F.2d
143 (3d Cir. 1986) to support his contention that the SAA does apply to the high-rail
vehicle while used on railways. (Doc. 41).
The facts in Beissel are essentially identical to the facts here. The Third Circuit
held that a high-rail vehicle being operated on a roadway, rather than railroad tracks, is

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within the scope of the SAA and subject to the secure still steps requirement. Beissel,
801 F.2d at 147. However, the Defendant argues (1) that Beissel is not binding on this
Court and (2) that, even if the Court finds Beissel persuasive, the Third Circuit was
interpreting a previous version of the SAA. (Doc. 37-2 at 5-8). The version of the SAA
in effect at the time of the Third Circuit’s ruling provided that the SAA applies to vehicles
“used on its line,” rather than the current version of the SAA that provides that the
statute applies to vehicles “used on any of its railroad lines.” Id. at 145; 49 U.S.C.
§ 20302(a).
Obviously, Beissel is not binding precedent on the Eleventh Circuit. However, as
discussed below, the Court finds its reasoning persuasive. The Court will first address
the argument that the amendment of the SAA effectively abrogates Beissel.  
The Defendant cites no case law nor legislative history to support its abrogation
argument, but simply alleges that “[t]he inclusion of the word ‘railroad’ before ‘lines’ in
the current version of the statute removes any ambiguity regarding when the SAA
applies.” (Doc. 37-2 at 6). The legislative history of the SAA amendments does not
support the Defendant’s assertion. The “Revision Notes and Legislative Reports”
regarding the 1994 SAA changes show that the change from “on its line” to “on any of
its railroad lines” was one of several technical changes to the SAA for consistency and
clarity purposes in the revised title. H.R. Rep. 103-180 (1993), reprinted in 1994
U.S.C.C.A.N. 818, 1993 WL 287624. Nothing in the legislative history supports the
Defendant’s contention that the minimal change to “on any of its railroad lines” was
intended to be substantive and overturn Circuit cases that had interpreted the previous
language, “on its line,” to apply to high-rail vehicles, regardless of where they were

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being used. In fact, the House Report states that the general purpose of the
amendments “is to restate in comprehensive form, without substantive change…[,]
and to make other technical improvements.” Id. (emphasis added). The Report goes
on to state:
Substantive change not made.–As in other codification bills
enacting titles of the United States Code into positive law,
this bill makes no substantive change in the law. It is
sometimes feared that mere changes in terminology and
style will result in changes in substance or impair the
precedent value of earlier judicial decisions and other
interpretations. This fear might have some weight if this were
the usual kind of amendatory legislation when it can be
inferred that a change of language is intended to change
substance. In a codification law, however, the courts uphold
the contrary presumption: the law is intended to remain
substantively unchanged.

Id. Thus, nothing in the legislative history indicates that the Third Circuit’s interpretation
of the previous version of the SAA should be discounted.
The Court now turns to Beissel’s reasoning. The Third Circuit first noted that the
Supreme Court had held high-rail vehicles, generally, are subject to the provisions of
the SAA. Beissel, 801 F.2d at 146 (citing Baltimore & Ohio Railway Company v.
Jackson, 353 U.S. 325, 328 (1957)). The Third Circuit could find “no reasonable
justification for excluding high-rail vehicles” operated on the roadway at the time of the
incident from the SAA sill steps requirements. Beissel, 801 F.2d at 147. Further, the
court in Beissel reasoned that “use of a car on a carrier’s ‘line’ need not be limited to the
carrier’s railroad track. Where use of its cars on the highway is an integral part of a
railroad carrier’s operation, the employer may not escape liability merely because an
employee is unfortunate enough to be injured by a defective sill step while the vehicle is

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on the highway and not on a rail.” Id. Because the high-rail vehicle “was being used in
the regular course of business, on both rail and highway[,] the defendant had equipped
the vehicle for rail and provided required sill steps. So long as it continued to use the
multi-purpose vehicle in this dual capacity, it was required…by the Safety Appliance
Act[] to maintain a secure step.” Id. at 148.
Although the SAA requires secure sill steps, the Defendant, citing 49 C.F.R.
§ 231.25(c), notes that sill steps are only required when the bottom of a “track motorcar
is more than 24 inches above top of rail.” The Defendant argues the regulation
buttresses the argument that the SAA only applies when the vehicle is used on railroad
lines. (Doc. 37-2 at 5). While it seems that sill steps are only required when the bottom
of a vehicle is more than 24 inches above railroad tracks, the fact remains that the SAA
requires secure sill steps. In other words, once installed, the SAA requires that the
steps be secure. Again, when a faulty sill step causes an injury, there is no less a
violation of the SAA simply because the injury occurred when the vehicle was parked in
a parking lot.
The Court has found no Eleventh Circuit case law on this issue. Further, the
Defendant cites no cases, Eleventh Circuit or otherwise, to support its assertion that “on
any of its railroad lines” should be interpreted to allow for a railroad company to only
comply with the SAA sill steps regulations when a high-rail vehicle is being operated on
a railway. Thus, although the Court is not bound by the Third Circuit’s holding in
Beissel, it finds the reasoning persuasive.
Here, there is no dispute that the welding truck is a high-rail vehicle that can be
operated both on the railway and on the roadway. Therefore, the vehicle is subject to

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the SAA sill steps regulations, regardless whether the injury occurred while the vehicle
was in use on a railway or on a roadway. This Court, like the Third Circuit in Beissel,
finds no rational reason for requiring the Defendant to comply with SAA regulations
while the vehicle is being operated on a railway, but to allow noncompliance with the
SAA while the exact same vehicle is being operated on a roadway. Therefore, the
Defendant’s Motion is DENIED, and the Plaintiff’s evidence of an SAA violation can be
presented at trial.
SO ORDERED, this the 28th day of June, 2012.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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