                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1975


CHARLES EUGENE HARRIS,

                Plaintiff - Appellee,

          v.

NORFOLK SOUTHERN RAILWAY COMPANY,

                Defendant – Appellant,

          and

NORFOLK SOUTHERN RAILWAY CORPORATION,

                Defendant,

          v.

COBRA NATURAL RESOURCES, LLC;       SPERRY   RAIL,   INCORPORATED,
d/b/a Sperry Rail Services,

                Third Party Defendants.



                             No. 13-2026


CHARLES EUGENE HARRIS,

                Plaintiff - Appellant,

          v.

NORFOLK SOUTHERN RAILWAY COMPANY,

                Defendant – Appellee,
           and

NORFOLK SOUTHERN RAILWAY CORPORATION,

                 Defendant,

           v.

COBRA NATURAL RESOURCES, LLC;     SPERRY   RAIL,   INCORPORATED,
d/b/a Sperry Rail Services,

                 Third Party Defendants.



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


Argued:   December 10, 2014                Decided:   April 30, 2015


Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.


Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which Judge
Keenan and Judge Thacker joined.


ARGUED: 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.  ON BRIEF: 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.




                                  2
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.

                                        I.

       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

                                        3
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.

                                              4
      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”)    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.




                                        5
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. § 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.

     1
       As is relevant here, § 213.7 requires the designee to have
particular levels of experience, knowledge, and ability in
certain areas. See 49 C.F.R. § 213.7 (2009).



                                             6
§ 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.         § 233(c) 3.     If     an    inspector

conducting a § 213.233 inspection “finds a deviation from the



       2
       Simultaneous inspections of multiple tracks from a moving
vehicle can be valid only if “the inspector’s visibility remains
unobstructed by any cause,” 49 C.F.R. § 213.233(b)(1), (2), a
requirement that does not apply to inspections of a single
track. Also, except for certain high density commuter railroad
lines, each main track must be “actually traversed by the
vehicle or inspected on foot at least once every two weeks, and
each siding [must be] actually traversed by the vehicle or
inspected on foot at least once every month.”         49 C.F.R.
§ 213.233(b)(3).
       3
       For excepted track, and track of Class 1, 2, or 3, the
main track and sidings must be inspected weekly with at least
three calendar days between inspections, while track other than
main track or sidings must be inspected monthly with at least 20
calendar days interval between inspections.       See 49 C.F.R.
§ 213.233(c).



                                                 7
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

                                               8
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

                                               9
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.

§ 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 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

                                       10
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   signs

indicating that a defect exists.                 J.A. 1970-71.

       Norfolk Southern Track Supervisor Jack Stepp testified that

there would often be coal piled up on the track such that he and

Assistant Track Supervisor Ricky Lee both would need to shovel

it out just to get their vehicle down the track to conduct their

inspections.           Stepp noted that the presence of coal “makes it

hard”          to   conduct    required    inspections.         J.A.     1296.       Lee

confirmed the problem and also testified that although Cobra

“did from time to time do a little bit of cleaning” of the

tracks, it was “not really good enough.”                    J.A. 1319; see also

J.A. 1326 (“[W]e couldn’t get [Cobra] to [clean the track] very

well, but they did make an attempt from time to time.”).



       4
       Carney also testified that if inspecting on foot, one
would look for “any lateral movement of the rail,” which “would
indicate that the ball was separated.” J.A. 1975.



                                            11
       In        addition     to    inspecting        the    track     visually,      Norfolk

Southern         contracted        with    Sperry     Rail     Services       (“Sperry”)    to

conduct          ultrasonic        internal      rail       defect    testing.        Carney

testified that Sperry’s ultrasonic search for internal defects

was actually a more effective way to search for such defects

than inspecting the track structure visually.                            Norfolk Southern

had Sperry test the relevant section of track in October 2006

and October 2007 and intended for Sperry to test it again in

February 2009.              However, unbeknownst to Norfolk Southern at the

time, Sperry’s February 2009 testing apparently did not include

the relevant section. 5              There is no dispute that considering the

seriousness of the defect, ultrasonic testing of the relevant

area should have revealed the defect.

       Following        the    July       2009   derailment,         Harris    brought   this

lawsuit in state court against Norfolk Southern, alleging that

Norfolk Southern was negligent in various respects under state

law,       and    seeking     compensatory        and   punitive        damages.       As   is

relevant         to   the    current      appeal,     Harris     claimed       that   Norfolk


       5
       In answers to interrogatories, Norfolk Southern stated
that “it appears that Sperry” did not test the portion of the
rail that caused the derailment.    J.A. 1536.   However, Norfolk
Southern Track Supervisor Stepp, who was on the Sperry truck
that was conducting the 2009 testing, testified that he believed
they had traversed the rail in question.        No allegation of
negligence is made by Harris against Norfolk Southern regarding
the failure of Sperry to conduct the ultrasonic testing.



