Deviney v. Union Pacific RR. Co.

clear parameters of the statute. The language of these statutes
is clear and unambiguous; it is not necessary to “interpret” the
Legislature’s meaning.
I would affirm the decision of the district court to deny
Rouse’s complaint to modify his child support obligation.
ViVika a. D eViney, appellant, V. Union pacific
R ailRoaD company, a D elawaRe
coRpoRation, appellee .
776 N.W.2d 21
Filed November 17, 2009. 	No. A-08-1259.
1. Summary Judgment. A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists regarding any mate-
rial 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 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.
3. Federal Acts: Railroads: Claims: Courts: Jurisdiction. Courts of the United
States and courts of the several states have concurrent jurisdiction over claims
controlled by the Federal Employers’ Liability Act.
4. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled
by the Federal Employers’ Liability Act, a state court may use procedural rules
applicable 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
provisions of the act and interpretative decisions of the federal courts construing
the act.
5. Federal Acts: Railroads: Negligence: Liability. Under the Federal Employers’
Liability Act, railroad companies are liable in damages to any employee who suf-
fers injury during the course of employment when such injury results in whole or
in part due to the railroad’s negligence.
6. 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.
7. Negligence. The common-law elements of negligence include duty, breach,
foreseeability, and causation.
8. Employer and Employee: Railroads. A railroad has a nondelegable duty to
provide its employees with a reasonably safe place to work.
134 	18 NEbRASkA AppELLATE REpoRTS
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

9. Negligence: Summary Judgment. only when one would have to infer from no
evidence at all that the defendant breached its duty can a court take the question
from the jury and enter a judgment as a matter of law for the defendant.
10. Federal Acts: Railroads: Employer and Employee. The Federal Employers’
Liability Act imposes upon the employer a nondelegable duty to use reason-
able care to furnish its employees a safe place to work, and this duty extends
beyond its premises and to property which third persons have a primary obliga-
tion to maintain. This duty includes a responsibility to inspect the third party’s
property for hazards and to take precautions to protect the employee from pos-
sible defects.
11. Federal Acts: Railroads: Proof: Notice. The essential element of reasonable
foreseeability in Federal Employers’ Liability Act actions requires proof of actual
or constructive notice to the employer of the defective condition that caused
the injury.
12. Negligence: Torts: Damages. For a defendant to be liable for consequential
damages, he need not foresee the particular consequences of his negligent acts:
Assuming the existence of a threshold tort against the person, then whatever dam-
ages flow from it are recoverable.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
w. RUssell Bowie iii, Judge. Reversed and remanded for fur-
ther proceedings.
Richard J. Dinsmore and Jayson D. Nelson, of Law office
of Richard J. Dinsmore, p.C., L.L.C., and Cortney S. LeNeave
and Richard L. Carlson, of Hunegs, LeNeave & kvas, p.A., for
appellant.
William M. Lamson, Jr., Anne Marie o’brien, and Angela J.
Miller, of Lamson, Dugan & Murray, L.L.p., for appellee.
sieVeRs, caRlson, and cassel, Judges.
sieVeRs, Judge.
Vivika A. Deviney brought an action under the Federal
Employers’ 	Liability 	Act 	(FELA) 	against 	Union 	pacific
Railroad Company (Union pacific) alleging that she contracted
“West Nile” virus (WNV) while employed as a conductor by
Union pacific. The district court for Douglas County granted
summary judgment in favor of Union pacific, from which
judgment Deviney appeals. We reverse, and remand for fur-
ther proceedings.
DEVINEy V. UNIoN pACIFIC RR. Co. 	135
Cite as 18 Neb. App. 134

