Kaiser v. Union Pacific RR. Co. ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
David A. K aiser, Jr., appellant, v.
Union Pacific R ailroad Company,
a corporation, appellee.
___ 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 concern-
ing 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 dam-
ages to any employee who suffers injury during the course of employ-
ment when such injury results in whole or in part due to the rail-
road’s negligence.
5. Federal Acts: Railroads: Claims: Negligence. Claims for negli-
gent infliction of emotional distress are cognizable under the Federal
Employers’ Liability Act.
6. Negligence: Words and Phrases. The zone of danger test limits recov-
ery 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
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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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, specula-
tion, 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. Affirmed.
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, Papik, and
Freudenberg, JJ.
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.
Cite as 303 Neb. 193
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 submit-
ted 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 morn-
ing hours of July 31, 2012. At that time, Kaiser was a man-
ager 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
attempted to move Soloviyov and to render aid. Other employ-
ees 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 suf-
fer 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 loco-
motive 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 testi-
mony 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 engi-
neering 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 con-
tained 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 dam-
ages 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 sup-
plemental 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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KAISER v. UNION PACIFIC RR. CO.
Cite as 303 Neb. 193
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 disre-
garded 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 suffi-
cient 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 docu-
ments 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 affida-
vit 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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KAISER v. UNION PACIFIC RR. CO.
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railcars was helpful to Union Pacific’s summary judgment
motion. Kaiser obviously hoped statements in his supple-
mental 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 exigen-
cies 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 cir-
cumstances, 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 suf-
fer 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 physi-
cally 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 emo-
tional 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 emo-
tional 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 rec-
ognizing 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 testi-
mony 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 con-
tradictory 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 possi-
bilities 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 genu-
ine 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 occa-
sions 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 specula-
tion, 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 sum-
mary judgment to Union Pacific, we affirm.
A ffirmed.
Miller-Lerman, J., not participating.