Ballard v. Union Pacific RR. Co.

C hadly S. Ballard, appellant, v. Union paCifiC
railroad C ompany, appellee .
781 N.W.2d 47
Filed April 2, 2010. 	No. S-09-905.
1. Summary Judgment. 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the 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.
3. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled by
the Federal Employers’ Liability Act, a state court may use procedural rules appli-
cable to civil actions in the state court unless otherwise directed by the act, but
substantive issues concerning a claim under the act are determined by the provi-
sions of the act and interpretive decisions of the federal courts construing the act.
4. Federal Acts: Railroads: Liability: Negligence: Damages. Under the Federal
Employers’ Liability Act, 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.
5. Federal Acts: Railroads: Negligence: Proximate Cause: Proof. To recover
under the Federal Employers’ Liability Act, an employee must prove the employ-
er’s negligence and that the alleged negligence is a proximate cause of the
employee’s injury.
6. Federal Acts: Railroads: Torts: Intent. The Federal Employers’ Liability Act
has been interpreted to reach at least some intentional torts.
7. Federal Acts: Railroads: Liability: Negligence: Torts: Intent. Two theories
of liability are recognized in cases under the Federal Employers’ Liability Act
involving intentional assaults by fellow employees: The first theory is respondeat
superior. This theory provides that the plaintiff may prevail in an intentional tort
case by showing that the intentional tort was committed in furtherance of the
employer’s objectives. The second theory is direct negligence. Under the direct
negligence theory, the employer is liable if the employer was negligent in hiring,
supervising, or failing to fire the employee.
8. Federal Acts: Railroads: Liability: Negligence: Proof. To prove a railroad’s
negligence under the Federal Employers’ Liability Act, the plaintiff must show
that the railroad had knowledge of the employee’s propensities and failed to act
on the information. In other words, the railroad employer is liable for failing to
prevent reasonably foreseeable danger to an employee from intentional or crimi-
nal misconduct.
9. Federal Acts: Railroads: Liability: Proof. Under the Federal Employers’
Liability Act, a plaintiff’s burden is twofold: the plaintiff must show both that (1)
the employee had a propensity for the type of behavior that caused the plaintiff
harm and (2) the employer railroad knew of this propensity.
638 	279 NEbrASkA rEporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

Appeal from the District Court for Douglas County: peter
C. B ataillon, Judge. Affirmed.
Michael A. Nelsen, of Marks, Clare & richards, L.L.C., for
appellant.
David J. Schmitt and John M. Walker, of Lamson, Dugan &
Murray, L.L.p., for appellee.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	Stephan,
mCC ormaCk, and miller-lerman, JJ.
mCC ormaCk, J.
NATUrE oF CASE
Chadly S. ballard brought this action under the Federal
Employers’ Liability Act (FELA)1 for injuries he claims he
sustained when three fellow employees harassed him. ballard
alleges Union pacific railroad Company (Up) negligently
supervised its workers and negligently failed to provide a safe
work environment. The district court granted Up’s motion for
summary judgment and dismissed the action. ballard appeals.
We moved the appeal to our docket in accordance with our
statutory authority to regulate caseloads of the appellate courts
of this state.
bACkGroUND
ballard brought suit against Up in the U.S. District Court
for the District of Nebraska (Federal District Court)2 based on
the same set of facts as the current appeal. In that case, ballard
made various allegations, including employment discrimination
in violation of title VII, 42 U.S.C. § 2000e et seq. (2006); 42
U.S.C. §§ 1981 and 1983 (2006); and the First Amendment
to the U.S. Constitution. Subsequently, ballard dismissed his
causes of action under the First Amendment and §§ 1981 and
1983, leaving only the cause of action under title VII to be
decided. The Federal District Court granted Up’s motion for
1 45 U.S.C. §§ 51 through 60 (2006).
2 Ballard v. Union Pacific R. Co., No. 8:06CV718, 2008 WL 1990787 (D.
Neb. May 5, 2008).
bALLArD v. UNIoN pACIFIC rr. Co. 	639
Cite as 279 Neb. 638

