Cordes v. New Orleans Public Belt Railroad Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RICHARD CORDES CIVIL ACTION

VERSUS NO. 21-432

NEW ORLEANS PUBLIC BELT SECTION “R” (3)

RAILROAD CORP.

ORDER AND REASONS

Before the Court is defendant New Orleans Public Belt Railroad

Commission for the Port of New Orleans’s (“NOPB”) motion for partial

summary judgment.1 Plaintiff, Richard Cordes, opposes the motion.2

Because material facts remain in dispute, the Court denies the motion.

I. BACKGROUND

This case arises out of a railroad worker’s injuries allegedly sustained

while working as a carman for the NOPB. Plaintiff Richard Cordes worked

as an NOPB carman for twenty-two years.3 On June 13, 2018, plaintiff was

working a shift from 10:00 p.m. to 6:00 a.m.4 Around 2:00 a.m., Cordes was

1 R. Doc. 10.

2 R. Doc. 14.

3 R. Doc. 10-3 at 2 (Deposition of Richard Cordes, 11:19-25).

4 Id. at 4 (Deposition of Richard Cordes, 19:8).

called to inspect an outbound train on the NOPB’s main line between

Jackson and Napoleon Avenue in New Orleans.5 As the train initially passed

Cordes, and the crew pulled the train onto the main line, Cordes noticed that

one of the cars had its hand brake6 set.7 After the train came to a stop, Cordes

put up his “blue flag protection,” a safety measure used to prevent others

from approaching a stopped train, and began inspecting the train.8 The

train’s engine continued to run, and the crew remained onboard while

plaintiff performed his inspection.9

During Cordes’s inspection, he attempted to release the hand brake on

the car that he had previously noticed had its brake engaged.10 To do so,

plaintiff stepped onto the running board at the back of the car, and initially

attempted to release the hand brake by pulling down on the “release rod”

lever, which plaintiff testified is “supposed to release the brakes.”11 But the

5 Id. at 5-7 (Deposition of Richard Cordes, 19:21; 20:13-21:18).

6 A train’s “hand brake” is analogous to a parking brake on a car. R. Doc.

14-2 at 10 (Deposition of Richard Cordes, 72:17-24); see also Andrews

v. NFSF Railway Co., 284 F. Supp. 3d 910, 913 (S.D. Iowa 2018)

(“Hand brakes are similar in nature to parking brakes on

automobiles.”).

