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Kukowski v. Soo Line Railroad Co.

United States District Court, D. Minnesota

February 12, 2018

David L. Kukowski, Plaintiff,
Soo Line Railroad Company, d/b/a Canadian Pacific, Defendant.

          Cortney S. LeNeave and Thomas W. Fuller, Hunegs, LeNeave & Kvas, PA, for Plaintiff.

          Eugene C. Shermoen, Jr., Jennifer K. Eggers, Lee A. Miller, Sally J. Ferguson, and Timothy J. Carrigan, Arthur, Chapman, Kettering, Smetak & Pikala, PA, for Defendant.



         This matter is before the Court on motions for partial summary judgment filed by both parties. Defendant Soo Line Railroad Company (“Defendant”) filed a Motion for Partial Summary Judgment (“Def.'s Mot.”) [Doc. No. 26] on Count Two of Plaintiff's Complaint and on any claim related to locomotive crashworthiness. (See Def.'s Supp. Mem. [Doc. No. 41].) For his part, Plaintiff David L. Kukowski (“Plaintiff”) filed a Motion for Partial Summary Judgment (“Pl.'s Mot.”) [Doc. No. 30] on one aspect of Count Three of his Complaint and on Defendant's contributory negligence defense. For the reasons set forth below and as detailed herein, Defendant's Motion for Partial Summary Judgment is granted and Plaintiff's Motion for Partial Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff brought this action seeking to recover damages for injuries he sustained in an incident while working as a conductor on one of Defendant's trains. The Court recounts the facts that are undisputed and notes where material disputes arise.

         A. Relevant Facts

         In May 2014, Plaintiff was 56 years old and had been working for Defendant for approximately 23 years, primarily as a switchman/conductor on Defendant's trains. (Ex. 3 to Fuller Decl. [Doc. No. 33-3] (“Kukowski Dep.”) at 6, 12.) On the morning of May 2, 2014, Plaintiff reported to work at a railroad station in Portal, North Dakota. (Id. at 93-94.) Plaintiff was one of two crew members assigned to take train 292-30 southeast to Harvey, North Dakota. (Id. at 94-96, 150.) The other crew member was locomotive engineer Timothy Bergstad. (Id. at 94.) Train 292-30 consisted of two locomotives and 154 rail cars. (Id. at 95.) The “lead locomotive” was at the front of the train, and the second locomotive was at the end of the train. (Id.)

         The crew departed the Portal station on train 292-30 before 9 a.m. (Ex. C to Carrigan Aff. [Doc. No. 29-3] (“Train Delay Report”).) En route to Harvey, the train had to make a stop at the Lake Darling railroad crossing to wait for repairs to another train that was ahead. (Kukowski Dep. at 97-98.) The stop at Lake Darling lasted approximately 35 minutes. (Id.; Ex. 10 to Fuller Decl. [Doc. No. 33-10] (“Bergstad Dep.”) at 21-22.) Sometime before the train left Lake Darling, a dispatcher for Defendant notified the crew via radio that Track Warrant 4558 had been “okayed” for them. (Kukowski Dep. at 144-55; Ex. D to Carrigan Aff. [Doc. No. 29-4] (“Burlaga Dep.”) at 54.) As Plaintiff explains, a “track warrant gives [crews] the authority to proceed from one station to the next.” (Kukowski Dep. at 140.)

         Of paramount importance here, Track Warrant 4558 also advised the crew that they should be prepared to stop their train up ahead to ensure that a switch at Foxholm, North Dakota, was properly lined up in the direction of their train's travel. (Id. at 100, 144; Bergstad Dep. at 22; see also Ex. G. to Carrigan Aff. [Doc. No. 29-7] (“Investigative Hr'g Tr.”) at 10-11.) If a switch is lined up against the direction of a train's travel, it is necessary to stop the train before it goes through the switch. (Kukowski Dep. at 100.) Failure to do so presents a risk of train derailment and/or damage to the track switch. (Id.)