                                                 12
Southern negligently failed to adequately inspect and maintain

its tracks.

      Norfolk Southern removed the case to federal district court

on   the   basis    of    diversity          jurisdiction,         and    it    subsequently

asserted     third-party         claims          against     Cobra       and     Sperry        for

indemnity.         Sperry       in     turn       asserted      counterclaims          against

Norfolk     Southern      and    cross-claims            against     Cobra,      which     also

filed cross-claims against Sperry.                        The claims by and against

Sperry     were    eliminated         by    a    partial    settlement          and   a   later

partial dismissal order.               Norfolk Southern subsequently filed an

amended third-party complaint against Cobra, asserting indemnity

under two separate agreements.

      Norfolk       Southern         also        filed     an     answer        to    Harris’s

complaint.         In    the    answer,         Norfolk    Southern       asserted        as    an

affirmative       defense       the        contention      that     the    FRSA       preempts

Harris’s    claims. 6          Following         discovery,     Norfolk         Southern       and

Harris filed cross-motions for summary judgment.

      On    the    merits      of     the       track    inspection       and    maintenance

claims, Harris argued that the record established as a matter of

law that because the rails on the Ben Creek Spur were constantly

covered by debris, dirt, and coal, Norfolk Southern could not

      6
       The district court ruled that Harris’s claims were not
preempted to the extent Harris alleged violations of federal
standards of care under 49 C.F.R. § 213.1(a), 213.5(a), and
213.233, a conclusion the parties do not contest on appeal.


                                                 13
have conducted its inspections required by § 213.233.                           Harris

also argued that, as a matter of law, Norfolk Southern knew or

should have known that the rail was no longer in compliance with

the TSS.       Thus, Harris maintained, Norfolk Southern was legally

obligated to undertake the measures § 213.5 prescribed.

       In     contrast,    Norfolk    Southern         maintained   that     § 213.233

created no duty to clear the debris from its tracks in order to

conduct its required inspections.                 It also contended that it had

no    knowledge       or   notice    of   the      rail    defect    prior    to     the

derailment.

       The district court concluded that the record established as

a    matter    of    law   that   Norfolk    Southern      violated    its    duty    to

visually inspect the track structure pursuant to 49 C.F.R. §

213.233 because the area around the loadout was covered with

debris, dirt, and coal during the inspections Norfolk Southern

attempted.       See Harris v. Norfolk S. Ry. Corp., 2012 WL 6209164,

at *11-13 (S.D. W. Va. Dec. 13, 2012).                    The court further ruled

that the record established as a matter of law that Norfolk

Southern       was    responsible     for        the   injuries     caused    by     the

defective rail because the railroad “kn[ew] or ha[d] notice” of

the rail defect, 49 C.F.R. § 213.5(a), insofar as “the evidence

. . . establishes that the broken rail had existed for some

time.”      Harris, 2012 WL 6209164, at *13.                Accordingly, although

the court ruled that Harris failed to even create a genuine

                                            14
issue of fact on his other liability theories (which are not

relevant    to    this   appeal),       the    court   granted      partial      summary

judgment to Harris on the issue of whether Norfolk Southern’s

negligence caused the derailment.                See id. at *13-16, 18.              The

court, however, granted summary judgment against Harris on his

claim     for    punitive     damages,        noting   that      “[t]he    only    real

evidence    here    is   that    [Norfolk      Southern]      may   have    failed   to

comply with federal regulations, which resulted in injuries to

the plaintiff” and “I [find] that there is insufficient evidence

to support a claim for punitive damages in this case.”                           Id. at

*16.

       The case then proceeded to a jury trial on the issue of

Harris’s compensatory damages.                After two days of testimony, the

jury awarded Harris $2,977,383, which included $2,000,000 for

pain and suffering and loss of enjoyment of life, $795,183 for

lost    earnings,    $125,000     for     loss    of   household      services,      and

$57,200    for    medical     expenses.         Norfolk   Southern        subsequently

moved     unsuccessfully        for   a    new    trial     or      alternatively     a

remittitur, for reasons we will discuss.                   See Harris v. Norfolk

S. Ry., 2013 WL 896194, at *3-4 (S.D. W. Va. Mar. 8, 2013).

       Norfolk     Southern     later     resolved     certain       of    its    claims

against Cobra, and the district court subsequently entered a

final judgment resolving all claims pursuant to Federal Rule of

Civil Procedure 54(b).

                                          15
                                          II.

     Norfolk Southern argues that the district court erred in

granting   summary     judgment      to    Harris      on   the    issue    of   Norfolk

Southern’s liability for the accident.                 We agree. 7

     “We review a district court’s decision to grant summary

judgment   de   novo,    applying         the   same    legal      standards     as    the

district court, and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party.”

