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Harris v. Norfolk Southern Railway Co.

United States Court of Appeals, Fourth Circuit

April 30, 2015

CHARLES EUGENE HARRIS, Plaintiff - Appellee,
COBRA NATURAL RESOURCES, LLC; SPERRY RAIL, INCORPORATED, d/b/a Sperry Rail Services, Third Party Defendants. CHARLES EUGENE HARRIS, Plaintiff - Appellant,
COBRA NATURAL RESOURCES, LLC; SPERRY RAIL, INCORPORATED, d/b/a Sperry Rail Services, Third Party Defendants

Argued December 10, 2014

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. (2:11-cv-00497). Joseph R. Goodwin, District Judge.


John Harlan Mahaney, II, HUDDLESTON BOLEN, LLP, Huntington, West Virginia, for Appellant/Cross-Appellee.

Bruce E. Stanley, REED SMITH, LLP, Pittsburgh, Pennsylvania, for Appellee/Cross-Appellant.


T. Matthew Lockhart, David C. Kiebler, HUDDLESTON BOLEN, LLP, Huntington, West Virginia, for Appellant/Cross-Appellee.

Colin E. Wrabley, Timothy L. Moore, Douglas C. Allen, M. Patrick Yingling, REED SMITH LLP, Pittsburgh, Pennsylvania; Tonya L. Hatfield, Inez, Kentucky, for Appellee/Cross-Appellant.

Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit Judges. Chief Judge Traxler wrote the opinion, in which Judge Keenan and Judge Thacker joined.


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TRAXLER, Chief Judge

Norfolk Southern Railway Company (" Norfolk Southern" ) appeals a district court order granting summary judgment against it on the issue of liability in a negligence action brought by Charles Harris, who seeks compensation for injuries he suffered as the result of a train derailment. Harris cross-appeals the district court's order granting summary judgment against him on his claim for punitive damages. We affirm in part and reverse in part, and remand for further proceedings consistent with this opinion.


On the morning of July 21, 2009, Harris was working on the second floor of the Black Bear Preparation Plant, a seven-story coal-loading facility (the " loadout" ) in Mingo County, West Virginia. Harris's employer, Cobra Natural Resources (" Cobra" ), owned and operated the loadout, and Norfolk Southern owned and operated the train and owned the track involved in this case. On that morning, Norfolk Southern employees backed an empty train of freight rail cars over an area of the Ben Creek Spur railroad track, which ran underneath the loadout where Harris was working. Unbeknownst to anyone, a section of the rail approximately 35 feet from the loadout was heavily corroded and contained cracks between the rail head (the ball of the rail) and the web (the vertical part of the rail). When the rail cars passed over this portion of the damaged track, a section of the rail head separated from the web and several cars derailed. One of the cars crashed into the loadout's support beams, precipitating the collapse of the loadout and causing Harris debilitating physical and mental injuries. An investigation into the derailment revealed that the head separation extended over nine feet of track. The summary-judgment evidence indicates that most of the separation occurred months or years before and that the derailment occurred when the final piece of webbing broke away from the rail head.

Central to this appeal are issues concerning what obligations Norfolk Southern had to inspect the track and maintain it, whether Norfolk Southern should have discovered the defect and taken action prior to the accident, and proximate cause.

Regarding the defect's progression, cracks going all the way through the rail had run along the length of a nine-foot section between the rail head and the web for a lengthy period of time before the derailment. An extreme level of corrosion along the break of the rail confirmed that the rail had been damaged for several years. Indeed, Norfolk Southern's own expert, Brett Pond, testified that of the hundreds of cracked, broken, or corroded rails he had examined in his career, this one was " the worst [he'd] ever seen." J.A. 1246.

Norfolk Southern's duty to inspect the rail arises from the Federal Rail Safety Act (" FRSA" ), see 49 U.S.C. § 20101, et seq. Congress enacted the FRSA " to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. To achieve this goal, Congress authorized the Secretary of Transportation to " prescribe regulations and issue orders for every area of railroad safety." Id. § 20103(a). Accordingly, acting through the Federal Railroad Administration (" FRA" ), the Secretary created comprehensive track safety standards (" TSS" )

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that govern the maintenance, repair, and inspection of tracks. See 49 C.F.R. Part 213; Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008).

Several parts of the TSS, as they existed on the date of the accident, are relevant to this appeal. Section 213.1 of Title 49 of the Code of Federal Regulations states that the TSS

prescribe[] minimum safety requirements for railroad track that is part of the general railroad system of transportation. The requirements prescribed in this part apply to specific track conditions existing in isolation. Therefore, a combination of track conditions, none of which individually amounts to a deviation from the requirements in this part, may require remedial action to provide for safe operations over that track. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part.

49 C.F.R. § 213.1(a) (2009). Subparts B through E of section 213 prescribe minimum requirements for " roadbed and areas immediately adjacent to roadbed" (Subpart B), " the gage, alinement, and surface of track, and the elevation of outer rails and speed limitations for curved track" (Subpart C), " ballast, crossties, track assembly fittings, and the physical conditions of rails" (Subpart D), and " certain track appliances and track-related devices" (Subpart E). 49 C.F.R. § § 213.31, .51, .101, .201 (2009).