7 R. Doc. 10-3 at 8 (Deposition of Richard Cordes, 23:11-22).

8 Id. at 6-7 (Deposition of Richard Cordes, 21:10-22:7).

9 Id. at 7 (Deposition of Richard Cordes, 22:8-19).

10 Id. at 8 (Deposition of Richard Cordes, 23:4-22).

11 R. Doc. 14-2 at 10 (Deposition of Richard Cordes, 72:12-16).

release rod lever did not work, and the brake on the car remained engaged.12

To disengage the hand brake, Cordes had to release it manually by turning

the wheel on the back of the car.13 Cordes testified that, as he was turning

the wheel, he suddenly felt a “snap,” and experienced pain in his lower back.14

Nevertheless, Cordes successfully disengaged the brake manually, and

completed the rest of his inspection.15 Cordes testified that he did not report

the condition of the hand brake to his supervisor because it was “normal” for

the release rod not to disengage the hand brake; it was something he dealt

with “all the time.”16 Plaintiff alleges that, as a result of the incident, he

continued to experience pain in his back, and he “could barely walk.”17

Cordes testified that, on the day after the accident, he went to Urgent Care,

where he “got a shot in [his] back,” and was told that he “had a sciatic

nerve.”18

Plaintiff also alleges that over two years later, on July 31, 2020, a

second incident occurred that caused further injury to his back.19 On that

12 Id.

13 Id. at 12 (Deposition of Richard Cordes, 27:12-15).

14 Id. at 8, 14 (Deposition of Richard Cordes, 23:11-18, 29:16-22).

15 Id. at 13 (Deposition of Richard Cordes, 28:17-21).

16 Id. at 13-14 (Deposition of Richard Cordes, 28:22-29:11).

17 Id. at 17 (Deposition of Richard Cordes, 32:7-14).

18 Id.

19 Id. at 19-20 (Deposition of Richard Cordes, 42:6-43:2).

day, Cordes received a call from the switching crew, asking for his assistance

in fixing a “knuckle” that had fallen out of a car, and was preventing the

switching crew from “coupl[ing] that car to another car” during a switching

operation.20 Upon plaintiff’s arrival at the NOPB’s Cotton Warehouse Yard,

he found the knuckle on the ground, which he assumed was because the

knuckle pin was either broken or missing.21 Cordes explained that a knuckle

pin holds the knuckle in place to the coupler, and that if the pin breaks, the

knuckle “will just fall out.”22 He further stated that it was common for

knuckle pins to break or go missing, and that replacing broken knuckle pins

and picking up fallen knuckles was a routine part of his job.23

Plaintiff testified that, to fix the problem, he first picked up the knuckle

and put it back in place on the car, and then secured it to the coupler with a

new knuckle pin.24 Plaintiff asserts that, when he lifted the knuckle off the

ground, his “sciatic nerve hit [him].”25 Plaintiff testified that he did not

report to defendant that he had to pick up the vehicle’s knuckle because it

20 Id. at 19-22 (Deposition of Richard Cordes, 42:6-25, 43:23-45:1).

21 Id. at 23 (Deposition of Richard Cordes, 46:2-25).

22 Id. at 21 (Deposition of Richard Cordes, 44:1-20).

23 Id. at 24 (Deposition of Richard Cordes, 47:9-17).

24 Id. at 26 (Deposition of Richard Cordes, 49:8-14).

25 Id.

was “not a reportable defect,” and that it was his “duty as a carman to . . . fix

it and[] move on.”26

On March 1, 2021, plaintiff filed suit against the NOPB, alleging that he

injured his back in these two separate instances as a result of the NOPB’s

failure to provide him with a reasonably safe place to work, in violation of the

Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. 27 Both of

plaintiff’s claims are based on violations of the Federal Safety Appliance Act

(“FSAA”), 49 U.S.C. § 20302, and its provisions requiring that (1) railroad

cars be equipped with efficient hand brakes, and that (2) the cars couple

automatically upon impact.28 On January 11, 2022, defendant moved for

partial summary judgment on plaintiff’s FSAA claims.29 Defendant contends

that the FSAA does not apply because plaintiff cannot show that the

equipment was “inefficient” or “defective,” and because the train cars at issue

were not “in use” at the time of the two incidents.30 Plaintiff opposes the

motion, contending issues of material fact preclude summary judgment.31

The Court considers the parties’ arguments below.

26 Id. at 27 (Deposition of Richard Cordes, 50:3-7).

27 R. Doc. 1 ¶¶ 8, 13.

28 Id.

29 R. Doc. 10.

30 R. Doc. 10-1 at 7.

31 R. Doc. 14 at 2.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

Plaintiff alleges claims under the Federal Employer’s Liability Act

(“FELA”) and the Federal Safety Appliance Act (“FSAA”). “Under FELA, an

injured railroad employee may recover damages for ‘injury or death resulting

in whole or in part from the negligence’ of the railroad.” Huffman v. Union

Pac. R.R., 675 F.3d 412, 416 (5th Cir. 2012) (citing 42 U.S.C. § 51). To prevail

under FELA, an injured railroad employee must prove that “(1) the

defendant is a common carrier by railroad engaged in interstate commerce;

(2) [the plaintiff] was employed by the defendant with duties advancing such

commerce; (3) his injuries were sustained while he was so employed; and (4)

his injuries resulted from the defendant’s negligence.” Weaver v. Mo. Pac.

R.R. Co., 152 F.3d 427, 429 (5th Cir. 1998) (internal citations omitted).

A plaintiff need not meet the final requirement of showing negligence

in cases in which he proves an equipment defect or malfunction in violation

of the FSAA. Crane v. Cedar Rapids & Iowa City R.R. Co., 395 U.S. 164, 166

(1969). Accordingly, the FSAA imposes “strict liability on railroads for

violations of the Act’s safety standards.” Trinidad v. S. Pac. Transp. Co., 949

F.2d 187, 188 (5th Cir. 1991). FELA expressly bars any consideration of

contributory negligence in cases where an employee’s injury was caused by a

safety violation. 45 U.S.C. § 53. The FSAA further prohibits the

consideration of assumption of the risk in such cases. 49 U.S.C. § 20304.

