Murphy v. CSX Transportation, Inc.

Filing 46

MEMORANDUM AND ORDER denying 29 Motion for Summary Judgment. Signed by Magistrate Judge Susan K Lee on 9/2/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ROBERT D. MURPHY,
Plaintiff,
v.
CSX TRANSPORTATION, INC.,
Defendant.

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No. 1:10-cv-35
Lee

MEMORANDUM AND ORDER
Plaintiff Robert D. Murphy (“Plaintiff”), while working as a freight conductor for Defendant
CSX Transportation, Inc. (“CSX” or “Defendant”), alleges he was injured due to Defendant’s
negligence. Plaintiff brings suit under the Federal Employers’ Liability Act (“FELA”). Before the
Court is Defendant’s motion for summary judgment [Doc. 29], in which Defendant argues that
Plaintiff has no evidence that his injuries were caused by the negligence of CSX. For the reasons
explained below, Defendant’s motion will be DENIED.
I.

BACKGROUND
The parties disagree with respect to the characterization or significance of certain facts, but

they each draw primarily on Plaintiff’s accounts of the incident—Defendant from Plaintiff’s
deposition testimony, and Plaintiff from his own deposition and declaration. In each of those
accounts, Plaintiff describes an incident that allegedly occurred on February 28, 2008, while Plaintiff
was working as a conductor on one of Defendant’s trains [Doc. 35-1 at PageID #: 255; Doc. 29-1
at PageID #: 147-48]. Plaintiff alleges he was thrown from his seat when the train “bottomed out,”
causing injury [Doc. 1 at PageID #: 3]. For purposes of this motion, Defendant does not contest
whether Plaintiff fell from his seat, suffering injury. Instead, Defendant argues only that Plaintiff’s

fall was not due, in whole or in part, to Defendant’s negligence [Doc. 30 at PageID #: 167, 173].3
A.

Plaintiff’s Deposition Testimony

In his deposition, Plaintiff testified as follows: On the date of the incident, he was traveling
in Defendant’s locomotive as it approached a location known as the “Kincaid signal” [Doc. 29-1 at
PageID #: 147]. The train was traveling along a left-hand curve in the track, and Plaintiff reached
with his right hand to grab the radio microphone so that he could “call th[e] signal” [id. at PageID
#: 148]. At that moment, the train bottomed out over a short distance [id. at PageID #: 147, 150].
Plaintiff described the sensation as though a spring had fully compressed, then rebounded [id. at
PageID #: 148]. Plaintiff was bounced out of his seat and fell to the floor of the locomotive [id. at
PageID #: 151, 152]. The “bounce” was accompanied by “quite a bit” of lateral motion, but it was
the “going down motion” that knocked Plaintiff from his seat [id. at PageID #: 148].
Plaintiff testified that his seat did not hold him in place because it was “loose” [id. at PageID
#: 152]. Plaintiff acknowledged that the seats are “supposed to be able to turn a little bit,” and he
explained that is what he meant when he said the seat was “loose” [id.]. There was nothing
obviously wrong with the seat, but it was simply “old” and “sloppy” [id.]. Like all the other
locomotive seats Plaintiff had ever seen, this seat did not have a seat belt or harness [id.].
Plaintiff had ridden on the section of the track where he fell from his seat “a couple hundred
times” before the incident [id. at PageID #: 148]. Plaintiff had “been on other locomotives that had
not handled that curve well,” and he had experienced some lateral motion there before, but not
enough to cause any concern [id. at PageID #: 149-50]. Plaintiff stated he had “never seen it even
come close to as bad as it was that day” [id. at PageID #: 149]. Based on his experience while riding

3

Whether Plaintiff did in fact fall from his seat remains a disputed issue for trial [see Doc.
38-1 at PageID #: 291].
2

trains on that section of track, Plaintiff was not aware there was a potential of bottoming out [id.].
Simply put, Plaintiff was not prepared for any significant lateral or up-and-down motion [id.].
Plaintiff did not report the incident, and he continued to ride trains over the same tracks [id. at
PageID #: 150]. On subsequent occasions, Plaintiff experienced “lateral motion” there, but never
had another experience like the one that caused his fall [id.].
B.