FACTUAL bACkGRoUND
Deviney’s FELA case seeks to recover damages for severe
injuries resulting from her contracting WNV, allegedly while
working as a conductor for Union pacific at bill, Wyoming,
on or about August 3, 2003. As a result of the virus, Deviney
suffered 84-percent hearing loss in her right ear and 20-percent
hearing loss in her left ear and also suffers from fatigue, ver-
tigo, reduced vision, and left-side weakness.
In early August 2003, Deviney worked a late shift where she
and an engineer took a coal train from the trainyard in bill to
the coal mines near Gillette, Wyoming. While en route to the
mines, the train had to stop on a double mainline near “East
Cadaro Junction.” As part of the conductor’s job, Deviney was
required to get off the train to perform a roll-by inspection of a
passing train at that location.
Deviney got off her train to perform the inspection. She
described the situation as follows: “you couldn’t stand still
because the mosquito[e]s were so bad. I had to . . . walk and
watch the train as it went by and wave my arms.” Deviney
estimated that she was bitten on her hands and neck more than
once, but less than 25 times, while performing the inspection.
Deviney radioed the dispatcher to complain about the mosqui-
toes, but Deviney states that the dispatcher’s only response was
to laugh. Near East Cadaro Junction, there was a pond on the
mine property that always had water in it. The water came from
a silo owned by the mining company. Deviney was wearing
long pants, a sweater, and her own insect repellant containing
7 percent “DEET.”
Deviney stated that the mosquitoes were also bad inside the
bill trainyard. She stated that there were mosquitoes “squished”
on walls inside the tieup room in bill. Deviney also stated that
there was standing water in the bill trainyard from washing
equipment, and a pond on the property.
Deviney’s last day of work was August 4, 2003. Within a
week, she developed headaches, diarrhea, vomiting, and nau-
sea. She was eventually diagnosed with WNV. She was in a
hospital and then a rehabilitation facility from August 13 to
october 17.
136 	18 NEbRASkA AppELLATE REpoRTS

pRoCEDURAL bACkGRoUND
Deviney filed a complaint against Union pacific pursuant
to FELA. She alleged that on or about August 3, 2003, she
was bitten by mosquitoes while in the course and scope of
her employment, resulting in the diagnosis of WNV. She also
alleged that she suffered severe and permanent injuries and
disability and that such were caused by Union pacific’s negli-
gence in violation of FELA.
Union pacific filed a motion for summary judgment alleging
that there was no genuine issue of material fact and that it was
entitled to summary judgment as a matter of law.
In its order, the district court sustained Union pacific’s
motion for summary judgment. The district court found there
was no specific information from which the railroad could be
charged with knowledge about large concentrations of mos-
quitoes where Deviney claims to have been bitten, at either
East Cadaro Junction or the trainyard in bill. The district court
also held:
[Union pacific] has made concerted efforts to eradicate
mosquito larvae, and has warned its employees about the
dangers of WNV. Couple[d] . . . with the almost insur-
mountable task of preventing just a single mosquito bite
and the incredibly small risk of becoming severely ill
from WNV even if bitten by an infected mosquito, [that]
leads me to the conclusion that the risk of harm to . . .
Deviney was not reasonably foreseeable to, or preventable
by, [Union pacific].
Finding that there was no genuine issue of material fact, the
district court granted Union pacific’s motion for summary
judgment and dismissed Deviney’s complaint with prejudice.
Deviney’s motions to complete the record and to alter or amend
judgment were denied. She now appeals.
ASSIGNMENTS oF ERRoR
Deviney alleges that the district court erred in (1) hold-
ing, as a matter of law, that Union pacific discharged its
duty of providing Deviney with a reasonably safe place to
work and (2) holding that Deviney’s injuries were not reason-
ably foreseeable.
DEVINEy V. UNIoN pACIFIC RR. Co. 	137
Cite as 18 Neb. App. 134

STANDARD oF REVIEW
[1,2] A court should grant summary judgment when the
pleadings and evidence admitted show that no genuine issue
exists 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. King v. Burlington
Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24
(2009). In reviewing a summary judgment, we view the evi-
dence in a light most favorable to the party against whom the
judgment is granted and give such party the benefit of all rea-
sonable inferences deducible from the evidence. Id.
ANALySIS
[3,4] Deviney brought her FELA claim in state court. As
stated in Crafton v. Union Pacific RR. Co., 7 Neb. App. 793,
797-98, 585 N.W.2d 115, 121 (1998):
Courts of the United States and courts of the several
states have concurrent jurisdiction over claims controlled
by FELA. . . . In disposing of a claim controlled by
FELA, a state court may use procedural rules applicable
to civil actions in the state court unless otherwise directed
by the act, but substantive issues concerning a claim
under FELA are determined by the provisions of the act
and interpretative decisions of the federal courts constru-
ing FELA.
(Citations omitted.)
[5-7] “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.” McNeel v. Union Pacific RR.
Co., 276 Neb. 143, 149, 753 N.W.2d 321, 328. “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.” Id. The common-
law elements of negligence include duty, breach, foreseeability,
and causation. See Crafton v. Union Pacific RR. Co., supra.
Duty and Breach.
[8,9] Union pacific’s duty is clear: “A railroad has a non-
delegable duty to provide its employees with a reasonably
138 	18 NEbRASkA AppELLATE REpoRTS

