Stevens v. Norfolk Southern Railway Company

Filing 196

MEMORANDUM OPINION AND ORDER granting the 138 JOINT MOTION for consolidation of Cases 2:12-cv-0739 and 2:12-cv-0740; the two cases are consolidated for all purposes up to and including trial, with the Cisco matter designated as the lead action and all further filings in both cases to be made therein; the scheduling order in the Stevens matter is vacated, with the remaining deadlines for case events, conferences, and trial to proceed according to the schedule in Cisco; denying defendant Norfolk Southern Railway Company's 132 MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 4/17/2014. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER CISCO,
Plaintiff,
v.

Civil Action No. 2:12-739

NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
CASEY STEVENS,
Plaintiff,
v.

Civil Action No. 2:12-740

NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
MEMORANDUM OPINION AND ORDER
Pending are defendant Norfolk Southern Railway
Company's ("Norfolk") motions for summary judgment, filed
January 22, 2014, and the joint motions for consolidation by
plaintiffs, filed February 3, 2014.

I.

On May 2, 2011, both Roger Cisco and Casey Stevens
reported to work at the Norfolk facility located in Williamson.
They attended a safety meeting at 7:00 a.m.

Just prior to that

meeting, Mr. Stevens was instructed by his supervisor, Jack
Stepp, to travel with Mr. Cisco to retrieve the Norfolk truck
that Mr. Stevens commonly used.

Mr. Cisco volunteered to drive

with Mr. Stevens in Mr. Cisco’s personal vehicle, a Ford Escort,
to retrieve the truck.
Norfolk employees often used their own vehicles to
drive to various job sites.

(See Norfolk Mem. in Supp. on Cisco

at 2 (“This was nothing out of the ordinary, as Plaintiff
[Cisco] often drove his personal vehicle during work hours and
was compensated for his mileage.”)). The truck was parked at a
Norfolk facility located six miles away.

Prior to departure,

Mr. Stevens poured himself a cup of hot coffee in the meeting
room at the Norfolk facility.

The meeting room has countertops

and a place for the Norfolk-provided coffee to be made, along
with Styrofoam cups.

No lids were provided.

Mr. Stevens entered Mr. Cisco’s car on the passenger
side.
holder.

He did not place the hot coffee in the Escort’s cup
He fastened his seatbelt, a subject frequently
2

discussed at Norfolk safety meetings.

Mr. Cisco and Mr. Stevens

then left the Norfolk facility and headed northbound on Route
119, a median-divided, four-lane highway, to obtain the truck.
As they approached the Victory Lane gas station, they
were in the passing, left hand lane. Mr. Stevens described what
happened next:
I see this little flash of red –- I mean we always pay
attention -- but saw this flash of red and said,
‘Watch out.’ I remember Roger say, ‘I’ve got this,’ or
something to that effect. During that time, I tensed
up and dropped the coffee which I’m thinking it landed
on my left thigh and must have just splashed him. But
I pretty much don’t remember anything beyond that.
(Dep. of Casey Stevens at 41).

The “flash of red” was a vehicle

driven by third-party defendant George Dotson.

Mr. Dotson ran a

stop sign and pulled out in front of Mr. Cisco’s car from the
intersection where Route 119 and Victory Lane intersect.
Dotson was cited for his failure to yield.

Mr.

The West Virginia

Uniform Traffic Crash Report (“Crash Report”) indicates that Mr.
Dotson was the only contributing factor to the accident.1
The threat posed by Mr. Dotson’s vehicle would have
been evident at least 2.5 seconds prior to the point of impact.

1

On January 3, 2013, the Clerk entered default against Mr.
Dotson following his failure to appear. On January 7, 2013, the
court denied without prejudice Norfolk’s motion for default
judgment, awaiting further proceedings respecting the
determination and liquidation of Norfolk’s liability, if any, to
Mr. Cisco or Mr. Stevens.
3

Approximately 3-4 seconds prior to the impact, Mr. Cisco began
an evasive maneuver to change from his lane of travel to
another.

