Collins v. Union Pacific Railroad Company
ORDER & REASONS denying 22 Motion for Partial Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/22/2015. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENRICK T. COLLINS
UNION PACIFIC RAILROAD COMPANY
ORDER AND REASONS
Before the Court is Kenrick T. Collins' motion for partial
summary judgment. For the reasons that follow, the motion is
In the late evening hours of July 9, 2014 Kenrick Collins'
right leg was amputated below the knee when -- during the course of
working as a signalman for Union Pacific Railroad Company -- he was
consisting of approximately 30 rail cars.
This is a personal
injury case arising under the Federal Employer’s Liability Act, 45
U.S.C. § 51.
The accident occurred west of Baton Rouge, Louisiana at Union
Pacific's Livonia Yard, a switching yard, where incoming cars are
separated, re-sorted, and then put together into outgoing trains.
Trains from all over the country are brought into the Livonia yard,
carrying cars bound for destinations throughout Union pacific's 23-
state territory and connecting railroads.
Cars on the incoming
trains are re-sorted into new groups for outbound trains by shoving
the cars, one at a time, over a man-made crest on the north-end of
After each car comes over the crest it is, by computer,
switched onto one of 35 tracks and rolls by gravity into an area of
lower elevation called the "Bowl."
Once the cars are classified into one of the 35 Bowl tracks,
blocks of cars are moved from those tracks into the departure yard,
where outgoing trains are put together.
The cars are moved out of
the Bowl on its south end, where the 35 classification tracks in
the Bowl tie into two "Lead" tracks, the West Trim Lead and the
East Trim Lead.
These two Leads are the tracks leading to the
Each Lead track is in a remote control zone, and
the zone runs from the connection with the Bowl on the south end to
the end of the Lead.
Two switches connect the Trim Leads to the departure yard, the
8-switch and the 7-switch.
Both switches, by design, are operated
remotely by a man sitting in front of a computer terminal in the
nearby Trim building.
This allows his co-worker to stay in the
Bowl, manually lining Bowl tracks and operating locomotives by
remote control to connect to cars in the Bowl and then to move
blocks of cars out of the Bowl into the departure yard.
switching cars into a departure yard track, the light engines go
back to the East Trim Lead via the East Shove Lead and go northward
to the Bowl to start the process over again with a new group of
Each movement from the Bowl to the departure yard is called a
"swing." A Yardmaster is tasked with deciding which cars are swung
out of the Bowl into the designated departure yard tracks and in
On the night of the incident, Kermit Jackson was the
Yardmaster in the Trim Building.
The two-man crew working on the
East Trim Lead job were Jack Shannon Fairchild (on the ground) and
Keidron Stewart (in the Trim Building).
the second swing out of the Bowl.
The accident happened on
The witnesses refer to the two
involved Bowl tracks by number: 23 (the first swing) and 30 (the
second swing; the incident swing), and to departure yard track 307.
Before Fairchild and Stewart began their work, a "ghost"
appeared on the 8-switch.1
Jackson called Collins, who was working
the night shift, to fix the ghost.
Collins first went to the 8-
switch and reset it, clearing the ghost.
Collins then went to the
However, the ghost reappeared when Fairchild and
Stewart were starting their shift.
Suspecting a malfunctioning
wheel detector, Collins went back to the 8-switch to conduct
A "ghost" describes an artifact in the signal system
that shows up from time to time on the computer terminal in the
Trim Building where Stewart was sitting; it is as if an engine or
car were on the switch, when no engine or car is actually there.
When a ghost is on the switch, that switch cannot be remotely
operated from the Trim Building, but equipment (such as engines and
cars) can still move on the East Trim Lead over that switch so long
as that switch is lined for the East Trim Lead, as it was the night
of the accident, allowing them to do so.
further diagnostic testing and to fix the ghost.
Fairchild began the shift by moving light engines (no cars)
southward, off another track (the West Shove Lead), onto the East
Trim Lead, on which he then went northward to the Bowl.
saw Collins working at the 8-switch, stopped to talk to him, and
asked him whether he needed time.
Collins said that he did.
Collins manually adjusted the 8-switch.
