Ury v. Union Pacific Railroad Company
MEMORANDUM AND ORDER denying 42 Defendant's Motion for Partial Summary Judgment; granting 47 Plaintiff's Motion to Supplement Record. Ordered by Judge Joseph F. Bataillon. (SMS, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RODNEY R. URY,
UNION PACIFIC RAILROAD
COMPANY, a Delaware
MEMORANDUM AND ORDER
This matter is before the court on the defendant’s motion for partial summary
judgment, Filing No. 42.1 This is an action for damages bought pursuant to the Federal
Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA”). The plaintiff, who was employed
by Union Pacific Railroad Company (“UP” or “the Railroad”) as a conductor, alleges he
suffered physical and psychological injuries as the result of a derailment and the sudden
stop of a train that was caused by a defective track. The Railroad moves for summary
judgment on the plaintiff’s claim for negligent infliction of emotional distress. It contends
that uncontroverted evidence shows that the plaintiff was outside of the “zone of danger”
and accordingly does not have a cognizable claim for damages for negligent infliction of
Summary judgment is appropriate when, viewing the facts and inferences in the light
most favorable to the nonmoving party, “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
Also pending is the plaintiff’s m otion for leave to supplem ent the record in response to the
defendant’s m otion for partial sum m ary judgm ent, Filing No. 47. Defendant has filed no objection to the
m otion, and the court finds the m otion should be granted.
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial—whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The evidence
must be viewed in the light most favorable to the nonmoving party, giving the nonmoving
party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d
1041, 1044 (8th Cir. 2003). “Where the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll.,
371 F.3d 394, 396 (8th Cir. 2004).
Under the FELA, common carrier railroads are “liable in damages to any person
suffering injury while . . . employed by [the] carrier” if the “injury or death result[ed] in whole
or in part from the [carrier’s] negligence.” 45 U.S.C. § 51. Congress intended FELA to be
a broad, remedial statute, and courts have adopted a liberal construction to facilitate
Congress’ objectives. Urie v. Thompson, 337 U.S. 163, 180 (1949). Claims for negligent
infliction of emotional distress are cognizable under the FELA. Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 549-50 (1994).
The Supreme Court describes two categories of mental distress claims under the
FELA: “Stand-alone emotional distress claims not provoked by any physical injury, for
which recovery is sharply circumscribed by the zone-of-danger test; and emotional distress
claims brought on by a physical injury, for which pain and suffering recovery is permitted.”
Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 147 (2003) (permitting recovery for
negligent infliction of emotional distress for plaintiffs who fear for their safety due to the
negligence of the railroad, when such fear is accompanied by physical injury). The “zone
of danger” test confines recovery for stand-alone emotional distress claims to plaintiffs
who: (1) “sustain a physical impact as a result of a defendant’s negligent conduct”; or (2)
“are placed in immediate risk of physical harm by that conduct”—that is, those who
escaped instant physical harm, but were “within the zone of danger of physical impact.”
Gottshall, 512 U.S. at 547-48; see also Crown v. Union Pac. R.R. Co., 162 F.3d 984, 985
(8th Cir. 1998) (denying recovery for stress-related emotional injuries).
Where a plaintiff suffers a physical injury as a result of the defendant’s negligence,
“[he] is entitled to receive compensation for all injuries—physical and emotional—
proximately caused by the physical impact.” Marchica v. Long Island R.R. Co., 31 F.3d
1197, 1203 (2d Cir. 1994) (finding that a worker could recover for emotional distress
relating to fear of contracting AIDS after sustaining a puncture wound from a discarded
needle due to a railroad’s negligence); see also Ayers, 538 U.S. 148-49 (stating that
“[u]nlike stand-alone claims for negligently inflicted emotional distress, claims for pain and
suffering associated with, or ‘parasitic’ on, a physical injury are traditionally compensable”
and noting that an actor liable for bodily harm is also subject to liability for any emotional
disturbance resulting from the bodily harm or from the conduct that caused it); Hall v.
Norfolk So. Ry. Co., 829 F. Supp. 1571, 1576–77 (N.D. Ga. 1993) (a plaintiff involved in
a train wreck could recover for emotional injuries stemming from being trapped in car and
witnessing and experiencing horrific aftermath).
The court has reviewed the evidence presented in support of and opposition to the
motion. See Filing Nos. 43, 46, and 48. The court finds that this case is properly placed
in the emotional distress stemming from a physical injury category. There is evidence that
the plaintiff sustained a physical impact and that, at the least, he was placed in immediate
risk of, or threatened imminently with, physical harm as a result of the Railroad’s alleged
negligence. The court finds the plaintiff has a cognizable claim for negligent infliction of
emotional distress and, accordingly, finds the defendant’s motion for partial summary
judgment should be denied.
IT IS ORDERED:
1. The plaintiff’s motion for leave to supplement the record (Filing No. 47) is
2. The defendant’s motion for partial summary judgment (Filing No. 42 ) is denied.
DATED this 5th day of December, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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