Holsapple v. Union Pacific R. Co.

• Decision Date: 11 December 2009
• Docket Number: No. S-09-152.,S-09-152.
• Citation: 776 N.W.2d 11,279 Neb. 18
• Parties: Glenn T. HOLSAPPLE, Jr., appellant, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, appellee.
• Court: Nebraska Supreme Court

776 N.W.2d 11

279 Neb. 18

Glenn T. HOLSAPPLE, Jr., appellant, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, appellee.

No. S-09-152.

Supreme Court of Nebraska.

December 11, 2009.

Christopher J. Moreland, Robert T. Dolan, and Robert E. Dolan, of Yaeger, Jungbauer & Barczak, P.L.C., Minneapolis, MN, and John J. Higgins, Omaha, for appellant.

John M. Walker and David J. Schmitt, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Glenn T. Holsapple, Jr., brought this action under the Federal Employers' Liability Act (FELA) for a knee injury he allegedly sustained in the course of his employment. The injury occurred when Holsapple stepped into a hole while walking through an alleyway from a parking lot owned by Union Pacific Railroad Company (UP) to the UP yard office where he reported for work. The district court granted UP's motion for summary judgment, concluding that Holsapple's injury occurred outside the scope of his employment. Holsapple appealed. We transferred the appeal to our docket in accordance with our statutory authority to regulate caseloads of the appellate courts of this state.

BACKGROUND

The facts surrounding the sequence and location of Holsapple's injury are undisputed. Holsapple is employed by UP as a railroad conductor. He works on a rotating pool; when Holsapple's name reaches the top of the list, he is called into work. When Holsapple is called into work, he must report to the yard office to receive his paperwork and assignment. Holsapple's shift officially starts once he has reported to the yard office and has received his assignment.

On April 14, 2006, Holsapple was called into work and instructed to report to the Marysville, Kansas, yard office no later than 10:30 p.m. Holsapple explained that it takes him approximately 5 minutes to drive from home to work and that he parks wherever he can find a parking spot. There are three parking lots and street parking available for UP employees. UP lets its employees decide where to park. The UP parking lots are not open to the public and are reserved solely for UP employees. Pictures in the record show that the lots are marked with signs stating, "Private Roadway No Trespassing Union Pacific R.R."

On the night Holsapple was injured, he parked in what he referred to as the "east lot." The east lot is owned by UP. The east lot is bisected by an alleyway that runs east to west and serves as both the entrance and exit driveway to the parking lot. The yard office is located on the west end of the alleyway. In order to get to the yard office from the east lot, employees must walk through either the parking lot or the alleyway and then cross the street on the west side of the lot.

The alleyway is owned by the city of Marysville as evidenced by a survey conducted by the vice president of a Marysville engineering and surveying company. UP was aware that its employees routinely traversed the alleyway to get from the east lot to the UP yard office. Additionally, UP has marked the alleyway as private property. Signs posted marking the alleyway state: "Private Roadway No Trespassing Union Pacific R.R." UP denies that it has control over the alleyway or that it has a responsibility to make sure the alleyway is safe for travel. Other than the signs marking the alleyway as a private roadway, there is no evidence in the record establishing that UP had an agreement with Marysville for its employees to use the alleyway or that UP had agreed to indemnify Marysville. It was, however, UP and not the city of Marysville that repaired the hole in the alleyway after the accident that caused Holsapple's injury.

Holsapple's injury occurred while he was walking from the east lot to the yard office to report for duty. Holsapple testified that he parked his car, exited the car, and started to walk through the alleyway toward the yard office. As he was walking through the alleyway, he stepped into a hole. Holsapple's injury occurred approximately 15 minutes before he was scheduled to report to the yard office.