He asserts that he was distracted, however, by the hot

coffee that splashed on him, causing him to lose control for a
brief time.

He failed to complete the evasive maneuver and the

collision occurred.

Mr. Stevens believed that Mr. Cisco was

travelling between 50-55 miles per hour during the time period
when Mr. Dotson’s vehicle entered their lane of travel.
As a result of the collision, Mr. Stevens lost
consciousness.

He next recalled someone knocking on the window

and asking him to unlock the car door.

Mr. Cisco and Mr.

Stevens both allege serious, permanent injuries arising out of
the accident.
At his deposition, Mr. Stevens recalls that, just
prior to the collision, Mr. Cisco failed to take sufficient
evasive actions to control his vehicle and avoid the collision:
Q. So in your opinion, when you say, ‘NS failed to
control the vehicle,’ What you really mean is Roger
failed to control the vehicle?
A. Roger Cisco.
Q. Okay. So you feel like Roger should have been able
to avoid the accident?
A. I thought that he could.
. . .
Q. So if Mr. Cisco says that he thinks he would have
4

avoided it [the accident] but for that coffee spill,
you would disagree with him?
A. That’s his opinion.
Q. Okay. You just disagree with that opinion?
A. I think he should have maintained control, coffee
or no coffee.
Q. Okay. So in other words – and you correct me,
absolutely, if I’m wrong – what you believe NS did
wrong is essentially what Mr. Cisco did wrong and
failed to maintain control, right?
A. Yes.
(Id. at 69, 71).
Mr. Cisco, however, views the events of that day, and
the fault attributable, quite differently:
Q. How long had you been in the car driving with him?
A. I’d say [a]bout ten minutes or so.
Q. Did he have a lid on the coffee?
A. No.
. . .
Q. You don’t remember whether another car pulled out
in front of you?
A. Well, I seen the vehicle and I was going to -- I
could have made it around and dodged him, but that
coffee hit me and I lost control of the vehicle. I
mean it burned.
. . .
Q. They [the Complaints] say that the accident
referred to was caused solely and exclusively by the
negligence of the defendant which is . . . [Norfolk].
Do you agree with that statement?
5

A. Yeah.
Q. You do? You don’t think Mr. Dotson had anything to
do with the accident?
A. I guess he had part, but I don’t think, no. What
made the accident is the coffee really.
(Dep. of Roger Cisco at 36, 38, and 75).
Both Mr. Stevens and Mr. Cisco retained a common
liability expert, George P. Widas.

Mr. Widas states in his

report as follows:
There was enough time and distance of separation,
before the collision injury event, for driver Roger
Cisco to perceive, react and maneuver to avoid the
collision, from when the Dotson car was visible and
perceptible as a hazard and vehicle in conflict, at an
intersection, as crossing the roadway in front of his
car and not stopping at the stop sign, but for the
distraction of driver Roger Cisco by the coffee being
spilled onto driver Roger Cisco by passenger and
Norfolk Southern employee Casey Stevens.
Notwithstanding the external distraction of driver and
Norfolk Southern employee Roger Cisco by the coffee
being spilled onto driver Roger Cisco by passenger and
Norfolk Southern employee Casey Stevens, driver and
Norfolk Southern employee Roger Cisco could have
maintained driving focus and control of his car, and
mitigated the injury to Casey in the subject collision
event, if driver and Norfolk South employee Roger
Cisco exercised a greater degree of attention and
control.
(Pls.’s Exp. Rep. at 24).
Norfolk’s liability expert, Johnnie Hennings,
testified as follows during his deposition:
Q. [I]n your experience have you ever experienced or
heard -- have you ever heard of someone spilling
6

