United States District Court, D. Minnesota
Cortney S. LeNeave and Thomas W. Fuller, Hunegs, LeNeave
& Kvas, P.A., Counsel for Plaintiff.
Jennifer K. Eggers, Timothy J. Carrigan and Allison N.
Krueger, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Counsel for Defendant.
MEMORANDUM OPINION AND ORDER
Michael J. Davis United States District Court
matter is before the Court on Defendant's motion for
partial summary judgment and to exclude Plaintiff's
Expert Lighting Opinions.
was hired as a conductor by Defendant Soo Line Railroad d/b/a
Canadian Pacific (“Soo Line”) in November 2014.
Prior to his hire, Plaintiff earned an Associates Degree in
Railroad Operations from the Northwest Railroad Institute in
Vancouver, Washington. Plaintiff began the conductor's
training program on November 18, 2014. The training consisted
of two weeks in a classroom setting, six weeks in the area
the trainee would work, and two final two weeks was devoted
to completing the GCOR exam. (Fuller Decl., Ex. 1 (Plaintiff
Dep. 18).) During this training, he learned how to tie hand
brakes, line the switches, get on and off moving equipment
and crossing over from one piece of equipment to another.
(Id. 18-22.) He was shown a Powerpoint presentation
describing the safe procedure for dismounting a moving
locomotive and learned Canadian Pacific safety rules related
to detraining from moving equipment. (Id. 138;
Eggers Aff. Ex. 2 (CP Safety Rules & Safe Work Procedures
Powerpoint); Ex. 3 (Rule T-11).) The training he received at
Northwest Railroad Institute was similar, but more in depth,
and also included training on how to get on and off moving
equipment. (Id. 144.)
the initial classroom training was completed, Plaintiff was
sent to Harvey, North Dakota to begin on-the-job training for
six weeks. (Fuller Decl. Ex. 1 (Plaintiff Dep. 18).) During
that time, Plaintiff worked on approximately 18 train
assignments. (Eggers Aff. Ex. 4 (Plaintiff's Work
History).) He passed his exams in January 2015 and went back
to Harvey to continue his on-the-job training. (Id.
Ex. 5 (Exam Sheet); Fuller Decl. (Plaintiff Dep. 30).) On
March 1, 2015, Plaintiff was certified as a new conductor.
(Eggers Aff. Ex. 6).)
March 12, 2015, Plaintiff was working on the H74 train
assignment with fellow crew members Doug Mattern and Darwin
Dietz at the Voltaire, North Dakota railyard. (Fuller Decl.
Ex. 1 (Plaintiff Dep. 75); Eggers Aff. Ex. 7 (Mattern Dep.
20); Ex. 8 (Dietz Dep. 6-7).) On that night, Mattern was the
conductor, Dietz was the engineer and Plaintiff was the
brakeman. (Eggers Aff. Ex. 7 (Mattern Dep. 20); Ex. 8 (Dietz
Dep. 6-7).) As the conductor, Mattern was supervising
Plaintiff. (Id. Ex. 7 (Mattern Dep. 20).)
was not familiar with the Voltaire yard, and the crew's
supervisor, James Ferderer instructed that Plaintiff be given
a map of the yard. (Fuller Decl. (Plaintiff Dep. 39-40).)
Prior to the night of his injury, Plaintiff also had the
opportunity to visit the Voltaire yard and familiarize
himself with it by walking around with Mattern. (Id.
77.) When the crew got to the Voltaire yard on the night of
March 12, 2015, Mattern was showing Plaintiff the proper way
of doing certain jobs in the industry. (Id.)
Plaintiff said he chose to walk along the tracks for the most
part that night because he believed the conditions were
muddy, and the light poor, and he was concerned about getting
on and off moving equipment. (Id. 78-79.)
before the accident, Mattern instructed Plaintiff to get on
the locomotive and ride it a short distance so he could get
off the train and line the west end switch. (Id.
