Deviney v. Union Pacific RR. Co.

of fact in their second cause of action. We affirm the court’s
judgment in favor of the defendants in this suit to set aside the
annexation of Redevelopment Area #3 by the City.
A ffirmed.
ViVikA A. deViney, AppellAnt, V. Union pAcific
rAilroAd compAny, A delAwAre
corporAtion, Appellee .
786 N.W.2d 902
Filed August 6, 2010. 	No. S-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. Negligence. Foreseeable risk is an element in the determination of negligence,
not legal duty. In order to determine whether appropriate care was exercised, the
fact finder must assess the foreseeable risk at the time of the defendant’s alleged
negligence. The extent of the foreseeable risk depends on the specific facts of the
case and cannot be usefully assessed for a category of cases; small changes in the
facts may make a dramatic change in how much risk is foreseeable.
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: Employer and Employee. The Federal Employers’
Liability Act requires that a railroad provide its employees with a reasonably
safe workplace.
6. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, there must be a legal duty on the part of the defendant to protect the plain-
tiff from injury, a failure to discharge that duty, and damage proximately caused
by the failure to discharge that duty.
7. Negligence: Proximate Cause. Foreseeability in the context of proximate cause
relates to the question of whether the specific act or omission of the defendant
was such that the ultimate injury to the plaintiff reasonably flowed from the
defendant’s breach of duty.
8. Animals: Liability. The doctrine of ferae naturae essentially provides that a
landowner cannot be held liable for the actions of dangerous animals on his or
450 	280 NEbRASkA REpoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

her property unless he or she has reduced the animals to his or her possession
and control.
9. Employer and Employee: Negligence. An employer breaches its duty to provide
a safe workplace when it knows or should know of a potential hazard in the work-
place, yet fails to exercise reasonable care to inform and protect its employees.
10. Federal Acts: Railroads: Negligence: Damages. Under the Federal Employers’
Liability Act, an employee who suffers an injury caused in whole or in part by
a railroad’s negligence may recover his or her full damages from the railroad,
regardless of whether the injury was also caused in part by the actions of a
third party.
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.
petition for further review from the Court of Appeals,
SieVerS, cArlSon, and cASSel, Judges, on appeal thereto from
the District Court for Douglas County, w. rUSSell Bowie iii,
Judge. Judgment of Court of Appeals affirmed.
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.
H eAVicAn, 	c.J., 	wrigHt, 	connolly, 	gerrArd, 	StepHAn,
mccormAck , and miller-lermAn, JJ.
H eAVicAn, c.J.
INTRoDUCTIoN
Vivika A. Deviney (Deviney) brought this suit against her
employer, Union pacific Railroad Company (Up), under the
Federal Employers’ Liability Act (FELA),1 for injuries she sus-
tained after contracting “West Nile” virus (WNV). The Douglas
County District Court granted Up’s motion for summary judg-
ment, and Deviney appealed the decision to the Nebraska Court
of Appeals. In a split decision, the Court of Appeals reversed
1 45 U.S.C. §§ 51 through 60 (2006).
DEVINEy V. UNIoN pACIFIC RR. Co. 	451
Cite as 280 Neb. 450

the decision of the district court,2 and Up filed a petition for
further review. We granted Up’s petition for further review. We
affirm the decision of the Court of Appeals.
bACkGRoUND
Deviney was a conductor for Up when she contracted WNV,
a mosquitoborne illness. Deviney claimed she contracted WNV
during the course of her employment as a conductor in bill,
Wyoming, on or about August 3, 2003. Deviney alleges that
as a part of her employment, she conducted a roll-by inspec-
tion of a train near “East Cadaro Junction” in Wyoming, which
inspection required her to examine the exterior of a passing
train for defects or problems. Deviney alleges that during the
inspection, she was bitten by mosquitoes more than once, but
fewer than 25 times. She called the dispatcher to complain,
but Deviney stated that the dispatcher’s only response was
to laugh.
Deviney also stated that she had taken precautions against
mosquito bites by wearing long pants and a sweater, and
by applying insect repellant containing 7 percent “DEET.”
Evidence in the record indicates there was a pond on mine
property near East Cadaro Junction and that the water in the
pond came from a silo owned by the mine. The record is
unclear as to how close the pond was to Up’s right-of-way.
There is also evidence in the record that there were mosqui-
toes inside the bill trainyard, that there was standing water in
the trainyard as a result of the washing of equipment, and that
there was a pond located on the trainyard property.
Within a week, Deviney developed headaches, diarrhea,
vomiting, and nausea, and she was eventually diagnosed with
WNV. Deviney was in a hospital and then a rehabilitation
facility from August 13 to october 17, 2003. As a result of the
virus, Deviney allegedly suffered 84-percent hearing loss in one
ear and 20-percent hearing loss in the other ear and continues
to suffer from fatigue, vertigo, impaired vision, and weakness
in her left side. Deviney was unable to return to work, although
2 Deviney v. Union Pacific RR. Co., 18 Neb. App. 134, 776 N.W.2d 21
(2009).
452 	280 NEbRASkA REpoRTS

