Naidoo v. Union Pacific R. Co., 85-515

• Decision Date: 13 March 1987
• Docket Number: No. 85-515,85-515
• Citation: 402 N.W.2d 653,224 Neb. 853
• Parties: Nandagasen G. NAIDOO, also known as Casey Naidoo, Appellant, v. UNION PACIFIC RAILROAD COMPANY, A Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 653

402 N.W.2d 653

224 Neb. 853

Nandagasen G. NAIDOO, also known as Casey Naidoo, Appellant, v. UNION PACIFIC RAILROAD COMPANY, A Corporation, Appellee.

No. 85-515.

Supreme Court of Nebraska.

March 13, 1987.

Syllabus by the Court

1. Summary Judgment. On a motion for summary judgment, the moving party is entitled to judgment as a matter of law where there exists no genuine issue as to any material fact or as to the ultimate inferences to be drawn therefrom.

2. Summary Judgment.. In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving that party the benefit of all favorable inferences which may reasonably be drawn from the evidence.

3. Summary Judgment. The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists and must produce enough evidence to demonstrate his entitlement to judgment if the evidence remains uncontroverted. If he is successful in doing so, the burden of producing contrary evidence shifts to the nonmoving party.

4. Employer and Employee: Liability: Negligence. An action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (1982), may be based on the theory of respondeat superior or on a theory of direct negligence.

5. Employer and Employee: Damages. Only damages for physical injury may be recovered under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (1982).

Joseph P. Inserra and John P. Inserra of Inserra Law Offices, Omaha, for appellant.

Gayla L. Fletcher, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

The plaintiff, Nandagasen G. Naidoo, also known as Casey Naidoo, commenced this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. (1982), to recover general damages for emotional distress and special damages for medical expenses and lost wages alleged to have been caused by the negligence of the defendant, Union Pacific Railroad Company.

The plaintiff alleged his damages were the result of verbal and physical abuse inflicted by a Mr. Bachman, an employee of the defendant, at a June 24, 1981, meeting. The plaintiff claims he was acting in the course and scope of his own employment with the defendant at the time of the meeting.

The defendant's negligence was predicated on two grounds in the petition: In failing to comply with the statutory and nondelegable duties to (1) provide plaintiff with a safe place to work in that it knew or should have known the defendant's employee would or had a propensity to commit the acts alleged; and to (2) provide safe customs and practices to do the work in that defendant failed through its customs and practices to screen the type of individual, namely defendant's employee, who committed the acts alleged.

The defendant's answer generally denied the allegations of the petition and alleged that the FELA was not applicable to the plaintiff's claims.

The defendant filed a motion for summary judgment which was heard on the pleadings, affidavits, and the deposition of the plaintiff. The trial court sustained the motion and dismissed the action. The plaintiff has appealed.

The record shows that in May of 1981, the plaintiff was a specialist in the defendant's billing and contracts department. His direct supervisor, Pam Mellegaard, and her supervisor, Bob Eperson, attempted to fire the plaintiff because of a "personality conflict" between the plaintiff and Mellegaard. The plaintiff, through his union, the Brotherhood of Railway and Airline Clerks (BRAC), attempted to exercise his seniority to find a new job. As a member of BRAC, the plaintiff was subject to the terms and conditions of employment imposed by the collective bargaining agreement between BRAC and the defendant.

A union official, George MacIntosh, informed the plaintiff that he could not be fired. MacIntosh then arranged a meeting between the plaintiff; himself; and two management representatives, John Casteel, an assistant to John Deasey, the controller of the railroad, and Chuck Saylor, an assistant to Casteel. At this meeting the plaintiff was told that he was not fired and was asked to provide a list of deficiencies in the department and also a writeup on Mellegaard's outside business affiliations. The list of deficiencies was to be given to Deasey. The plaintiff did submit a list of deficiencies to Saylor and a writeup on Mellegaard to MacIntosh.

On June 24, 1981, Bachman, the local chairman of the union and also an employee of the defendant, summoned the plaintiff from his office at work to a meeting with Saylor, MacIntosh, and himself. According to the plaintiff, the following transpired at the meeting:

A. I went in the office, and there was Mr. Saylor sitting across from me, and Mr. MacIntosh was sitting on the other side of the table. And Mr. Bachman threw this list at me and said, "What is this?" And he used a couple of foul languages.