summary judgment and dismissed the lawsuit. In its order, the
Federal District Court summarized the pertinent facts of the
case as follows:
In 2005, ballard began working as a truck driver in
portland, oregon. His crew then moved to Delta, Utah.
Johnny Adison, Ted Tom, and oliver becenti also worked
in this group with ballard. Adison and Tom were labor-
ers and becenti an assistant foreman. None of these
employees were supervisors, nor could they hire, fire or
promote other employees. ballard had not worked with
these three employees prior to this time. Craig Dannelly
was ballard’s immediate supervisor. It is undisputed that
on March 21, 2005, becenti and Tom took ballard under
the arms, lifted him off the ground, and Adison thrust his
hips into ballard’s groin area. When the three let ballard
down, he called them “sick bastards.”
ballard then reported the incident to Dannelly. Dannelly
said he would speak to his supervisor . . . . ballard then
contacted his union representative . . . , and then he
called what he believed to be the Union pacific Equal
Employment opportunity . . . hotline. [A footnote to this
case states: “It turns out that ballard actually called a
phone number that was Up’s Value Line which is used for
reporting a violation or possible violation of the law or
Up policies.”3] ballard indicated that he did not believe
the three men were homosexual. ballard did not return to
work the following day.
Up then began an investigation. . . . Up’s Director of
Construction[] immediately traveled to the job site to con-
duct the investigation. Since ballard did not show up for
work, he was contacted by speaker phone. Following vari-
ous interviews, Adison, becenti, and Tom were charged
with violating Up’s rule of Conduct 1.6 and suspended
that day, March 22, 2005, pending a formal investigation.
rule 1.6 provides, in part, “Any act of hostility, miscon-
duct, or willful disregard or negligence affecting the inter-
ests of the Company or its employees is sufficient cause
3 Id. at *2 n.3.
640 	279 NEbrASkA rEporTS

for dismissal and must be reported. Indifference to duty,
or to the performance of duty, will not be tolerated.” . . .
ballard returned to work on March 28, 2005. Dannelly
asked ballard to return to work in Salt Lake City, Utah, to
separate him from the same group where the harassment
had occurred.4
The Federal District Court granted summary judgment in
favor of Up and dismissed ballard’s claims. Subsequently,
ballard brought this suit in state court alleging FELA viola-
tions. The facts giving rise to the Federal District Court case
are the same as this appeal. In both cases, ballard testified at
a deposition.
ballard claimed in his state deposition that the March 21,
2005, incident was not the first time he had problems with
the three men. According to ballard, the three men harassed
him about a week or two before the assault. ballard could not
remember specifically what the men said to him, but he thought
it had something to do with his being “small.” However, ballard
did not report the incident to any supervisors or managers and,
as far as he knew, no Up employees knew about the alleged
harassment. Additionally, ballard admitted that the three men’s
behavior on March 21 was not typical. In the incident report,
ballard stated that he did not know what prompted them to do
what they did. He said that it was “not a normal occurrence for
them to joke around like that.”
Nevertheless, ballard alleged that Up knew or should have
known that oliver becenti, Ted Tom, and Johnny Adison had
a propensity to harass employees. He asserted that at least
two other employees were harassed. The record includes the
affidavit of David Duncan, a Up employee who worked with
becenti, Tom, Adison, and ballard during the time in question.
According to Duncan, Adison “‘goosed’” or grabbed the but-
tocks of employees on several occasions while the employees
walked down a Up office hallway. Duncan claimed he was one
of the employees that was “goosed.” Duncan alleged that Up
should have noticed this behavior because it occurred in the
hallway near Up supervisors’ offices. However, Duncan did not
4 Id. at *2.
bALLArD v. UNIoN pACIFIC rr. Co. 	641
Cite as 279 Neb. 638

