Walker v. BNSF Railway Co.
946 N.W.2d 656
Neb.2020Background
- Theresa Walker, a BNSF forklift operator, was injured when a Taylor "Big Red" forklift tipped while lifting a locomotive traction motor.
- BNSF had affixed a metal pallet attachment that moved the load center forward and could alter the forklift’s rated capacity.
- After the accident, BNSF investigated and communicated with the manufacturer (Taylor); evidence in the record indicated BNSF personnel believed the attachment could cause an overload when moving heavier G.E. motors.
- At trial the district court excluded testimony from BNSF’s corporate designee (Bret Bridges) about BNSF’s post-accident conclusions, citing hearsay and Nebraska’s rule barring subsequent remedial measures.
- Walker presented expert and lay testimony that the modified forklift was overloaded; BNSF presented eyewitness testimony and metrics supporting operator error.
- The jury found for BNSF; the Nebraska Supreme Court affirmed, holding any exclusion of Bridges-related evidence was not unfairly prejudicial because the same facts were presented by other witnesses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility — Bridges' statements: hearsay? | Bridges' testimony was BNSF admissions (party admission), therefore not hearsay. | Bridges merely repeated Taylor's statements; testimony was hearsay and inadmissible. | The court sustained objections at trial but majority concluded any error in excluding such testimony was not prejudicial to Walker. |
| Admissibility — subsequent remedial measures (§ 27-407) | Post-accident investigation findings are not remedial measures and thus are admissible to show cause/condition. | Post-investigation conclusions tied to changes/removal of equipment are subsequent remedial measures and barred. | Trial court excluded Bridges' evidence as subsequent remedial measures; majority affirmed because exclusion was not prejudicial (concurring justice would have admitted it). |
| Prejudicial error / reversal standard | Exclusion of Bridges' testimony deprived Walker of key admission on causation and liability. | Even without Bridges' testimony, Walker elicited overlapping expert and lay evidence; jury had sufficient contrary evidence. | Exclusion did not unfairly prejudice a substantial right; judgment affirmed. |
Key Cases Cited
- O'Brien v. Cessna Aircraft Co., 298 Neb. 109 (Neb. 2017) (standard of review for relevancy and admissibility determinations)
- Ficke v. Wolken, 291 Neb. 482 (Neb. 2015) (party admissions are not hearsay)
- Steinhausen v. HomeServices of Neb., 289 Neb. 927 (Neb. 2015) (exclusion not prejudicial when same information is already in evidence)
- Rocky Mountain Helicopters v. Bell Helicopters, 805 F.2d 907 (10th Cir. 1986) (distinguishing postaccident investigative reports from remedial measures)
- Westmoreland v. CBS Inc., 601 F. Supp. 66 (S.D.N.Y. 1984) (postevent tests/reports often admissible and not themselves remedial)
- Dusenbery v. United States, 534 U.S. 161 (U.S. 2002) (policy considerations underlying exclusion of remedial measures)
- Bullock v. BNSF Ry. Co., 306 Kan. 916 (Kan. 2017) (discussing admissibility of postaccident investigation material)