drinkable water in the car while the car is being
driven?
A. Yes.
Q. Okay. Not really a surprise that that could happen,
is it?
A. I’m sure it happens on occasion, not a surprise.
Q. And was it any liquid that people might drink in a
car could get spilled while the car is moving, right?
A. That is a possibility, yes.
. . .
Q. Right. If somebody spilled something hot on you
when you’re driving, do you think it would help or
hurt your ability to remain focused on what you were
doing?
A. I mean, just as a person, I mean -- I mean, I can
see that given enough heat, if that’s where your
question is, it could be a distraction at some point
once I was able to appreciate that it occurred.
. . .
Q. Would you rather the person next to you in a car
that you’re driving have hot coffee with them or not?
A. I have no preference.
Q. Would you rather they spill it on you or not?
A. I would not want someone to spill hot coffee on me.
Q. Particularly while you’re operating the vehicle,
right?
A. I would agree with that.
. . .
Q. So do you think even if they did spill it on you,
even in the face of a maneuver situation like this
that you should be able to still control what’s going
on and avoid an accident?
7

All of things being equal?
A. Well, I think under a life-threatening situation,
that would be my primary focus.
Q. You think you could do it?
A. In a life-threatening situation, I would think that
I could.
Q. Well, this was a life-threatening situation here,
wasn’t it?
A. It was.
(Dep. of Johnnie Hennings at 29, 20, 87-88, 89, 90).
Mr. Widas also addressed the deficiencies of Norfolk’s
safe workplace efforts regarding highway vehicle operations. The
general rules and regulations of Norfolk’s Highway Vehicle
Operations Manual (“Operations Manual”) state, in pertinent
part, as follows:
1. Non Business trips are prohibited. Unauthorized
persons may not ride in or on Company vehicles.
2. It is the responsibility of the driver to be fully
qualified and have the proper, current operator’s
license available for inspection by proper authority,
when driving any Company vehicle. A passenger
occupying the front seat must be alert to driving
conditions and remind the driver of safe driving
procedures when conditions require.
(Widas Exp. Rep. at 8).

The Operations Manual is “silent on any

issues related to distracted driving or other issues related to
the subject collision injury event.”

Id. at 8.

Mr. Cisco and

Mr. Stevens assert that Norfolk did not properly train them on
8

safe driving or riding practices, particularly respecting
employees traveling in privately owned vehicles on company
business holding an open container filled with hot coffee.

They

each assert claims under the Federal Employers' Liability Act,
45 U.S.C. § 5l (“FELA”).

II. Consolidation

A.

The Governing Standard

Mr. Cisco and Mr. Stevens seek an order consolidating
these actions for remaining pretrial and trial events.

Federal

Rule of Civil Procedure 42(a) provides as follows:
(a) Consolidation. If actions before the court involve
a common question of law or fact, the court may:
(1) join for hearing or trial any or all
matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid
unnecessary cost or delay.
Fed. R. Civ. Proc. 42(a).
Our court of appeals affords broad discretion to
district courts in assessing the desirability of consolidation,
recognizing the superiority of the trial court in determining
how best to structure similar pieces of litigation.
9

See A/S J.

Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928,
933 (4th Cir. 1977) (“District courts have broad discretion
under F.R.Civ.P. 42(a) to consolidate causes pending in the same
district.”).

It has, however, provided guidelines for

exercising that discretion.

See Arnold v. Eastern Air Lines,

Inc., 681 F.2d 186, 193 (4th Cir. 1982).

Those guidelines

essentially balance the specific risks of prejudice and possible
confusion with the potential for inconsistent adjudications of
common factual and legal issues and the burden on available
judicial resources posed by multiple lawsuits.

Id. at 193.

Efficiency from a time and cost perspective are also considered.
Id..
In opposing consolidation, Norfolk emphasizes the risk
of jury confusion and prejudice that might come to pass if the
cases are tried jointly.

The court believes that risk can be

ameliorated through careful instructions and a properly
structured verdict form.

