Wilkinson v. Union Pacific R. Co.

• Decision Date: 29 December 1998
• Docket Number: No. 970569,970569
• Citation: 975 P.2d 464
• Parties: 359 Utah Adv. Rep. 57 Barbara WILKINSON, individually, for the heirs of Gary Lee Wilkinson, and as personal representative of the Estate of Gary Lee Wilkinson, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., a corporation, Defendant and Appellee.
• Court: Utah Supreme Court

Page 464

975 P.2d 464

359 Utah Adv. Rep. 57

Barbara WILKINSON, individually, for the heirs of Gary Lee

Wilkinson, and as personal representative of the

Estate of Gary Lee Wilkinson, Plaintiff

and Appellant,

v.

UNION PACIFIC RAILROAD CO., a corporation, Defendant and Appellee.

No. 970569.

Supreme Court of Utah.

Dec. 29, 1998.

Rehearing Denied April 19, 1999.

Richard I. Ashton, Sandy, and John J. Rossi, Aurora, CO, for plaintiff.

J. Claire Williams, Salt Lake City, for defendant.

ZIMMERMAN, Justice:

Barbara Wilkinson ("Wilkinson") filed a complaint in Third District Court under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 to -60, to recover damages for the alleged wrongful death of her husband, Gary Wilkinson ("decedent"). The trial court granted summary judgment for defendant employer Union Pacific Railroad Co. ("Union Pacific") concluding that the jurisdictional prerequisites of FELA were not present on the facts alleged. Wilkinson argues that decedent's "medical emergency" arose when he fell unconscious, which both Wilkinson and Union Pacific agree occurred on the employer's property, rather than when the fatal asthma attack began. Because decedent fell unconscious on Union Pacific's property, Wilkinson contends that the injury suffered by decedent occurred within the scope of his employment and, therefore, FELA does apply. While we do not reach Wilkinson's contention regarding "medical emergency," we do conclude that she has made a prima facie showing that decedent's injury occurred on Union Pacific's property and within the scope of his employment. Therefore, we reverse and remand for further proceedings.

In reviewing a trial court's grant of summary judgment, " 'we do not defer to the trial court's conclusions of law but review them for correctness.' " Certified Surety Group, Ltd. v. UT Inc., 960 P.2d 904, 905-06 (Utah 1998) (quoting Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 162 (Utah 1996)).

If there is any doubt or uncertainty concerning questions of fact, the doubt should be resolved in favor of the [non-moving] party. Thus, the court must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence in the light most favorable to the party opposing summary judgment.

Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982). We present the facts and reasonable inferences drawn from them in a light most favorable to the party opposing summary judgment. See Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

Wilkinson has not submitted affidavits proving that decedent did not become ill on his commute to work in opposition to Union Pacific's motion for summary judgment. Rule 56(e) of the Utah Rules of Civil Procedure requires affidavits "when a motion for summary judgment is made and supported as provided in this rule." See Utah R. Civ. P. 56(e) (emphasis added). In this case, Union Pacific has not supported its motion for summary judgment--it has offered no affidavits showing that the facts are undisputed facts. Because Union Pacific has offered no affidavits disputing Wilkinson's allegations, it has not met its burden of showing that there are no material issues of fact. Consequently, Wilkinson may rely on the allegations in her pleadings. See Lamb v. B & B Amusements Corp., 869 P.2d 926 (Utah 1993) (finding where party moving for summary judgment offers no affidavits disputing allegations, party opposing motion is not required to offer affidavits); see also Olwell v. Clark, 658 P.2d 585, 586 (Utah 1982) ("[U]nder Rule 56, Utah R. Civ. P., it is not always required that a party proffer affidavits in opposition to a motion for summary judgment in order to avoid judgment against him.").

While there are gaps in the information available to us, the facts presented are as follows: Decedent was employed by Union Pacific as an electrician. On the night of decedent's respiratory arrest, he was scheduled to begin work at 11:00 p.m. He left his home between 10:20 and 10:25 p.m. At approximately 10:55 p.m., he reported to the Union Pacific Round House--a supervisor's station--and requested an ambulance. A supervisor, Lyle Barton, heard this request and saw that decedent was having trouble breathing. Barton offered to take decedent to the hospital, asserting that it was faster than waiting for an ambulance. Decedent accepted Barton's offer.

Within a minute after entering Barton's truck, decedent fell unconscious. Barton used his mobile telephone to call another Union Pacific employee, Craig Fletcher. Fletcher met Barton at the truck, and they discussed doing CPR on decedent. After deciding not to do CPR, Fletcher returned to the building to call 911. According to fire department records, this call was received at 11:00:54 p.m.

While Fletcher was placing the call, Barton, with the assistance of another employee, Tim Best, drove decedent to the flag pole on the property--a location which an ambulance driver could easily find. After Barton and Best removed decedent from the vehicle, Al Davis, another Union Pacific employee, arrived on the scene and treated decedent for shock. Fletcher returned and informed the others that the paramedics were on their way. Fletcher began monitoring decedent's pulse. At some point, Fletcher informed the others that decedent was losing his pulse. Davis and Barton began CPR. Decedent regained his pulse once, and CPR was stopped. Fletcher lost decedent's pulse again, and CPR was resumed until the paramedics arrived at 11:06:33 p.m. Decedent never regained consciousness and died fifteen days later at LDS Hospital.

Wilkinson filed a complaint against Union Pacific on February 28, 1994. The claims were for negligence in caring for decedent and were grounded solely on FELA which, where applicable, makes recovery easier than at common law for employees injured on the job. Wilkinson argued that FELA applied because the injury to decedent occurred in the scope of his employment, i.e., on the employer's property as he was reporting for work. To...