report this behavior to any Up supervisors or managers, nor did
he actually know whether any Up supervisors or managers saw
this behavior.
ballard claims that exhibit 25 in the record provides evi-
dence that Up was put on notice of the three men’s dangerous
propensities to harass coworkers. It is unclear from the record
what exhibit 25 is. Exhibit 25 is unsworn, unsigned, undated,
and unaddressed. It is labeled as “report of Complaint offered
by plaintiff in Federal Court litigation.” It apparently refers to
incidents of name-calling:
This complaint was forwarded to Jerry D. Swore@
Up, Greg A. Lemmerman@Up and to Craig Domski for
resolution.
Vicki Toledo came up to me and said that she wanted
to talk to me about something that had been said on the
bus. I asked her what the problem was. She said that Ted
Tom had said something on the bus and that she wanted
something done right now. I told her that after the job
briefing that I would get Ted Tom and her together and
see what the problem was. After job briefing we got
together and tried to find out just what the problem was.
Vicki then said that she was told by Tina Curley that Ted
Tom had said something about oliver becennti [sic] and
Vicki Toledo having a baby together and that it was sup-
posed to be a rail dog or puppy. I asked Ted if this was
true and he said he did not say anything. That it was Glen
Wagon that had said it. I then got Glen in my truck and
asked him what was said. He said that it was someone
else on the bus making remarks about oliver on the bus.
Vicki and Ted [a]nd Glen both talked to each other in
Navajo leaving me and Steve busch both in the dark.
Neither one of us are fluent in Navajo. This was all hear
say [sic] to Vicki because she was not on that bus. This
was all told to her by Tina Curley. I also addressed this
issue at job briefing, and this was not acceptable at any
time on the Uprr.
Victoria Toledo reported accusations from Ted Tom
stating that the women that work for the gang are their
whores and that is how they get pregnant. They call
642 	279 NEbrASkA rEporTS

themselves the rail Dogs and that the women are carrying
rail Dog babies. The harassing comments were brought
to Jerry Swore’s attention and he just commented that
they are a lot of kids on the bus and he can just talk with
the guy.
(Emphasis in original.)
Up moved for summary judgment. After a hearing, the
court granted Up’s motion. It concluded that ballard failed to
produce sufficient evidence indicating that Up knew or should
have known that any of the three men had a propensity for vio-
lence or a proclivity for actions which would have resulted in
the action and injury to ballard. The court stated, “The fact that
one of these co-workers may have goosed or grabbed people’s
asses during the week before this incident does not rise to
the level of the harassment as alleged by [ballard] and which
would have reasonably put [Up] on notice.”
ASSIGNMENT oF Error
ballard asserts the district court erred in granting Up’s
motion for summary judgment.
In its brief, Up raised the doctrine of res judicata as a
defense. Up raised this issue for the first time on appeal and did
not plead this as a defense at the trial court level. Additionally,
Up did not cross-appeal. res judicata is an affirmative defense
which must ordinarily be pleaded to be available.5 And while
we may raise the issue of res judicata sua sponte,6 it is infre-
quently done.7 As such, we decline to consider the res judicata
issues in the present appeal.
STANDArD oF rEVIEW
[1] 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
5 DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772
(1982).
6 Swift v. Dairyland Ins. Co., 250 Neb. 31, 547 N.W.2d 147 (1996).
7 Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998).
bALLArD v. UNIoN pACIFIC rr. Co. 	643
Cite as 279 Neb. 638

