United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Norfolk Southern Railway Company's Motion for Partial Summary Judgment, filed by Defendant, Norfolk Southern Railway Company, on September 4, 2013 (DE #19). For the reasons set forth below, the motion (DE #19) is GRANTED. Plaintiff's allegations that Norfolk failed to adequately train, educate, instruct, supervise, qualify, and test the engineer operating the locomotive, and failed to adequately train, instruct, and supervise the train crew (First Am. Compl. (DE #15), ¶ 14(d), (k)-(m), (q)), are hereby DISMISSED WITH PREJUDICE. The remaining claims in the first amended complaint REMAIN PENDING.
Plaintiff, Jennifer Lombardy, who worked as a conductor for Defendant, Norfolk Southern Railway Company (hereinafter "Norfolk"), claims that on December 6, 2009, she sustained injuries during an abrupt stop while riding on the corner of a grain hopper car. She alleges, inter alia, that Norfolk Southern failed to adequately train, educate, instruct, supervise, qualify, and test the engineer operating the locomotive, and failed to adequately train, instruct, and supervise the train crew. ( See First Am. Compl. (DE #15), ¶ 14(d), (k)-(m), (q)).
In the instant motion for partial summary judgment, Norfolk argues that Plaintiff's claims for inadequate training, education, instruction, supervision, and qualification fail as a matter of law, as precluded by federal regulations promulgated pursuant to the Federal Railroad Safety Act, 49 U.S.C. §§ 20101, et seq. ("FRSA"). In her brief in opposition, Plaintiff argues that her FELA failure to properly train claim is not preempted by the FRSA. (DE #22.) Norfolk filed a reply brief on October 24, 2013 (DE #25), as well as a supplemental designation of evidence in support of its motion for partial summary judgment. (DE #26.) This motion is fully briefed and ripe for adjudication.
The undisputed facts in this case are fairly straightforward. Plaintiff worked as a conductor for Norfolk Southern. On December 6, 2009, she and Engineer Eric Douthitt were working at a grain facility (Andersons) in Dunkirk, moving empty rail cars from a siding track to several tracks within the grain facility. (Lombardy Dep., pp. 54, 57.) Plaintiff was riding on the corner of a grain hopper car during a "shove move" into Andersons. ( Id., p. 80.) Plaintiff's supervisor, Assistant Trainmaster Eric Goodman, was riding on the opposite corner of the car. ( Id. )
Plaintiff alleges that the engine's radio (which she was using to communicate with the engineer), failed to work properly, and when that happened, Engineer Douthitt "didn't stop [the train] fast enough." ( Id., pp. 101-02.) Then, when Engineer Douthitt did stop the train, he stopped "abrupt[ly], " which Plaintiff claims caused her to injure her knee, back, and neck. ( Id., p. 102.)
Engineer Douthitt admits he was having some difficulty hearing Plaintiff on the radio during the shove. (Douthitt Dep., p. 29.) Assistant Trainmaster Goodman, who was riding the shove move with Plaintiff and listening on his radio, admits that when Plaintiff was trying to give Engineer Douthitt the car counts, the "communication wasn't clear." (Fulk Report (Ex. B), pp. 4-5; Goodman Dep., pp. 61-62.) Douthitt told Lombardy that his radio did not work, and he could not hear her. (Fulk Report, p. 4; Lombardy Dep., p. 101.)
Before Lombardy's injury, there were radio problems earlier in the shove. (Fulk Report, pp. 6-8; Goodman Dep., p. 62.) Plaintiff's liability expert, Colon Fulk, opines that since the locomotive radio failed once before, Goodman should not have allowed the train to be moved until the communication issue had been corrected. (Fulk Report, pp. 6-9.) Fulk opines Goodman violated Norfolk Southern General Regulation 1(b), which requires that "[i]n case of doubt or uncertainty, the safe course must be taken." (Fulk Report, p. 7.) Fulk opines that Douthitt and Goodman violated several CRF rules, and ultimately, that Douthitt acted negligently by continuing the shove move while receiving broken radio transmissions, in violation of Norfolk Southern Operating Rule 509(c) and 49 C.F.R. 220.45. (Fulk Report, pp. 10-11.) Additionally, Fulk believes Goodman did not have proper knowledge of the Federal Radio Regulations. (Fulk Supp. Report (Ex. C), p. 1.) Goodman testified during his deposition that he would not deem a radio defective if it worked part-time. (Goodman Dep., p. 28.) It is Fulk's opinion that Goodman's lack of knowledge of the regulations resulted in his inability to properly train the employees he supervised, who then also lacked proper knowledge of the regulations. (Fulk Supp. Report, pp. 1, 4.)
Plaintiff concedes that she thought she received "good training" from Norfolk when she was hired, and when she was qualifying as a conductor. (Lombardy Dep., pp. 62-63.) G. Chris Brasher, Assistant Vice President of Operating Rules of Norfolk, filed a declaration and supplemental declaration with the Court. (DE #20-2 and DE #25-4). Brasher stated Norfolk filed with the Federal Railroad Administration ("FRA") its code of operating rules, timetables, timetable special instructions, and amendments within 30 days after they were issued, as required by 49 C.F.R. § 217.7, and has a written program for providing instruction to its employees on the meaning and application of its operating rules, as required by 49 C.F.R. §217.11. (Brasher Decl., ¶¶ 3, 6.) Additionally, Norfolk's written program for certifying the qualifications of locomotive engineers has been filed with and approved by the FRA in accordance with 49 C.F.R. § 240.103. ( Id. ¶ 5.)
Plaintiff, Engineer Douthitt, and Assistant Goodman all received training on Norfolk's safety and operating rules, and Engineer Douthitt was a qualified locomotive engineer. (Brasher Dec., ¶¶ 8-10.) Additionally, Norfolk has a written program for conducting operational tests and inspections to determine employee's compliance with rules, and Engineer Douthitt and Plaintiff were both tested and inspected under, and in accordance with, Norfolk's written policy. ( Id. ¶¶ 11, 13-15, 18.) Assistant Goodman was also a qualified railroad testing officer. ( Id. ¶ 10.) Additionally, Douthitt and Goodman both received training on Norfolk's safety and operating rules, including instruction on the proper use of radio communication. (Brasher Supp. Dec. ¶¶ 4-5.)
Norfolk also conducted six month reviews of its program of tests and inspections, and quarterly reviews of the results and data. ( Id. ¶ 16.) Summaries of the tests and inspections are maintained at its system headquarters and each division headquarters. ( Id. ¶¶ 16-17.)
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In other words, the record must reveal that no reasonable jury could find for the nonmovant. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for summary judgment, a court must view all facts in the light most favorable to the nonmovant. Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, " if any, that the movant believes "demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once the movant has met this burden, the nonmovant must support its assertion that a fact is genuinely disputed by citing to particular parts of materials in the record. Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). "Whether a fact is material depends on the substantive law underlying a particular claim and only disputes over facts that might affect the outcome of ...