The FSAA does not create a federal cause of action for violations of the

Act. Crane, 395 U.S. at 166. Instead, employees who assert that they were

injured because of an FSAA violation may sue under FELA. Id.; see also

Beissel v. Pittsburgh & Lake Erie R.R. Co., 801 F.2d 143, 145 (3d Cir. 1986)

(“In short, the Safety Appliance Act[] provide[s] the basis for the claim, and

the FELA provides the remedy.”). “To recover for a violation of the [FSAA],

a plaintiff must show: (1) the statute was violated; and (2) the violation was

‘a causative factor contributing in whole or in part to the accident’ that

caused her injuries.”32 McCormick v. New Orleans Pub. Belt R.R. Comm’n,

No. 16-1897, 2017 WL 2267204, at *5 (E.D. La. May 24, 2017) (quoting

32 Defendant has not moved for summary judgment on the issue of

causation. The Court therefore limits its analysis to whether plaintiff

has shown an issue of fact as to the first prong of his FSAA case, i.e.,

whether the statute was violated. See Celotex, 477 U.S. at 323 (“[A]

party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion,

and identifying those portions of [the record] it believes demonstrate

the absence of a genuine issue of material fact.”).

McGowan v. Wis. Cent. Ltd., No. 04-170, 2005 WL 2077355, at *3 (E.D. Wis.

Aug. 26, 2005)). In determining whether a plaintiff has made such a

showing, the Supreme Court has instructed that the Act should be “liberally

construed as a safety measure.” United States v. Seaboard Air Line R.R. Co.,

361 U.S. 78, 82-83 (1959).

The applicability of the FSAA’s various safety provisions depends on

whether the unit of equipment being regulated is a “vehicle,” “locomotive,”

or a “train.” 49 U.S.C. § 20301; see also Solace v. CSX Transp., Inc., No. 11-

1288, 2012 WL 1196668, at *1 (E.D. La. Apr. 10, 2012) (noting that there are

“fundamental distinctions between ‘vehicles,’ ‘locomotives’ and ‘trains’ that

give meaning to the various FSAA provisions”). Under the statute, a

“vehicle”33 is defined as a “car, locomotive, tender, or similar vehicle.” 49

U.S.C. § 20301. The FSAA requires that a railroad equip its vehicles with

properly working appliances, including, as relevant here, “efficient hand

brakes” and “couplers coupling automatically by impact, and capable of

being uncoupled, without the necessity of individuals going between the ends

of the vehicles.” 49 U.S.C. § 20302(a)(1). A railroad’s “trains” must have

“enough of the vehicles in the train . . . equipped with power or train brakes

33 The Court uses the terms “vehicle,” “car,” and “railcar”

interchangeably.

so that the engineer . . . can control the train’s speed.” 49 U.S.C. §

20302(a)(5). Finally, the statute provides that a locomotive can be used

“only if it is equipped with a power-driving wheel brake and appliances for

operating the train-brake system.” 49 U.S.C. § 20302(a)(4).

Here, the FSAA’s regulations on “vehicles” govern plaintiff’s claims,

because they pertain to individual railcars, such as the ones that plaintiff was

working on when he injured his back. See Ditton v. BNSF R.R. Co., No. 12-

6932, 2013 WL 2241766, at *10 (C.D. Cal. May 21, 2013) (applying the

“vehicle” provision to a plaintiff who injured himself trying to disengage a

hand brake on one car that was stationary); McCormick, 2017 WL 2267204,

at *5 (applying the “vehicle” provision to a plaintiff’s claim involving an

alleged defect in a railcar’s coupling equipment).

A. The June 13, 2018 Incident

Plaintiff first alleges that the NOPB violated the FSAA’s requirement

that railcars must have “efficient hand brakes,” 49 U.S.C. § 20302(a)(1)(B),

because the release rod on the hand brake did not work, and he was required

to release the hand brake manually.34 Defendant argues that the FSAA does

34 R. Doc. 14 at 4-7.

not apply to plaintiff’s hand brake claim because there is “no evidence that

the handbrake was defective or inefficient,”35 and because at the time of the

hand brake incident, the car was not “in use.”36 The Court addresses each

contention in turn.