In sum, these two cases involve an

identical material issue of fact, namely, whether the spilled
coffee was a contributing factor to the collision.

There is

also a commonality among fact and expert witnesses, along with
the body of evidence to be adduced at trial.

Additionally, the

theories offered by Mr. Cisco and Mr. Stevens concerning fault
and causation appear diametrically opposed.

10

Considering all of these factors, the risk of
inconsistent adjudications, the unnecessary and substantial
expense to the parties and witnesses, and the inefficient use of
court resources constitute just a sampling of the undesirable
consequences that will or may arise absent consolidation.
It is, accordingly, ORDERED that Mr. Cisco’s and Mr.
Stevens’ joint motion for consolidation be, and hereby is,
granted.

The two cases are consolidated for all purposes up to

and including trial, with the Cisco matter designated as the
lead action and all further filings in both cases to be made
therein.

The scheduling order in the Stevens matter is vacated,

with the remaining deadlines for case events, conferences, and
trial to proceed according to the schedule in Cisco.

III. Summary Judgment

A.

Summary Judgment Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those necessary to establish the elements of a party’s cause of
11

action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id.

The

moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).

Celotex Corp. v. Catrett,

If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.
322-23.

Fed. R. Civ. P. 56(c); id. at

A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find in
favor of the non-movant.

Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.

Anderson, 477 U.S. at

Even if there is no dispute as to the evidentiary facts,

summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.

Overstreet v.

Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
12

A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

Rather,

the party opposing the motion is entitled to have his or her
version of the facts accepted as true and, moreover, to have all
internal conflicts resolved in his or her favor.

Charbonnages

de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

B.

Governing FELA Principles

The statutory source of the plaintiffs’ claims is 45
U.S.C. § 51.

Section 51 provides pertinently as follows:

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 injury while he is employed by such
carrier in such commerce . . . for such injury . . .
resulting in whole or in part from the negligence of
any of the officers, agents, or employees of such
carrier . . . .

13

45 U.S.C. § 51.

The elements of proof for a FELA claim are

taken from the same jury instruction manual recently mentioned
by the Supreme Court:
First, that the defendant is a railroad engaged in
interstate commerce;
Second, that the plaintiff was an employee of the
defendant in interstate commerce, acting in the course
of his employment;
Third, that the defendant or one of its employees or
agents was negligent;
and
Fourth, that such negligence played a part, no matter
how slight, in bringing about an injury to the
plaintiff.
5 Hon. Leonard B. Sand et al., Modern Federal Jury Instructions
§ 89.02[1] (2012) (cited in CSX Transp., Inc. v. McBride, 131 S.
Ct. 2630, 2643 (2011) (referencing the since-modified ¶ 89.02[1]
as the then- "current model federal instruction").
Our court of appeals has noted "the 'judicially
developed doctrine of liability granted to railroad workers by
the FELA,' including its light burden of proof on negligence and
causation."

Estate of Larkins by Larkins v. Farrell Lines,

Inc., 806 F.2d 510, 512 (4th Cir. 1986) (quoting in part Kernan
v. American Dredging Co., 355 U.S. 426, 439 (1958)).

It has

additionally observed that, in order "to further the remedial
goals of the FELA . . . the Supreme Court has relaxed the
standard of causation by imposing employer liability whenever
14

'employer negligence played any part, even the slightest, in
producing the injury or death for which damages are sought.'”
Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436
(4th Cir. 1999) (quoting, inter alia, Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 43 (1994)).
The Supreme Court reiterated this approach quite
recently in the aforementioned McBride case.

McBride, 131 S.