safe place to work.” Pehowic v. Erie Lackawanna Railroad
Company, 430 F.2d 697, 699 (3d Cir. 1970). Thus, in order to
recover for negligence under FELA, Deviney must show that
Union pacific breached its duty to provide her with a reason-
ably safe workplace. And “only when ‘one would have to infer
from no evidence at all’ that the defendant breached its duty
can a court take the question from the jury and enter a judg-
ment as a matter of law for the defendant.” Glass v. Birmingham
Southern R. R. Co., 905 So. 2d 789, 795 (Ala. 2004) (quoting
Moore v. Chesapeake & O. R. Co., 340 U.S. 573, 71 S. Ct. 428,
95 L. Ed. 547 (1951)).
In the present case, there is certainly some evidence that
Union pacific breached its duty to provide Deviney with a rea-
sonably safe place to work. Union pacific knew of the dangers
associated with WNV, even publishing an accident prevention
bulletin in August 2002 regarding such. Union pacific also
knew that WNV is a “mosquito-borne disease,” as such was
specifically stated in that bulletin. The general manager of
safety for Union pacific stated in his deposition that he became
aware of WNV in 2002 through the news and information pro-
vided by the federal government’s Centers for Disease Control
and prevention. He also stated that Union pacific’s acting
medical director monitors that federal agency. The manager of
safety stated that Union pacific started utilizing larvicide for
mosquito control in the bill area in the late 1990’s.
bernie boersma, Union pacific’s treatment plant and opera-
tions manager in bill, stated in his affidavit that one of his
duties is to treat Union pacific’s property in bill for insects
like mosquitoes. boersma stated that Union pacific has an
evaporation pond about one-quarter to one-half mile from its
bill trainyard office that holds runoff and that there is a creek
south of the office. Information received into evidence states
that mosquitoes breed in standing water and that even a small
bucket with stagnant water in it for 7 days can become home to
up to 1,000 mosquitoes.
boersma averred that he treats the evaporation pond with
larvicide as necessary, stating: “When there is a noticeable
problem, I drop a pellet into the water. The appearance of mos-
quitoes will constitute a noticeable problem to me.” boersma
DEVINEy V. UNIoN pACIFIC RR. Co. 	139
Cite as 18 Neb. App. 134

did not recall whether or not he treated the pond in 2003.
boersma stated that he uses a larvicide to control for mosqui-
toes in the trainyard. The larvicide’s information and instruc-
tion sheet was received into evidence. The information makes it
clear that the treatment is for larval populations, but that some
larvae may hatch and partially develop before dying. The infor-
mation in evidence about the larvicide states that it “kills mos-
quitoes before they are old enough to bite.” Thus, if boersma
was only treating the pond when he noticed the appearance of
mosquitoes, it could be inferred that he was not properly using
the larvicide to treat the property for mosquitoes, because
proper treatment with the larvicide would have occurred before
the mosquitoes hatched.
[10] With respect to East Cadaro Junction, there was a pond
on the mine property that always had water in it. The water
came from a silo owned by the mining company.
FELA imposes upon the employer a non-delegable duty
to use reasonable care to furnish [its] employees a safe
place to work, . . . and this duty extends beyond its prem-
ises and to property which third persons have a primary
obligation to maintain. . . . This duty includes a respon-
sibility to inspect the third party’s property for hazards
and to take precautions to protect the employee from pos-
sible defects . . . .
Carter v. Union Railroad Company, 438 F.2d 208, 210-11 (3d
Cir. 1971) (citations omitted). Thus, Union pacific’s failure to
treat for mosquitoes near East Cadaro Junction could be seen,
when summary judgment is sought, as a breach of its duty to
provide Deviney with a reasonably safe place to work, given
that she was required to get off of her train to do a roll-by
inspection of a passing train.
based on the foregoing evidence, and reasonable inferences
therefrom, there is certainly some evidence that Union pacific
breached its duty to provide Deviney with a reasonably safe
place to work. Thus, we turn to the other elements of a FELA
claim for negligence.
Foreseeability.
[11] The district court also found, as a matter of law,
that Deviney’s injuries were not reasonably foreseeable. “The
140 	18 NEbRASkA AppELLATE REpoRTS