1. Efficiency of the Hand Brakes

The Court first addresses whether the hand brake on the vehicle at

issue was inefficient within the meaning of the FSAA. The term “inefficient”

is a “term of art to describe mechanisms that either do not function or do not

function as intended by the manufacturer.” Strickland v. Norfolk S. R.R. Co.,

692 F.3d 1151, 1156 n.9 (11th Cir. 2012); see also Myers v. Reading Co., 331

U.S. 477, 483 (1947) (“Inefficient means not producing or not capable of

producing the desired effect; incapable; incompetent; inadequate.”). The

Supreme Court in Myers held that there are two ways that an employee may

show the inefficiency of a hand brake: (1) by presenting evidence of “some

particular defect,” or (2) by showing that the hand brake “failed to function[]

when operated with due care, in the normal, natural, and usual manner.” 331

U.S. at 483. “Proof of an actual break or physical defect . . . is not a

prerequisite to finding that the [FSAA] has been violated.” Thompson v. Ala.

35 R. Doc. 10-1 at 8-10.

36 Id. at 1o-11.

Great S. R.R. Co., No. 13-921, 2014 WL 970104, at *2 (E.D. La. Mar. 12,

2014).

Defendant contends that plaintiff, who was “the only witness with any

personal knowledge,” has provided the Court with no evidence that the hand

brake at issue was inefficient.37 Defendant specifically points to Cordes’s

testimony that it was “normal” for a release rod lever not to release the brake,

and that it was not a “reportable defect.”38 But the FSAA and the case law

interpreting it have established that proof of a physical defect is not required

to show a violation of the statute. See id. (rejecting defendant’s argument

that plaintiff’s FSAA claim is foreclosed without proof of a mechanical defect,

and instead finding that a genuine dispute existed “regarding whether or not

the independent brake functioned efficiently”); Myers, 331 U.S. at 484

(noting that, although plaintiff’s testimony “was not descriptive of [the]

precise mechanical defects in the structure of the brake,” it provided “simple

and direct testimony from which a jury reasonably might infer the brake’s

defectiveness and its inefficiency”).

Plaintiff’s testimony that he tried to “push [the release rod] to the

right,” which is “supposed to release the brakes,” but that it did not work at

37 R. Doc. 10-1 at 8.

38 R. Doc. 10-3 at 13-14 (Richard Cordes Deposition, 28:22-29:11).

the time, thus requiring him to release the hand brake manually, creates an

issue of fact as to whether the brake was ineffective at the time of plaintiff’s

injury.39 See Myers, 331 U.S. at 483 (noting that plaintiff’s testimony that he

used the brake in the normal manner, but that it failed to work, is

“substantial evidence of inefficiency as to make an issue for the jury”);

Strickland, 692 F.3d at 1160 (holding that summary judgment evidence

consisting of a railroad worker’s uncorroborated testimony about the level of

force he applied in turning the hand brake wheel was sufficient to create a

genuine issue of fact (citing Kennett-Murray Corp v. Bone, 622 F.2d 887,

893-94 (5th Cir. 1970))). Although plaintiff testified that the release rod’s

ineffectiveness was “normal,” he also testified that a “properly” functioning

release rod would have released the brake,40 and agreed that, although he

“pulled [the release rod] like [he] typically do[es] to release a brake, it did

not [release] it.”41 This testimony raises an issue of fact as to whether the

hand brake failed to function when operated with due care and in the normal,

natural, and usual manner. See LeBeau v. Union Pac. R.R. Co., No. 18-439,

2020 WL 878287, at *4-5 (M.D. La. Feb. 21, 2020) (holding that there was a

genuine issue of material fact on the efficiency question, even though

39 R. Doc. 14-2 at 10 (Richard Cordes Deposition, 72:12-16).

40 R. Doc. 10-3 at 9 (Richard Cordes Deposition, 24:17-22).

41 Id. at 13 (Richard Cordes Deposition, 28:2-4) (emphasis added).

plaintiff had testified “that tight brakes were not necessarily an abnormal

occurrence in the yard”); Rogers v. Norfolk S. R.R. Co., No. 13-798, 2015 WL

4191147, at *6 (N.D. Ohio July 10, 2015) (holding that the “failure of the hand

brake to release when operated in the normal, natural, and usual manner

remains a question for the trier of fact” where plaintiff testified that the hand

brakes had “not release[d] before”); Strickland, 692 F.3d at 1155, 1162

(reversing the district court’s dismissal of plaintiff’s FSAA claims where

plaintiff testified that he was unable to disengage a hand brake using the

“quick release,” which was not “an out-of-the-blue thing”). Accordingly,

plaintiff’s testimony that the release rod regularly fails to disengage the hand

brake does not entitle the NOPB to summary judgment.