Before the first swing,
southward out of the Bowl at the Trim Building because Collins was
working in the zone near the 8-switch.
While in the Bowl making connection with the cars in Bowl
track 23 in preparation for the first swing, Collins radioed over
the yard channel to say that he was in the "clear."
pulled 23 out and was tying a brake on 23 when Collins reported
that his truck was stuck. Having been advised that he was "clear,"
Fairchild commenced the first swing southward out of the Bowl and
did not stop at the Trim Building.
Fairchild rode the last car out
of the Bowl on the East Trim Lead right over the 8-switch.
Fairchild did not see Collins when the job moved over the 8-switch.
Collins recalls that he was in his truck at that time, trying to
After the first swing switched cars into the departure yard
(track 307), and while the light engines were coming out of the
departure yard on the East Shove Lead to go back to the Bowl by way
of the East Trim Lead, Stewart radioed to Collins, even though he
was not required to do so by rule or regulation; he told Collins
that the job was moving in his direction.
Stewart says that
Collins said, a second time, that he was "clear."2
As Fairchild operated the light engines on the East Trim
northward, back to the Bowl to make the second swing, Fairchild
stopped and talked to Collins again.3
Collins was on the west-side
of his stuck truck, meaning he was on the side away from the East
Trim Lead where the wheel detector was located.
Fairchild whether he was going back to the Bowl; Fairchild said he
was going right back to get track 30.
According to Fairchild and
Stewart, Collins did not say he was going back into the zone.4
Collins disputes this.
According to Collins, he (Collins) told
Fairchild that he (Collins) was going back into the zone to work on
the wheel detector, and (Collins says) Fairchild said he would tell
Collins admits that he told Stewart he was clear, but
he does not recall exactly when he told him so.
Thus, a little less than six minutes before the
accident was when Fairchild had seen Collins in the clear, after
Collins had told him so.
Stewart explained that he thought Collins was in the
area only because his truck was stuck; he did not believe that
Collins was "actually still on the rail."
However, Collins submits that Fairchild instructed
Stewart to stop train movement at the trim building because Collins
was working on the switch. (For this, plaintiff submits one page
of Fairchild's deposition; without context, its difficult to gauge
Collins when he was coming out of the Bowl.5
Collins submits that he was working on the wheel detector when
-- without any communication from Fairchild, and without any
audible warning -- the remote-controlled locomotive engine and
train struck Collins, knocking him onto the rail.
The engine, or
train wheel, ran over Collins' right leg, amputating it below the
Collins submits that this accident could have been avoided
had Fairchild and Stewart protected the leading end of the movement
out of track 30.
Fairchild and Stewart failed to place themselves
in a position where they could see the track in front of the
train's movement and make sure it was clear of men and equipment.
This dispute concerning the crew's knowledge of
Collins' whereabouts impacts the present motion. When the crew
knows that the zone is clear, there is no requirement to provide
point protection. Jackson "can't say for sure" that Fairchild knew
Collins was still working on the 8-switch. Collins submits that
the camera should have been used to protect the point. But the
defendant disputes that the camera could be so used. Fairchild
testified that, as for the yard camera at the trim building,
utilizing this feature is not a way to protect the shove on the
East Trim Lead. The camera does not allow the crew member to see
a man in Collins' position at night; rather, the camera is used to
protect the point when the job is in the departure yard or in the
Bowl, outside the zone, in the direction away from the 8-switch.
According to Stewart, even if used, the camera view could not have
shown Collins at the wheel detector because Keidron would have had
the camera pointed, not toward the switch, but, rather, pointed at
the engines coming out of the Bowl. Union Pacific insists that
this is a genuine dispute concerning whether the crew knew the zone
was clear at the time of the incident. Union Pacific also cites to
Rule 136.3, which would have required Collins to conduct a job
briefing before he fouled the track.
("A job briefing must be
conducted before a roadway worker fouls any track. A job briefing
understanding of the on-track safety procedures and instructions.")
Safety regulations were in place to prevent this type of accident,
but the regulations were not followed, Collins submits.
