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295 Nebraska Report

ANDERSON v. UNION PACIFIC RR. CO.

Cite as 295 Neb. 785

Dan Anderson, appellee, v. Un

Railroad Company, a Delaw

corporation, appella

___ N.W.2d ___

Filed February 10, 2017. No. S-15-1224.

1. Federal Acts: Railroads: Claims: Courts. In disposing of a claim 

controlled by the Federal Employers’ Liability Act, a state court may 

use procedural rules applicable to civil actions in the state court unless 

otherwise directed by the act, but substantive issues concerning a claim 

under the act are determined by the provisions of the act and interpretive 

decisions of the federal courts construing the act.

2. Negligence: Proof. The essence of res ipsa loquitur is that the facts 

speak for themselves and lead to a proper inference of negligence by the 

fact finder without further proof.

3. Negligence: Presumptions. The doctrine of res ipsa loquitur is an 

exception to the general rule that negligence cannot be presumed. Res 

ipsa loquitur is a procedural tool that, if applicable, allows an inference 

of a defendant’s negligence to be submitted to the fact finder, where it 

may be accepted or rejected.

4. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

5. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

6. Negligence. If specific acts of negligence are alleged or there is direct 

evidence of the precise cause of the accident, the doctrine of res ipsa 

loquitur is not applicable.

7. ____. The doctrine of res ipsa loquitur is applicable only where the 

plaintiff is unable to allege or prove the particular act of negligence 

which caused the injury.

8. Jury Instructions: Appeal and Error. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.

Nebraska Supreme Court Online Library

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

02/10/2017 09:11 AM CST
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ANDERSON v. UNION PACIFIC RR. CO.

Cite as 295 Neb. 785

Appeal from the District Court for Scotts Bluff County: 

Randall L. Lippstreu, Judge. Reversed and vacated, and ca

remanded for a new trial.

William M. Lamson, Jr., and Cathy S. Trent-Vilim, of 

Lamson, Dugan & Murray, L.L.P., and Torry N. Garland, of 

Union Pacific Railroad Company, for appellant.

Kyle J. Long, Robert G. Pahlke, and Robert O. Hippe, of 

Robert Pahlke Law Group, for appellee.

Nichole S. Bogen, of Sattler & Bogen, L.L.P., and Kathryn 

D. Kirmayer and Daniel Saphire, of Association of American 

Railroads, for amicus curiae Association of American 

Railroads.

Heavican, C.J., Wright, Cassel, Stacy, Ke

Funke, J

Kelch, 

INTRODUCTION

This appeal arises from Dan Anderson’s suit against Union 

Pacific Railroad Company (Union Pacific) pursuant to the 

Federal Employers’ Liability Act (FELA) for personal injury 

arising from his employment. A jury awarded Anderson damages, including past medical expenses. On appeal, Union 

Pacific challenges, among other things, the jury instructions 

on res ipsa loquitur. We conclude that the district court committed reversible error in instructing the jury and in overruling Union Pacific’s resulting motion for new trial. Therefore, 

we vacate the jury’s verdict and the judgment entered against 

Union Pacific. We reverse the order overruling Union Pacific’s 

motion for new trial and remand the cause to the district court 

for a new trial consistent with this opinion.

BACKGROUND

On October 2, 2007, Anderson fell to the floor while on 

duty as a control operator for Union Pacific when the chair 
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in which he sat collapsed. In March 2010, Anderson brought 

an action against Union Pacific under FELA, asserting that 

permanent back injuries resulted from the fall and seeking 

damages. He alleged that Union Pacific was negligent in that 

it failed to (l) provide a safe workplace, (2) properly maintain 

and inspect the chair, (3) have a reasonable replacement process in place for office equipment, and (4) properly instruct its 

employees on how to inspect their office chairs. Union Pacific 

generally denied Anderson’s allegations.

On October 6, 2014, Union Pacific moved in limine to 

exclude evidence of Anderson’s medical expenses altogether, 

while on October 13, Anderson moved in limine to preclude 

Union Pacific from offering evidence at trial of the amounts it 

had paid to satisfy the expenses.

In January 2015, the district court sustained Anderson’s 

motion to preclude evidence of amounts paid by Union Pacific 

and stated that claims for credits or offsets could be addressed 

by posttrial motions. The district court overruled Union 

Pacific’s motion in limine.