Ct. at 2643 (2011) ("'Under [FELA] the test of a jury case is
simply whether the proofs justify with reason the conclusion
that employer negligence played any part, even the slightest, in
producing the injury or death for which damages are sought.'”)
(quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506
(1957)).
The McBride decision also observed as follows in
discussing the general contours of FELA liability:
“If a person has no reasonable ground to anticipate
that a particular condition . . . would or might
result in a mishap and injury, then the party is not
required to do anything to correct [the] condition.”
If negligence is proved, however, and is shown to have
“played any part, even the slightest, in producing the
injury,” then the carrier is answerable in damages
even if “the extent of the [injury] or the manner in
which it occurred” was not “[p]robable” or
“foreseeable.”
McBride, 131 S. Ct. at 2643 (footnote omitted).

At the same

time, as noted by our court of appeals in Hernandez, the Supreme
Court in Gottshall "cautioned that the FELA . . . is not to be
15

interpreted as a workers' compensation statute . . . ."
Hernandez, 187 F.3d at 436-37.

C.

Motion for Summary Judgment on Mr. Cisco’s Claims

First, Norfolk contends that the accident was caused
solely by Mr. Dotson’s negligence.

The theory hinges, inter

alia, upon an assemblage of the Crash Report, the vehicle data
gathered with respect to the accident, Mr. Dotson’s selfproclaimed fault, and a parsing of Mr. Widas’ testimony.

All of

these considerations taken together give rise to a reasonable
inference that Mr. Dotson bears some measure, perhaps the far
greater measure, of fault for causing the mishap.

The court is

unable to conclude, however, that he should be apportioned the
entirety of the fault as a matter of law.

The apportionment

process, if any, is reserved to the trier of fact.
Second, Norfolk asserts that it, via Mr. Stevens,
could not have reasonably foreseen the accident.

In sum, it

asserts that Mr. Cisco must show that Norfolk
should have reasonably foreseen that another driver
would run a stop sign and position his vehicle in the
direct path of Cisco’s vehicle . . . [and] that such
actions would cause a passenger to spill coffee while
both occupants of the vehicle reacted to the
unexpected situation in a matter of seconds before
impact and that the coffee would prevent the driver
form completely avoiding the collision.
16

(Norfolk Memo. in Support on Cisco at 14).

This contention does

not withstand the most minimal level of scrutiny.
provided hot coffee to its employees.

Norfolk

It knew those employees

used their personal vehicles at times on company business, on
occasion traversing highways at high speed.

It could anticipate

that a spill of hot coffee on the driver may result in a
vehicular accident.

The very existence of its safety program

and the encouraging of its employees to use seatbelts
demonstrates its understanding of the risks presented under the
circumstances.

Summary judgment on this ground is

inappropriate.
Third, Norfolk asserts that it could not have foreseen
Mr. Stevens spilling coffee in the manner alleged.

Leaving

aside for the moment Mr. Cisco’s contention that Norfolk should
have supplied lids for the coffee provided to its employees,
plaintiffs have generally claimed that Norfolk offered
inadequate safety guidance respecting travel while on company
business in personal vehicles.

Mr. Widas’ expert report

inflates that position sufficiently to give rise to a genuine
issue of material fact on the matter of foreseeability
concerning Mr. Stevens’ failure to secure his beverage.
Fourth, Norfolk asserts that when Mr. Stevens’ availed
himself of the Norfolk provided coffee during the early morning
17

hours, he was doing so for his own “personal enjoyment and
benefit (not for the benefit or under the control of
[Norfolk]).”

(Norfolk Mem. in Supp. on Cisco at 16).

It

additionally contends that, in the event Mr. Cisco was
uncomfortable with the open hot coffee, he could have asked his
foreman Mr. Stevens to discard it.
Respecting the first contention, one might just as
easily urge the inference that Norfolk provided the coffee to
aid the alert level of its employees, especially when they drove
to various locations not long after rising for the day.

In

order to avail itself of the personal-frolic exception it seeks,
Norfolk takes on a rather hefty burden.

See, e.g., Gallose v.