Plaintiff’s Declaration

In a short declaration, Plaintiff provides the following account of the incident: He was riding
in one of Defendant’s trains near the Kincaid signal when he suffered an on-the-job injury [Doc. 351 at PageID #: 255]. Prior to the incident, “it was common knowledge on the railroad that the
section of track where [the] train bottomed out had caused other trains to bottom out.” [id.]. In fact,
trains “routinely” bottomed out at the Kincaid signal [id.]. Plaintiff had been on trains that had
bottomed out at the Kincaid signal previously, but the incident that caused his injury was “more
severe than any other bottoming out” he had experienced before [id.]. Based on Plaintiff’s
experience working for railroad companies, Plaintiff opined that it is “unsafe” for a locomotive to
bottom out the way his did [id. at PageID #: 255-56]. Plaintiff also stated in his declaration that his
seat “did not lock, which caused looseness in the seat.” [id. at PageID #: 256]. That looseness, along
with the bottoming out, caused Plaintiff to fall from his seat and suffer injuries to his back [id.].
II.

ANALYSIS
As noted above, CSX argues only that Plaintiff cannot show that his injuries were due to any

negligence on its part. Specifically, CSX argues that Plaintiff’s declaration, to the extent that it is
inconsistent with his deposition testimony, cannot create a factual dispute. Considering the evidence
in the deposition testimony, furthermore, CSX argues that negligence cannot be inferred from the
mere occurrence of the accident and that Plaintiff cannot, without expert testimony, establish the
3

existence of an unsafe condition in either the locomotive seat or the track. Finally, CSX argues that
Plaintiff’s claim of negligence per se was not raised in his complaint and should therefore be
disregarded.
A.

Standard of Review

Summary judgment is mandatory where “there is no genuine dispute as to any material fact”
and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).4 A
“material” fact is one that matters—i.e., a fact that, if found to be true, might “affect the outcome”
of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The applicable
substantive law provides the frame of reference to determine which facts are material. Anderson,
477 U.S. at 248. A “genuine” dispute exists with respect to a material fact when the evidence would
enable a reasonable jury to find for the non-moving party. Id.; National Satellite Sports, Inc. v.
Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). In determining whether a dispute is “genuine,” the
court cannot weigh the evidence or determine the truth of any matter in dispute. Id. at 249. Instead,
the court must view the facts and all inferences that can be drawn from those facts in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); National Satellite Sports, 253 F.3d at 907. A mere scintilla of evidence is not
enough to survive a motion for summary judgment. Anderson, 477 U.S. at 252; McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
The moving party bears the initial burden of demonstrating no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Moore v. James, No. 7:09-CV-98 (HL),

4

Rule 56 was amended effective December 1, 2010, “to improve the procedures for
presenting and deciding summary-judgment motions.” Fed. R. Civ. P. 56, Advisory Committee
Note to 2010 Amendments. The 2010 amendments did not affect the standard for granting summary
judgment, and earlier caselaw relating to that standard therefore remains good law. Id.
4

2011 WL 837179, at *1 (M.D. Ga. Feb. 2, 2011). The movant must support its assertion that a fact
is not in dispute by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c). If
the moving party carries this burden, the opposing party must show that there is a genuine dispute
by either “citing to [other] particular parts of materials in the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute. Id. In reply, the movant may then
attempt to show that the materials cited by the nonmovant “do not establish the . . . presence of a
genuine dispute.” Id. Either party may also attempt to challenge the admissibility of its opponent’s
evidence. Id.
The court is not required to consider materials other than those specifically cited by the
parties, but may do so in its discretion. Id. If a party fails to support its assertion of fact or to
respond to the other party’s assertion of fact, the court may “(1) give an opportunity to properly
support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant
summary judgment if the motion and supporting materials . . . show that the movant is entitled to
it; or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e).
B.