In June 2015, approximately 3 months before trial, the district court granted Anderson leave to amend his complaint to 

allege res ipsa loquitur. The amended complaint included the 

original theories of negligence and added that Union Pacific 

had failed to provide Anderson with a chair that was safe for 

the purpose for which it was used, along with a claim for res 

ipsa loquitur.

At trial, the jury heard undisputed evidence that the cause of 

the chair’s collapse was immediately apparent after Anderson’s 

fall: a bolt had failed. Anderson elicited expert opinion testimony that the bolt failed because the chair was routinely 

used outside its load limit. However, Union Pacific’s expert 

opined that the bolt failed because it had been overtightened 

by the manufacturer. Both parties presented evidence that the 

defect in the bolt could not be seen with the naked eye and 

likely could not have been discovered upon an inspection 

by Anderson.
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ANDERSON v. UNION PACIFIC RR. CO.

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The jury heard evidence that before the collapse, the chair 

never wobbled or required repair. Anderson testified that on 

the day of the accident, he observed no apparent defects and 

believed the chair was safe to use.

The manager of terminal operations for Anderson’s terminal testified that Union Pacific did not designate employees 

to inspect, maintain, or repair defects in the office equipment 

at Anderson’s terminal. Instead, Union Pacific required its 

employees to inspect their tools and equipment, but it did not 

provide them with training or instruction on how to inspect 

office chairs. Employees reported any defects in office equipment to their manager for replacement or repair.

According to the evidence at trial, Union Pacific had 

“Herman Miller Aeron B” chairs, like the chair that collapsed, 

in several of its terminals. Union Pacific generally documented complaints about its equipment, and it received no 

complaints about bolt fractures occurring with that brand of 

chair before or after Anderson’s fall, nor did Anderson himself make any kind of complaint about his chair in particular 

before the fall.

Union Pacific’s manager of safety testified that Union 

Pacific had selected the “Herman Miller Aeron B” chair 

in 2002 based on a specific list of criteria, including a 

300-pound working load limit. The manufacturer’s literature 

limited the weight of the chair’s occupants to either 270 

or 300 pounds, depending on the occupant’s height. Union 

Pacific’s manager of safety also testified that regular use 

of the chair by individuals who exceeded its working load 

limit would create excess stress that could cause the chair to 

break before the 12-year warranty period expired. He further 

stated that the chair would not be appropriate for individuals who weighed more than 300 pounds and that continual 

use by such individuals would constitute abuse of the chair’s 

intended use.

The manager of terminal operations, tasked with training employees to follow safety rules in Anderson’s terminal, 
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Cite as 295 Neb. 785

testified that at the time of Anderson’s accident, he was not 

aware of any load limit for the chair that collapsed.

Ronald Wilkinson, who had worked as a control operator 

in Anderson’s office around the time of the accident, testified 

that he was warned that individuals over 300 pounds should 

not sit in the chair that ultimately failed. Wilkinson testified 

that the chair was used by two Union Pacific control operators whose weight likely exceeded the 300-pound load limit. 

However, one of those individuals testified that he never sat 

in the chair, in accordance with Wilkinson’s instructions not to 

use it because he was “too big for it.” Wilkinson did not recall 

giving such an instruction.

Anderson testified that Union Pacific did not inform him 

of a 270-pound load limit for the chair, nor was he aware of 

Union Pacific’s informing anyone else. Anderson testified that 

at the time of the accident, he did not exceed the chair’s load 

limit. Anderson estimated that three control operators probably 

weighed more than 300 pounds, and certainly more than 270 

pounds, but he did not specifically testify that these control 

operators used the chair.

Anderson sought a variety of nonsurgical treatments for his 

injuries and eventually underwent surgery to fuse his lumbar 

spine. Over objections by Union Pacific, the district court 

received evidence of Anderson’s medical expenses. Union 

Pacific made an offer of proof to preserve the issue of its payment of Anderson’s medical expenses. Union Pacific moved 

for a directed verdict at the close of Anderson’s evidence and 

again at the close of Union Pacific’s evidence. The district 

court denied the motions.