2. Whether the Vehicle Was “In Use”

Defendant next contends that plaintiff cannot prove that the railcar

with the engaged hand brake was “in use” at the time of his injury, thereby

precluding his recovery under the FSAA.42 By the FSAA’s terms, the statute

applies to vehicles, locomotives, or trains that are “in use.” See 49 U.S.C.

§ 20302; Brady v. Terminal R.R. Ass’n of St. Louis, 303 U.S. 10, 13 (1938)

(stating that the Court must first address “whether the car can be said to have

42 R. Doc. 10-1 at 10-11.

been in use by the respondent at the time in question”). If the vehicle

involved in Cordes’s alleged injury was not “in use,” then Cordes cannot show

an FSAA violation, and the NOPB cannot be strictly liable for his injuries.

See Brady, 303 U.S. at 13.

The NOPB argues that, because plaintiff testified that he was

performing a predeparture inspection of an outbound train that “was at a

standstill and had blue flag protection,” it was not “in use” under the FSAA.43

Defendant’s argument is premised on the Fifth Circuit’s decision in Trinidad

v. Southern Pacific Transportation Co., where the Fifth Circuit addressed a

“question of first impression: whether the brake provisions of the Safety

Appliance Act . . . apply to trains during predeparture inspection.” 949 F.2d

at 187-88. In Trinidad, the court held that Sections 1 and 9 of the FSAA,

which “control air and power driving wheel brakes,” did not apply to a train

during a predeparture inspection because the train was not “in use” at the

time of plaintiff’s accident. Id. at 188-89. The brake provisions at issue in

Trinidad concerned the statutory requirements relevant to trains in the

predecessor to the FSAA. Those requirements are now reproduced in the

current statute, and allow a railroad to use or permit the use of (1) a

locomotive, “only if it is equipped with a power-driving wheel brake and

43 Id. at 10.

appliances for operating the train-brake system[],” and (2) a “train,” “only if”

it is equipped with certain “power or train brakes.” 49 U.S.C.

§§ 20302(a)(4)-(5).

The air-brake provisions at issue in Trinidad “specifically apply to

trains, versus vehicles,” and “courts in the Fifth Circuit since Trinidad have

specified that its holding was limited to ‘trains’ rather than all rail vehicles.”

See Barbay v. Union Pac. R.R. Co., No. 17-568, 2019 WL 639011, at *2-3

(M.D. La. Feb. 14, 2019) (holding that defendant was “not entitled to

summary judgment based on the argument that the railcar was not “in use”

at the time of the accident”); Solice, 2012 WL 1196668, at *2 (holding that

“Trinidad[’s] focus[] on whether a ‘train’ was ‘in use’ . . . is largely irrelevant

to the issue [of] whether defective [hand] brakes were ‘in use’”). Further,

the Trinidad court itself limited the scope of its holding, stating that it

addressed only “whether the brake provisions [of the FSAA] . . . apply to

trains during predeparture inspection,” and that its decision was based on

“facts [of that case] alone.” 949 F.2d at 187-89 (emphasis added).

Here, unlike in Trinidad, the alleged defect did not involve a

“locomotive” or a “train,” but instead concerns an individual vehicle’s hand

brake. And the provision on hand brakes that plaintiff alleges that the NOPB

violated is applicable only to “vehicles.” This is a notable distinction because

the “in use” inquiry is “fact intensive and thus differs depending on whether

it is being applied to ‘trains’ or ‘vehicles’ withing the meaning of the statute.”

Ditton, 2013 WL 2241766, at *10; see also Underhill v. CSX Transp., Inc.,

No. 05-196, 2006 WL 1128619, at *4 (N.D. Ind. Apr. 24, 2006) (“[U]nder the

FSAA, there are separate ‘in use’ inquiries depending on whether the usage

of a vehicle, locomotive, or train is at issue.”). Indeed, the Supreme Court in

United States v. Erie Railroad Co., 237 U.S. 402 (1915), noted the distinction

between provisions regulating “vehicles” and “trains,” stating that:

[T]he air-brake provision deals with running a train, while the

other requirements relate to hauling or using a car. In one a train

is the unit and in the other a car. As the context shows, a train in

the sense intended consists of an engine and cars which have

been assembled and coupled together for a run or trip along the

road. When a train is thus made up and is proceeding on its

journey it is within the operation of the air-brake provision. But

it is otherwise with the various movements in railroad yards

whereby cars are assembled and coupled into outgoing trains,

and whereby incoming trains which have completed their run are

broken up. These are not train movements, but mere switching

operations, and so are not within the air-brake provision. The

other provisions calling for automatic couplers and grab irons

are of broader application and embrace switching operations as

well as train movements, for both involve a hauling or using of

cars.