be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.8
[2] In reviewing a summary judgment, an appellate court
views the evidence in the 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.9
ANALYSIS
[3] As an initial matter, we note that in disposing of a
claim controlled by FELA, a state court may use procedural
rules applicable to civil actions in the state court unless other-
wise directed by the act, but substantive issues concerning a
claim under FELA are determined by the provisions of the
act and interpretive decisions of the federal courts constru-
ing FELA.10
[4,5] Under FELA, railroad companies are liable in dam-
ages 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.11 This court has stated that to
recover under FELA, an employee must prove the employer’s
negligence and that the alleged negligence is a proximate cause
of the employee’s injury.12
[6-8] FELA has been interpreted to reach at least some inten-
tional torts.13 Two theories of liability are recognized in FELA
cases involving intentional assaults by fellow employees: The
first theory is respondeat superior. This theory provides that
a FELA plaintiff may prevail in an intentional tort case by
8 Holsapple v. Union Pacific RR. Co., ante p. 18, 776 N.W.2d 11 (2009).
9 Id.
10 Deviney v. Union Pacific RR. Co., 18 Neb. App. 134, 776 N.W.2d 21
(2009). See McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d
321 (2008).
11 McNeel v. Union Pacific RR. Co., supra, note 10.
12 Id.
13 See, Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807 (7th Cir.
1985); Naidoo v. Union Pacific Railroad, 224 Neb. 853, 402 N.W.2d 653
(1987).
644 	279 NEbrASkA rEporTS

showing that the intentional tort was committed in further-
ance of the employer’s objectives. The second theory is direct
negligence. Under the direct negligence theory, the employer
is liable if the employer was negligent in hiring, supervising,
or failing to fire the employee.14 To prove the railroad’s negli-
gence, the plaintiff must show that the railroad had knowledge
of the employee’s propensities and failed to act on the informa-
tion.15 In other words, the railroad employer is liable for failing
to prevent reasonably foreseeable danger to an employee from
intentional or criminal misconduct.16
liaBility Under fela—reSpondeat SUperior
ballard does not argue that Up was negligent based upon
respondeat superior, and it is clear that that theory does not
apply to the facts of this case. regardless, there is no dispute
that the three men were acting entirely upon their own impulses
with no benefit to Up.17
liaBility Under fela—direCt negligenCe
ballard argues that it is reasonable, however, to infer that Up
knew or should have known about the three men’s propensities
to harass and to be violent and that therefore, Up was negligent
in failing to supervise its employees. We disagree.
[9] A railroad employer may be liable under the direct
negligence theory if the railroad employer negligently hired,
supervised, or failed to provide a safe workplace. A plaintiff’s
burden is thus twofold: the plaintiff must show both that (1)
the employee had a propensity for the type of behavior that
caused the plaintiff harm and (2) the employer railroad knew
of this propensity.18
14 See id.
15 See id.
16 Naidoo v. Union Pacific Railroad, supra note 13.
17 See Higgins v. Metro-North R. Co., 318 F.3d 422 (2d Cir. 2003).
18 Murphy v. Metropolitan Transp. Authority, 548 F. Supp. 2d 29 (S.D.N.Y.
2008). See Persley v. National R.R. Passenger Corp., 831 F. Supp. 464 (D.
Md. 1993).
bALLArD v. UNIoN pACIFIC rr. Co. 	645
Cite as 279 Neb. 638