The district court instructed the jury on res ipsa loquitur 

and on two theories of negligence: that Union Pacific failed to 

provide reasonably safe equipment and that it failed to provide 

a safe place to work. The district court’s instructions allowed 

for separate findings of ordinary negligence, negligence based 

upon res ipsa loquitur, or both. Union Pacific objected to the 

court’s res ipsa loquitur instruction in its entirety.
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ANDERSON v. UNION PACIFIC RR. CO.

Cite as 295 Neb. 785

The jury returned a special verdict for Anderson, finding 

that he had proved both specific acts of negligence causing 

injury and res ipsa loquitur. The jury awarded Anderson damages of $920,007, which included $266,925 for past medical expenses.

Following the verdict, Union Pacific filed a motion for 

judgment notwithstanding the verdict. Alternatively, it sought 

a setoff against the judgment and a new trial, arguing, 

among other things, that the district court erred in its treatment of medical expenses and in instructing the jury on res 

ipsa loquitur.

The district court overruled the motion for judgment 

notwithstanding the verdict and the motion for new trial. 

However, it granted the motion for setoff in the amount of 

$162,964.25, representing medical expenses paid by Union 

Pacific. This setoff did not include medical expenses written 

off by providers as a result of negotiations with Union Pacific, 

and the district court noted that Union Pacific had not paid or 

contributed to the writeoff.

Union Pacific now appeals. Through no fault of either party, 

the record does not contain a pretrial conference or closing 

arguments.

ASSIGNMENTS OF ERROR

Union Pacific assigns, condensed and restated, that (1) the 

district court erred in overruling Union Pacific’s motions for 

directed verdict and judgment notwithstanding the verdict; (2) 

Union Pacific is entitled to a new trial because portions of 

the record were not preserved, as requested by Union Pacific; 

(3) the district court erred in instructing the jury on res ipsa 

loquitur; (4) the district court erred in allowing Anderson to 

introduce irrelevant evidence of his medical expenses and 

refusing to allow Union Pacific to offer evidence that it paid 

the medical expenses; and (5) the district court erred in calculating the posttrial setoff.
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ANDERSON v. UNION PACIFIC RR. CO.

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ANALYSIS

As noted above, the jury instructions allowed the jury to 

return a verdict making separate findings of ordinary negligence, negligence based upon res ipsa loquitur, or both. 

Union Pacific principally contends that the jury instructions 

were incorrect, because Anderson should not have been permitted to pursue a negligence claim simultaneously based 

on both specific acts of negligence and res ipsa loquitur. 

Alternatively, Union Pacific contends that the jury instructions were prejudicial, because the special verdict form confused the jury by allowing the following inconsistent findings: (1) that Anderson proved specific acts of negligence and 

(2) that specific acts of negligence could not be proved. We 

agree with Union Pacific.

[1] We begin our analysis by acknowledging that in disposing of a claim controlled by FELA, a state court may use 

procedural rules applicable to civil actions in the state court 

unless otherwise directed by the act, but substantive issues 

concerning a claim under FELA are determined by the provisions of the act and interpretive decisions of the federal courts 

construing FELA. Kuhnel v. BNSF Railway Co., 287 Neb. 

541, 844 N.W.2d 251 (2014). Thus, initially we must determine whether the doctrine of res ipsa loquitur is a procedural 

matter or substantive law.

[2,3] “‘The essence of res ipsa loquitur is that the facts 

speak for themselves and lead to a proper inference of negligence by the fact finder without further proof.’” Swierczek 

v. Lynch, 237 Neb. 469, 477, 466 N.W.2d 512, 517 (1991), 

quoting McCall v. St. Joseph’s Hospital, 184 Neb. 1, 165 

N.W.2d 85 (1969). The doctrine of res ipsa loquitur is an 

exception to the general rule that negligence cannot be presumed. McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 

798 N.W.2d 386 (2011). Res ipsa loquitur is a procedural 

tool that, if applicable, allows an inference of a defendant’s 

negligence to be submitted to the fact finder, where it may 

be accepted or rejected. Id. See, also, Swierczek v. Lynch, 
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supra (res ipsa loquitur is procedural doctrine and not part 

of substantive law). On this point, the federal courts are in 

agreement that res ipsa loquitur is “not a rule of pleading, not 

a substantive rule of law, but a rule of evidence.” Ramsouer v. 