Id. at 407-08 (emphasis added). The Court in Erie thus recognized

that, although the safety requirements applicable to trains do not apply

during switching operations because the train is not “in use,” the

requirements pertaining to vehicles are applicable during switching

operations because the individual railcars, unlike the full train, may be

considered “in use” at the time. Further, the “broader application” of the

vehicle hand brake provision makes sense given that an employee “cannot

safely stop a [moving] train with a hand brake,” but could likely stop a railcar

during switching operations with a hand brake. See Robb v. Burlington N.

& Santa Fe. R.R. Co., 100 F. Supp. 2d 867, 870 (N.D. Ill. 2000) (“It is

precisely because safety in the yard during switching operations calls for

efficient hand brakes that can stop cars and other vehicles that Congress

passed the hand brake provision.”). Because this case involves a safety

requirement applicable only to vehicles, cases like Trinidad, which address

whether a train was “in use,” are not dispositive here. Indeed, the Fifth

Circuit has never applied Trinidad’s reasoning to cases involving the FSAA’s

provisions applicable to railcars.

Having found Trinidad inapplicable here, the Court is left to determine

whether there remains an issue of fact as to whether the vehicle with the

engaged hand brake was “in use” when plaintiff was injured. The Supreme

Court has considered a railcar “in use” and thus applied the FSAA’s strict

liability requirements in cases with facts similar to this one. For example, in

Brady, the plaintiff was injured while a train was “placed on a receiving track

temporarily pending the continuance of transportation.” 303 U.S. at 13. At

the time of the plaintiff’s accident, the train was being inspected for defects.

Id. The Court held that even though the vehicle was “motionless” at the time,

it was still “in use” because the railcar “had not been withdrawn from use,”

nor “reached a place of repair.” Id. Similarly, in Swinson v. Chicago, St.

Paul, Minneapolis & Omaha Railroad Co., 294 U.S. 529 (1935), the Court

held that the railroad company was subject to strict liability under the Act

when plaintiff was injured “while he was releasing a hand brake at the end of

a tank car.” Id. at 530-32.

Here, as in Swinson, Cordes asserts that he was injured while trying to

disengage a hand brake on a railcar. At the time of Cordes injury, the railcar

was stationary on the NOPB’s main line. Cordes had noticed that the

vehicle’s hand brake was engaged when the train pulled into the station

moments earlier. Thus, as in Brady, although the vehicle was motionless at

the time of the accident, it had not been withdrawn from use, but rather was

undergoing an inspection before it left the station again. Accordingly, the

Court finds that there remains a dispute of material fact as to whether the

vehicle that Cordes was working on was “in use” at the time of his injury for

the purposes of the FSAA.

For these reasons, defendant is not entitled to summary judgment as

to plaintiff’s 2018 hand brake incident.

B. The July 31, 2020 Incident

Plaintiff next alleges that the NOPB violated the FSAA’s requirement

that railroad cars be “equipped with . . . couplers coupling automatically by

impact,” 49 U.S.C. § 20302(a)(1)(A), because a knuckle fell out of a car and

thus prevented the coupler from functioning properly.44 Defendant again

asserts that the FSAA does not apply to plaintiff’s knuckle claim because the

knuckle/coupler was not inefficient, and because the railcar was not “in use”

at the time of the injury.45

The FSAA provision in dispute here involves “couplers.” The Supreme

Court has explained how “couplers” function on a railcar as follows:

Railroad cars in a train are connected by couplers located at both

ends of each car. A coupler consists of a knuckle joined to the end

of a drawbar, which itself is fastened to a housing mechanism on

the car. A knuckle is a clamp that interlocks with its mate, just

as two cupped hands—placed palms together with the fingertips

pointing in opposite directions interlock when the fingers are

curled. When cars come together, the open knuckle on one car

engages a closed knuckle on the other car, automatically coupling

the cars. The drawbar extends the knuckle out from the end of

the car and is designed to pivot in its housing, allowing the

knuckled end some lateral play to prevent moving cars from

derailing on a curved track.