the record is unclear as to what contact, if any, Deviney had
with Up after August 3.
Deviney brought suit under FELA in the Douglas County
District Court against Up for her injuries. Deviney claims her
injuries were caused through Up’s negligence in not warning
employees about the danger of mosquitoes and in not treat-
ing the standing water on or near Up’s property. As noted, the
Douglas County District Court granted summary judgment for
Up and Deviney appealed. The Court of Appeals reversed the
decision of the district court, and Up filed a petition for further
review, which we granted.
ASSIGNMENTS oF ERRoR
In its petition for further review, Up claims, restated, that
the Court of Appeals erred in finding (1) that Up breached its
duty to Deviney and (2) that Deviney’s injuries were reason-
ably foreseeable.
STANDARD oF REVIEW
[1] A court should grant summary judgment when the plead-
ings 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.3
[2] In reviewing a summary judgment, we view the evidence
in a light most favorable to the party against whom the judg-
ment is granted and give such party the benefit of all reason-
able inferences deducible from the evidence.4
ANALySIS
[3] We first turn to the impact of our recent decision in
A.W. v. Lancaster Cty. Sch. Dist. 00015 on this case. Although
the circumstances in A.W. are very different from those in the
present case, A.W. addresses the nexus of legal duty and the
3 King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d
24 (2009).
4 Id.
5 A.W. v. Lancaster Cty. Sch. Dist. 0001, ante p. 205, 784 N.W.2d 907
(2010).
DEVINEy V. UNIoN pACIFIC RR. Co. 	453
Cite as 280 Neb. 450

foreseeability of harm. In the past, we have often treated the
foreseeability of an injury as a question of law.6 As we noted
in A.W., however, this places us in the position of deciding as
a matter of law questions that are dependent upon the facts
and circumstances of a particular case.7 With A.W., we have
reframed the issue of foreseeability—the lack of foreseeable
risk in a specific case may be a basis for a no-breach deter-
mination—but such a ruling is not a no-duty determination.8
Therefore, we held:
[F]oreseeable risk is an element in the determination of
negligence, not legal duty. In order to determine whether
appropriate care was exercised, the fact finder must assess
the foreseeable risk at the time of the defendant’s alleged
negligence. The extent of foreseeable risk depends on
the specific facts of the case and cannot be usefully
assessed for a category of cases; small changes in the
facts may make a dramatic change in how much risk
is foreseeable.9
[4,5] With that understanding, and utilizing that frame-
work, we address Up’s assignments of error. Up argues that
the Court of Appeals erred in finding that Up breached its
duty to Deviney and in finding that Deviney’s injuries were
reasonably foreseeable. Under FELA, railroad companies are
liable in damages to any employee who suffers injury dur-
ing the course of employment when such injury results in
whole or in part due to the railroad’s negligence.10 FELA law
requires that a railroad provide its employees with a reason-
ably safe workplace.11
[6,7] In order to prevail in a negligence action, there must
be a legal duty on the part of the defendant to protect the
6 See Knoll v. Board of Regents, 258 Neb. 1, 601 N.W.2d 757 (1999), abro-
gated, A.W., supra note 5.
7 A.W., supra note 5.
8 Id.
9 Id. at 216, 784 N.W.2d at 917.
10 McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008).
11 Pehowic v. Erie Lackawanna Railroad Company, 430 F.2d 697 (3d Cir.
1970).
454 	280 NEbRASkA REpoRTS