Holsapple maintains that his injury occurred in the course and scope of his employment and that therefore, the FELA applies. Holsapple testified that he thought the injury occurred "on company property because it was a company parking lot." Holsapple also stated, "I was also on duty because I was going to work. The only reason I was there because I was going to work ...." UP maintains that Holsapple's injury occurred outside the course and scope of his employment and is thus not covered under the FELA. UP's argument is based on the fact that Holsapple had not picked up his paperwork from the yard office. UP maintains that this is when an employee's shift begins. UP also relies on the fact that Holsapple's injury occurred at 10:15 p.m., 15 minutes before he was required to report for duty.

Holsapple brought suit against UP under the FELA, alleging that he was injured while performing a duty necessarily incident to his employment. Holsapple further alleged that his injuries were caused, in whole or in part, by UP's negligence in violation of the FELA. The court granted UP's motion for summary judgment and dismissed Holsapple's cause of action under the FELA, concluding that Holsapple was not within the course and scope of his employment at the time of his injury. The court reasoned that Holsapple's injury occurred before he was to report for duty and before he picked up his paperwork at the yard office. Additionally, the court noted that his injury occurred in the alleyway owned by the city of Marysville, not UP. The court also relied on the fact that Holsapple chose his means of transportation and where to park. Thus, the court concluded that Holsapple was not acting within the course and scope of his employment. Holsapple brought this appeal.

ASSIGNMENT OF ERROR

Holsapple argues the court erred in finding that he was not acting in the course and scope of his employment with UP at the time of his injury.

STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.¹

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.²

ANALYSIS

As a preliminary matter, we will address the proper standard of review. The underlying facts surrounding how and when Holsapple's injury occurred are undisputed. As such, the only issue for the summary judgment motion was the legal effect of those facts. The question is whether under those facts, Holsapple was acting within the course and scope of employment for purposes of the FELA. We hold that this presents a question of law.³

This case presents the question of whether an employee is acting in the course and scope of employment while walking from a company parking lot and through public property on the way into work. This is an issue of first impression for our court. We have explained that under the FELA, railroad companies are liable in damages 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.⁴ To be entitled to the protection of the FELA, an injured employee must be acting within the scope of his or her employment at the time of the injury.⁵ Scope of employment under the FELA is broadly construed by the federal courts⁶ and has been interpreted to encompass acts incidental to employment.⁷ Course and scope of employment includes not only actual service, but also those things necessarily incident thereto, such as going to and from the place of employment.⁸

In determining whether an employee going to and from work is performing an act necessarily incident to the employment, cases from other jurisdictions distinguish "traversing" cases from "commuter" cases.⁹ In traversing cases, courts have generally held that the employee is acting within the course and scope of employment.¹⁰ In traversing cases, an employee (1) is exposed to risks not confronted by the general public¹¹ (2) as a result of his or her commute and (3) is injured within close proximity of his or her jobsite¹² (4) while attempting to return to or leave the jobsite¹³ (5) within a reasonable time before or after the workday is over.¹⁴ Employer liability in traversing cases does not depend on whether the employer owns or has control over the premises where the employee is injured.¹⁵ Rather, an employee is acting within the course and scope of his or her employment if the employee is injured while traversing across premises which his or her employer has either explicitly or implicitly encouraged the employee to use when going to or returning from work.¹⁶

In commuter cases, courts generally conclude that the FELA does not provide coverage.¹⁷ In commuter cases, (1) the employee is injured a significant distance from his or her jobsite and while commuting to or from the jobsite¹⁸ and (2) the employee is not in any greater danger or exposed to any greater risks than any other member of the commuting public.¹⁹ These courts hold that the FELA is not designed to protect workers from the risks of commuting to which all employees of any employer are exposed.²⁰

In rejecting Holsapple's argument that he was acting within the course and scope of his employment at the time of his injury, the district court relied on Sassaman v. Pennsylvania R. Co.,²¹ Metropolitan Coal Company v. Johnson,²² and Getty v Boston and Maine Corporation.²³ The facts of those cases are distinguishable from the facts in the case at bar.

In Sassaman v. Pennsylvania R. Co....