A somewhat similar situation was presented in Persley
v. National R.R. Passenger Corp.19 There, the plaintiff, an
employee of Amtrak, was sexually assaulted by a fellow
employee and sued Amtrak under FELA. The plaintiff alleged
that the assault was caused in part by Amtrak’s negligence. The
court granted Amtrak’s motion for summary judgment, rea-
soning that although the coemployee may have had a general
reputation with a number of his supervisors for being flirtatious
and a “‘womanizer,’”20 there was no evidence that either the
plaintiff or any other Amtrak employee had ever previously
reported any incidents of harassment involving the coemployee
to any Amtrak supervisor.
In another factually similar case, Francisco v. Burlington
Northern R.R. Co.,21 the Eighth Circuit held that the plaintiff
failed to establish a genuine issue of fact as to whether his
employer knew or should have known about an unsafe or
potentially unsafe working condition. In that case, the plain-
tiff sued his employer, alleging FELA violations for injuries
he sustained when his supervisor hit him on the head with a
hardhat. The plaintiff alleged that his employer negligently
failed to provide a safe work environment. In support of his
allegations, the plaintiff submitted his affidavit and the affida-
vit of two other employees. The affidavits indicated that the
supervisor’s treatment of other employees commonly included
hitting, pinching, and shoving, as well as grabbing or kicking
at the buttocks or groin area of the employees.
Despite this evidence, the Eighth Circuit held that the plain-
tiff failed to prove as a matter of law that his employer knew or
should have known about the supervisor’s dangerous propensi-
ties. The court reasoned that the affidavits indicated at best that
other employees merely witnessed the supervisor’s behavior.
The court noted that the mere fact that other employees were
“present during one or more unspecified acts of ‘horseplay’ by
[the supervisor]—even assuming they actually saw the alleged
19 Persley v. National R.R. Passenger Corp., supra note 18.
20 Id. at 467.
21 Francisco v. Burlington Northern R.R. Co., 204 F.3d 787 (8th Cir. 2000).
646 	279 NEbrASkA rEporTS

‘horseplay’—is too generalized and vague”22 to establish a
genuine issue of material fact that the employer knew or should
have known the supervisor created a foreseeable risk of injury
to its employees.
The Eighth Circuit found it significant that the plaintiff
clearly admitted that he never complained about his supervi-
sor’s conduct prior to his injury, he had never received any
complaints regarding the supervisor’s behavior in his capacity
as a union representative, and he had never heard or seen the
supervisor engage in such behavior before. The Eighth Circuit
also questioned whether the “‘horseplay’ and other physical
conduct alleged by [the plaintiff] could even create the sort of
dangerous condition in the work place from which a reasonable
foreseeability of harm could be inferred.”23
In the present case, ballard failed to prove that Up knew or
should have known prior to the incident that becenti, Tom, and
Adison had dangerous propensities. prior to this incident, nei-
ther ballard nor any other Up employee had reported any inap-
propriate behavior regarding these three men to Up. Further,
the record does not disclose that the three men had a history
of violent acts or of sexual harassment or that their supervisors
were aware of facts which would have led them to suspect that
the three men might engage in such conduct. ballard has pro-
duced no evidence to support an inference that Up was aware
of any dangerous propensities of the three men.
ballard’s claim that Up should have known is based on one
other employee’s affidavit stating he was “goosed” by one of
the three men and on exhibit 25, which allegedly demonstrates
that Up was aware that Tom called women “whores.” Even
viewed in a light most favorable to ballard, this evidence,
first, is insufficient to support an inference that becenti, Tom,
and Adison had dangerous propensities. None of the evidence
suggests that becenti ever participated in the alleged harass-
ment. Second, nothing in the record establishes a reason-
able inference that the behavior that gave rise to this case
22 Id. at 789.
23 Id. at 790 n.4 (emphasis in original).
bALLArD v. UNIoN pACIFIC rr. Co. 	647
Cite as 279 Neb. 638

was foreseeable. The testimony in the affidavit falls short of
establishing any proof that Up knew that Adison had grabbed
the buttocks of employees in the Up hallway. ballard himself
agreed that the three men’s behavior on March 21, 2005, was
not typical and that he did not know what made the men act
this way. As the Federal District Court said, this was a one-
time incident.
ballard also argues that Up was negligent for not training its
employees on its policies to not harass or touch fellow employ-
ees. ballard provides little in the way of case law or evidence
to support this argument. We conclude that this argument is
without merit.
After reviewing the record, we conclude there is no evidence
from which a jury could infer that Up knew or should have
known that the three men had a propensity to commit such
acts.24 As such, Up was not negligent.
CoNCLUSIoN
ballard failed to prove that Up was negligent. As such, the
district court order is affirmed.
affirmed.
24 See Brooks v. Washington Terminal Co., 593 F.2d 1285 (D.C. Cir. 1979).
648 	279 NEbrASkA rEporTS