Norfolk S. Ry. v. Tobergte

Decision Date04 February 2021
Docket NumberCIVIL ACTION NO. 5:18-207-KKC
CourtU.S. District Court — Eastern District of Kentucky

This matter is before the Court on Plaintiff Norfolk Southern Railway Company's motion for partial summary judgment (DE 78) and Plaintiff's motion for leave to file a first amended complaint (DE 103). For the following reasons, both motions are granted in part and denied in part.

I. Background
A. The Collision

On March 18, 2018, Plaintiff Norfolk Southern Railway Company's southbound train 175 ("Train 175") collided with its northbound train M74 ("Train M74") in Georgetown, Kentucky, destroying two of Plaintiff's locomotives, causing extensive damage to other locomotives, and derailing nearby rail cars. (DE 1 ¶¶ 614.) Defendant Kevin Tobergte was the locomotive engineer on Train 175, and Defendant Andrew Hall was Train 175's conductor. (DE 1 ¶¶ 7-8.) Plaintiff contends that as Train 175 approached at Georgetown, the automatic signal at that location displayed an "APPROACH" indication. (DE 1 ¶ 10.) Such an indication required Defendants to stop before the next signal, which was a "STOP" signal at Akers, Kentucky. (DE 1 ¶ 10.) According to Plaintiff, Defendants failed to reduce the train's speed, failed to stop the train, and consequently, caused the collision. (DE 1 ¶¶ 11-14.)

B. Plaintiff's Training of Defendant Tobergte

Plaintiff maintained a written program for certifying its locomotive engineers, and the Federal Railroad Administration ("FRA") approved this plan. Noakes Decl. ¶ 3. Under its certification program, Plaintiff designated Rodney Noakes as a Designated Supervisor of Locomotive Engineers to evaluate trainees, including Defendant Tobergte. Id. ¶¶ 7, 10. Noakes determined that Tobergte met all of the qualifications for certification as a locomotive engineer. Id. ¶ 11. However, in Defendant Tobergte's affidavit, he states that two trainers, Paul Martin and Lee Jenson, told him that they did not think he was making sufficient progress to be promoted to a locomotive engineer. (DE 90-1, Tobergte Aff. ¶ 8.) Nonetheless, Defendant Tobergte was certified, and Noakes continued to evaluate Defendant Tobergte after his certification. Noakes Decl. ¶ 15.

Plaintiff also had a written program for instructing employees on the meaning and application of its operating rules. Id. ¶ 5. Plaintiff filed its operating rules with the FRA. Id. ¶ 5. Noakes supervised Defendant Tobergte's instruction and testing on Plaintiff's operating rules and conducted in-person evaluations of Defendant Tobergte's performance in operating trains. Id. ¶ 8. Plaintiff also retained annual summaries of its operational tests and inspections of engineer trainees, and made these copies available to the FRA for review. Id. ¶ 9.

C. The Implementation of Plaintiff's Positive Train Control System

Under the Rail Safety Improvement Act of 2008 ("RSIA"), certain railroad carriers must implement a positive train control system for operations conducted on specific railroad lines. 49 U.S.C. § 20157(a)(1). A positive train control ("PTC") system is "a system designed to prevent train-to-train collisions, over-speed derailments, incursions into established workzone limits, and the movement of a train through a switch left in the wrong position." 49 U.S.C. § 20157(i)(5). Depending on the circumstance, railroad carriers may institute a PTC Implementation Plan ("PTCIP") that provides for "specific goals for progressive implementation of onboard systems and deployment of PTC-equipped locomotives." 49 C.F.R. § 236.1006(a)-(b).

Plaintiff's PTCIP provided for the progressive implementation of Plaintiff's PTC system by December 31, 2020, and outlined Plaintiff's implementation schedule. Wilson Decl. ¶ 8. The PTCIP also reported Plaintiff's progress in reaching annual implementation milestones. Id. At the time of the collision, the PTCIP only required that 10%-25% of Plaintiff's trains that operated on PTC lines have PTC apparatuses. Id. ¶ 11; Wilson Decl., Ex. 1 at 18. The FRA approved this plan. Wilson Decl. ¶ 8. Following the collision, Plaintiff submitted a revised PTCIP that noted that "not all trains operating over these districts or subdivisions . . . will necessarily be controlled by a locomotive with a fully operative and functioning PTC apparatus in accordance with an approved PTC Safety Plan, as otherwise required by [the applicable regulations], until the PTC system is fully implemented." Id. ¶ 13; Wilson Decl., Ex. 4 at 675. The FRA also approved the revised PTCIP and concluded that Plaintiff had installed all the necessary PTC system hardware for PTC system implementation under the PTCIP. Wilson Decl. ¶ 14; Wilson Decl., Ex. 5 at 680-81.