Liability Under FELA

Under FELA, railroads “are made answerable in damages for an employee’s ‘injury or death
resulting in whole or in part from [the railroad’s] negligence.’” CSX Transp., Inc. v. McBride, 131
S. Ct. 2630, 2643 (2011) (quoting 45 U.S.C. § 51). As the parties each acknowledge, a plaintiff
must prove all the elements of a common-law negligence claim in order to prevail under FELA:
duty, breach, causation, and damages. Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.
1990). As explained above, Defendant challenges Plaintiff’s ability to prove breach of the duty of
care.
While the parties generally agree with respect to which elements of negligence are at issue
5

here, they differ in how they characterize what those elements require. Their differences require
consideration of the meaning of “proximate cause” in this case. Of course, any injury is preceded
by innumerable and untraceable “causes”: a rain-slicked highway, a gust of wind, or a pedestrian
hurrying across a busy crosswalk. See Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 266 n.10
(1992) (“In a philosophical sense, the consequences of an act go forward to eternity, and the causes
of an event go back to the dawn of human events, and beyond.”). “But for” any of its antecedents,
any particular injury might not have occurred. The law has long recognized, therefore, that not
every cause-in-fact is a legal cause of an injury. See generally Palsgraf v. Long Island R.R. Co., 162
N.E. 99 (N.Y. 1928). The concept of “proximate” cause therefore developed in the common law
to delineate those causes which are culpable from those which are not. While the various
formulations have differed, see McBride, 131 S. Ct. at 2642 (opinion of four members of the Court),
“foreseeability has . . . long been an aspect of proximate cause,” id. at 2651 (dissent of four members
of the Court).
According to Defendant, Plaintiff must establish “the common law principles of
negligence”—i.e., duty, breach, foreseeability, causation, and damages [Doc. 30 at PageID #: 166].
By this, Defendant appears to argue that the traditional concept of proximate cause should govern
the case. The common law of negligence, however, does not strictly apply in FELA cases. See
McBride, 131 S. Ct. at 2637-38 (explaining that FELA does “not incorporate any traditional
common-law formulation of ‘proximate causation’”) (citing Rogers v. Mo. Pac. R.R. Co., 352 U.S.
500, 506 (1957)). Instead, the statute itself provides the requirements for a plaintiff’s proof. A
plaintiff must show first that the railroad was breached a duty—i.e., that it failed “to observe that
degree of care which people of ordinary prudence and sagacity would use under the same or similar
circumstances.” Id. at 2643 (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 118
6

(1963)). To make this showing, a plaintiff must prove that the railroad reasonably should have
foreseen that its conduct “would or might result in a mishap and injury.”5

Id. at 2643.

Foreseeability, therefore, is an “essential ingredient” in proving breach, but not foreseeability of any
particular injury. Id.
Once this freestanding negligence is established, the plaintiff must show that his injury
“result[ed] in whole or in part from the negligence.” The plaintiff need not satisfy the traditional
proximate cause standard, but must instead show only that the railroad’s negligence played some
part, “even the slightest” part, in producing his specific injury. Rogers, 352 U.S. at 506. In other
words, the plaintiff need not show that “‘the extent of the injury or the manner in which it occurred’
was . . . ‘probable’ or ‘foreseeable.’” McBride, 131 S. Ct. at 2643. Still, while the extent or
mechanism of injury need not be foreseeable, the plaintiff must nevertheless show something more
than “but for” causation. Id. at 2643-44. Where “common sense” instructs that the negligence is
too attenuated from the resulting injury, there is no genuine issue of fact on causation. Id. at 2644
(noting that in “far out ‘but for’ scenarios,” there is no question for a jury). As an example of this
“common sense” determination, the McBride Court cited Nicholson v. Erie R.R. Co., 253 F.2d 939
(2d Cir. 1958). In Nicholson, the railroad’s female employee was injured when she was struck by
a passenger’s baggage while returning from the female lavatory in a passenger car. 253 F.2d at 940.
The court assumed that the railroad had been negligent in failing to provide a female employee
lavatory, and found that such negligence was the “literal[]” cause of the plaintiff’s injury, but held
that the negligence was “too far removed . . . in space and time” to satisfy even the “modest”
causation requirements of FELA. Id. at 940-41. The Sixth Circuit Court of Appeals has phrased

5

Alternatively, a plaintiff may show negligence per se by demonstrating that the railroad
violated a safety statute. Id. at 2643 n.12.
7

its test as whether the plaintiff’s injury was “within the risk” created by the negligence. Szekeres
v. CSX Transp., Inc., 617 F.3d 424, 429 (6th Cir. 2010) (quoting Richards v. Consol. Rail Corp., 330
F.3d 428, 437 (6th Cir. 2007)).
C.