Midland Valley R. Co., 135 F.2d 101, 106 (8th Cir. 1943). See, 

also, Weigand v. Pennsylvania Railroad Company, 267 F.2d 

281 (3d Cir. 1959). Accordingly, we shall apply Nebraska law 

in analyzing whether the district court erred in instructing the 

jury on res ipsa loquitur.

[4-7] Whether the jury instructions given by a trial court 

are correct is a question of law. United Gen. Title Ins. Co. v. 

Malone, 289 Neb. 1006, 1018, 858 N.W.2d 196, 210 (2015). 

When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusion reached by the trial court. Id. We have held that if specific 

acts of negligence are alleged or there is direct evidence of the 

precise cause of the accident, the doctrine of res ipsa loquitur 

does not apply. Stahlecker v. Ford Motor Co., 266 Neb. 601, 

667 N.W.2d 244 (2003). See, also, Bargmann v. Soll Oil Co., 

253 Neb. 1018, 574 N.W.2d 478 (1998) (simply pleading specific acts of negligence in complaint will render doctrine of 

res ipsa loquitur inapplicable); Finley v. Brickman, 186 Neb. 

747, 186 N.W.2d 111 (1971) (if petition alleges particular acts 

of negligence, then plaintiff must establish specific negligence 

alleged, and doctrine of res ipsa loquitur cannot be applied). 

The doctrine is applicable only where the plaintiff is unable to 

allege or prove the particular act of negligence which caused 

the injury. Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 

(1994).

Here, Anderson pled specific acts of negligence in the 

operative amended complaint. Further, at trial, Anderson presented direct evidence of the cause of the chair’s collapse 

through expert testimony that the chair collapsed because 

a bolt failed. Further, the expert opined that the bolt failed 

because users exceeded the chair’s load limit over a period 
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of time. Accordingly, the doctrine of res ipsa did not apply to 

this case.

Furthermore, the district court erred in instructing the jury 

on res ipsa loquitur in this instance. As Union Pacific notes, 

the jury instructions first stated that to find ordinary negligence, Anderson must prove specific acts of negligence by 

Union Pacific. Then, the jury was instructed that to find negligence via res ispa loquitur, it had to find that Union Pacific’s 

specific acts of negligence could not be proved. The instructions then allowed the jury to determine whether Anderson 

could recover under (1) ordinary negligence, (2) negligence 

based on res ipsa loquitur, or (3) both. Notably, within the 

same instruction, the jury was advised that they could return 

a verdict finding both (1) that specific acts of negligence by 

Union Pacific had been proved and (2) that specific acts of 

negligence could not be proved. And the jury found that both 

were true. This is clearly a contradiction, and we cannot find 

that this did not cause confusion for the jury.

[8] A jury instruction which misstates the issues and has 

a tendency to confuse the jury is erroneous. Long v. Hacker, 

supra. If an erroneous jury instruction was prejudicial, or 

otherwise adversely affected a substantial right of the movant, a motion for new trial must be granted. See Facilities 

Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868 

N.W.2d 67 (2015). In this case, it is apparent that the res ipsa 

loquitur instructions’ internal inconsistencies distracted the 

jury, which, in turn, led to the jury’s inconsistent and irreconcilable verdict. Thus, the erroneous jury instructions prejudiced Union Pacific.

We conclude that the district court erred in submitting to 

the jury the issue of negligence based upon res ipsa loquitur 

and that such error prejudiced Union Pacific. We therefore 

vacate the verdict of the jury and remand the cause for a 

new trial.

Our determination that the district court committed reversible error by instructing the jury on res ipsa loquitur resolves 
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this appeal, and we shall not consider Union Pacific’s additional assignments of error. See Gray v. Kenney, 290 Neb. 

888, 863 N.W.2d 127 (2015) (appellate court is not obligated 

to engage in analysis not needed to adjudicate case and controversy before it).

CONCLUSION

We conclude that the district court committed reversible 

error in instructing the jury on res ipsa loquitur. Accordingly, 

we vacate the jury’s verdict and the judgment entered against 

Union Pacific. We reverse the order overruling Union Pacific’s 

motion for new trial and remand the cause to the district court 

for a new trial consistent with this opinion.

 Reversed and vacated, and

remanded for a new tria

Miller-Lerman, J., not participati