44 R. Doc. 14 at 11-12.

45 R. Doc. 10-1 at 11-13.

Norfolk & W. R.R. Co. v. Hiles, 516 U.S. 400, 401-02 (1996) (internal

citations omitted).

1. Efficiency of the Knuckles/Couplers

The FSAA requires railroads to have automatic couplers, and imposes

“absolute liability upon a railroad for injuries sustained when the automatic

couplers fail to perform on the occasion in question.” Maldonado v. Mo.

Pac. R.R. Co., 798 F.2d 764, 767 (5th Cir. 1986), abrogated on other grounds

by Warger v. Shauers, 574 U.S. 40 (2014). In Norfolk, the Supreme Court

extended the FSAA’s duty, holding that the Act “creates an absolute duty

requiring not only that automatic couplers be present, but also that they

actually perform.” 516 U.S. at 408-409; see also S. Pac. Co. v. Mahl, 406

F.2d 1201, 1203-04 (5th Cir. 1969) (“It is not only the duty of the railroad to

provide such couplers, but to keep them in such operative conditions that

they will always perform their functions.” (citing Chi., St. Paul, Minn. & Ohio

R.R. Co. v. Muldowney, 130 F.2d 971, 975 (8th Cir. 1942))).

A plaintiff can establish a railroad’s liability for an accident involving a

coupling mechanism either by: (1) providing evidence that the two cars failed

to couple automatically on impact, or (2) showing a defect in the coupling

equipment. DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 683 (7th Cir. 1995). A

“‘plaintiff need not identify a specific defect[,]’ but must only identify a

specific piece of equipment covered by the FSAA which he alleges is

defective.” McCormick, 2017 WL 2267204, at *5 (quoting Debiasio, 52 F.3d

at 683)). Here, plaintiff testified that he injured his back a second time when

he was required to pick up a knuckle that had fallen on the ground because

the knuckle pin that holds the knuckle to the coupler was “broken or . . .

missing.”46

Defendant, relying on plaintiff’s testimony that a broken knuckle pin

was a common occurrence, and not indicative of a defective coupler,47 asserts

that there is no genuine issue of material fact as to whether the knuckle or

coupler was defective.48 But as noted above, plaintiff is not required to show

that there was a defect in the knuckle or coupler, and instead can show a

violation of the FSAA’s coupling requirement by providing evidence that two

cars failed to couple automatically. See Mayo v. Pub. Belt R.R. Comm’n, City

of New Orleans, No. 09-5850, 2010 WL 2361422, at *3 (E.D. La. June 8,

2010) (rejecting defendant’s argument that it was entitled to summary

judgment because “plaintiff ha[d] presented no evidence that the coupler on

the subject car was defective, noting that “the unexplained uncoupling of the

subject cars would suggest that the coupler was defective”). Plaintiff’s

46 R. Doc. 10-3 at 23 (Deposition of Richard Cordes at 46:2-25).

47 Id.

48 R. Doc. 10-1 at 12.

testimony that, because the knuckle’s pin was “missing or broken,” the

switchmen were unable “to couple that car to another car,” is sufficient to

raise a genuine issue of fact as to whether defendant’s coupler violated 49

U.S.C. § 20302(a)(1)(A).49 See McCormick, 2017 WL 2267204, at *5 (finding

that plaintiff’s testimony that the “knuckle pin” was “not working properly”

after plaintiff was unable to uncouple the railcars presented “at least a

genuine issue of fact as to whether the coupler or cut lever was defective,

which, if proven, is a violation of 49 U.S.C. § 20302(a)(1)(A)”); Romero v.

CSX Transp., Inc., No. 06-1783, 2008 WL 5156677, at *7 (D.N.J. Dec. 8,

2008) (holding that plaintiff had established a prima facie claim for liability

against defendant where plaintiff “by affidavit and in deposition ha[d]

asserted that the cars did not couple automatically upon impact”).

Further, plaintiff’s testimony that replacing broken knuckle pins was a

common part of the job for a carman, does not mean that there can be no

FSAA violation. The FSAA imposes “absolute liability upon a railroad for

injuries sustained when the automatic couplers fail to perform,” regardless

of whether those couplers regularly fail to perform. See Maldonado, 798

49 R. Doc. 10-2 at 21-22 (Deposition of Richard Cordes at 44:24-45:2); see

also R. Doc. 10-3 at 19 (Deposition of Richard Cordes at 42:18-25)

(“This is a knuckle right here[]. It was out of the car. The car cannot

couple together.”).