plaintiff from injury, a failure to discharge that duty, and dam-
age proximately caused by the failure to discharge that duty.12
Foreseeability in the context of proximate cause relates to the
question of whether the specific act or omission of the defend-
ant was such that the ultimate injury to the plaintiff reasonably
flowed from the defendant’s breach of duty.13
Up’s legal duty is a question of law and is well established
under FELA. but whether Up breached that duty and whether
Deviney’s injuries were reasonably foreseeable are questions
of fact. And because this case comes before us on a grant of
summary judgment, the question is whether Deviney produced
sufficient evidence to present a genuine issue of material fact
on those two points.
[8] Up argues that it did not have a duty to protect Deviney
from mosquitoes and asks us to apply the doctrine of ferae
naturae. The doctrine of ferae naturae essentially provides that
a landowner cannot be held liable for the actions of dangerous
animals on his or her property unless he or she has reduced the
animals to his or her possession and control.14 This doctrine has
been applied to insects.15
As already noted, however, under FELA, an employer has a
duty to provide a reasonably safe place to work. Under A.W.,
foreseeability is an issue of fact that relates to a breach of that
duty, to be determined by the fact finder.16 We look for guid-
ance in other FELA cases in which railroads have been found
liable for damages stemming from insect bites.17 Those same
FELA cases, along with the set of facts in this case, inform our
12 Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009); Desel v.
City of Wood River, 259 Neb. 1040, 614 N.W.2d 313 (2000); Bargmann v.
Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998).
13 Fu v. State, 263 Neb. 848, 643 N.W.2d 659 (2002).
14 Nicholson v. Smith, 986 S.W.2d 54 (Tex. App. 1999).
15 Id.
16 A.W., supra note 5.
17 See, Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 83 S. Ct. 659, 9 L.
Ed. 2d 618 (1963); Pehowic, supra note 11; Grano v. Long Island R. Co.,
818 F. Supp. 613 (S.D.N.y. 1993).
DEVINEy V. UNIoN pACIFIC RR. Co. 	455
Cite as 280 Neb. 450

decision as to whether Deviney presented sufficient evidence to
overcome a motion for summary judgment.
Though we could find no FELA cases that specifically
address mosquitoborne illnesses, there are cases dealing with
injuries arising from other insect bites and stings. In Pehowic,
the employee had reported that an area owned by the railroad
was overgrown by vegetation and brush and had a large con-
centration of bees.18 The employee notified the dispatcher of the
presence of the brush and bees and stated that it was unsafe.
After the employee was stung by a bee and treated for his reac-
tion to the sting, he filed a suit under FELA, claiming that the
railroad had been negligent in not trimming the brush.19 The
railroad argued that it could not be chargeable with the acts of
wild bees.20 The court found that failure to trim the brush could
be found by a jury to be a breach of duty.
[9] Grano involved several railroad employees who con-
tracted Lyme disease, a tickborne illness, during the course
of their employment.21 In that case, the court determined that
the employer was negligent for failing to provide its employ-
ees with a reasonably safe place to work because it failed to
maintain and inspect worksites or to spray for ticks. The court
stated that “‘[a]n employer breaches its duty to provide a safe
workplace when it knows or should know of a potential hazard
in the workplace, yet fails to exercise reasonable care to inform
and protect its employees.’”22
Finally, in Gallick, the railroad had knowledge of a stag-
nant pool of water on its property that contained dead rats and
pigeons.23 After being bitten by an insect similar to those flying
around the stagnant pool, the employee developed an infec-
tion that resulted in the amputation of both his legs. The U.S.
Supreme Court held that the railroad could be found liable for
18 Pehowic, supra note 11.
19 Id.
20 Id.
21 Grano, supra note 17.
22 Id., 818 F. Supp. at 618.
23 Gallick, supra note 17.
456 	280 NEbRASkA REpoRTS