Q. What did he say?

A. He said, "You think I'm a fucking idiot?" And he threw this--and I said, "What do you mean?" He said--he made a statement, he said, "This is not enough. This is not enough, the list." And he picked on my background and my religion and he threatened--he first--he caught me by my collar up here and pushed me against the wall and said he'd burn my house down, and he told me that he was doing [sic] to kick me out of the country. And I said, "Well, I'm a citizen," and he said, "Well, not anymore." He said, "Then you're fired. Get out of here." And Mr. Casteel's staff was all outside, they all heard it, so--

According to the plaintiff, Bachman was intoxicated at the time of the incident.

Saylor later apologized to the plaintiff for Bachman's actions and assured the plaintiff that Bachman could not fire him. Bachman was employed in a different department, and there is no evidence that the plaintiff ever worked for or with Bachman.

As a result of the confrontation with Bachman, the plaintiff claims he began to drink, take drugs, gamble, and have marital problems, which eventually led to his divorce. The plaintiff also claims that he suffered nightmares, fear, anger, paranoia, and sleeping problems, lost his management aspirations, and even began to plot to kill the people at work whom he believed had caused his problems. The plaintiff claims that he was truly fearful of Bachman's threats because he believed Bachman to be a dangerous man.

The plaintiff claims that the order granting the motion for summary judgment was in error because the trial court impliedly and erroneously determined that (1) Naidoo's claim was a minor dispute under the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq. (1982), and, therefore, was within the exclusive jurisdiction of the National Railroad Adjustment Board, (2) Bachman was not, in fact, acting within the scope of his employment with Union Pacific at the time he allegedly assaulted Naidoo, and (3) as a matter of law, a purely mental injury is not cognizable under the FELA.

We note at the outset that on a motion for summary judgment, the moving party is entitled to judgment as a matter of law where there exists no genuine issue as to any material fact or as to the ultimate inferences to be drawn therefrom. Deutsche Credit Corp. v. Hi-Bo Farms, Inc., 224 Neb. p. 463, 398 N.W.2d 693 (1987). In considering such a motion, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. Deutsche Credit Corp., supra. The moving party bears the burden of showing that no genuine issue of material fact exists and must produce enough evidence to demonstrate his entitlement to judgment if the evidence remains uncontroverted. Deutsche Credit Corp., supra. If he is successful in doing so, the burden of producing contrary evidence shifts to the nonmoving party. Deutsche Credit Corp., supra.

The plaintiff contends there was a genuine issue of material fact as to whether Bachman was acting within the scope of his employment with the defendant at the June 24, 1981, meeting.

The FELA makes the carrier liable for "the negligence of any of the officers, agents, or employees of such carrier...." 45 U.S.C. § 51. Although the express language of the statute limits the carrier's liability to that for the negligence of its employees, etc., the FELA has been interpreted to reach at least some intentional torts. Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807 (7th Cir.1985).

Two theories of liability are recognized in FELA cases involving intentional assaults by fellow employees. Brooks v. Washington Terminal Co., 593 F.2d 1285 (D.C.Cir.1979). The first, the respondeat superior theory, provides that an assault committed by an employee in the course of his duties and in furtherance of the employer's business can serve as a basis for FELA liability. Jamison v. Encarnacion 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1930); Lancaster v. Norfolk and Western Ry. Co., supra; Brooks v. Washington Terminal Co., supra; Sowards v. Chesapeake & O. Ry. Co., 580 F.2d 713 (4th Cir.1978); Green v. River Terminal Ry. Co., 585 F.Supp. 1019 (N.D.Ohio 1984),aff'd 763 F.2d 805 (6th Cir.1985). The second, the direct negligence theory, holds the railroad employer liable for failing to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct. Harrison v. Missouri Pacific R. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963); Lancaster v. Norfolk and Western Ry. Co., supra; Brooks v. Washington Terminal Co., supra; Sowards v. Chesapeake & O. Ry. Co., supra; Green v. River Terminal Ry. Co., supra.

The traditional concept of proximate cause is abrogated in FELA cases by the fact that the plaintiff's proof is sufficient to state a claim if it shows that the carrier's...