On September 23, 2014 Collins sued Union Pacific Railroad
Company, seeking to recover under the Federal Employer's Liability
negligence, and the negligence of its employees, caused Collins'
Charging that Union Pacific violated two Federal Railroad
Administration safety regulations pertaining to audible warnings
and protecting the movement of equipment, Collins now seeks partial
summary judgment on the issues of liability and causation.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
"[T]he nonmoving party cannot
unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).
In deciding whether a fact
issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).
The Federal Employer's Liability Act, 45 U.S.C. § 51, is
Kendrick Collins' exclusive remedy to recover for his tragic and
career-ending injury sustained while he was working as a signalman
for his railroad employer, Union Pacific Railroad Company.6
FELA, an injured employee like Collins may recover damages for
"injury or death resulting in whole or in part from the negligence"
of Union Pacific, which is charged with providing a reasonably safe
work environment for its employees.
Huffman v. Union Pacific
Railroad, 675 F.3d 412, 416-17 (5th Cir. 2012)(citation omitted),
reh'g en banc denied, 683 F.3d 619 (5th Cir. 2012);
Union Pacific Railroad Company, 378 F.3d 502, 508 (5th Cir. 2004).
"Negligence within the meaning of FELA exists if the defendant
45 U.S.C. § 51 states:
Every common carrier by railroad while
engaging in commerce between any of the
several States or Territories . . . shall be
liable in damages to any person suffering an
injury while he is employed by such carrier in
commerce. . . for such injury . . . 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, track,
roadbed, works, boats, wharves, or other
equipment. . . .
railroad 'knew, or by the exercise of due care should have known'
that its conduct was 'inadequate to protect [the plaintiff] and
similarly situated employees.'"
Huffman, 675 F.3d at 417 (quoting
Urie v. Thompson, 337 U.S. 163, 178 (1949)).
railroads liable for employees' injuries or deaths 'resulting in
whole or in part from [carrier] negligence.'"
Inc. v. McBride, 131 S. Ct. 2630 (2011)(rejecting traditional
proximate cause standard in favor of more expansive causation
standard, that railroad negligence that played "any part" in
bringing about the injury); Urie, 337 U.S. at 181 (FELA's language
on causation "is as broad as could be framed.").
Mr. Collins alleges that Union Pacific failed to provide him
with a reasonably safe place to work and that its negligence caused
his devastating injury. More particularly, for the purposes of his
motion for partial summary judgment, Mr. Collins seeks a finding of
liability under a negligence per se regime.7
Mr. Collins submits
Collins urges the Court to find Union Pacific negligent
per se because it violated Federal Railroad Administration safety
regulations pertaining to audible warnings and protecting the
movement of equipment. In some cases, the same facts that give
rise to a claim under FELA's general negligence provisions may also
provide a basis for a related claim under the Federal Safety
Appliance Act, or under the regulations promulgated thereunder,
which are located in Title 49 of the Code of Federal Regulations
under the Federal Railroad Administration regulations. A violation
of these regulations is a violation of the FSAA and gives rise to
damage suits by injured workers. Urie, 337 U.S. at 191. In a case
under the FSAA or its implementing regulations, proof of the
violation shows negligence as a matter of law. Urie, 337 U.S. at
that Union Pacific violated two regulations, the requirement to
sound audible warnings (49 C.F.R. § 214.339) and the requirement to
provide point protection (49 C.F.R. § 218.99). Each violation, Mr.
Collins submits, constitutes negligence per se such that he need
only prove the statutory violation and that the violation caused
Union Pacific counters that the plaintiff's motion for partial
summary judgment should be denied because the plaintiff has failed
Union Pacific submits that there was no violation of
49 C.F.R. § 214.339 because this regulation applies only to
"trains," not remote controlled locomotives and cars; and, Union
Pacific submits, the bell was rung before the second swing out of
the bowl began.
