Kaiser v. Union Pacific RR. Co. , 303 Neb. 193 ( 2019 )


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    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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    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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    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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    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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    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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    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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    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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    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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    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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    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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    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.