T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,

384–85   (4th   Cir.    2012)     (internal         quotation       marks     omitted).

Summary judgment is appropriate “if 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).

     A   critical    aspect     of    this      appeal      involves       interpreting

federal regulations.       We normally construe regulations using the

same rules we employ to construe statutes.                        See, e.g., Gilbert

v. Residential Funding LLC, 678 F.3d 271, 276 (4th Cir. 2012).

If the regulation’s language “has a plain and ordinary meaning,

courts need look no further and should apply the regulation as

it is written.”        Id. (internal quotation marks omitted).                        If a


     7
       We have appellate jurisdiction under 28 U.S.C. § 1291 in
light of the district court’s Rule 54(b) certification of final
judgment.


                                           16
regulation is ambiguous, however, “then we look beyond the plain

language, examining regulatory intent and overall [regulatory]

construction.”         Qwest Corp. v. Colorado Pub. Utils. Comm’n, 656

F.3d   1093,     1099    (10th     Cir.    2011)    (alteration      and   internal

quotation      marks    omitted).         An    agency’s    interpretation    of   a

regulation it administers is accorded controlling deference so

long as the interpretation is not contrary to the regulation or

law    that    authorized     the     regulation.           See    Christopher     v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012).

       The claim at issue in this appeal is Harris’s state-law

negligence,      personal-injury       cause      of     action,   which   requires

Harris to prove the typical “four basic elements:                    duty, breach,

causation, and damages.”           Hersh v. E-T Enters., Ltd. P’ship, 752

S.E.2d 336, 341 (W. Va. 2013).                 The FRSA’s preemption provision

does not prevent a state-law action seeking damages for personal

injury based on an allegation that the defendant “has failed to

comply    with    the    Federal    standard       of    care   established   by   a

regulation or order issued by the Secretary of Transportation .

. . covering” laws, regulations, and orders related to railroad

safety.       49 U.S.C. § 20106(b)(1)(A).               Before us in this appeal

are two allegations concerning violations of federal standards

of care.        First is Harris’s allegation that Norfolk Southern

breached its duty to conduct visual inspections in accordance

with 49 C.F.R. § 213.233.             Second is Harris’s allegation that

                                           17
Norfolk   Southern     breached   its     duty    to    take    the    measures       49

C.F.R. § 213.5(a) requires a track owner to take when it knows

or has notice that its track is out of compliance with the TSS.

     For the following reasons, we conclude that Harris has not

established    Norfolk      Southern’s    liability      as    a   matter      of    law

under either theory.          More specifically, while we agree that

Harris has established that Norfolk Southern breached its duty

to properly inspect the track under the TSS, a genuine issue of

material fact exists as to whether Norfolk Southern’s breach

proximately caused the derailment and Harris’s injuries.

                                         A.

     In order to evaluate Harris’s claims that Norfolk Southern

breached the duties imposed upon it by the TSS, we must first

determine the scope of those duties.                   We begin with the duty

imposed by 49 C.F.R. § 213.5.

     Under § 213.5, a track owner “who knows or has notice that

the track does not comply with the requirements of this part”

must either bring the track into compliance, cease operations on

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)(1)-(3).

     Norfolk     Southern      does      not     dispute       that     the     record

establishes as a matter of law that the rail had been out of

                                         18
compliance       with    the    TSS    for    months     or    years       prior     to    the

derailment.           However, it argues that a genuine factual issue

existed regarding whether it knew or had notice that the track

was out of compliance with the TSS, and thus, whether its duty

to address the defect under § 213.5 was ever triggered.

       Resolving the issue of whether a genuine factual dispute

existed regarding whether Norfolk Southern “kn[e]w[] or ha[d]

notice”   of     the     defective     rail    requires       us    to    also   determine

whether the “notice” required under § 213.5(a) is actual notice,

constructive notice, or both.                  In its commentary to the 1998

amendments       to    the   TSS,     the    FRA    states     its       view    that     that

standard holds owners liable “only for those defects about which

they know or should know.”                    Federal Railroad Administration,

Track Safety Standards, 63 Fed. Reg. 33,992-01, 33,995 (June 22,

1998); see id. (“With a knowledge standard attached to the track

regulations,      railroads      are    held       liable     for   non-compliance          or

civil penalties for only those defects that they knew about or

those that are so evident the railroad is deemed to have known

about   them.”);        “Track   and    Rail       and   Infrastructure          Integrity

Compliance            Manual”       (2014),         at      2.1.10,          viewed        at

http://www.fra.dot.gov/eLib/details/L04404                     (last       visited        Mar.

23, 2015) (providing that § 213.5 “describes the action that

must be taken by a railroad or track owner once they know or

have    notice    (knowledge        standard)       that      the    track      is   not   in

                                             19
compliance with the TSS”) (saved as ECF opinion attachment).

