Privette v. CSX Transportation, Inc.

79 F. App'x 879
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 4, 2003
DocketNo. 02-5312
StatusPublished
Cited by4 cases

This text of 79 F. App'x 879 (Privette v. CSX Transportation, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Privette v. CSX Transportation, Inc., 79 F. App'x 879 (6th Cir. 2003).

Opinion

ROGERS, Circuit Judge.

In the winter of 1998, Brandon Privette (“Privette”) suffered a fatal accident during his employ with Franklin Industries, Inc. (“Franklin”). While engaged in the process of using a front end loader to ease a railcar off a scale, Privette unsuccessfully attempted to remove a cable from a moving railcar. The momentum from the moving car pulled the front end loader toward the car and crushed him. His widow sued CSX Transportation, Inc. (“CSXT”), the lessor of the railcars that Privette was working with at the time of the accident, asserting claims for product liability, negligent failure to warn, negligent entrustment, and ordinary negligence. The district court granted CSXT’s motion for summary judgment, ruling that as a matter of law CSXT was not hable for leasing cars that could be pulled as they were by Franklin employees. On plaintiff’s appeal, we affirm the judgment of the district court.

Facts

Franklin is a privately owned company that operates eleven mining plants around the United States, including a limestone mining plant in Anderson, Tennessee, which Franklin has owned since 1988. Franklin transports about half of the limestone it mines at its Anderson plant via railway, loading the limestone into railcars owned by CSXT. The cars are then picked up by CSXT, which transports them to the desired destination on Franklin’s behalf. To effectuate this shipping, CSXT leaves its cars on a sidetrack next to Franklin’s mine; CSXT retrieves the cars from the sidetrack when they are ready.

The rights and responsibilities governing this sidetrack are covered by a “Private Sidetrack Agreement” that Franklin and CSXT entered into in 1992. The Agreement provides that CSXT owns the initial 93.5 feet at each end of the sidetrack, and Franklin owns the 2,131 feet in the middle. Each party is responsible to maintain the section it owns, and CSXT has the right, but not the duty, to inspect Franklin’s section. Regarding liability for accidents involving railcars, the Agreement provides that when CSXT puts a car on Franklin’s segment, CSXT’s liability ceases and Franklin is thereafter liable, until CSXT resumes control over the car and pulls it back onto CSXT’s track.

In preparing the cars for shipping, Franklin loads each car with a quantity of limestone that falls within certain weight parameters. To determine a car’s weight, it puts each car on a scale located on the sidetrack. After a car has been weighed, utility workers move it off the scales, [882]*882where it rolls freely and slowly down a gentle incline until it connects with the other cars. Getting the cars to roll onto and off of the scale is a substantial task, however, since the loaded cars can weigh 125 tons or more. Franklin has used various methods to move the railcars off the scales. Until about a month before the accident in the present case, Franklin was pushing the cars with a front loader tractor, but this was damaging CSXT’s cars, and Franklin abandoned the practice after CSXT complained and sent Franklin a bill for the repairs. In discussing the car damage, CSXT’s representative told a Franklin officer that CSXT’s own method of moving cars was to use a trackmobile, a vehicle designed specifically for this purpose. But CSXT’s representative did not offer any other suggestions, nor did Franklin’s officer ask for any. Franklin— which had been moving railcars at its various plants for over 10 years—had previously considered trackmobiles but found that they worked poorly for its purposes, and instead it used other methods, like attaching a knuckle—a device that would attach to the bucket to prevent the bucket from directly pushing or pulling the rail-car—to a front end loader.

On this occasion, the Anderson plant used what was known as the “cable method,” in which a ten-foot cable was attached at one end to the bucket of a front end loader, and at the other end to an O-ring located near the lower corners of CSXT’s railcars. (Some of CSXT’s cars had a sign above the O-ring, reading, “Pull Here.”1) To pull a car off the scales, the front end loader would drive in reverse, parallel to the track, pulling the car until it began to roll very slowly down the incline. The cable would then slacken as the O-ring neared the bucket of the front end loader. Franklin had trained its utility workers how to step in at this point and pull the hook off the O-ring while there was slack in the cable, being careful not to get in between the loader and the car. This last point was important because unless the front end loader kept moving in reverse next to the car, after the O-ring had passed the bucket the cable would tighten and the bucket of the loader would be dragged sideways into the railcar as it pulled the car to a stop. According to Franklin’s instructions, if the utility worker could not pull the hook off before it passed the bucket, he should not move between the loader and the bucket, but should step back and let the loader stop the car. The loader would then reposition the car for another try.

The incident in this case happened on December 28, 1998, a cold and wet day at the Anderson plant. Brandon Privette, plaintiff’s husband, was working as a utility man, unhooking the cable from cars after they were pulled off the scales by the front end loader, which was driven by Thomas Guess, another Franklin employee. Both Privette and Guess had been trained in the cable method, and both had used the method on the job previously. On this occasion, Privette was unable to get the hook off one of the cars, so he stepped back and let the loader stop it. On the second try, still unable to pull the hook free, he followed it as the O-ring moved past the bucket. When the cable came taut, it pulled the bucket of the front end loader towards the railcar and into Privette, crushing his chest and killing him.

The accident was investigated by the Mine Safety and Health Administration [883]*883(“MSHA”), which concluded that “[t]he accident was caused by moving the rail cars with equipment not designed to be used for this purpose”—that is, Franklin’s front end loader was not intended to be fitted with a cable or used in this fashion. In the words of the MSHA report, “[t]his modification and use was beyond the design capacity intended by the manufacturer [of the front end loader] demonstrating a lack of reasonable care which constitutes more than ordinary negligence and is an unwarrantable failure to comply with a mandatory safety standard.” J.A. at 227. Prior to the accident, however, the MSHA had apparently witnessed Franklin employees using the cable method, without commenting on the practice or citing Franklin with a violation.

Mrs. Privette subsequently filed this suit against Franklin and CSXT in Tennessee state court, on behalf of herself and her child, Tyler. CSXT removed the action based upon diversity of citizenship after Mrs. Privette voluntarily released Franklin from the suit. Mrs. Privette subsequently amended her complaint twice, raising a number of tort claims against CSXT. The district court granted summary judgment to CSXT, and Mrs. Privette now appeals.

Analysis

This Court reviews de novo the district court’s order granting summary judgment. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir.1998). Viewing all of the evidence in the light most favorable to Mrs. Privette as the non-moving party, this Court may affirm only if there is no genuine issue of material fact and CSXT is entitled to judgment as a matter of law. Id. at 368.

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Bluebook (online)
79 F. App'x 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/privette-v-csx-transportation-inc-ca6-2003.