F.2d at 767 (emphasis added). A railroad cannot avoid liability under the

FSAA by regularly exposing its workers to couplers that do not properly

function. Because a genuine issue of material fact exists as to whether

defendant’s coupler was inefficient or defective in violation of the FSAA,

defendant is not entitled to summary judgment on this claim.

2. Whether the Vehicle Was “In Use”

It is undisputed that, at the time of plaintiff’s accident, the railcar at

issue was involved in “switching operations.”50 “Switching operations are

procedures by which rail cars and engines are separated, moved and

reassembled into trains.” Romero, 2008 WL 5156677, at *1. The parties

dispute whether the railcar at issue was “in use” during the switching

operations when plaintiff placed the knuckle back into the coupler.

Defendant argues that it is entitled to summary judgment because the vehicle

was not “in use,” and instead was engaged in “switching operations” which

involved “no movement anywhere near Cordes.”51

To support this assertion, defendant notes that “some” other courts

“have held that the [F]SAA does not generally apply to railcars involved in

50 R. Doc. 10-2 at 3; see also R. Doc. 10-3 at 21 (Deposition of Richard

Cordes at 44:13-20).

51 R. Doc. 10-1 at 13-14.

‘switching operations.’”52 Defendant relies on a non-binding Fourth Circuit

case, Phillips v. CSX Transportation, Inc., which stated that the “FSAA does

not apply to train cars involved in switching operations.” 190 F.3d 285, 289

(4th Cir. 1999) (per curiam).53 In making this statement, Phillips relied on

cases, such as Trinidad and Seaboard, both of which analyzed whether the

FSAA’s air brake provisions that apply to trains “in use” were applicable

during switching operations. Id. at 289. Since Phillips, multiple courts have

noted that Phillips’s statement that railcars are not “in use” during switching

operations is incorrect because it fails to “distinguish the inquiry of whether

a train is in use from that of whether a rail vehicle is in use.” Underhill, 2006

WL 1128619, at *5 (“Convincing arguments have been made by other courts

that this statement is not correct . . . .”); Solace, 2012 WL 1196668, at *2 &

n.2 (“[T]he confusion that apparently accompanies this issue [of whether the

FSAA applies to train cars during switching operations] may derive from a

statement in Phillips.”); Coria v. Union Pac. R.R. Co., No. 04-354, 2008 WL

11383300, at *2 (D. Utah May 6, 2008) ( “[A]lmost every court to address

the question after Phillips ha[s] disagreed with Phillips.”).

52 Id. at 13.

53 The second case relied on by defendant, Port Terminal R.R. Ass’n v.

Jones, 82 S.W.3d 126 (Tex. App 2002), relies on Phillips to come to the

same result.

The Court does not find defendant’s non-binding precedent persuasive

here, particularly in light of the Phillips court’s failure to differentiate

between the safety provisions applicable to trains and vehicles. This lack of

differentiation is especially concerning in the context of switching operations

because

[a] failure to differentiate between safety provisions . . . would

render the automatic coupling requirement virtually

meaningless, because coupling, by definition, involves the

joining of rail cars to form a train, which is the very purpose of

switching operations. The FSAA clearly requires that a ‘vehicle’

must automatically couple upon impact, and to interpret the

requirement as applying only when switching operations have

concluded and a train has been assembled contravenes logic and

common sense.

Romero, 2008 WL 5156677, at *5-6. Moreover, the Supreme Court in

O’Donnell v. Elgin, J. & E. Railroad Co., 338 U.S. 384 (1949), suggested that

the FSAA’s coupling requirement for railcars applies even when the cars are

involved in switching operations. Id. at 394 (“As to the claim based on the

Safety Appliance Act, we hold that the plaintiff was entitled to a preemptory

instruction that to equip a car with a coupler which broke in the switching

operation was a violation of the Act . . . .”). Accordingly, the Court finds a

material dispute of fact as to whether the railroad car involved in Cordes’s

alleged injury was “in use,” which precludes summary judgment.

For these reasons, defendant is not entitled to summary judgment as

to plaintiffs claim arising out of the 2020 knuckle pin incident.

IV. CONCLUSION

For the foregoing reasons, NOPB’s motion for summary judgment*4 is

DENIED.

New Orleans, Louisiana, this _23rd__ day of February, 2022.

dork Vara

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

54 R. Doc. 10.

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