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303 Nebraska Report

KAISER v. UNION PACIFIC RR. CO.

Cite as 303 Neb. 193

David A. Kaiser, Jr., appellant,

Union Pacific Railroad C

a corporation, appelle

___ N.W.2d ___

Filed May 24, 2019. No. S-18-636.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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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. Affirme

James R. Welsh and Christopher P. Welsh, of Welsh & Welsh, 

P.C., 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, Pa

Freudenberg, J

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 
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KAISER v. UNION PACIFIC RR. CO.

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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 
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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.

Kaiser’s Lawsuit and 

Deposition.

Kaiser filed a lawsuit against Union Pacific under FELA, 

alleging negligent infliction of emotional distress. Kaiser 

alleged that when he was responding to Soloviyov on July 

31, 2012, he was at risk of being run over by a railcar. Kaiser 

alleged that Union Pacific’s negligence subjected him to that 

risk and that he suffered from post-traumatic stress disorder as 

a result of the incident.

Union Pacific deposed Kaiser on April 20, 2016. Much of 

the questioning focused on Kaiser’s recollection of events 

after hearing about the emergency on the radio. In particular, 

Kaiser was asked if Schinzel took steps to secure railcars in 

the area:

Q [by counsel for Union Pacific]. When you turned to 

go south, [Schinzel] had the power and the cars attached 

to the power tied down; correct?

A [by Kaiser]. That’s what I told him to do, but I did 

not verify it.

Q. Okay. Do you have any reason to believe that he did 

not tie down —

A. No.

Q. — the locomotive and the cars attached to the locomotive that were north of the lantern?

A. No reason to believe that he didn’t do what I 

told him.

Union Pacific’s counsel also asked Kaiser whether railcars 

were moving in the area as he rushed to aid Soloviyov and 

after he arrived. Kaiser testified that while he was proceeding 

to Soloviyov’s location, he never saw any railcars moving. 
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He testified that he could hear railcars moving and that the 

cars he heard moving “would have been around where [he] 

was at,” but that he did not know what railcars were moving. 

Kaiser testified that as he was providing aid to Soloviyov, 

he could not tell if railcars were moving because he “wasn’t 

paying attention to that.” Kaiser testified that he “could 

hear movement around [him], but [that his] priority was 

[Soloviyov].” In addition, Kaiser testified that he did not see 

any railcars move and that he could not “tell . . . without a 

doubt that [railcars] moved.”

Union Pacific’s First Motion 

for Summary Judgment.

Later in 2016, Union Pacific moved for summary judgment. 

Union Pacific argued that to recover for negligent infliction of 

emotional distress under FELA, Kaiser was required to prove 

that he either suffered a physical injury or was within the zone 

of danger of physical injury. Union Pacific contended that there 

was no evidence to show that Kaiser met the criteria. Among 

other exhibits, Union Pacific offered Kaiser’s deposition testimony in support of its motion.

Kaiser submitted an affidavit in opposition to the motion. 

In the affidavit, Kaiser stated that as he was rendering aid to 

Soloviyov, he was in fear for his own safety. He stated that 

during that time, while he could not see railcars moving, he 

could hear railcars moving and feared that moving railcars 

could cause another accident.

The district court denied the motion for summary judgment. 

In a written order, it stated that genuine issues of material fact 

were present as to whether Kaiser was in the zone of danger 

while rendering aid to Soloviyov.

Union Pacific’s Renewed Motion 

for Summary Judgment.

In 2017, Union Pacific filed a renewed motion for summary 

judgment. Union Pacific relied on the same legal argument 
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regarding the zone of danger, but offered additional evidence 

from other Union Pacific employees regarding the status of 

railcars in Soloviyov’s vicinity after the accident.

Union Pacific offered an affidavit of Schinzel in which 

he stated that shortly after leaving Soloviyov to locate some 

equipment, he heard railcars impact one another and asked for 

but heard no response from Soloviyov. At that point, Schinzel 

moved to Soloviyov’s last known location. Upon arriving, he 

saw Soloviyov on the ground with his head against one of the 

railcars. Schinzel stated that the railcars he and Soloviyov had 

been moving had come to rest against the remainder of the 

train on a descending grade and could not have moved once 

they came to rest in that position. Schinzel also stated that after 

Soloviyov’s injury, he did not hear or otherwise observe any 

other cars move in the railyard.

