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Mark Deso v. Csx Transportation

May 16, 2011

MARK DESO, PLAINTIFF,
v.
CSX TRANSPORTATION, INC., DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff brings the within action seeking damages for personal injuries allegedly sustained when he slipped and fell on a locomotive floor while working as a conductor for defendant CSX Transportation, Inc. ("CSX") . Presently before the Court is plaintiff's motion for partial summary judgment pursuant to the Federal Locomotive Inspection Act, 49 U.S.C. § 20701. (Dkt. No. 26). Defendant has opposed the motion. (Dkt. No. 29).

II. FACTUAL BACKGROUND *fn1

On April 10, 2009, plaintiff was working as a conductor on the CSX River Line in Upstate New York. The train, that is the subject of this lawsuit, was on Track #11 at the Selkirk Yard and was ready to proceed to Port Newark, New Jersey. The train had two locomotive units that were running and connected to other cars. Plaintiff arrived at the train at approximately 8:30 p.m. with his engineer, Andy Ferraioli.

Plaintiff testified that he boarded the first locomotive unit and discovered that there was no handset on the conductor's side of the cab. Plaintiff exited the first unit and walked along the catwalk on the right side of the train to the second unit (#5231). Ferraioli remained in the first unit. Plaintiff testified that the catwalk was wet and that it was raining and dark. Plaintiff boarded #5231 through the rear door and testified that the interior cab lights were not illuminated. Plaintiff testified that the street lights and outdoor lights were bright enough and allowed him to see the control stand but admitted that he could not see the floor of the interior of the locomotive. Plaintiff testified as follows:

Q. Was the locomotive dark when you walked into it?

A. No. It was right outside where they park them, the swap out, there's a streetlight - - where they swap out crews. And also, walking on the catwalk, the outside lights were bright enough to see walking down the catwalk.

Q. Could you see the floor of the interior of the cab?

A. No.

Plaintiff's Deposition Transcript, at p. 51-52.

The light switches for the interior lights were on the back of the engineer's stand. Plaintiff walked to the control stand where he found and retrieved a handset from the conductor's side of the engine with his left hand. Plaintiff testified that he stepped with his right foot towards the control stand so that he could turn on the interior lights. As he took that step, plaintiff claims that his right foot went out from under him, he fell forward and down three steps landing on his lower back. However, plaintiff was able to turn on the lights before he fell. When plaintiff attempted to get up, he noticed a black plastic bag wrapped around the toe of his boot. Plaintiff did not see the plastic bag before he fell. Plaintiff testified as follows:

Q. How can you be sure that the bag that was around your toe is what caused you to fall?

A. Well, because it was on my foot after the fall. And when my foot went out from underneath me, it was like it was on ice. Slippery.

Q. So, taking all that, you put that together and presumed that the thing wrapped around your toe was what caused you to fall?

A. Yes.

Q. But you don't know for sure, do you?

A. That was what was on my foot.

Q. So could you state with certainty that that's what caused you to fall?

A. Not for certain.

Plaintiff's Deposition Transcript at p. 105-06.

Ferraioli testified that plaintiff radioed for him to come to the second unit. *fn2 Upon arriving, plaintiff told Ferraioli that he hurt his back when he slipped on a black plastic bag. Plaintiff showed Ferraioli the black plastic bag. While in the second unit, Ferraioli made no observations with respect to the floor of the interior of the locomotive. Ferraioli walked with plaintiff back to the first locomotive unit and remained there for ten minutes until Trainmaster Robert Viti arrived. Plaintiff claims that he showed the plastic bag to Viti. However, Viti testified that while plaintiff told him that he slipped in the second unit on a plastic bag, plaintiff did not show him the subject bag. Viti took plaintiff to the hospital. *fn3 Plaintiff did not retain the bag and could not recall when or where he disposed of the bag.

At the time of the incident, Fred Buthe was the Assistant Superintendent of the CSX service center. Mr. Buthe was responsible for the "flying squad" which performed calendar day inspections of the locomotives. On the day of the incident, Ed Jubrey and Joel McClellan were on the flying squad that Buthe supervised. After learning of plaintiff's accident, Buthe took statements from Jubrey and McClennan. Buthe testified that in the normal course of business, statements are taken when an incident occurs. Buthe witnessed both statements but did not recall when they were taken. Jubrey stated that the squad performed a daily inspection of the subject train at 1730:

Engine 5231 had low water in sight glass which was also reported to fuel plant. I went through the cab and finished my inspection off [sic] all cab lights and devices and signed the inspection booklet. Went back to the leader to meet up with partner in leader removed garbage from cab replaced first aid kit. Cleared up blue signal protection and reported clear of track and power. ...


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