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Could employee who responded to co-worker’s fatal injury sue employer for PTSD?

A manager sued his employer alleging that, while helping a severely injured employee, he was exposed to serious injury risk himself and as a result developed post-traumatic stress disorder (PTSD). How did a court rule? 

David Kaiser Jr. was a manager of yard operations at Union Pacific’s Mason City, Iowa, railyard. On July 31, 2012, Kaiser was overseeing a team of employees who were preparing railcars for departure.

Kaiser was listening to the communication among his employees on a radio when he heard there was an emergency on the track and Georgiy “Soloviyov is down.” Kaiser dialed 911 and ran to help.

He found Soloviyov injured with his head resting on one of the rails. Kaiser attempted to move Soloviyov. Other employees with emergency medical training arrived, and Kaiser then stepped away to allow them to attend to the injured worker. Soloviyov died from his injuries.

Qualify for emotional distress benefits?

Kaiser filed a lawsuit against Union Pacific under the Federal Employers’ Liability Act (FELA), alleging that while helping Soloviyov, he was exposed to the risk of being run over by a railcar and he suffered PTSD as a result.

Under FELA, employees can sue their employer for emotional distress if they were injured or were in a zone of danger.

The U.S. Supreme Court, in a previous ruling, provided this definition to guide these lawsuits:

“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.”

Union Pacific asked a court to throw out Kaiser’s lawsuit because he wasn’t in the zone of danger while helping Soloviyov.

Kaiser said:

  • While he was proceeding to the injured worker’s location, he never saw any railcars moving.
  • He testified he could hear railcars moving and the cars “would have been around where he was at,” but he didn’t know which cars were moving.

A Nebraska district court initially refused to throw out Kaiser’s lawsuit. But Union Pacific introduced more evidence and asked again for the case to be thrown out. The new evidence included:

  • testimony from the employee who had been working with Soloviyov that the railcars they’d been working on had come to a stop against the rest of the train on a descending grade and couldn’t have moved from that position.
  • three other employees testified they didn’t see, hear or feel any other railcars moving in the railyard, and
  • testimony from a mechanical engineer with a specialty in railroads who, after reviewing locomotive data, concluded there was no movement of railcars in the yard after Soloviyov was injured.

In response to Union Pacific’s new evidence, Kaiser presented new testimony of his own. He now said:

  • He had radioed the employee who had been working with Soloviyov to lock down the railcars, but the employee didn’t do that since he was at the scene of the injury, and
  • The other employee would not go under the railcar to help Soloviyov because he knew the car hadn’t been locked down.

The district court granted Union Pacific’s request for summary judgment this time, throwing out Kaiser’s lawsuit. The court noted Kaiser’s testimony had changed. Initially he said he was sure the cars were locked down. His new testimony said he was sure they weren’t locked down.

Kaiser appealed to the Nebraska Supreme Court.

Inconsistent testimony

The state’s highest court noted that, by requesting summary judgment, it was up to Union Pacific to present reasons why Kaiser wasn’t in the zone of danger. The court said the railroad made its case. At that point, it’s up to Kaiser to present evidence that wasn’t the case.

The court said Kaiser failed to do that. The court wrote:

“As for Kaiser’s testimony about hearing railcars moving … Much of Kaiser’s testimony about his awareness of the movement of railcars was couched in uncertainty … Kaiser 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.”

The Nebraska Supreme Court said Kaiser failed to present evidence that countered Union Pacific’s evidence that railcars weren’t moving after Soloviyov was injured, therefore Kaiser wasn’t in a zone of danger. The court agreed that Kaiser’s lawsuit against the railroad should be thrown out.

(Kaiser v. Union Pacific RR Co.Nebraska Supreme Court, No. 303 Neb. 193, 5/24/19)

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