In addition to Schinzel’s affidavit, Union Pacific offered 

affidavits from Grey and other employees working in the 

railyard that morning. Grey stated that he heard and felt two 

railcars make contact with the rest of his train, after which 

he asked Schinzel and Soloviyov about the movement. Grey 

added that his train could not have exerted force on the railcars 

Schinzel and Soloviyov were moving and did not move after 

this incident. Grey also stated that at the time of the incident, 

he did not see, hear, or feel any other railcars moving in the 

railyard. Two employees who arrived at the scene to provide 

aid to Soloviyov stated that at no point did they see, hear, or 

otherwise observe railcars moving in the yard. Finally, Union 

Pacific offered an affidavit of an expert in mechanical engineering with a specialty in the railroad industry who, based on 

his review of locomotive event recorder data, concluded that 

there was no movement of railcars in the yard after Soloviyov 

was injured.

Kaiser offered a supplemental affidavit in opposition to 

Union Pacific’s renewed motion for summary judgment. 

Kaiser’s supplemental affidavit reaffirmed his initial affidavit 

but added that he had “recently reviewed legal documents on 
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what the ‘zone of danger’ means” and could state that he was 

in the zone of danger while providing aid to Soloviyov and that 

he was aware of it at the time. The supplemental affidavit contained the following additional paragraphs regarding Kaiser’s 

awareness of danger at the time:

4. That on the way to help [Soloviyov,] your affiant 

radioed . . . Schinzel to lock down the cars, but was fully 

aware he did not obey this order because he was at the 

scene instead of locking down the cars, nor did he yell to 

me that he had locked down the cars.

5. Also at the scene, [Schinzel] would not go under the 

car to help [Soloviyov,] which was another reason your 

affiant was aware that the car had not been locked down 

by [Schinzel] as I had ordered him to do.

6. Knowing that [Schinzel] had not locked down the 

cars[,] your affiant was well aware that the design of the 

yard would allow cars to freely roll into the car I was 

under at the time I was trying to save [Soloviyov].

7. Again I still replay these events in my head and still 

cannot understand why [Schinzel], a former marine and a 

member of the Union Pacific family of co-workers, didn’t 

follow my orders and lock down the cars.

The district court granted Union Pacific’s second motion 

for summary judgment. It found that Kaiser’s supplemental 

affidavit was inconsistent with his deposition testimony and 

disregarded it under Momsen v. Nebraska Methodist Hospital, 

210 Neb. 45, 313 N.W.2d 208 (1981). Additionally, the district 

court found that Kaiser had not offered evidence to refute the 

evidence offered by Union Pacific that no railcars were moving 

in the area after Soloviyov’s injury.

Kaiser appeals.

ASSIGNMENTS OF ERROR

Kaiser assigns two errors on appeal: (1) The district court 

erred in disregarding his supplemental affidavit under Momsen, 

supra, and (2) the district court erred in granting summary 

judgment in favor of Union Pacific.
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STANDARD OF REVIEW

[1,2] 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. Benard v. McDowall, LLC, 298 Neb. 398, 904 

N.W.2d 679 (2017). 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. Id.

ANALYSIS

Governing Law.

[3,4] Before proceeding to Kaiser’s assignments of error, we 

pause to set forth the general principles of law governing his 

claim for negligent infliction of emotional distress. Kaiser sued 

Union Pacific under FELA. Substantive issues concerning a 

claim under FELA are determined by the provisions of the act 

and interpretive decisions of the federal courts construing it. 

Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 

47 (2010). Under FELA, 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. Id.

[5,6] Claims for negligent infliction of emotional distress 

are cognizable under FELA. In Consolidated Rail Corporation 

v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 129 L. Ed. 2d 427 

(1994), the U.S. Supreme Court held that while such claims 

are cognizable, the common-law zone of danger test limits the 

recovery available. “[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.” 

Id., 512 U.S. at 547-48.
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The issues raised in this appeal pertain to Kaiser’s attempt 

to show that there was a genuine issue of material fact as to 

whether he was in immediate risk of physical harm while he 

was rendering aid to Soloviyov. We proceed to consider those 

issues now.

Consideration of Supplemental Affidavit.

As noted above, the district court disregarded Kaiser’s supplemental affidavit in the course of deciding Union Pacific’s 

renewed motion for summary judgment. The district court 

refused to consider the affidavit under our opinion in Momsen 

v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 

208 (1981). Kaiser argues that the district court improperly 

applied Momsen.

