Kukowski v. Soo Line R.R. Co.
| Decision Date | 12 February 2018 |
| Docket Number | File No. 16-cv-01260 (SRN/DTS) |
| Parties | David L. Kukowski, Plaintiff, v. Soo Line Railroad Company, d/b/a Canadian Pacific, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Cortney S. LeNeave and Thomas W. Fuller, Hunegs, LeNeave & Kvas, PA, 1000 Twelve Oaks Center Drive, Suite 101, Wayzata, MN 55391, 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, 81 South 9th Street, Suite 500, Minneapolis, MN 55402, 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.
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.
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. 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 clearunderstanding 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, (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, Bergstadtestified that (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 ().) 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 ().)
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, (...
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