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Wilkinson v. Union Pacific Railroad Co.12/29/1998
pe of his employment at the time of his injury. Therefore, we limit our analysis to this issue: Did Wilkinson allege sufficient facts to make a prima facie case that decedent was injured within the scope of his employment?
The evidence on this point is thin. No evidence has been presented as to what happened to decedent between the time he left home and the time he arrived at the Round House. What decedent experienced on his way to work is a material disputed fact. One thing is clear, however: when decedent arrived at the Round House, he was in need of medical attention. Union Pacific contends that the onset of decedent's medical emergency occurred before he arrived on Union Pacific property and that decedent was not, therefore, within the scope of his employment when he suffered his injury . This assertion, and the trial court's acceptance of it, seems to depend on some assumptions about asthma and the speed with which asthma attacks can produce the symptoms decedent exhibited at the Round House. However, the record is entirely silent about asthma in general and about decedent's asthma attack in particular. No one has suggested that this is a suitable issue for judicial notice.
Because Union Pacific has not offered any affidavits regarding what happened to decedent between the time that he left home and the time that he arrived at the Union Pacific property, there remain disputed issues of material fact and summary judgment is not appropriate. On this record, there is no reason to assume that decedent's asthma attack began during his commute to work rather than after his arrival at work but immediately prior to his entry into the Round House. Because we must review the alleged facts in the light most favorable to Wilkinson and draw all reasonable inferences in her favor and because Union Pacific has not rebutted Wilkinson's allegations thereby leaving material facts disputed, we find that summary judgment is inappropriate. Wilkinson's allegations are sufficient to allow this case to go to a jury. Absent some evidence showing that decedent could not have lost consciousness as quickly as he did if the asthma attack had begun on-premises, there is no basis for granting summary judgment. Consequently, the trial court's grant of summary judgment is overturned.
Reversed and remanded for further proceedings.
Chief Justice Howe, Associate Chief Justice Durham, and Justice Stewart concur in Justice Zimmerman's opinion.
Justice Russon concurs in the result.
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