The commentary explains that this standard “is unique to the

track regulations” in that “other FRA regulations are based on

strict liability.”           63 Fed. Reg. at 33,995.              It explains that

the “standard is founded on the notion that railroads cannot

prevent the occurrence of some defects in track structures that

are continually changing in response to the loads imposed on

them by traffic and effects of weather.”                    Id.     The commentary

acknowledges that, for this reason, “[m]any defects may not be

detected even when the track owner exercises reasonable care.”

Id.

      The   commentary       also    explains    that   under      the   applicable

standard, railroads may be responsible for defects that FRA and

state inspectors have found and alerted the railroad to, as well

as those defects that a railroad’s own inspectors have found.

See id. at 33,995-96.              But, the commentary explains that even

when inspectors have not uncovered a problem, railroads may also

be responsible for a defect that “is of the nature that it would

have had to exist at the time of the railroad’s last inspection

(for example, defective crossties or certain breaks that are

covered     with     rust)   and    would     have   been    detected    with   the

exercise of reasonable care.”            Id. at 33,996.           The existence of

a defect of this type “constitutes constructive knowledge by the

railroad.”     Id.

                                         20
      Norfolk Southern maintains that § 213.5’s requirement that

a railroad address defects of which it “knows or has notice”

plainly was limited to those defects of which it has actual

knowledge, and thus that the FRA’s reading is unreasonable and

not   entitled   to     deference.     In    our    view,    Norfolk   Southern’s

position ignores the “or has notice” language in the regulation.

A railroad has constructive notice of a condition that it would

have discovered had it exercised reasonable care, and the FRA’s

interpretation     appropriately       reflects      that.     See    Black’s    Law

Dictionary      1062    (6th     ed.   1990)       (“Constructive      notice     is

information or knowledge of a fact imputed by law to a person

(although he may not actually have it), because he could have

discovered the fact by proper diligence, and his situation was

such as to cast upon him the duty of inquiring into it.”).

      In response to the contention that it is ignoring the “or

has notice” language in the regulation, Norfolk Southern points

to    a   different     regulation,    49    C.F.R.     § 213.113,     which     was

amended    in   2014.      The   regulation,       as   amended,     provides,    in

relevant part:

      (a) When an owner of track learns that a rail in the
      track contains any of the defects listed in the table
      contained in paragraph (c) of this section, a person
      designated under § 213.7 shall determine whether the
      track may continue in use.   If the designated person
      determines that the track may continue in use,
      operation over the defective rail is not permitted
      until--


                                        21
        (1) The rail is replaced or repaired; or

        (2) The remedial action prescribed in the table
        contained in paragraph (c) of this section is
        initiated.

      (b) When an owner of track learns that a rail in the
      track contains an indication of any of the defects
      listed in the table contained in paragraph (c) of this
      section, the track owner shall verify the indication.
      The track owner must verify the indication within four
      hours, unless the track owner has an indication of the
      existence of a defect that requires remedial action A,
      A2, or B identified in the table contained in
      paragraph (c) of this section, in which case the track
      owner must immediately verify the indication. If the
      indication is verified, the track owner must--

      (1) Replace or repair the rail; or

      (2) Initiate the remedial action prescribed in                 the
      table contained in paragraph (c) of this section.

49 C.F.R. § 213.113 (2014) (emphasis added).

      Norfolk Southern notes that under the amended regulation a

track owner’s learning of an indication of a rail defect leads

to a further specific duty on the part of the owner to verify

the     defect.    Norfolk      Southern     suggests    that   § 213.113    as

amended, whose obligations are triggered based on what owners

actually learned rather than on what they should have learned,

should guide our interpretation of § 213.5 such that only the

actual discovery of an indication of a defect would trigger a

duty.     But even in the context of the TSS as they were most

recently     amended,   the    FRA’s   interpretation      of   § 213.5     fits

comfortably.      Basing      liability     on   constructive   knowledge    can

serve as a deterrent to the performance of cursory or careless

                                       22
inspections that might not even uncover indications of defects.

Cf.   49      C.F.R.        §     215.13     (2009)         (requiring        pre-departure

inspection of freight cars but providing that performance of

such inspections does not prevent a railroad from being liable

for   civil    penalties          for    cars’     noncompliance        with    freight-car

safety standards).

      In     sum,     we    conclude        that      the    FRA’s    interpretation          of

§ 213.5 is eminently reasonable in light of the language of the

regulation      and        in     the     context      of    the     TSS   as        a    whole.

Accordingly, we defer to the FRA’s construction and hold that §

213.5 obligates a track owner to address defects in its track

structure that it actually knows of or should have discovered

had it exercised reasonable care in conducting its inspections.

                                              B.

      With    this       clarification,          we   turn    to     Harris’s    contention

that the district court properly held Norfolk Southern liable

under § 213.5 because the railroad breached its duty to inspect

the tracks as required by § 213.233 and that, had it not done

so,   it      would        have     discovered         and     repaired        the       defect.