Did CSX Breach its duty of care?

Plaintiff argues that Defendant breached its duty to provide a safe working environment in
two ways—the “loose” seat and a track that caused the train to “bottom out”—which he contends
combined to cause his injury.
1.

Was CSX Negligent With Respect to the “Loose” Seat?

Plaintiff argues that the seat was defective [Doc. 35 at PageID #: 246]. Plaintiff does not,
however, argue that Defendant should have been aware of that defect [see id. at PageID #: 246, 24951]. Instead, according to Plaintiff, CSX was negligent per se because it violated an applicable
safety statute—namely, the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701. Violations of
the LIA are actionable under FELA without any proof that the defendant knew or should have
known of the “unnecessar[ily] danger[ous]” condition. See Szekeres, 617 F.3d at 427-28.
The LIA requires that a locomotive’s parts and appurtenances be in “proper condition and
safe to operate without unnecessary danger of personal injury.” 49 U.S.C. § 20701. Violations of
regulations promulgated under the LIA will also support a claim for negligence per se, Coffey v.
N.E. Ill. Reg’l Commuter R.R. Corp., 479 F.3d 472, 477 (7th Cir. 2007), and one such regulation
provides that locomotive “[c]ab seats shall be securely mounted and braced.” 49 C.F.R. §
229.119(a).
Plaintiff did not articulate this theory in his complaint, and he raises it for the first time in
his response to Defendant’s motion for summary judgment. Because it was not raised in the
complaint, Defendant argues that the Court should “disregard” Plaintiff’s LIA theory. Under Fed.
8

R. Civ. P. 8(a), however, a plaintiff need only provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.” It is not necessary to include every legal theory in the
complaint, but a plaintiff cannot pursue a theory whose elements are not established by the factual
allegations in the complaint. See Schneid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37
(6th Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)
for the proposition that a “complaint must contain either direct or inferential allegations respecting
all the material elements to sustain a recovery under some viable legal theory”).
Plaintiff stated in his complaint that his injuries were caused by “Defendant’s negligence in
failing to provide Plaintiff with safe, necessary, and proper equipment with which to perform his
work, including but not limited to . . . a defective and/or improperly maintained seat. . . . Defendant’s
failure to properly maintain the locomotive seat and/or its defects caused or contributed to cause
Plaintiff’s injuries and damages” [Doc. 1 at PageID #: 3-4 (emphasis added)]. This language tracks
closely to the language of the LIA, as does language later in the Complaint, where Plaintiff states
the seat “was not in a safe and proper condition” [id. at PageID #: 5]. Although Plaintiff did not
specifically cite to the LIA in his Complaint, the Court finds that the factual allegations made
therein, along with Plaintiff’s conclusory language that the seat was not in a safe and proper
condition, were sufficient to recite the elements of an LIA claim and to place Defendant on notice
of a claim asserted pursuant to the LIA.
At the summary judgment stage, however, a plaintiff cannot pursue a theory without
evidence to support each of its elements. In his declaration, Plaintiff states that his seat “did not
lock,” which caused looseness. According to Plaintiff, that looseness was a defect that contributed
to his injury. Plaintiff’s argument could be read to say that the seat was in an unnecessarily
dangerous condition, which would directly violate LIA, or that it was not securely mounted and
9

braced, which would violate the applicable regulation. Defendant argues, however, that Plaintiff’s
declaration is materially inconsistent with his deposition testimony, and that the declaration
therefore cannot create an issue of fact where none would otherwise exist. Defendant correctly
states the law: “[A] party cannot create a disputed issue of material fact by filing an affidavit that
contradicts the party’s earlier deposition testimony.” Arel, S.R.I. v. PCC Airfoils, L.L.C., 448 F.3d
899, 906 (6th Cir. 2006). Even if the affidavit does not directly contradict the prior testimony, it
should be disregarded to the extent that the circumstances show that the affidavit “constitutes an
attempt to create a sham fact issue.” Id. at 909 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237
(10th Cir. 1986)). An affidavit is more likely to be a sham when the party was cross examined on
the subject but failed to provide an answer, even though he had access to the pertinent evidence at
the time of the deposition. Id. On the other hand, if the affidavit is based on newly discovered
evidence or merely attempts to explain confusion that is reflected in the deposition testimony, it is
less likely to be a sham. Id.
Plaintiff’s declaration clearly states that the seat was loose because it “did not lock” [Doc.
35-1 at PageID #: 256]. During his deposition, however, Plaintiff stated as follows:
Q:
A:
Q:
A:
Q:
A:

Q:
A:

Okay. As I understand it, you say that the seat did not hold
you in place.
No, sir.
Anything wrong with the seat that you know?
It was loose but, I mean, it wasn’t the best seat, it was -- it
was a loose seat.
You think it being loose had anything to do with your going
out of the seat given what happened?
You know, they twist, they turn. And, you know, it gave way
-- when -- when I got bounced, I mean, I hit the seat and
bounced off –
You went up in the air and came down and hit the seat and
bounced off?
I -- yeah, I got bounced out of the seat and hit the ground.
As far as the seat goes, you know, I’m trying to recollect
10

Q:
A:
Q:
A:
Q:
A:

...
Q:

...
A:

here. It turns. That’s all I can remember, it’s got a twist to it.
You can turn this way and this way. It’s very limited because
you are in the very back, but it turns a few inches here and
there, it’s not solid.
It’s supposed to be able to turn a little bit, isn’t it?
Right.
Is that what you mean by “loose”?
Yes, sir.
So you cannot point to any kind of defect to the seat in the
form of a part of it was broken or anything –
I didn’t see anything broken or I would have said I’m going
to turn that in. I didn’t see nothing physically broken there.
But it’s an old, sloppy seat, too.
. . . So no defect that you could tell about the seat just by
looking at it that would lead you to write it down on the
calendar day report.
That’s true.

[Doc. 29-1 at PageID #: 152-53]. There was nothing ambiguous about Plaintiff’s deposition
testimony with respect to the seat that required any clarification, and the statement in Plaintiff’s
declaration that references the seat not “locking” contradicts Plaintiff’s testimony that he did not
notice any specific, observable defect with the seat. The Court therefore finds Plaintiff’s statement
in his declaration to be directly contradictory to his previous deposition testimony, and the Court
will disregard Plaintiff’s declaration statement that the seat did not “lock” as support for an LIA
claim.
As for Plaintiff’s statements about the seat in his deposition, Plaintiff testified that the seat
was “loose,” was “not solid,” and was “old” and “sloppy.” Although Plaintiff could not point to an
obvious defect in the seat he would have needed to report, the Court finds that Plaintiff’s deposition
testimony with regard to the seat is sufficient to create an issue of material fact to submit to a jury.
Plaintiff’s deposition testimony may be enough for a reasonable jury to determine that the seat was
not in a “proper condition” and was not “safe to operate without unnecessary danger of personal
11

injury.” See 49 U.S.C. § 20701(1).
Moreover, there is a genuine issue of material fact as to the origin of Plaintiff’s injuries
because there is a dispute as to whether the incident alleged by Plaintiff actually occurred. Plaintiff
claims in his complaint and in his deposition that he completely fell out of his seat during this
particular trip [Doc. 1 at PageID #: 3 & Doc. 29-1 at PageID #: 151]. Plaintiff testified that he fell
out of his seat towards the right, the engineer, David Tuggle, laughed at him, Plaintiff told Mr.
Tuggle that he had hurt himself, and Plaintiff got back up after 20-30 seconds and sat back down in
his seat [Doc. 29-1 at PageID #: 151]. Defendant submitted the affidavit of Mr. Tuggle, however,
in which Mr. Tuggle states he never saw Plaintiff fall out of his seat on any trip, he did not see
Plaintiff fall out of his seat during the trip Plaintiff describes, Plaintiff never told Mr. Tuggle that
he was injured, and he has never seen anyone fall out of a seat on any trip [Doc. 39-1 at PageID #:
313-14]. According to Mr. Tuggle’s affidavit, if Plaintiff had ever indicated he was injured, Mr.
Tuggle that he would have been required to report the incident immediately [id. at PageID #: 314].
The Court finds that there is a genuine issue of material fact as to whether Plaintiff ever fell out of
his seat and the resolution of this issue depends on the jury’s credibility determination.
Should the jury find Plaintiff’s testimony credible and determine that Plaintiff did indeed fall
out of his seat, the jury will also have a duty to decide, from the testimony presented, whether the
facts establish that Plaintiff’s alleged injuries were caused by a seat that was not “safe to operate
without unnecessary danger of personal injury” to invoke Defendant’s liability under the LIA.
2.