Long Island R.R. Co., 878 F.2d 80, 82–83 (2d Cir. 1989);
Copeland v. St. Louis–San Francisco Ry. Co., 291 F.2d 119, 120
(10th Cir. 1961); Hoyt v. Thompson, 174 F.2d 284, 285 (7th Cir.
1949)) (holding that “under FELA, employers are liable for the
negligence of their employees only if it occurs within the scope
of employment, and no liability attaches when an employee ‘acts
entirely of his own impulse, for his own amusement, and for no
purpose of or benefit to the defendant employer’”) (emphasis
added).

Norfolk has not pointed to the absence of proof on the

scope-of-employment issue that would justify a Rule 56 grant.

18

Respecting the second argument, the level of Mr.
Cisco’s comparative fault, if any, in not commanding his foreman
to pour out the hot beverage is not susceptible to a
determination as a matter of law.

Again, this type of argument

is best left to the finder of fact after development of the
matter at trial.

D.

Motion for Summary Judgment on Mr. Stevens’ Claims

Some of the contentions offered by Norfolk for summary
judgment against Mr. Stevens overlap with those already
addressed immediately above.
addressed.

Those grounds are not re-

Norfolk adds a new argument, however, respecting

earlier statements made by Mr. Stevens and the opinions of Mr.
Widas.
Norfolk points to a post-accident statement made by
Mr. Stevens to Mr. Cisco’s insurer to the effect that Mr. Cisco
had no way to avoid the accident and did nothing to contribute
to it.

It also notes Mr. Widas’ view that Mr. Cisco’s evasive

maneuvers were appropriate under the circumstances.

This

suggestion by Mr. Widas appears to conflict with the excerpt
from his report summarized supra, where he suggested that there
was enough time and distance of separation prior to the accident
for Mr. Cisco to perceive, react, and maneuver to avoid the
19

collision.

If not, Mr. Widas posits that, in the final

analysis, Mr. Cisco, as the driver, was obliged to maintain
control regardless.
While the statements of fact uttered by Mr. Stevens,
and the opinions offered by Mr. Widas, may be subject to attack
as inconsistent or overstated, they do not rise to a quantum
entitling Norfolk to judgment as a matter of law.

They are, at

best, in the nature of evidentiary conflicts going to weight and
credibility, which are properly left for the trier of fact.

For

example, the statement offered to Mr. Cisco’s insurer by Mr.
Stevens came just seven days after the accident.

Mr. Stevens

was still recuperating from the serious injuries he suffered.
The impact of that timing, if any, will doubtless be addressed
during direct and cross examination.

It will then be subject to

the Seventh Amendment weighing process.2

2

In its reply brief, Norfolk contends that Mr. Stevens has
asserted a newly minted negligence theory concerning its failure
to provide lids for the hot coffee it furnished its employees.
It asserts the theory requires expert testimony and that it is
both speculative and in conflict with other record evidence.
The court does not understand the theory to require the aid
of an expert at this juncture. In its present form, it is a
matter within the common understanding of the trier of fact and
a subject for argument and opposing evidence.
20

E.

Conclusion

In sum, the negligence, if any, of either Mr. Cisco or
Mr. Stevens, and hence Norfolk, is demonstrably fact bound.
Further, on the matter of causation, our court of appeals has
characterized the FELA burden as “light” and even
“‘featherweight.’”

See, e.g., Hernandez v. Trawler Miss Vertie

Mae, Inc., 187 F.3d 432 (4th Cir. 1999)(quoting Estate of
Larkins v. Farrell Lines, Inc., 806 F.2d 510, 512 (4th Cir.
1986)); Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151,
1162 (4th Cir. 2012)(internal quotation marks omitted).

After

taking the full measure of these governing legal principles and
the evidentiary record, it is ORDERED that Norfolk’s motions for
summary judgment be, and hereby are, denied.

The Clerk is directed to forward copies of this
written opinion and order to counsel of record and any
unrepresented parties.
DATED: April 17, 2014
John T. Copenhaver, Jr.
United States District Judge

21