Accordingly,        we     must     also     determine        the     scope     of       Norfolk

Southern’s duty to inspect the track under § 213.233.

      Relying on the plain meaning of the regulatory language,

Harris     contends         that        § 213.233      unambiguously       requires          the

inspector to actually look at every part of the track structure,

                                              23
including all parts of the ballast, crossties, and the rails.

Since   the    presence    of    debris     covering       a   part   of    the   track

structure would prevent an inspector from visually inspecting

the covered part, Harris argues an inspector has not visually

inspected a track structure within the meaning of the regulation

unless all such debris has been removed.

     Norfolk      Southern,      on   the    other     hand,     maintains     that   a

proper vehicle-based inspection that meets the speed and other

requirements of § 213.233(b) is all that is required, and it

insists that the regulation does not require railroads to remove

all material from the track structure that could obstruct an

inspector’s      view.     According        to   Norfolk       Southern,    requiring

removal of all obstructions “would be functionally unworkable or

impossible,”       would   be     unnecessary         because     “inspectors       are

trained to inspect track for defects even when all or a portion

of the track is visually obscured,” and “would upset the careful

regulatory       balance   of    inspection          requirements     and    resource

allocation reflected in FRA track inspection policy.”                        Brief of

Appellant at 26.

     In    our    view,    neither     Harris        nor   Norfolk    Southern     has

properly      described    the   scope      of   a    track    owner’s      inspection

obligations under § 213.233.                The regulation requires a track

owner to “visually inspect the track structure for compliance

with” the TSS.       49 C.F.R. § 213.233(b).               The “track structure”

                                          24
that   must       be   inspected    is       defined     to   include   the    “ballast,

crossties, track assembly fittings, and the . . . rails.”                                 49

C.F.R.      § 213.101     (2009).        The       regulation,     however,    does      not

define      “visual[]     inspect[ion],”           and   we   therefore    give      those

words their ordinary meaning.                  See Dickenson-Russell Coal Co.,

LLC v. Secretary of Labor, 747 F.3d 251, 258 (4th Cir. 2014).

In this context, to “inspect” means “to look carefully at or

over; view closely and critically,” and “visually” means “by

sight.”       Webster’s        Encyclopedic         Unabridged     Dictionary       of   the

English      Language     987,    2127       (2001).      Accordingly,        the   visual

inspection required by § 213.233(b) is a close and critical look

at the rails and other parts of the track structure for the

purpose of determining whether they are in compliance with the

FRA’s track safety standards.

       While a close and critical look at the track structure is

required, we cannot accept Harris’s argument that every inch of

every track must be seen in every inspection, such that every

removable obstruction must always be removed.                       The language of §

213.233 does not explicitly so require, and we believe that the

TSS as a whole indicate that that was not the FRA’s intention.

       We first note that § 213.233 permits visual inspections to

be   done    on    foot   or     from    a    vehicle     moving    over   the      tracks.

Obviously, less of the track structure will be visible in a

vehicle-based inspection than in an on-foot inspection, given

                                              25
that some parts of the structure, such as certain areas beneath

the rail head, are not visible from a moving vehicle riding

above    the     track.       Because       vehicle-based        inspections        are

expressly permitted, it is difficult to read § 213.233(b) as

requiring an inspector to actually view every inch of every part

of the track structure during every inspection.

       Moreover, while the TSS clearly address the frequency with

which inspections must be conducted, the number of tracks that

may be inspected simultaneously, and the maximum speed for the

inspector’s       vehicle   when     passing       over    track    crossings       and

turnouts,      they   are   completely       silent       regarding      most   other

aspects of the inspection, including where the inspector must

focus    his   attention,    how     much   time    he    must   spend     during   an

inspection, and the speed he may travel over portions of the

track other than track crossings and turnouts.                     The FRA was no

doubt aware that in some situations it would not be feasible for

an inspector to actually view every part of the track structure

during    a    particular   visual     inspection.         As    Norfolk    Southern

points out, that would certainly be true of railroad tracks in

city    streets    and    roadways    in    which    the    track     structure     is

covered by asphalt or concrete.              Additionally, in colder areas

where snow and ice might conceal portions of the track structure

for long periods, the entire track would need to be cleared for



                                        26
every inspection. 8      Accordingly, we cannot conclude that the duty

to “visually inspect the track structure” obligates the track

owner    to   visually   inspect   each    and    every   part   of   the   track

structure during every inspection. 9

     Instead, we conclude that the duty imposed by § 213.233(b)

is simply the duty to conduct a reasonable visual inspection in

light of all of the circumstances.               See 63 Fed. Reg. at 34,011

(explaining     that     §   213.233(b)    “require[s]     an    inspector     to

