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Kaiser v. Union Pacific Railroad Co.

Supreme Court of Nebraska

May 24, 2019

David A. Kaiser, Jr., appellant,
v.
Union Pacific Railroad Company, a corporation, appellee.

         1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         2. __:__. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         3. Federal Acts: Railroads: Claims: Courts. Substantive issues concerning a claim under the Federal Employers' Liability Act are determined by the provisions of the act and interpretive decisions of the federal courts construing it.

         4. Federal Acts: Railroads: Liability: Negligence: Damages. Under the Federal Employers' Liability Act, railroad companies are liable in damages to any employee who suffers injury during the course of employment when such injury results in whole or in part due to the railroad's negligence.

         5. Federal Acts: Railroads: Claims: Negligence. Claims for negligent infliction of emotional distress are cognizable under the Federal Employers' Liability Act.

         6. Negligence: Words and Phrases. The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct.

         7. Trial: Testimony. The important considerations in whether inconsistent prior testimony is to be disregarded as a matter of law are whether [303 Neb. 194]the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony.

         8. Federal Acts: Railroads: Negligence. An employee cannot recover for negligent infliction of emotional distress under the Federal Employers' Liability Act merely because he or she suffers emotional distress as a result of observing another person's injuries.

         9. Summary Judgment: Proof. A party moving for summary judgment makes a prima facie case for summary judgment by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial.

         10. __:__. Once a party moving for summary judgment makes a prima facie case, the burden shifts to the opposing party to produce admissible contradictory evidence showing the existence of a material issue of fact that prevents judgment as a matter of law.

         11. Summary Judgment: Evidence. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for the purposes of summary judgment; the evidence must be sufficient to support an inference in the nonmovant's favor without the fact finder engaging in guesswork.

          Appeal from the District Court for Douglas County: J. Michael Coffey, Judge.

          James R. Welsh and Christopher P. Welsh, of Welsh & Welsh. PC, L.L.O., and M.H. Weinberg, of Weinberg & Weinberg, P.C., L.L.O., for appellant.

          Kyle Wallor and Kate Geyer Johnson, of Lamson, Dugan & Murray, L.L.P, for appellee.

          Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PAPIK, J.

         David A. Kaiser, Jr., sued his former employer, Union Pacific Railroad Company (Union Pacific), under the Federal Employers' Liability Act (FELA). Kaiser alleged that while providing aid to an injured fellow employee, he was exposed to the risk of being run over by a railcar. Kaiser alleged that [303 Neb. 195] Union Pacific's negligence caused him to be exposed to this risk and that, as a result, he suffered emotional distress.

         Union Pacific moved for summary judgment. It contended Kaiser could not show that during the incident in question, he suffered a physical injury or was within the "zone of danger,'' and thus contended he was not entitled to recover for negligent infliction of emotional distress under FELA. Kaiser submitted an affidavit in opposition to Union Pacific's motion for summary judgment, but the district court, citing Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981), disregarded it, finding that it was inconsistent with Kaiser's deposition testimony. The district court went on to grant Union Pacific's motion for summary judgment. Kaiser appeals both the decision to disregard his affidavit and the order granting summary judgment. We affirm.

         BACKGROUND

         July 31, 2012, Accident.

         Kaiser's lawsuit arises out of a workplace accident at Union Pacific's Mason City, Iowa, railyard in the early morning hours of July 31, 2012. At that time, Kaiser was a manager of yard operations at the Mason City railyard. On the evening of July 30 and the morning of July 31, Kaiser was overseeing a team of employees who were preparing railcars for departure on the next outbound train. Those employees included Chris Grey, Tristan Schinzel, and Georgiy Soloviyov. Grey, an engineer, was in the locomotive at the head of a train. Schinzel and Soloviyov were working to couple free railcars onto that train.

         At approximately 2 a.m. on July 31, 2012, Kaiser was parked in his vehicle and was listening to the communications of his team on a radio. At that time, Kaiser heard Schinzel yelling that there was an emergency on the track and that "[Soloviyov] is down." Kaiser dialed the 911 emergency dispatch service and ran in the direction of the emergency.

         When Kaiser arrived at the scene, he found Soloviyov injured with his head resting on one of the rails. Kaiser [303 Neb. 196] attempted to move Soloviyov and to render aid. Other employees with emergency medical training arrived minutes later, and Kaiser stepped away to give them room. Soloviyov died from his injuries. Kaiser was not struck by a railcar and did not suffer any physical injuries from the incident.

         Kaisers Lawsuit ...


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