Was CSX Negligent With Respect to the Track?

Plaintiff acknowledges that in order to show negligence, he must show that the track was in
an unsafe condition “which Defendant knew or should have known about.” [Doc. 35 at PageID #:
246]. In his deposition, Plaintiff testified as follows with respect to whether this type of “bottoming
12

out” had ever happened before:
Q:
A:
Q:
A:
...
Q:
...
A:
Q:
A:

Q:
A:
...
Q:
A:
Q:

A:
...
Q:

A:

Had there -- you had been up and down this track as a
conductor, what, a couple hundred times before?
Oh, yeah.
Had this ever happened in that place before?
Not to the extremity that that happened.
Had it ever happened in any way at that place before in any
extremity, to your knowledge?
I’m sure it has.
No, your memory, had it ever happened to your memory?
Yes, I remember having – not what happened like that, but I
remember having a situation occur right there at the switch
before. There was no slow order there to sit there and tell me
there was any problem. I wasn’t expecting that.
Well, tell me about the situation that had occurred at that
place before this incident.
Well, been on other locomotives that had not handled that
curve well.
. . . Well, then, are you telling me that you were aware that
there was a potential problem in that vicinity before this day?
No, I was not aware of it. I had no slow order that told me
there was a problem there.
Based upon your experience of riding on trains through this
area, were you aware that there was a potential of bottoming
out like you just described?
No. No, sir.
So that means to me, I don’t want to put words in your mouth,
but if you did not think there was a problem there, you had
never experienced any problems there before.
Oh, I’ve had - I’ve experienced problems there before, I
mean, they’ve had slow orders on that switch before . . .

[Doc. 29-1 at PageID #: 149]. In his declaration, Plaintiff stated, “[p]rior to the date of my injury
it was common knowledge on the railroad that the section of track where my train bottomed out had
caused other trains to bottom out” [Doc. 35-1 at PageID #: 255]. Plaintiff further stated that “it is
not proper or safe for locomotives to bottom out in the manner in which they routinely did at the

13

Kincaid signal” [id.]. Again, the Court finds the statements in the declaration to be directly
contradictory to Plaintiff’s deposition testimony and an attempt by Plaintiff to create an issue of fact.
Plaintiff never testified during his deposition that trains routinely bottomed out at the Kincaid signal.
Indeed, Plaintiff stated trains had experienced problems at that signal before, but he was not aware
of the potential for “bottoming out” at that location. Moreover, Plaintiff never testified that he had
notified anyone at CSX about a problem with the track at this switch or that anyone at CSX had
knowledge of some deficiency in the track. Plaintiff’s declaration should contain statements as to
his personal knowledge, not the knowledge of others – therefore, Plaintiff’s statement that it was
“common knowledge,” without more, can only be considered to mean that Plaintiff had common
knowledge of some problem with the track and cannot be attributed to Defendant. The Court
concludes, therefore, that Plaintiff’s statement as to “common knowledge” of a track problem – as
it pertains to Defendant’s knowledge – has no basis and is not supported by the evidence before the
Court. The Court will rely solely on Plaintiff’s deposition testimony to determine if there is a
genuine issue of material fact as to the condition of the track.
In support of its Motion, Defendant submitted the affidavit of Jackie Teffeteller, a Track
Inspector. Mr. Teffeteller is familiar with track problems which could cause a train to “bottom out”
and has inspected the track in question for several years. Mr. Teffeteller asserted that he knows no
train has ever “bottomed out” in this area and he has never heard of any train “bottoming out” on
this area of the track [Doc. 39-2 at PageID #: 316]. Mr. Teffeteller stated the tracks in the area at
issue have always been in “profile” and “cross level,” meaning that the rails are level and even with
one another [id. at PageID #: 317]. Mr. Teffeteller indicated the engineer of the train would report
any rough tracks or tracks out of profile or cross level to the dispatcher, who would report it to
Defendant’s Engineering Desk, and he would make an inspection [id.]. Mr. Teffeteller also stated
14