essential element of reasonable foreseeability in FELA actions
requires proof of actual or constructive notice to the employer
of the defective condition that caused the injury.” Grano v.
Long Island R. Co., 818 F. Supp. 613, 618 (S.D.N.y. 1993). In
Grano, employees of a railroad who contracted Lyme disease
while working on signal equipment brought FELA claims.
The court found the railroad was aware that there were tick
problems and that ticks, known carriers of Lyme disease, were
found in areas where workers would be. The railroad sprayed,
but the spraying was mainly to kill poison ivy and no particu-
lar attention was given to ticks. There was no testimony from
any of the plaintiffs that they were bitten by ticks. The court
also noted that although Lyme disease was discussed as a
problem, no comprehensive program was developed to protect
employees working in tick-infested areas. The court held that
the railroad knew or should have known of the tick infesta-
tions and of the risk of infection by ticks which transmit Lyme
disease. The court then held that it was foreseeable that the
employees would be bitten by ticks and thereafter infected with
Lyme disease.
In Pehowic v. Erie Lackawanna Railroad Company, 430 F.2d
697 (3d Cir. 1970), a railroad employee was stung by a bee
while working, became ill, and was treated for a reaction to the
bee sting. The lower court granted the railroad’s motion to dis-
miss, and the employee appealed. The Third Circuit noted the
evidence that the employee had, prior to being stung, informed
the railroad’s dispatcher of the presence of brush and bees
in the area adjacent to the railroad track where the employee
was working and had requested to leave the area because of
the condition. Therefore, the court found that the question of
whether the railroad was negligent in failing to mitigate the
condition was for the jury. The Third Circuit held that the rail-
road was chargeable with notice of the existence of the brush
and the presence of the bees in large concentrations.
[12] In Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108,
83 S. Ct. 659, 9 L. Ed. 2d 618 (1963), a railroad’s right-of-way
contained a pool of stagnant water, in and about which were
dead and decayed rats and pigeons, or portions thereof. While
the plaintiff was working near the pool, he experienced an
DEVINEy V. UNIoN pACIFIC RR. Co. 	141
Cite as 18 Neb. App. 134

insect bite on his left leg. The wound subsequently developed
an infection which progressively worsened and spread through-
out the plaintiff’s body, eventually necessitating the amputation
of both of his legs. The U.S. Supreme Court stated that the
foreseeability requirement had been satisfied when the jury
found the railroad was negligent in maintaining the filthy pool
of water. And the Supreme Court noted that “[i]t is widely held
that for a defendant to be liable for consequential damages he
need not foresee the particular consequences of his negligent
acts: assuming the existence of a threshold tort against the
person, then whatever damages flow from it are recoverable.”
Gallick v. Baltimore & Ohio R. Co., 372 U.S. at 120.
In the present case, Union pacific knew about WNV in 2002
and thought the issue was significant enough to post an acci-
dent prevention bulletin. Union pacific knew that WNV is a
“mosquito-borne disease” and knew or should have known that
even a small amount of stagnant water can become home to a
significant number of mosquitoes. The trainyard in bill had an
evaporation pond and a nearby creek. However, the trainyard
was treated for mosquitoes only when boersma, the treatment
plant and operations manager in bill, thought the mosquitoes
constituted a noticeable problem. Furthermore, in her depo-
sition, a public health physician testified as follows in response
to a question by Deviney’s counsel:
Q. And are you aware of any investigation by [Union
pacific] to confirm that, in fact, co-workers had been
complaining in 2003, prior to . . . Deviney’s bites, about
the presence of mosquitoes in the bill yard?
A. I’ve seen nothing written. [Union pacific’s defense
counsel] told me yesterday that there were complaints of
mosquitoes along the line and in the yard.
based on this information, and the case law discussed above,
the issue of foreseeability constituted a material issue of fact to
be determined by the jury.
Causation.
The fourth element of common-law negligence is causa-
tion. Deviney testified that she was bitten by mosquitoes while
doing a required roll-by inspection of another train at East
142 	18 NEbRASkA AppELLATE REpoRTS