perform an adequate inspection” (emphasis added)); cf. id. at

33,995 (using language invoking a reasonable-care standard for

the required inspections when discussing the liability standard


     8
       Harris argues that the record does not contain evidence of
the burden that would result to railroads from having to clear
the tracks of all concrete, snow, ice, coal, and other debris
before every inspection.     We are entitled, however, to take
judicial notice of commonly known facts, such as that asphalt
and concrete cover parts of track structures in some urban
environments and that snow and other debris can cover railroad
tracks.   See United States v. Lavender, 602 F.2d 639, 641 (4th
Cir. 1979). In any event, we note that Division Engineer Carney
testified that in certain areas, “the track structure is
completely covered in snow” “for periods of weeks to several
months” such that the area underneath the rail head is not
visible. J.A. 2030.
     9
       Harris also cites to the language in § 213.233(b) stating
that one inspector may inspect two tracks simultaneously and
that two inspectors may inspect up to four tracks simultaneously
provided that the other tracks are centered a specified distance
from the track over which the inspectors are riding and
“provided that the inspector’s visibility remains unobstructed
by any cause.” 49 C.F.R. § 213.233(b)(1), (2). This language,
however, does not apply to an inspector inspecting a single
track.


                                      27
established by § 213.5); id. at 33,996 (same).                             In our view,

this    reading          achieves    a    balance      that     reflects       the    FRA’s

intentions in promulgating the regulation, namely, to establish

certain    baseline,        minimum      requirements       that     require     qualified

inspectors to make reasonable efforts to look for visible signs

of defects in the track structure while leaving them with the

flexibility to make prudent inspection decisions based on their

knowledge and experience.

       While     Norfolk      Southern         does   not   dispute       that   it   must

exercise reasonable care when conducting the visual inspections

required       by    §     213.233,      it     contends      that    a    vehicle-based

inspection satisfies that requirement.                        As we have explained,

however, § 213.233(b) requires a reasonable inspection, and the

mere fact that the regulation permits vehicle-based inspections

does not mean that such inspections always and as a matter of

law    amount       to    reasonable      visual      inspections.         Instead,     the

reasonableness of any given inspection will depend on all the

relevant circumstances, and particular circumstances might well

make it unreasonable to conduct an inspection entirely from a

vehicle.       For example, a mark or other indication on the visible

surface of the rail could indicate the possibility of a defect

underneath.         An inspector, charged with knowledge of the mark,

would     have      to    exercise       his    discretion     and    decide     if    this

evidence was sufficient to require him to stop and walk the rail

                                               28
to make a closer inspection.            He has a duty to exercise his

discretion reasonably.

     Likewise,     if   an   obstruction      on    the    tracks   prevents      an

inspector from seeing what would otherwise be visible, then the

exercise   of    reasonable    care    might        require   removal     of   the

obstruction.     If the obstruction were reasonably expected to be

of a relatively short duration, as might be expected in some

situations involving snow or ice, then a decision not to remove

the snow and ice for a better look might be reasonable when the

rail would be seen without the ice or snow during the next

inspection or a short time later.             In some instances a layer of

light   snow    might   obstruct   a   view    of    the   rail,    but   cover    a

hundred miles of track, rendering it impractical to remove all

of the snow but reasonable to leave it if one could expect it to

melt a short time later.           The point is that there might be

practical, reasonable reasons to excuse a railroad from clearing

its tracks every time, everywhere an obstruction existed.

     On the other hand, allowing debris covering a portion of

the track to remain undisturbed might well be unreasonable.                    For

example, there is evidence in this case showing that the coal

covering the tracks not only prevented Norfolk Southern from

seeing the defects in the rail, but also contributed to the

corrosion and ultimate failure of the rail, and that Norfolk

Southern was aware that the presence of coal and other debris

                                       29
around the track could cause corrosion of the rail leading to

cracks and head/web separation.                   See J.A. 1558 (“[T]he presence

of the coal, . . . based on my experience, has a significant

effect on the corrosion.”); J.A. 395 (post-derailment Norfolk

Southern email stating that “the track has been buried in coal

for years and the metal could very well be corroded to little or

nothing”).     If a railroad is aware that its track is embedded in

substances     that     cause       or     accelerate      corrosion,        relying        on

vehicle-based      inspections        alone       might   not   be    sufficient;       the

exercise of reasonable care might well require the inspector to,

at the very least, occasionally dig out portions of the embedded

track to inspect for corrosion and other defects.

      In either situation, the standard by which the inspector’s

decision     would    be     judged      would    be   whether      the     decision    was

reasonable    in     light    of    all    the    circumstances.            Whatever    the

circumstances      are,     an   inspector        must    examine     the    rails     as    a

reasonably prudent inspector would, having due regard for the

requirements and purposes of the inspection regulation.

                                            C.