In the months prior to the incident, Plaintiff published bulletins regarding its PTC system. (See DE 90-3; DE 93-6.) On January 1, 2018, Plaintiff issued a bulletin declaring, "Effective November 29, 2017, only Trains 142, 143, 175, and 180, will be operated with the PTC system active" on the tracks where the collision later occurred. (See DE 90-3 at 2.) On February 20, 2018, Plaintiff released another bulletin, which stated that "all trains operating . . . on the [tracks where the collision later occurred] that are equipped with a Positive TrainControl (PTC) locomotive in the lead position must operate with the PTC system active and in accordance with the PTC rules and bulletined instructions." (DE 93-6 at 1.)

On the date of the collision, Train 175's lead locomotive did not have a PTC apparatus. Tobergte Dep. at 33:14-17.

D. Unit 4063's Brake Issues

The locomotive directly behind Train 175's lead locomotive was Unit 4063. See Stege Dep. at 22:12-17. Ryan Stege, Plaintiff's Director of Locomotive Maintenance, testified at his deposition that while Unit 4063 had a working PTC system, the locomotive had dynamic brake issues due to system malfunctions. Id. at 4:24, 34:1-10. Because of this brake trouble, Unit 4063 was not placed in the lead. Id. at 34:1-5. Although the Unit had experienced dynamic brake issues in the past, the issues present on the day of the collision had only arisen a few days prior to the incident. Id. at 34:13-17. Unit 4063 also underwent repairs for dynamic brake issues during the time between when the issues first arose in February and the date of the collision. Id. at 34:15-35:4. However, the Unit had additional issues subsequent to those repairs. Id. at 35:2-4.

E. Train 175's Dispatch and Signal Systems

Typically, when a train violates a "STOP" signal, Plaintiff's dispatch system depicts a pop-up alert on display screens, and an alarm sounds. Haines Decl. ¶ 11; Wenger Dep. at 34:14-35:7. But if two trains enter the same block of track from opposite directions, the dispatch system assumes that the train that is authorized to enter the block is the train that actually entered the block. Haines Decl. ¶ 11. In that case, the dispatch system does not issue a pop-up alert or an alarm. Id. According to Ronald Haines, who acted as Plaintiff's Assistant Superintendent of Dispatch on the day of the incident, this is a limitation of the system, not a malfunction. Id. ¶¶ 1-2, 11.

Playback from and recordings of the dispatch system showed Train 175 entering the block of track at Akers from the north, while Train M74 entered the track at Akers from the south. Id. ¶¶ 12-13. Train M74 had a green signal that authorized it to enter that block of track. Id. ¶ 13. When Train 175 violated the Akers "STOP" signal, the dispatch system assumed that Train M74 entered the block of track instead, and the display screen showed that Train M74 entered the block rather than Train 175. Id. ¶15. Therefore, the dispatch system did not display a pop-up alert or sound an alarm. Id. ¶ 23; Wenger Dep. at 35:13-20, 36:10-14.

Joshua Wenger, the dispatcher on duty when the collision occurred, testified in his deposition that because he did not receive a pop-up alert or an alarm signal, he did not know that Train 175 violated the Akers "STOP" signal. Wenger Dep. at 4:12-17, 37:22-38:6. If he had received the alert or the signal, he would have contacted Train 175, and if he was unable to contact Train 175, he would have contacted trains in the surrounding area. Id. at 36:16-37:6.

Daniel Gold, Plaintiff's Assistant Division Manager for Communications and Signals at the time of the collision, contends that the signal systems for both northbound and southbound traffic were "functioning properly" in the hour before the incident. Gold Decl. ¶¶ 1-2, 12. Haines maintains that on the day of the collision, Plaintiff's dispatch system was operating as designed and in compliance with Plaintiff's operating rules. Haines Decl. ¶ 26. For his part, Wenger does not know whether the display board malfunctioned, but he was "not aware of any malfunctions." Wenger Dep. at 72:11-12.

F. The Response of Train M74's Crew

As Train M74 approached the signal at Akers, the signal appeared red, indicating that the train should stop. Lloyd Dep. at 76:4-14; Mason Dep. at 34:12-17. In encountering such signals, Plaintiff's Operating Rule 287 requires the train to "[s]top as soon as possible withoutendangering the movement of the train." Lloyd Dep. at 88:11-23; Mason Dep. at 36:19-20. Under Plaintiff's Operating Rule 273, if a train approaches a fixed signal that requires a stop, the train "must stop before any part of the equipment passes the signal," depending on the circumstance. Mason Dep. at 35:25-36:13. Train M74's crew placed the train in "emergency" twelve seconds before impact, but the brakes were applied twenty-four seconds before impact. Lloyd Dep. at 89:5-20.

G. Plaintiff's Motion for Partial Summary Judgment

On April 5, 2018, Plaintiff filed a complaint in this Court, alleging that Defendants violated a number of applicable rules and regulations in failing to stop the train. (DE 1 ¶¶ 11-12.) In Count I, Plaintiff ...

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