there has never been a slow order issued for this area of the track based on rail alignment conditions
[id.].
The Court finds the discrepancy between Plaintiff’s deposition testimony and Mr.
Teffeteller’s affidavit sufficient to create a genuine issue of material fact for the jury as to whether
Defendant was on notice of any track problem at the Kincaid signal. Although Plaintiff’s testimony
on this topic is somewhat vague, Plaintiff testified that he rode on trains which experienced
problems on that part of track before and that Defendant had previously placed slow orders on that
section of track. In contrast, Mr. Teffeteller stated that there had never been any problems with the
track in that area and that there had never been a slow order in the area. If the jury found Plaintiff’s
testimony credible, the jury could reasonably infer that Defendant was on notice of a problem by
virtue of previous slow orders on that section of track and the engineer’s responsibility to report
rough or problematic tracks to the dispatcher. The jury could further infer that Defendant failed to
take action to correct the problem once it was on notice. The Court concludes, therefore, that
Plaintiff has raised an issue of material fact as to a possible breach of the duty of care by Defendant.
D.

Does Plaintiff Need to Present Expert Testimony?

Defendant argues that Plaintiff has no proof of negligence because he has not disclosed any
expert witnesses who will assert Defendant was negligent or breached a duty as to the seat or the
track [Doc. 30 at PageID #: 163-64]. Defendant also emphasizes arguments about Plaintiff’s
deficient testimony as to the standard of care and notice [Doc. 39 at PageID #: 297-98]. The Court
has already determined, however, that Plaintiff has submitted sufficient evidence as to the defective
seat to support negligence per se under the LIA and evidence from which the jury can infer notice
(duty) and a breach of the duty of care as to the track.
With regard to Plaintiff’s LIA claim, if the jury finds Plaintiff’s testimony credible and finds
15

the seat was not in a safe and proper condition, Defendant has violated the LIA as a matter of law
and duty and breach of duty are conclusively determined. As a practical matter, the Court cannot
identify any requirement for expert testimony as to the allegedly defective seat because Plaintiff’s
testimony does not allege a problem other than the seat being “loose,” “old,” and “sloppy.” Plaintiff
will have the opportunity to explain what he means by this description, and the members of the jury
can assess Plaintiff’s testimony in light of their individual, everyday experiences with seats.
Naturally, Defendant will have the opportunity to cross examine Plaintiff and to present its own
testimony, presumably to establish that this particular seat was just like any other locomotive seat,
was properly maintained, and was in a safe and proper condition.
Defendant has presented no authority for the proposition that expert testimony is required
in a case such as this and the Court has found none. The Court finds that Plaintiff does not need to
present expert testimony as to the alleged track problem that caused the train to “bottom out.”
Plaintiff is qualified to testify as to how trains routinely ride over tracks by virtue of his years of
experience as a conductor and engineer for railroad companies. Plaintiff previously worked for
approximately 12 years as a trainman, conductor and engineer for a railroad in Florida and had
worked for CSX as a conductor for approximately two and a half years before the incident in
February 2008 [Doc. 29-1 at PageID #: 133, 135, 136, 138]. Plaintiff claimed that he had ridden
over this section of track hundreds of times and had experienced problems with trains not handling
this area of track well in the past [id. at PageID #: 148-49]. Plaintiff’s extensive work history on
locomotives and familiarity with this section of the track provide a relatively sound basis for his
testimony concerning why slow orders are placed on tracks, what slow orders mean, how trains
typically ride over tracks, and what was different about this particular incident. As with Plaintiff’s
LIA claim, Defendant can cross examine Plaintiff as necessary on this issue and can present its own
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testimony from Mr. Teffeteller and any others to refute Plaintiff’s assertions.
The Court concludes that Plaintiff need not present expert testimony as to his claims that his
seat was “loose,” “old,” and “sloppy” and the train “bottomed out” and, therefore, FINDS that
genuine issues of material fact exist as to Defendant’s negligence with respect to both the allegedly
defective seat and track.
III.

CONCLUSION
For the reasons above, Defendant’s motion for summary judgment [Doc. 29] is DENIED.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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