         It is undisputed that before departing Lake Darling, both Plaintiff and Bergstad knew that their train should proceed toward the east siding switch at Foxholm and be prepared to stop. (Id. at 100.) At his deposition, Plaintiff agreed that he learned from dispatch, prior to leaving Lake Darling, that it would be necessary for him to check that the east siding switch at Foxholm was properly positioned. (Id. at 100, 144-45.) Similarly, Bergstad testified that before leaving Lake Darling, he knew of the track warrant indicating that the crew should proceed to Foxholm but be prepared to stop before the switch. (Bergstad Dep. at 22-23.)

         However, the parties dispute whether Plaintiff and Bergstad held a “job briefing” after they received Track Warrant 4558. Plaintiff explained that a job briefing is generally held to talk about what the crew will do from the time it departs until it arrives at its destination and includes discussing issues of safety. (Kukowski Dep. at 100-01.) Defendant's internal operating rule, “CP Safety Rule T-0 Job Briefings, ” states that a “Job Briefing” “is led by the conductor/foreman and all crew members must have a clear understanding of the tasks to be performed prior to commencing any work and/or when work conditions change.” (Ex. K to Carrigan Aff. [Doc. No. 29-11] at 2; see also Ex. N to Carrigan Supp. Aff. [Doc. No. 40-1] (“Wolf Report”) at ¶ 6.) Plaintiff testified that the last job briefing he remembers participating in before the incident was “right at the Lake Darling crossing, ” and that it involved discussing the crew's need to “[r]e-line the switch at Foxholm.” (Kukowski Dep. at 102.)

         Bergstad's testimony regarding the job briefing is somewhat inconsistent. At Defendant's investigative hearing, Bergstad was asked: “When you stopped at Lake Darling crossing and before you proceeded, did you have a job briefing about the east siding switch at Foxholm?” (Investigative Hr'g Tr. at 9.) To this, Bergstad responded, “I don't remember so. . . . [A]s far as when we took off from Lake Darling, I do not remember talking about it.” (Id.) However, at his deposition, Bergstad agreed that the crew got notice of the Foxholm switch within five minutes of leaving Lake Darling, and discussed the need to stop up ahead. (Bergstad Dep. at 21-23.) And when Plaintiff's counsel asked Bergstad if such discussion “would have been a timely job briefing, ” negating “any reason . . . to review [the track warrant] again, ” Bergstad answered “yes.” (Id. at 19.)

         At approximately 11:27 a.m., the crew departed Lake Darling and headed toward Foxholm, which is less than two miles away. (Kukowski Dep. at 99; Bergstad Dep. at 22.) When the train left, both Plaintiff and Bergstad were seated in the cab of the lead locomotive, with Bergstad at the engineer's side manning the train's controls. (Kukowski Dep. at 104.) Plaintiff testified that as the train approached Foxholm, but while the crew was still “quite a ways away from” the switch, he noticed that it was facing the wrong direction. (Id. at 105.) Plaintiff testified that he thus got up from his seat to put on his vest and get ready to disembark the train to make the necessary changes to the switch's orientation. (Id. at 105-06.)

         The events that followed resulted in the train coming to an abrupt stop, causing serious injury to Plaintiff. Plaintiff testified that while he was standing and putting on his vest, he heard a noise and asked Bergstad what it was. (Id. at 107.) According to Plaintiff, Bergstad replied, “I dumped the air, put the train into emergency.” (Id.; accord Id. at 109- 10.) Plaintiff testified that a split second later, he “flew head first right down into the nose [of the locomotive]” and hit his head on an overhead beam. (Id. at 107-09.) Plaintiff further testified that the next thing he remembers is Bergstad repeatedly asking him if he was okay. (Id. at 110) Plaintiff contends that as a result of this incident, he has headaches, problems with balance, constant loudness in his ears, and problems with his left knee. (Id. at 15-18.)