the injuries because it knew of the existence of the pool and
could also be charged with knowledge of the increased risk to
its employees.24
In the present case, Deviney testified that there were a lot
of mosquitoes in the bill trainyard. Up’s treatment plant and
operations manager in bill testified that there was an evapora-
tion pond, on Up property one-quarter to one-half mile from
the office, that often contained standing water. He testified that
he had noticed more mosquitoes coming from a creek on the
property and that he had treated both the pond and the creek
for mosquitoes in the past. He also testified that he did not
remember whether he had treated the pool in 2003 and that he
used larvicide to treat for mosquitoes only when he noticed a
problem after the mosquitoes hatched. According to the record,
however, larvicide is effective only if used before mosqui-
toes hatch.
Deviney testified that she also had not been made aware
of Up’s accident prevention bulletin, which had been issued
in 2002. The bulletin recommended using an insect repellant
containing 20 to 30 percent DEET, but the repellant Deviney
used contained only 7 percent DEET. Deviney also stated that
she was required to get out of the train to perform her roll-by
inspection, that she was bitten a number of times, and that her
age placed her in a high-risk group for WNV.
In order to overcome Up’s motion for summary judgment,
Deviney had to produce enough evidence to present a genuine
issue of material fact that Up breached its duty to provide a
reasonably safe place to work. In light of the FELA cases dis-
cussed above, Deviney has presented enough evidence for her
action to survive the motion for summary judgment. Deviney
presented evidence that Up knew or should have known of the
potential hazard posed by the presence of mosquitoes in the
bill trainyard and that Up failed to exercise reasonable care to
inform and protect her from that hazard.
[10] Deviney also presented evidence that there was a
pond on mine property near East Cadaro Junction where she
24 Id.
DEVINEy V. UNIoN pACIFIC RR. Co. 	457
Cite as 280 Neb. 450

conducted a roll-by inspection. Deviney stated that she received
more than 1 bite but fewer than 25 mosquito bites at that loca-
tion. Up argues that it cannot be held liable for mosquitoes
breeding on a third party’s property. The Court of Appeals, cit-
ing Carter v. Union Railroad Company,25 stated that Deviney
had presented enough evidence for her action to survive sum-
mary judgment. “Under the FELA, an employee who suffers an
‘injury’ caused ‘in whole or in part’ by a railroad’s negligence
may recover his or her full damages from the railroad, regard-
less of whether the injury was also caused ‘in part’ by the
actions of a third party.”26 We agree with the assessment of the
Court of Appeals that Deviney has presented enough evidence
of a potential breach of duty to overcome a motion for sum-
mary judgment on this issue.
[11] As previously noted, foreseeability is an issue of
fact, relating to breach of duty, to be determined by the fact
finder. We recognize that “[t]he essential element of reason-
able foreseeability in FELA actions requires proof of actual or
constructive notice to the employer of the defective condition
that caused the injury.”27 Up’s own accident prevention bulletin
demonstrates that Up at least knew of the risks posed by WNV,
and Deviney presented evidence that Up knew or should have
known of the presence of mosquitoes where she was required
to work. We therefore agree with the Court of Appeals that
Deviney presented sufficient evidence for her action to survive
a motion for summary judgment.
CoNCLUSIoN
We conclude that under FELA, Up owed Deviney a duty
to provide a reasonably safe workplace, and that Deviney pre-
sented sufficient evidence to give rise to a genuine issue of
material fact as to whether Up breached that duty. We also hold
25 Carter v. Union Railroad Company, 438 F.2d 208 (3d Cir. 1971).
26 Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 165-66, 123 S. Ct. 1210,
155 L. Ed. 2d 261 (2003). See, also, Holsapple v. Union Pacific RR. Co.,
279 Neb. 18, 776 N.W.2d 11 (2009).
27 Grano, supra note 17, 818 F. Supp. at 618.
458 	280 NEbRASkA REpoRTS

that Deviney presented sufficient evidence of a genuine issue
of material fact as to the foreseeability of contracting WNV.
We therefore affirm the decision of the Court of Appeals.
A ffirmed.
DEVINEy V. UNIoN pACIFIC RR. Co. 	459
Cite as 280 Neb. 450