      Having defined the duties imposed on Norfolk Southern by

the   TSS,    we     next    turn     to    the    question      of   whether        Harris

established a breach of those duties as a matter of law.                                    We

conclude that he did.



                                            30
       The evidence is uncontested that the rail in question in

the Ben Creek track was for months or even years so covered in

coal and other debris that the inspectors could not see the area

of the rail beneath the rail head, which otherwise would have

been visible during a walking or vehicle-based inspection.                                See

J.A. 2026 (Carney’s testimony that if coal debris covered the

tracks up to the rail head, then there could have been no visual

inspection      of    the    portion        of      the   rail     that    was    covered).

Norfolk Southern did not clear the track of debris or at least

dig out sample areas of the debris to permit it to view sections

of the embedded track structure, and Norfolk Southern had not

conducted any ultrasonic testing on the area in question since

October 2007, more than a year-and-a-half before the July 2009

derailment.          Norfolk      Southern       thus     was    largely    in    the     dark

concerning the state of the rail, left with only the hope that

if the track had deteriorated, some indication could be visible

in the limited visible portion of the track structure.

       As we have explained, a railroad need not view every piece

of the track structure during every inspection.                                Nonetheless,

Norfolk Southern failed for a period of months and years to

actually      look   at     any   of     the     embedded       portion   of     the    track,

despite its obligation to perform weekly visual inspections of

the    track   structure.           Under      these      circumstances,         we    believe

that    any    reasonable         jury    would      find       that   Norfolk        Southern

                                               31
breached its duty to visually inspect the track structure in

accordance with § 213.233(b), and we therefore agree with the

district court that Harris has established a breach of duty as a

matter of law.

                                      D.

       Norfolk Southern argues that even if it breached its duty

to inspect under § 213.233(b), a genuine dispute of material

fact existed regarding whether the failure to visually inspect

proximately caused the derailment and Harris’s injuries.                         In

this   regard,   Norfolk   Southern      contends    that    even    inspections

that complied with § 213.233(b) may not have revealed the defect

because of its location under the rail head.                  Norfolk Southern

emphasizes that § 213.233(b) allows inspections to be conducted

from moving vehicles, and it submits that the record does not

establish as a matter of law that such inspections would have

uncovered signs of the defects in the track structure.

       As we have already explained, under some circumstances a

vehicle-based     inspection       will      be      sufficient;         in     such

circumstances,    the   railroad    would     only    be    charged      with    the

knowledge   of   what   should    have     been   seen     from   the     vehicle.

However,    vehicle-based        inspections        do      not     always      and

automatically    satisfy    a    railroad’s       obligation        to    visually

inspect the track structure.          Accordingly, the question is not

whether the defect would have been discovered through a properly

                                      32
conducted    vehicle-based          inspection,        but      whether    the    evidence

establishes    as    a      matter    of      law      that     a   reasonable         visual

inspection     of   the       track    would        have      revealed      the    defect.

Although the issue is a close one, we ultimately agree with

Norfolk     Southern        that    there     are       genuine       issues      of    fact

precluding summary judgment on the question of proximate cause.

     There    is    no      dispute    that      the     cracks      in   the     defective

section of track had existed for an extended period of time

before the derailment and that there was extensive corrosion on

the track.     Indeed, even Norfolk Southern’s own expert described

the damage to the rail as “the worst” he had ever seen.                                 J.A.

1246.     Nonetheless, the evidence is not so one-sided that we can

say as a matter of law a reasonable visual inspection would have

revealed the defect.

     For    example,        Chris    Bagnall,       Harris’s        metallurgy      expert,

testified in his deposition that the degree of corrosion and

crack   formation      on    the    broken       piece     of    rail     indicated     that

damage requiring remediation would have been present and could

have been detected in 2009 by ultrasonic testing or by walking

down the track and digging out areas of the coal debris to

permit inspection.          Bagnall, however, did not testify that signs

of the defect appeared consistently across the length of the

embedded track such that they would necessarily be discovered by

an inspector digging out sample areas of debris, or that signs

                                            33
of the defect would have been located far enough down the web of

the rail that an inspector would necessarily have been able to

see them even had the track been clear of debris.                            See J.A. 3800

(Bagnall’s testimony that an inspector would not be expected “to

see   damage       on    the    top    of    the    rail”     and    that    it     would     be

difficult      to       see    the    cracking       or    corrosion        because      “it’s

underneath     the       head    of    the    rail”).         And    while      Harris      also

submitted      a    report      from     expert     Alan     Blackwell       opining        that

Norfolk     Southern          would    have     discovered          the    defect     had    it

“perform[ed]        proper       track       inspections       that       included      either

visual detection or sounding the rail with a ball-peen hammer in

the area if the track was embedded with dirt, coal and ballast,”

J.A. 958, that report was unsworn.                          Nonetheless, even if we

considered         Blackwell’s        report,       Norfolk     Southern’s          competing

evidence     raises           sufficient       questions        about       these       expert

conclusions to preclude summary judgment.