         Bergstad's deposition testimony is generally in agreement with Plaintiff's recollection of events. Bergstad testified that as the train was approaching Foxholm, “[he] happened to look up and then realized the switch was against [the direction of travel].” (Bergstad Dep. at 8.) According to Bergstad, he then “dumped the air” and the train began to come to a slow stop. (Id.) However, he recalls that “just right as [the train] came to the stop, that's when the . . . slack action or the run-in occurred.”[1] (Id. at 8-9.) Bergstad testified that as a result of the slack “running in, ” a knuckle connecting two of the train's cars broke, separating the train in two. (Id. at 11.) Describing what occurred to Plaintiff, Bergstad testified that “[Plaintiff] was . . . standing in the middle, facing forward like I was, sitting. And once that slack action ran in, he was propelled forward where he struck his head above the walkway there.” (Id. at 9.)

         Both Plaintiff and Bergstad testified that Bergstad used the emergency brake because he “forgot” about the need to check the switch. When Plaintiff's counsel asked Bergstad if he had to resort to using the emergency brake to stop the train because he had forgotten about the switch, Bergstad answered “yes.” (Id. at 18, 20.) Similarly, Plaintiff testified that after the incident, Bergstad told him that “[he] forgot all about [the switch].” (Kukowski Dep. at 169, 107 (“I know he said, ‘I kind of forgot about it.'”).) Bergstad conceded that had he not forgotten about the switch, he would not have had to use the emergency brake. (Bergstad Dep. at 20; see also Kukowski Dep. at 138 (agreeing that “in the normal course of things, ” an emergency stop is not needed for a switch).)

         The parties dispute whether Plaintiff also forgot about the switch after the crew departed Lake Darling. At Defendant's internal investigative hearing, when Plaintiff was asked “why the [train's] air ha[d] to be voluntarily dumped, ” he stated, “I was taking- doing my road block. Then it just-I accidentally forgot about the switch.” (Investigative Hr'g Tr. at 17.) However, at his deposition, when asked if he had forgotten about the switch, Plaintiff replied, “No, because I reminded [Bergstad] . . . .” (Kukowski Dep. at 107.) According to Plaintiff, he kept a note “right in front of [him]” in the locomotive to keep reminding himself about the need to “restore” the switch at Foxholm. (Id. at 107-08.)

         The parties also dispute whether Plaintiff “reminded” Bergstad of the need to check the switch after the crew departed Lake Darling. Pursuant to GCOR Rule 1.47(A)(3), “[t]he conductor must remind the engineer that the train is approaching an area restricted by: . . .Track warrant . . . .” (See Ex. J to Carrigan Aff. [Doc No. 29-10] at 5; see also Wolf Report ¶ 6.).) Plaintiff testified that when the train was approximately a mile away from the switch, he told Bergstad, “we gotta restore the switch on the track warrant.” (Kukowski Dep. at 106-07.) Plaintiff claims that Bergstad heard this statement and responded “Yup, I got ‘er, ” or something to that effect. (Id. at 106.) Bergstad has a different recollection. At his deposition, when asked if Plaintiff had said anything to him about the switch after the train left Lake Darling, Bergstad answered, “not that I remember.” (Bergstad Dep. at 24.)

         After the train came to a stop, more of Defendant's employees arrived on the scene and replaced the broken knuckle. (Kukowski Dep. 113-17.) Bergstad then moved the front segment of the train backward so that the two segments could be reconnected and the train could depart the scene. (Id. at 117.) One of Defendant's trainmasters, Keith Hanson, inspected and photographed the knuckle. (Ex. O to Carrigan Supp. Aff. [Doc. No. 40-2] at 12-13.) Although Hanson took photographs, Defendant did not retain the knuckle after the incident.[2]

         Although there is no dispute that a knuckle connecting two railcars broke, there is vigorous disagreement as to whether the two train segments collided, or what role the broken knuckle played in the train's sudden stop and Plaintiff's injuries. Plaintiff's expert, Paul Byrnes, opined that after the knuckle broke, “the rear of the train r[an] into the front of the train.” (Ex. S to Carrigan Supp. Aff. [Doc. No. 40-6] at 40.) It is his opinion that after the train separated, the two train segments acted as an “anvil” and “hammer.” (Id.) According to Byrnes, the impact between the two train segments explains the “severe impact force” that the crew felt in the locomotive and which resulted in Plaintiff being “thrown very forcefully down into the nose.” (Id.)