85-86.) Plaintiff got on the locomotive on the short nose and
placed both hands on the handrails and held on at the bend of
the stairs while his feet were positioned on the bottom,
grated platform. (Id. 90-91.) Plaintiff's head
was facing the direction in which the locomotive was moving,
and his body was turned slightly to the side. (Id.
91.) He had a lantern on his wrist. (Id. 116.)
informed the engineer on the radio that he would be getting
off the locomotive in three car lengths. (Id. 92,
97.) Plaintiff dismounted the locomotive, starting with his
trailing foot, which was his right foot. (Id. 108.)
He checked the area for debris before he dismounted and noted
that the ground was muddy and soft. (Id. 109.)
deposition, Plaintiff testified that his right foot became
stuck in the ground, causing him to roll and his left ankle
to turn left. (Id. 112.) Later in the deposition,
Plaintiff testified that it was his left foot that made the
hole in the ground, and after his left ankle twisted left, he
fell to the ground. (Id. 175.) Plaintiff did not
claim a problem with his boots or the locomotive and he felt
he was adequately trained to get off moving equipment.
(Id. 120.) He believed the accident was caused by
conditions on the ground and poor lighting. (Id.
engineer stopped the train as soon as he saw Plaintiff on the
ground. (Eggers Aff., Ex. 8 (Dietz Dep. 35).) An ambulance
arrived 40 minutes later and took Plaintiff to Trinity
Hospital in Minot, North Dakota where it was determined that
Plaintiff suffered a lateral and posterior malleolar fracture
of his left ankle and that surgery was required. (Fuller
Decl., Ex. 1 (Plaintiff Dep. 147); Eggers Aff., Ex. 13.)
completed an injury report for Soo Line and listed as
contributing factors “no lighting, muddy conditions,
lack of fines, and no ballast whatsoever.” (Fuller
Decl., Ex. 1 (Plaintiff Dep. 124-25); Ex. 2 (Injury Report).)
medical expert, John G. Stark, M.D., opined that Plaintiff
cannot return to work as a conductor because that job
requires him to be on his feet for long periods of time as
well as walking on uneven ground. (Eggers Aff., Ex. 13 (Stark
Report).) He further opined that Plaintiff could suffer the
same injury detraining a non-moving locomotive.
(Id., Ex. 14 (Stark Dep. 27-28).)
Pacific has a Train and Engine Safety Rule Book.
(Id. Ex. 3.) Rule T-11 covers detraining moving
equipment, and it provides that detraining moving equipment
is permissible when conditions are determined to be safe.
(Id.) Rule T-11 sets forth the procedures to follow
before detraining. There are seven steps to be followed,
Step 1: Communicate your intention to detrain to the
locomotive engineer. When getting off equipment, always face
the direction of travel. Visually select a safe area to
detrain well in advance.
Step 2: Ensure that your detraining area:
• Will provide solid footing, and
• Does not have any object or condition that will cause
you to slip or trip.
Step 3: When getting off equipment, always face the equipment
that you are about to detrain and look where you are going to
place your feet.
Step 4: As you get closer:
• Narrow your focus on a detraining spot, checking that
it is free of tripping hazards.
• Drop your trailing foot (relative to the direction of
movement) from the stirrup.
• Lower your trailing foot to the ground, lining your
toes in the direction of movement and step away with the
leading foot releasing your lead hand.
Step 5: Maintain a grip on the handhold with your trailing
hand (relative to the direction of movement) until you are
balanced on your feet.
Step 6: Once your balance is ensured, release your trailing
hand from the handhold and step away from the track.
Step 7: Communicate to the locomotive engineer once you are
safely off the equipment.
alleges that Soo Line is liable for ordinary negligence under
the Federal Employer's Liability Act
(“FELA”), 45 U.S.C. §§ 51-60, in
failing to provide a reasonably safe workplace and strictly
liable for violation of ...