Kaiser v. Union Pacific RR. Co.
927 N.W.2d 808
Neb.2019Background
- On July 31, 2012, Kaiser, a Union Pacific yard operations manager, ran to render aid after a coworker (Soloviyov) was found injured and later died; Kaiser was not struck and sustained no physical injury.
- Kaiser alleged he was exposed to an immediate risk of being run over by a railcar while assisting Soloviyov and sued under the Federal Employers’ Liability Act (FELA) for negligent infliction of emotional distress (PTSD).
- In his 2016 deposition Kaiser testified he did not see railcars moving, had no reason to believe coworkers failed to secure cars, and was focused on aiding Soloviyov, though he heard movement he could not identify.
- Union Pacific moved for summary judgment, submitting affidavits (coworkers and an engineer expert) asserting no railcars moved after the injury and that moved cars had come to rest and could not have rolled.
- Kaiser filed supplemental affidavits (years after the event) claiming he was “fully aware” cars were not secured and that yard design put him in danger; the district court struck the supplemental affidavit as inconsistent with his deposition under Momsen and granted summary judgment to Union Pacific.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly disregarded Kaiser’s supplemental affidavit as inconsistent with deposition testimony | Kaiser: affidavit supplements memory and reflects reconsideration; not materially inconsistent | Union Pacific: affidavit contradicts prior deposition, was produced after adverse evidence, and appears litigation-driven | Court: affidavit properly disregarded under Momsen because it materially contradicted deposition, lacked a satisfactory explanation, and was produced to meet litigation exigencies |
| Whether Kaiser presented a genuine factual dispute that he was in the FELA “zone of danger” (immediate risk of physical harm) | Kaiser: heard railcars moving and cited yard history of rollbacks — sufficient to create triable issue | Union Pacific: testimony and expert evidence show no railcars moved or could have moved after the injury; Kaiser’s hearing-based testimony is speculative | Court: Kaiser’s evidence was too speculative; no admissible proof that cars were moving in a way that placed him in immediate risk — summary judgment affirmed |
Key Cases Cited
- Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (FELA negligent emotional distress limited by zone-of-danger test)
- Momsen v. Nebraska Methodist Hospital, 210 Neb. 45 (test for disregarding testimony inconsistent with prior statements)
- Ballard v. Union Pacific R.R. Co., 279 Neb. 638 (FELA substantive-law principles)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (summary judgment burden and inadmissible speculation)
- Waisonovitz v. Metro North Commuter R.R., 550 F. Supp. 2d 293 (employee observing coworker killed not in zone of danger; summary judgment for railroad)