         Defendant's expert, Gary Wolf, disagrees. Wolf opines that the “rear portion of the train never ran back into the front portion of the train after the train separation.” (Wolf Report at 8.) Wolf claims that the train's recorder data shows a “gap of 116 feet between the front and rear portion of the train when it stopped, ” which is in fact why Bergstad had to reverse the front segment so that the train could be recoupled. (Id.) Moreover, Wolf believes that had there been a collision between the two segments of the train, “[Plaintiff] would have been thrown backward in to [sic] the rear wall of the locomotive, ” instead of forward, “as both [Plaintiff] and Mr. Bergstad have testified.” (Id. at 9.)

         After the team replaced the broken knuckle and the train left the scene, Plaintiff finished his shift, reported the incident to Defendant later that day, (Kukowski Dep. at 125- 27), and went to the emergency room, (Id. at 59).

         B. Procedural Posture

         On May 12, 2016, Plaintiff commenced legal action against Defendant, claiming that as a result of the incident on May 2, 2014, he suffered severe and permanent injury and disability. (See Compl. [Doc. No. 1] ¶ VI.) Plaintiff's Complaint sets forth three counts. (Id.) Count One alleges general negligence by Defendant in violation of the Federal Employers' Liability Act (“FELA”), 45 U.S.C. §§ 51-60. (Id. ¶¶ I-VI.) Count Two alleges that Defendant violated its operating rules and the Code of Federal Regulations, which in turn caused Plaintiff's injuries, rendering Defendant strictly liable. (Id. ¶ VIII.) Finally, Count Three alleges that Defendant violated the Federal Safety Appliance Act (“FSAA”), 49 U.S.C. §§ 20301-20306, by hauling or using a railcar equipped with a defective coupler device, which injured Plaintiff. (Id. ¶ XI.) On June 1, 2016, Defendant filed an Answer to Plaintiff's Complaint. (Def.'s Answer [Doc. No. 4].) Among its affirmative defenses, Defendant pled contributory negligence. (Id. ¶ 5.)

         On July 27, 2017, Defendant moved for partial summary judgment on Count Two of Plaintiff's Complaint. (Def.'s Mot. at 1.) First, Defendant argues that there is no genuine issue of material fact as to whether it violated the Code of Federal Regulations. (Id.) Second, it argues that “Plaintiff cannot as a matter of law base a strict liability claim on Defendant's violation of any of [Defendant]'s internal safety rules that allegedly were violated.” (Id.)

         On July 28, 2017, Plaintiff also moved for partial summary judgment. First, Plaintiff urges the Court to grant summary judgment on its claim that Defendant violated the FSAA. (Pl.'s Mem. at 14-17.) Second, Plaintiff argues that it is entitled to partial summary judgment on Defendant's contributory negligence defense. (Id. at 17-24.)

         On August 10, 2017, the magistrate judge held an informal telephone conference with the parties and ordered supplemental briefing regarding a new claim that Defendant alleged Plaintiff was raising long after the close of discovery. (See Min. Entry [Doc. No. 35]; Order [Doc. No. 36].) On August 31, 2017, Defendant filed a brief supplementing his original motion, and moving for partial summary judgment as to any claim related to the “crashworthiness” of the locomotive. (See Def.'s Supp. Mem.) For the sake of clarity, although there is but one motion for partial summary judgment filed by Defendant technically “pending” before this Court [Doc. No. 26], this order will refer to Defendant's supplemental briefing as a “supplemental motion” for partial summary judgment.