Momsen was a medical malpractice action. One of the 

defendants, a doctor, testified at his deposition that he had not 

been given the vital signs of the patient and that if he had, 

he would have gone to the hospital immediately because the 

vital signs indicated a serious condition. At trial, the doctor 

testified that he did not go to the hospital because the patient’s 

vital signs had not changed and it was his professional medical 

judgment that it was not necessary to go to the hospital. When 

asked how he could reconcile his trial testimony with that 

given in his deposition, the doctor responded, “‘I can’t.’” Id. at 

52, 313 N.W.2d at 212.

[7] At issue on appeal in Momsen was whether the doctor’s 

trial testimony should be disregarded. This court held that it 

should. It explained that the “important considerations” in 

whether inconsistent prior testimony is to be disregarded as 

a matter of law are whether 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.” 

Id. at 55, 313 N.W.2d at 213.

Kaiser argues that his supplemental affidavit should not 

have been disregarded under Momsen for a number of reasons. 
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As explained below, we are not persuaded that the district 

court erred by disregarding the supplemental affidavit.

First, we do not agree with Kaiser’s contention that his 

supplemental affidavit was not “‘materially different’” from 

his deposition testimony and thus not subject to being disregarded under Momsen, 210 Neb. at 53, 313 N.W.2d at 213. 

In his deposition, Kaiser said he had no reason to believe that 

Schinzel did not tie down the railcars as Kaiser had instructed. 

Kaiser’s supplemental affidavit, on the other hand, consists 

almost entirely of reasons why Kaiser was purportedly “fully 

aware” that Schinzel did not follow his instructions while at 

the scene of the accident.

Neither are we convinced by Kaiser’s contention that the 

Momsen rule should not have been applied because he offered 

a sufficient explanation for his change in testimony. Kaiser 

contends that after “thinking it over,” he realized Schinzel did 

not secure the railcars, and he urges us to find this is a sufficient explanation. Brief for appellant at 14. The supplemental 

affidavit itself appears to offer a different explanation for the 

change in testimony. In the supplemental affidavit, Kaiser 

states that it was prompted by his recent review of legal documents regarding the zone of danger test. In any case, Kaiser 

has failed to offer a reason why he was not able to recall being 

“fully aware” that Schinzel had not secured the railcars at his 

deposition but was able to do so in an affidavit submitted in 

opposition to a summary judgment motion signed nearly 6 

years after the incident.

Finally, we also disagree with Kaiser’s claim that the 

change in testimony was not made to meet the exigencies of 

litigation. Kaiser signed and offered the supplemental affidavit after Union Pacific offered its evidence in support of its 

renewed motion for summary judgment. In the supplemental 

affidavit, Kaiser testified to facts he had not testified to in 

either his deposition or his initial affidavit in opposition to 

summary judgment. Kaiser’s deposition testimony that he 

did not have any reason to believe Schinzel did not secure 
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railcars was helpful to Union Pacific’s summary judgment 

motion. Kaiser obviously hoped statements in his supplemental affidavit that he was actually “fully aware” Schinzel 

did not do so could help him withstand summary judgment. 

Additionally, the supplemental affidavit itself tends to confirm 

that the change in testimony was brought about by the exigencies of litigation. As noted above, Kaiser acknowledged in the 

supplemental affidavit that its genesis was his review of legal 

documents regarding the zone of danger test. Under these circumstances, we cannot say the trial court erred by finding that 

the change in testimony was brought about by the exigencies 

of litigation.

We find no merit to any of the reasons Kaiser puts forth as 

to why the district court erred by disregarding his supplemental 

affidavit under Momsen v. Nebraska Methodist Hospital, 210 

Neb. 45, 313 N.W.2d 208 (1981).

Summary Judgment.

Kaiser maintains that even if the district court did not err in 

disregarding his supplemental affidavit, summary judgment for 

Union Pacific was nonetheless improper. According to Kaiser, 

other evidence in the summary judgment record established a 

genuine dispute as to whether he was in the zone of danger 

while attending to Soloviyov after the accident. Again, we 

must disagree.

As noted above, the U.S. Supreme Court held in Consolidated 

Rail Corporation v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 

129 L. Ed. 2d 427 (1994), that only those plaintiffs who suffer a physical impact or who are placed in immediate risk 

of physical harm as a result of a defendant’s negligence can 

recover damages for negligent infliction of emotional distress 

under FELA. Here, the parties agree that Kaiser was not physically struck by a railcar. The dispute centers on whether he was 

placed in immediate risk of physical harm.