Cadaro Junction and again while at the trainyard in bill. An
infectious disease physician in Casper, Wyoming, testified by
deposition that if Deviney was not bitten elsewhere, the bites
at work would be the cause of her WNV. The close temporal
relationship between being bitten on August 3, 2003, and the
onset of Deviney’s symptoms provides, on a motion for sum-
mary judgment, an inference of a causal relationship between
Deviney’s being bitten on August 3 and her WNV. Thus, there
was a material question of fact regarding causation that should
have been presented to a jury.
CoNCLUSIoN
For the reasons stated above, we find that there were gen-
uine issues of material fact on the four elements of Deviney’s
FELA claim preventing entry of judgment as a matter of
law in favor of Union pacific. We therefore reverse the deci-
sion of the district court and remand this matter for fur-
ther proceedings.
R eVeRseD anD RemanDeD foR
fURtheR pRoceeDings.
cassel, Judge, dissenting.
because I do not believe Union pacific Railroad Company
(Union pacific) owed Vivika A. Deviney a duty under the
Federal Employers’ Liability Act (FELA) to prevent her from
being bitten by a mosquito carrying “West Nile” virus (WNV)
in the mosquito’s natural habitat, I would affirm the district
court’s entry of summary judgment.
Whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular situation.
Knoll v. Board of Regents, 258 Neb. 1, 601 N.W.2d 757 (1999).
“‘A decision by the court that, upon any version of the facts,
there is no duty, must necessarily result in judgment for the
defendant. A decision that, if certain facts are found to be true,
a duty exists, leaves open the other questions . . . .’” Id. at 6,
601 N.W.2d at 762, quoting W. page keeton et al., prosser and
keeton on the Law of Torts § 37 (5th ed. 1984).
FELA was a response to the special needs of railroad work-
ers who are daily exposed to the risks inherent in railroad work
and are helpless to provide adequately for their own safety.
DEVINEy V. UNIoN pACIFIC RR. Co. 	143
Cite as 18 Neb. App. 134

Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S. Ct. 758,
2 L. Ed. 2d 799 (1958); Chapman v. Union Pacific Railroad,
237 Neb. 617, 467 N.W.2d 388 (1991). It is highly doubt-
ful that Congress intended FELA to cover this type of claim;
acquiring WNV after being bitten by a mosquito in its natural
habitat is not a danger peculiar to railroad workers. FELA
does not make the employer the insurer of the safety of his
employees while they are on duty; the basis of the employer’s
liability is negligence, not the fact that injuries occur. Ellis v.
Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed.
572 (1947).
Deviney states that she “never argued that [Union pacific’s]
duty under the FELA was to kill every last mosquito that she
might encounter while working for the railroad.” brief for
appellant at 22. but Union pacific correctly responds that “the
nature of WNV dictates the opposite. It only takes one mos-
quito bite for a human to catch WNV.” brief for appellee at 18.
Deviney herself acknowledged that the town where she lived in
Wyoming had mosquitoes, and she rhetorically asked, “Where
doesn’t?” Indeed, the very randomness of the risk involved
would effectively impose strict liability upon FELA employers
for a mosquito bite resulting in WNV. While the majority opin-
ion correctly notes that a FELA employer has a duty to furnish
its employees a “reasonably safe place to work,” the majority’s
decision effectively makes the employer an insurer for a ran-
dom risk beyond human control.
It is not reasonable to impose upon Union pacific a duty
to eradicate mosquitoes that may fly into the area in which
an employee happens to be working. I would hold that Union
pacific was not negligent, because it did not owe Deviney a
duty to prevent her from being bitten by a WNV-infected mos-
quito while she was working outdoors.
144 	18 NEbRASkA AppELLATE REpoRTS