Cottles v. Norfolk S. Ry. Co.

• Decision Date: 26 August 2016
• Docket Number: 1140632.
• Citation: 224 So.3d 572
• Parties: Jeff COTTLES v. NORFOLK SOUTHERN RAILWAY COMPANY
• Court: Alabama Supreme Court

224 So.3d 572

Jeff COTTLES

v.NORFOLK SOUTHERN RAILWAY COMPANY

1140632.

Supreme Court of Alabama.

Aug. 26, 2016.

Opinion Issued on Denial of Rehearing March 17, 2017.

Michael D. Blalock of Blalock & Blalock, P.C., Hoover; and Benjamin S. Wear and Brett C. Thompson of Second Row Law, LLC, Birmingham, for appellant.

Steve A. Tucker and John M. Graham of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP, Birmingham, for appellee.

MURDOCK, Justice.

Jeff Cottles appeals from a summary judgment entered in favor of Norfolk Southern Railway Company ("Norfolk Southern") by the Morgan Circuit Court in Cottles's action under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for injuries he sustained on April 9, 2012, while working as a track switchman for Norfolk Southern.¹ We reverse and remand.

I. Facts

Before the incident that precipitated this lawsuit, Cottles had worked as a track switchman for Norfolk Southern for seven years. His duties included "lining" track switches for incoming and outgoing railcars at industry tracks belonging to Norfolk Southern customers. For about two years before the incident, Cottles had been working a "relief job" that required him to carry out switching duties for Norfolk Southern railcars inside a chemical plant owned by Daikin Industries, Ltd. ("Daikin"), two days a week. The crew with whom Cottles worked consisted of locomotive engineer Jason Hall, engineer trainee Jared Cobb, and foreman/conductor Jeff Fretwell. Cottles's crew switched cars in the Daikin plant two nights a week, and another Norfolk Southern crew performed switching operations the remaining five nights each week. Cottles's role required him to throw the switches located inside the Daikin plant several times during a shift.

The Daikin plant contains four railroad tracks; the first three are used for "spotting" railcars, while the fourth one ("track 4") is used primarily for storage. The track 4 switch is the first one the train crews would come to after coming through the gate inside the fence that surrounds the Daikin plant. Cottles testified that most of the time he and his crew worked on the first three tracks and that, as a result, he did not have to throw the track 4 switch very often. The track 4 switch is located at the beginning of an incline, which requires train crews to apply sand to the tracks to generate friction so that incoming trains can move past it. A bar running across track 4 perpendicular to the track 4 switch serves to keep the switch points down; this is an old design that is no longer used by Norfolk Southern on its main line. Six spikes secure the track 4 switch to its crossties: three spikes on each side of the switch. The use of spikes to secure switches to crossties is also an old design that Norfolk Southern no longer uses on its main line.

The process of "throwing" a switch involves pulling the handle up, moving it in an arc from right to left, stopping in the upright position, and then continuing to move the handle down and to the left. Cottles testified that the track 4 switch was harder to throw than the other switches in the Daikin plant; the other switches "you could pick them up and they get about halfway and they'd pretty much fall over by theirself [sic]." In contrast, "[t]he four switch, you'd pick it up and just—you know, it was always hard to do. And you'd get it over three quarters of the way and you'd really have to put your, you know, weight down on [it]." He admitted that there were other switches on Norfolk Southern's main line that were also hard to throw.

Cottles testified that he had reported the "hard-to-throw" condition of the track 4 switch to his supervisors on several occasions. Cottles's coworker Darryl South² testified in an affidavit that the switch on track 4 had been "unusually and consistently very difficult to throw," and coworker Jeff Fretwell testified in an affidavit that the switch on track 4 had "always been very hard to throw." Both coworkers also testified that they had informed Norfolk Southern of the condition of the track 4 switch on repeated occasions. In fact, South testified that he reported the fact that the track 4 switch was in "bad throwing condition" to assistant trainmaster Ray Cooper two days before Cottles's injury.

In the early morning of April 9, 2012, Cottles started a shift at the Daikin plant. In the course of about an hour of work switching railcars, Cottles threw the track 4 switch approximately three to six times. Each of those times, Cottles noticed that the switch was very hard to throw in comparison to the other switches on the tracks in the plant. Cottles testified that, each time before he threw the track 4 switch, he inspected the stand and the switch points³ and that everything looked normal.