      Because of the complications posed by the location of the

defect    under      the      rail    head,    we    conclude       that    a    jury    could

reasonably find that Harris has not proven that Norfolk Southern

would have discovered the defect even had it not breached its

duty to conduct proper visual inspections.                                Accordingly, the

question of whether Norfolk Southern’s breach of its duty to

conduct    the      inspections        required      by     § 213.233(b)        proximately

caused the derailment and Harris’s injuries was one for a jury

                                               34
to decide. 10   We therefore conclude that the district court erred

in granting partial summary judgment to Harris on this issue of

Norfolk Southern’s liability for the derailment.

                                  III.

     In his cross-appeal, Harris argues that the district court

erred in granting summary judgment against him on his claim for

punitive damages.

     Of course, in considering Norfolk Southern’s entitlement to

summary judgment, we must view the record in the light most

favorable to Harris.        See T–Mobile Ne. LLC, 674 F.3d at 385.

“In a diversity action, . . . the propriety of an award of

punitive damages for the conduct in question, and the factors

the jury may consider in determining their amount, are questions

of state law.”      Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 278 (1989).

     Although    punitive   damages     under   West   Virginia   law   were

originally “awarded only to deter malicious and mean-spirited

conduct,” the standard “has grown to include . . . extremely

negligent conduct that is likely to cause serious harm.”                TXO

Prod. Corp. v. Alliance Res. Corp., 419 S.E.2d 870, 887            (W. Va.


     10
        Indeed, in light of our determination that a genuine
factual dispute existed regarding whether reasonable inspections
would have uncovered the defect, we also conclude that a jury
issue existed regarding whether Norfolk had constructive notice
of the defect and a duty to address it under § 213.5.


                                   35
1992),   aff’d,      509   U.S.    443    (1993).       As     the   standard      exists

today, punitive damages may be awarded where a plaintiff shows

“gross   fraud,       malice,      oppression,         or    wanton,    willful,      or

reckless conduct or criminal indifference to civil obligations

affecting the rights of others.”                Crawford v. Snyder, 719 S.E.2d

774, 783 (W. Va. 2011) (internal quotation marks omitted).                            In

our   view,    the    record      does   not    give    rise    to   any    reasonable

inference that this standard was met.

      Harris    argues     that    “the    undisputed        evidence      shows    that,

prior to the July 2009 derailment here, [Norfolk Southern] had

known for years that compliant visual inspections of the track

where the derailment occurred were not being conducted because

the track was almost completely covered with coal, dirt, and

other debris” and that “[t]he broken rail had developed over a

period of years before July 2009 as a result of this gross

neglect.”      Brief of Plaintiff-Appellee-Cross-Appellant, at 60-

61.   But even Harris recognizes that Norfolk Southern was hardly

indifferent to the existence of rail defects of the type at

issue here.      In fact, Harris concedes (1) that Norfolk Southern

contracted     with    Sperry      to    conduct       ultrasonic      internal     rail

defect testing at the Ben Creek Spur in 2009, (2) that had the

damaged nine-foot section actually been tested, the defect would

have been revealed, and (3) that it was only because Norfolk

Southern inaccurately mapped the GPS coordinates of the Spur

                                           36
that    the    nine-foot   section    was    not   tested. 11     See   Brief    of

Plaintiff-Appellee-Cross-Appellant, at 10.               There is no dispute

that Sperry tested the rail at issue in October 2006 and October

2007 and discovered no defect in either of those years.                         And

there is no evidence that Norfolk Southern realized that Sperry

had omitted the section during its 2009 testing.                Even if Harris

is correct that Norfolk Southern’s erroneous mapping was the

cause of the omission, 12 that is simply not the sort of extreme

negligence bordering on recklessness that could serve as the

basis for an award of punitive damages.               We therefore hold that

the district court properly granted summary judgment on Harris’s

punitive damages claim.

                                       IV.

       In sum, for the foregoing reasons, we affirm the grant of

Norfolk       Southern’s   motion    for    summary    judgment    on   Harris’s

punitive damages claim and reverse the grant of summary judgment

to Harris on the issue of Norfolk Southern’s liability for the




       11
        In fact, former Division Engineer Carney testified that
he was satisfied that Norfolk Southern could adequately inspect
the rail ultrasonically and actually do a more thorough
inspection than it could do visually.
       12
        Carney testified that even if Sperry did not test the
nine-foot section in 2009, he did not believe that omission was
due to inaccuracy of the track chart.


                                       37
accident   and   remand   to   the    district   court   for   further

proceedings.

                                                    AFFIRMED IN PART,
                                                    REVERSED IN PART,
                                                         AND REMANDED




                                 38
