Summary
The Nebraska Supreme Court affirmed summary judgment for Union Pacific Railroad Company in David A. Kaiser Jr.'s Federal Employers' Liability Act claim for negligent infliction of emotional distress. The court held that Kaiser failed to present admissible evidence creating a genuine issue as to whether he was in the zone of danger while aiding an injured coworker. The court also upheld the district court's decision to disregard Kaiser's supplemental affidavit because it materially contradicted his deposition testimony and was offered to meet the exigencies of litigation.
Topics
Practice areas
Questions Presented
- Whether the district court properly disregarded Kaiser's supplemental affidavit under the rule governing materially inconsistent prior testimony.
- Whether Kaiser produced sufficient admissible evidence to create a genuine issue of material fact that he was within the FELA zone of danger while assisting the injured coworker.
- Whether Union Pacific was entitled to summary judgment on Kaiser's FELA negligent-infliction-of-emotional-distress claim.
Holdings
- The district court did not err in disregarding Kaiser's supplemental affidavit because it materially contradicted his deposition testimony on a vital issue, was offered after Union Pacific produced additional summary-judgment evidence, and lacked a rational or sufficient explanation for the change.
- A claim for negligent infliction of emotional distress is cognizable under FELA, but recovery is limited by the zone-of-danger test to plaintiffs who suffer a physical impact or are placed in immediate risk of physical harm by the railroad's negligence.
- Kaiser failed to present sufficient evidence from which a fact finder could determine without guesswork or speculation that he was subjected to an immediate risk of being struck by a moving railcar; therefore, summary judgment for Union Pacific was proper.
Key quotations
“[T]he 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.” (at 200)
“These cases cited by Union Pacific establish that an employee cannot recover for negligent infliction of emotional distress under FELA merely because he or she suffers emotional distress as a result of observing another person’s injuries.” (at 204)
“Kaiser failed to present evidence from which a finder of fact could determine, without resorting to guesswork or speculation, that he was subjected to an immediate risk of physical harm.” (at 206)
Factual background
On July 31, 2012, David Kaiser, a Union Pacific yard-operations manager, responded to an emergency at the company's Mason City, Iowa, railyard after hearing that coworker Georgiy Soloviyov was down. Kaiser attempted to move Soloviyov and provide aid, but Soloviyov died from his injuries. Kaiser was not struck by a railcar and suffered no physical injury, although he alleged that moving railcars placed him in immediate danger and caused post-traumatic stress disorder. Union Pacific presented evidence that no railcars were moving or could have moved after Soloviyov was injured, while Kaiser's contrary evidence consisted primarily of uncertain testimony that he heard movement in the area.
Procedural history
Kaiser sued his former employer under FELA, alleging that Union Pacific's negligence placed him in immediate danger of being struck by a railcar while he was assisting an injured coworker and caused him emotional distress. The district court initially denied Union Pacific's summary-judgment motion, finding a factual issue concerning whether Kaiser was in the zone of danger. After Union Pacific submitted additional evidence, the district court granted a renewed motion for summary judgment and disregarded Kaiser's supplemental affidavit under Momsen v. Nebraska Methodist Hospital. The Nebraska Supreme Court affirmed both rulings.