Under the TSS, different classes of track have different maximum speeds and different maintenance and inspection requirements. See 49 C.F.R. § § 213.9, .233-.369 (2009). Section 213.233 governs inspections of Class 1-5 tracks, of which the Ben Creek Spur is Class 2, see J.A. 2034, 2105. The regulation requires that inspections be made " by a person designated under [49 C.F.R.] § 213.7," [1] but it provides very few specific limitations concerning how inspections must be conducted. 49 C.F.R. § 213.233(a). It requires that they " be made on foot or by riding over the track in a vehicle at a speed that allows the person making the inspection to visually inspect the track structure for compliance with this part." 49 C.F.R. § 213.233(b). For an inspection made from a moving vehicle, the vehicle's speed is left to " the sole discretion of the inspector, based on track conditions and inspection requirements," except that vehicles may not exceed " [five] miles per hour when passing over track crossings and turnouts." Id. The regulation even allows for a single inspector in a vehicle to simultaneously inspect two tracks 30 feet apart or for two inspectors in a vehicle to simultaneously inspect four tracks that are no more than 39 feet from the track over which their vehicle is travelling, so long as certain requirements are met.[2] Because the Ben Creek Spur is Class 2, inspections are required only weekly. See 49 C.F.R. § 213.233(c)[3]. If an inspector conducting

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a § 213.233 inspection " finds a deviation from the requirements of [the TSS], the inspector shall immediately initiate remedial action." 49 C.F.R. § 213.233(d).

Section 213.113(a) provides specific additional requirements that apply when a track owner learns of the presence of specified defects occurring in a rail, as opposed to other parts of the track structure. In that event, a person designated under 49 C.F.R. § 213.7 must " determine whether or not the track may continue in use." 49 C.F.R. § 213.113(a) (2009). Even " [i]f he determines that the track may continue in use, operation over the defective rail is not permitted until" either the rail is replaced, or particular remedial action specified in the regulation for particular defects is initiated. Id.

Section 213.5(a) also provides more generally that a track owner " who knows or has notice that the track does not comply with the requirements of this part, shall" either bring the track into compliance, cease operations over the track, or operate the track under authority of a person designated under § 213.7(a) with at least one year of supervisory experience concerning railroad track maintenance, subject to specified conditions. 49 C.F.R. § 213.5(a) (2009) (emphasis added).

In this case, Norfolk Southern's inspectors inspected the Ben Creek Spur weekly in the months prior to the July 21, 2009, accident. During that time they discovered some defects, but they did not discover the rail defect that eventually caused the derailment. Within about 100 feet from the loadout in either direction, including where the defective rail was located, the track area was covered with coal, dirt, and debris such that only the head of the rail could be seen. The web of the rail, the ties, and the ballast were not visible, even by an inspector walking beside the track. Especially considering the extreme level of corrosion that was present on the web of the rail in the affected area for months or years prior to the accident, there is no question that without this debris, the damage to the rail would have been apparent to any inspector actually looking at the web and the complete underside of the rail head of the defective section of track.

Christopher Carney, who was serving Norfolk Southern as Division Engineer at the time of the accident, testified extensively in his deposition regarding Norfolk Southern's inspections. Carney testified that the inspectors inspected the Ben Creek Spur in several ways. First, they conducted on-foot inspections. They would also ride a geometry car, which railroads generally use to test the track's smoothness, position, curvature, and alignment, as well as the crosslevel of the two rails. See generally 49 C.F.R. Part 213, Subpart C (governing track geometry). And they would make " high rail inspections," J.A. 1955, during which they traversed the rail in a vehicle but alighted to make closer inspections when needed. He testified that eight to twelve miles per hour was a good speed for visual inspections of the Ben Creek Spur, except for when riding over road crossings or going across turnouts, where the maximum speed would be five miles per hour. See 49 C.F.R. § 213.233(b).

Carney testified that the coal spillage on the Ben Creek loadout area " was no different than you would see at any of the other loadouts on the Norfolk Southern line" for which Carney was responsible. J.A. 2011. He stated that he was not aware of any

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FRA rule prohibiting the presence of coal debris around the track structure during inspections, and he was satisfied that he could adequately inspect the track without having the tracks cleared. He testified that inspectors are trained to look for " telltale signs" of head/web separation even when snow or other material covering the track prevents them from seeing underneath the ball of the rail. J.A. 1969, 2030. For example, the rail's profile " can have a dip in it," there can be depressions in the coal or other material, or the rail head may " appear more blackened." J.A. 1969, 1971; see also J.A. 1974-75 (" [I]f you are in a truck, you are still going to look at the profile of the rail to see if you see any dips, any change in the profile . . . of the rail." ). Any of these indicators might prompt an inspector to get out of his vehicle to make a closer examination, although Carney noted that these indicators are not always present.[4]

Carney noted that the corrosion that might be associated with a head/web separation is " [o]n the web of the rail typically" but can " also be on the bottom of the rail." J.A. 1970. He noted that because " a head/web separation is on the underside of the rail," " you are not going to see [it] from looking down," although sometimes inspectors can see ...

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