David A. Kaiser, Jr., appellant,
Union Pacific Railroad Company, a corporation, appellee.
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
__:__. 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
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
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
Federal Acts: Railroads: Claims: Negligence.
Claims for negligent infliction of emotional distress are
cognizable under the Federal Employers' Liability Act.
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.
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.
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.
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.
__:__. 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.
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.
from the District Court for Douglas County: J. Michael
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.
Wallor and Kate Geyer Johnson, of Lamson, Dugan & Murray,
L.L.P, for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg,
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.
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.
31, 2012, Accident.
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.
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
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.