At around 2:00 a.m., Cottles attempted to throw the track 4 switch again. This time when he pushed the handle down the switch suddenly froze about one foot from the ground, and, according to Cottles, he felt pain in his back and neck. Cottles says he then paused for a few moments to collect himself. He then proceeded to push the switch into place with the aid of his foot. Cottles checked to see if the switch points had closed, i.e., that they had properly aligned against the rails, and he observed that they had not done so. He also observed that the spikes securing the switch stand to the right crosstie had become almost completely dislodged.

Cottles immediately reported the malfunction to his supervisor, assistant trainmaster Cooper. Upon inspection, Cooper determined that the switch was "un-linable" because of the raised spikes. Later that morning Norfolk Southern assistant division engineer Nathan Wolfe and Norfolk Southern assistant track supervisor Steve McGill also inspected the track 4 switch and deemed the switch points to be "dry" and the switch stand to be loose.

Within a week of the incident, Cottles's pain from his injuries had become so severe that he was unable to continue his job. He was diagnosed with bulging disks in his neck and a pinched nerve in his back. An orthopaedic surgeon also identified two tears in the rotator cuff of Cottles's right shoulder, and Cottles had corrective surgery on the shoulder. Cottles has not been able to return to work since the surgery.

It is undisputed that Daikin, not Norfolk Southern, owns the tracks and switches inside its plant. When Norfolk Southern's Cooper received a complaint about a switch inside the Daikin plant, he either contacted Daikin directly or he passed the complaint on to Norfolk Southern's operational services and support department. Regardless of who was notified, Daikin itself was required to address the issue and then to notify Norfolk Southern that the problem had been fixed. After Norfolk Southern received word from Daikin that maintenance had been performed, a Norfolk Southern track inspector would inspect the switch to confirm that the repairs had been completed. If they had, the track supervisor would send Cooper an e-mail stating that the switch or portion of track in question was "ready for service" or "good to go."

Daikin handled its maintenance duties through two departments. Its maintenance department was responsible for routine monthly maintenance that, with regard to switches, primarily involved applying grease to the switches. The warehouse department fielded specific complaints about track conditions. When it was reported that a switch was hard to throw, the warehouse department would contact the maintenance department to have grease applied to the switch. After this task was completed, a warehouse supervisor would perform a follow-up inspection.

Norfolk Southern assistant track supervisor McGill has the primary duty of track inspections over the territory that contains tracks on which Norfolk Southern employees work in Decatur, including the tracks inside the Daikin plaint. McGill is trained in Federal Railroad Administration ("FRA") Track Safety Standards that are codified as federal regulations ("FRA regulations").⁴ He inspects Norfolk Southern's main line in the territory twice each week; he inspects the track and switches inside the Daikin plant once each month. During those monthly inspections, McGill does not usually throw switches. It is undisputed that McGill inspected the tracks in the Daikin plant, including all the switches, on March 29, 2012—11 days before the April 9, 2012, incident—and that he did not find anything wrong with the track 4 switch at that time. It is also undisputed that McGill did not throw the track 4 switch during that inspection.

On June 14, 2012, Cottles filed in the Colbert Circuit Court a FELA action against Norfolk Southern alleging that Norfolk Southern "failed to provide [Cottles] with a reasonably safe place to work" and that, as a result, Cottles sustained permanent damage to his neck and his back. In addition to his claims of negligence, Cottles asserted that Norfolk Southern was strictly liable under the Federal Safety Appliance Act ("FSAA")⁵ and/or "applicable FRA standards." On November 1, 2012, Norfolk Southern filed a motion to transfer the action to Morgan County; Cottles consented to the motion, and the action was transferred the following day.

During discovery, Cottles submitted interrogatories to Norfolk Southern. Among other things, Cottles asked whether Norfolk Southern had "received any written or oral complaints from [Norfolk Southern's] conductors or trainmen that switch No. 4 in the Daikin Plant was not functioning correctly?" Norfolk Southern answered that "to its knowledge" it had not received any such complaints "during 2010, 2011, or 2012" other than following the incident that precipitated the lawsuit. Subsequently, discovery consisted of the depositions of Cottles, Cottles's railroad expert, Joe Lydick, and Cottles's medical expert, Dr. Lauren Savage.

On June 11, 2014, Norfolk Southern filed a motion for a summary judgment. Norfolk Southern contended that Cottles's own testimony that h...