Addressing its alleged violation of 49 C.F.R. §
219.99, Union Pacific submits that a genuine dispute as to a
subsection (d), which states that the crew need not make a new
For the purposes of this motion, Union Pacific does not
dispute that, if the plaintiff proved a violation of the referenced
regulations, he would be relieved of his obligation to prove
Union Pacific observes more generally that the
plaintiff's submission lacks contextualizing facts that create
factual controversies in the record.
determination prior to subsequent shoving "[a]fter an initial track
is clear determination has been made in an activated remote control
Whether Union Pacific violated 49 C.F.R. § 214.339
First, Collins seeks partial summary judgment that Union
Pacific failed to provide audible warnings at the time of his
Union Pacific submits that Collins is not entitled to
summary relief because this safety regulation is inapplicable and,
even if it applied, the event data recorder shows that the bell was
rung before the second swing out of the bowl began.
49 C.F.R. § 214.339 states:
§ 214.339 Audible warning from trains.
Each railroad shall require that the locomotive
whistle be sounded, and the locomotive bell be rung, by
trains approaching roadway workers on or about the track.
Such audible warning shall not substitute for on-track
safety procedures prescribed in this part.
Union Pacific contends that this regulation is inapplicable to
remote control locomotives and switched cars, which are not a
By reference to the definition of "train" in other
regulatory provisions, the Court agrees.
Section 214.339 does not
Other sections of Title 49 do:
Train means one or more engines coupled with one or more
rail cars, except during switching operations or where
the operation is that of classifying and assembling rail
cars within a railroad yard for the purpose of making or
breaking up trains.
[49 C.F.R. § 171 (Hazardous materials)]
Train means one or more locomotives coupled with one or
more freight cars, except during switching.
[49 C.F.R. § 232.5 (Safety Appliance Act)]
Applying these definitions of train, the Court finds that the
plaintiff has failed to demonstrate that the "audible warning from
'train'" regulation applies the facts of this case.
remote-controlled locomotives and cars that were being moved around
the yard were not a "train" because they were making a switching
move within a railroad yard and were not authorized to go on the
main line. Without the benefit of any argument from the plaintiff,
the Court finds that summary relief in favor of the plaintiff on
the issue of audible warnings is not warranted.
This is so for the additional reason that Union Pacific
identifies a genuine dispute as to the material fact concerning
whether or not an audible warning was given.
Collins submits that
Fairchild admitted that he did not activate any audible warnings
before the accident, and that this failure to issue audible
warnings was a direct violation of 49 C.F.R. § 214.339.10
Pacific not only disputes whether or not any audible warning was
mandatory, but offers the event recorder data, which indicates that
Insofar as Collins alludes to the Department of
Transportation's inspection report allegedly confirming the
violation, the Court disregards the plaintiff's reference to this
alleged citation. Not only does the plaintiff fail to offer the
inspection report, but even if it did so, the defendant insists
that the report is hearsay and, in any event, that it is
administratively appealing the citation. Union Pacific also refers
the Court to case literature confirming the untrustworthiness of
safety violation citations. The Court disregards the plaintiff's
reference to the alleged citation.
the bell was "on"; Union Pacific submits that the bell was rung
before the second swing out of the Bowl began.
Collins offers no
argument or evidence to contest this apparent factual controversy.
He is not entitled to summary relief respecting Union Pacific's
alleged duty and failure to sound audible warnings.
Whether Union Pacific violated 49 C.F.R. § 218.99
Second, Collins submits that Union Pacific failed to protect
the leading end of the shoving movement in violation of 49 C.F.R.
Union Pacific counters that Collins fails to call
attention to a certain subpart to the regulation, application of
which defeats the plaintiff's motion by invoking a genuine dispute
as to the material fact concerning whether or not the crew knew
that the track was clear based on what Fairchild and Stewart
suggest that they were told.
The Court agrees.
precludes entry of judgment as a matter of law in the plaintiff's
favor on this issue of protecting the point.
Collins invokes 49 C.F.R. § 218.99(b)(3)(i) and (c), which
§ 218.99 Shoving or pushing movements.
(b) General movement requirements
(3) Point protection. When rolling equipment or a
lite locomotive consist is shoved or pushed, point
protection shall be provided by a crewmember or other
qualified employee by (i) visually determining that the
track is clear.
(c) Additional requirements for remote control
movements. All remote control pushing movements, except
when the remote control operator controlling the movement
is riding the leading end of the leading locomotive in a
position to visually determine conditions in the
direction of movement. . . .