In support of their respective positions, the parties marshal 

FELA cases applying the zone of danger test. Union Pacific 
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urges us to consider Waisonovitz v. Metro North Commuter 

R.R., 550 F. Supp. 2d 293 (D. Conn. 2008), affirmed 350 Fed. 

Appx. 497 (2009). In that case, the operator of a train sued 

the railroad under FELA for negligent infliction of emotional 

distress after the train he was operating ran over and killed a 

coworker. The operator testified that he suffered severe emotional distress when he saw his colleague’s body after the train 

had stopped, but the court granted summary judgment to the 

railroad because there was no evidence that the operator was 

ever within the zone of danger. Union Pacific cites other cases 

to the same effect. See, e.g., Gottshall v. Consolidated Rail 

Corp., 56 F.3d 530 (3d Cir. 1995).

[8] 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. 

Kaiser, however, is not contending that he suffered emotional 

distress merely because he observed Soloviyov’s injuries. He 

is pursuing this case under the theory that he was in danger 

of being hit by a moving railcar while he was tending to 

Soloviyov. And, as Kaiser points out, there is authority recognizing that employees who respond to the injuries of others 

may find themselves in the zone of danger while doing so. See

Lee v. National Railroad Passenger Corp., 791 F. Supp. 2d 550 

(S.D. Miss. 2011) (denying summary judgment to railroad in 

FELA negligent infliction of emotional distress case in which 

employee responded to crash site and came upon smoke, gas 

fumes, and downed powerlines).

Even if Kaiser’s legal theory is viable, there remains the 

question of whether there were sufficient facts to support it. 

Specifically, we must consider whether there was a genuine 

dispute as to whether Kaiser was actually in immediate risk of 

being struck by a moving railcar while he was with Soloviyov. 

We proceed to that question now.

[9] A party moving for summary judgment makes a prima 

facie case for summary judgment by producing enough evidence 
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to demonstrate that the movant is entitled to judgment if the 

evidence were uncontroverted at trial. Roskop Dairy v. GEA 

Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015). Union 

Pacific clearly made a prima facie case here through the testimony of those at the scene and its expert that no railcars were 

or could have been moving after Soloviyov was injured.

[10,11] Once the moving party 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. Id. 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. Id.

Kaiser contends he has produced evidence that creates a 

genuine issue of material fact. Kaiser directs us to testimony in 

his deposition that during his time at the Mason City railyard, 

he became aware of instances in which railcars that had not 

been properly coupled together “rolled back.” Additionally, 

Kaiser directs our attention to his testimony at his deposition 

that he could hear railcars moving as he approached and later 

provided aid to Soloviyov.

Having evaluated the evidence Kaiser claims creates a genuine issue of material fact with our summary judgment standards 

in mind, we find that it is insufficient to withstand summary 

judgment. Kaiser’s claim that he was aware of previous occasions at which railcars “rolled back” does not, in itself, provide 

a basis for the finder of fact to conclude, without engaging in 

guesswork, speculation, conjecture, or choice of possibilities, 

that railcars were doing so when Kaiser was with Soloviyov. 

See Roskop Dairy, supra.

As for Kaiser’s testimony about hearing railcars moving, we 

reach the same conclusion. Much of Kaiser’s testimony about 

his awareness of the movement of railcars was couched in 

uncertainty. Union Pacific points out, for example, that Kaiser 
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admitted he never saw any railcars move, that he was focused 

on Soloviyov rather than the railcars, that he did not know 

what railcars he heard moving, and that he could not even say 

without a doubt that railcars, in fact, moved.

Kaiser’s most definitive statements about the movement 

of railcars were that he heard movement “around [him]” and 

that the cars he heard moving “would have been around where 

[he] was at.” We understand how one could reasonably infer 

from this testimony that railcars were moving somewhere in 

Kaiser’s vicinity. However, without some evidence regarding 

what railcars were moving, where they were located in relation 

to Kaiser, and what direction and speed they were moving, we 

do not understand how a finder of fact could conclude, without 

guessing or speculating, that railcars were moving in a way 

that subjected Kaiser to an immediate risk of physical harm. 

Kaiser’s statements about hearing railcars moving thus do not 

create a genuine issue of fact. See Roskop Dairy, supra.

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. The district court thus did not err in granting summary 

judgment in favor of Union Pacific.

CONCLUSION

Finding no error in the district court’s decision to disregard 

Kaiser’s supplemental affidavit or its decision to grant summary judgment to Union Pacific, we affirm.

Affirmed

Miller-Lerman, J., not participati