         A. Summary Judgment Standard

         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Morris v. BNSF Ry. Co., 817 F.3d 1104, 1107 (8th Cir. 2016). A fact is “material” only if it may affect the outcome of the lawsuit. TCF Nat'l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016). Likewise, an issue of material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed, Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), and the Court must view the evidence and any reasonable inference in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         In responding to a motion for summary judgment, the opposing party “‘may not rest upon the mere allegation or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial, ' and ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment.'” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57). “[T]he nonmoving party must ‘do more than simply show that there is some metaphysical doubt as to the material facts.'” Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010) (quoting Matsushita, 475 U.S. at 586). “[O]nly evidence that would be admissible at trial may be relied upon to counter a motion for summary judgment.” Sokol & Assocs., Inc. v. Techsonic Indus., Inc., 495 F.3d 605, 611 n.4 (8th Cir. 2007).

         B. Legal Framework

         Under FELA, railroads have a duty to provide their employees with a reasonably safe place to work. Cowden v. BNSF Ry. Co., 690 F.3d 884, 889 (8th Cir. 2012) (citation omitted). Enacted in 1908, the statute provides the exclusive remedy for a railroad employee who is injured as a result of his employer's negligence. Id. (citing 45 U.S.C. § 51). “Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted [this] federal remedy that shifted part of the ‘human overhead' of doing business from employees to their employers.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994) (quoting Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 58 (1943)). As such, “‘[i]n order to further FELA's humanitarian purposes, ' Congress removed various common-law obstacles to an employee's recovery, and courts have ‘liberally construed FELA to further Congress's remedial goal.'” Cowden, 690 F.3d at 889-90 (internal citations and alterations omitted).

         Nevertheless, FELA is not a strict liability statute, and a plaintiff must establish that his employer was negligent. To do so, a plaintiff may proceed in two ways. He can either establish a prima facie case of negligence by proving the same elements as are found in a common law negligence action, Davis v. Burlington N., Inc., 541 F.2d 182, 185 (8th Cir. 1976), or he may prove that his employer violated a railroad safety statute such as the FSAA or the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701, et seq., see Urie v. Thompson, 337 U.S. 163, 189 (1949). If an employee can establish a violation of the FSAA or the LIA or one of their regulations, such proof dispenses with the need to prove that the railroad was negligent, and negligence is established as a matter of law. Id. “Sometimes that violation is described as ‘negligence per se, ' but [the Supreme Court] ha[s] made clear . . . that that term is a confusing label for what is simply a violation of an absolute duty.” Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 434 (1949). Once the statutory violation is established, only proof of causation is required; that is, the employee must prove that his injury resulted “in whole or in part” from the defendant's violation of the statute. Id.

         With this framework in mind, the Court now turns to each party's motions for partial summary judgment.

         C. Defendant's Motions for Partial Summary Judgment

         1. Count Two of Plaintiff's Complaint

         Count Two of Plaintiff's Complaint alleges that “Defendant's violations of the Code of Federal Regulations, including use of radio and such other acts as constitute violations of operating rules and C.F.R. . . . constitute strict liability of Defendant.” (Compl. ¶ VIII.) In support of its motion, Defendant first argues that any alleged violations of the operating rules which Plaintiff identified as underlying Count Two cannot, as a matter of law, subject it to strict liability. (Def.'s Mem. at 17-19.) Second, Defendant argues that there is no genuine issue of material fact as to whether it violated 49 C.F.R. § 220.45-the only federal regulation Plaintiff specifically identified as underlying Count Two. (Id. at 9-10.)

         Plaintiff disagrees. First, he contends that Defendant's violations of its internal operating rules can in fact subject it to strict liability because those rules are incorporated by reference into 49 C.F.R. § 220.45, such that a violation of the operating rules amounts to a violation of that regulation. (Pl.'s Opp'n [Doc. No. at 37] at 1.) Second, Plaintiff argues that there are several issues of material fact in dispute as to whether Bergstad violated 49 C.F.R. § 220.45. (Id.) In light of the ...

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