Collins submits that the record shows that Stewart was operating
the remote switches from the trim building and knew that Collins
had been working on a ghost near the 8 switch; he should have
stopped the movement at the trim building until it was determined
that Collins was out of the way and finished on the rail.
Stewart had a camera that he could have used (but did not use) to
see the vicinity of the 8 switch where Collins was working.
Collins underscores that, before the second swing, the computer
never indicated that the 8 switch was functioning properly.
that Stewart could not have known that the track within the zone
was clear of other men fouling the track, Collins submits that
Union Pacific violated this point protection regulation.
Setting the foundation for its proffered factual dispute,
Union Pacific points to subsection (d) of 49 C.F.R. § 218.99, which
indicates that, after an initial "track is clear" determination has
been made in an active remote control zone, the crew is not
required to make a new determination.
Subsection (d) states:
(d) Remote control zone, exception to track is clear
After an initial track is clear
determination has been made in an activated remote
control zone, it is not necessary to make a new
determination prior to each subsequent shoving or pushing
movement provided that: (1) the controlling locomotive of
the remote control movement is on the leading end in the
direction of movement, i.e., the movement occurs on the
pullout end; (2) the remote control zone is not jointly
occupied; and (3) the initial determination was made by
a crewmember of either: (i) the remote control crew; (ii)
a relieved remote control crew who has transferred to a
remote control zone directly to the relieving crew; or
(iii) the last jointly occupying crews who directly
communicates, i.e., not though a third party to a remote
control crewmember that the remote control zone is no
longer jointly occupied or meets the requirements more
track is clear.
The flaw in the plaintiff's motion for partial summary judgment
relative to point protection, Union Pacific submits, is that the
plaintiff fails to acknowledge the fact dispute in the record
concerning whether or not the crew knew that the track was clear.
Union Pacific directs the Court to the testimony from crewmembers
who state that Collins stated that he was clear before the second
Union Pacific offers a genuine dispute concerning the
material fact of whether the crew knew the track to be clear of men
fouling the track.
Finally, Union Pacific points out that the plaintiff's motion
respecting point protection ignores another subsection applicable
to the facts here, 49 C.F.R. § 218.99(e), which provides:
(e) Operational exceptions.
A railroad does not
need to comply with paragraphs (b) through (d) of this
Indeed, the plaintiff argues that "[t]he only instance
where Fairchild and Stewart could have been relieved of providing
point protection was if they knew the track was clear of men."
Collins submits that both Fairchild and Stewart knew that Collins
was working on a bad wheel detector near the 8-switch. But the
plaintiff fails to credit the testimony of these crewmembers, that
they "knew" the track was clear because that is what (they say)
Collins told them.
The plaintiff also appears to ignore the
evidence in the record that indicates that Collins was last seen on
the side of his truck that is outside of the remote control zone
and that Collins' truck was not in the remote control zone.
section in the following circumstances. . . .
(3) During the performance of roadway maintenance
activity under the direct control of a roadway worker
performing work in accordance with railroad operating
rules specific to roadway workers.
There is no dispute that Collins, a signal man, was a "roadway
worker" as that term is defined in § 218.93.
Collins has failed to
relieving the crew from point protection otherwise required by the
subsections he invokes, (b)(3) and (c). Summary relief in favor of
Collins is not warranted.12
judgment is DENIED.
New Orleans, Louisiana, July 22, 2015
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
That Collins submits his expert's report, which
concludes that Union Pacific violated both §§ 214.339 and 218.99
and that the accident could have been prevented had Union Pacific
complied with these regulations, does not tip the scale in favor of
the plaintiff on summary judgment. Collins bears the burden to
show that Union Pacific violated these regulatory provisions. Union
Pacific has demonstrated that -- if the regulations invoked by
plaintiff apply -- factual controversies remain, to be resolved by
the trier of fact at trial. Because the plaintiff has failed to
prove negligence per se on this record, the Court does not reach
the issue of causation or the issue of whether Union Pacific's
defense of contributory negligence is barred.
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