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Outten v. National R.R. Passenger Corp.

filed: March 13, 1991.


On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 88-03347.

Dolores K. Sloviter, Chief Judge,*fn* Mansmann, Circuit Judge, and H. Lee Sarokin, District Judge.*fn**

Author: Sloviter


SLOVITER, Curcuit Judge

This appeal requires us to revisit the issue of the permissible scope of a claim by a railroad employee against his employer alleging damages for injuries of an emotional nature only. Nelson E. Outten, Jr. appeals from the district court's order granting summary judgment in favor of National Railroad Passenger Corporation ("Amtrak") in Outten's negligence action brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (1988) ("FELA"). Outten contends that the district court erred as a matter of law in holding that Outten was precluded from recovering for his wholly emotional injuries because he was not in the zone of danger of a train collision that occurred a mile away from where he was located. The relevant facts are undisputed; the appeal raises only an issue of law.


Factual Background and Procedural History

Outten was working for Amtrak as an on-track tamper operator near Hook Tower, Pennsylvania, late one night in January 1988. In this location, there are six parallel tracks running north and south between Philadelphia, Pennsylvania, and Wilmington, Delaware, numbered 0 to 5. Outten had been assigned to work on track 2, but instead was on track 0, 38 feet east of track 2, attempting to repair the frozen travel valve on his tamper. Two of Outten's co-workers were operating a ballast regulator on track 2 and were proceeding southward down the track toward Outten's position. Outten saw the lights of the regulator when it was about a mile and a half away.

Approximately 20 minutes later, Outten noticed that an Amtrak passenger train travelling northbound from Washington, D.C. on track 2 failed to cross over from track 2 to track 1 at the Hook Tower switch. We assume for purposes of summary judgment that the Hook Tower operator negligently failed to turn the switch. As a result, Outten knew that the train and the ballast regulator would collide. Because Outten had his back turned to the ballast regulator, he did not know its precise position on track 2. He thought that the ballast regulator had travelled much farther south along track 2 than it actually had and believed, albeit incorrectly, that the impact might be close to him.

When the passenger train had travelled northward to a position parallel to Outten's, he panicked, jumped off his tamper, and ran in the same direction that the passenger train was travelling. Outten feared for his life because he thought that the collision was imminent and that the flying debris would kill him. He had seen a dead body that had been hit by a train in 1986, and feared that the same would happen to him.

The passenger train eventually did collide with the regulator, but the point of impact was at least a full mile north of the point to which Outten had run. Outten did not witness the impact, but he did see sparks from an engine explosion and some of the train cars derailing. No one was killed in the accident, although a few people sustained minor injuries. It is conceded for purposes of summary judgment that Outten suffered psychological injuries, including uneasiness and fear which rendered him unable to work for approximately four weeks.

Outten filed an action in the Eastern District of Pennsylvania under the FELA, alleging that Amtrak had negligently inflicted emotional distress upon him. Amtrak's motion for summary judgment contended that Outten's injuries are not cognizable under the FELA because Outten was not in the zone of physical danger and suffered no physical impact or physical consequences as a result of the collision.

The district court granted Amtrak's motion. It recognized that FELA actions are governed by federal common law, but applied the common law of Pennsylvania "in the absence of Third Circuit authority in this area." App. at 13. The court correctly construed Pennsylvania law as holding that a plaintiff claiming negligent infliction of emotional distress who suffered no physical impact from the force and is not related to any persons involved in the accident must show not only "'that the negligent force was aimed at him and put him in personal danger of physical impact'" but also "'that he actually did fear the force.'" App. at 14 (quoting Niederman v. Brodsky, 436 Pa. 401, 413, 261 A.2d 84, 90 (1970)). Using this test, the district court held that Outten was unable to prevail as a matter of law.

The district court had jurisdiction pursuant to 45 U.S.C. § 56. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the district court's grant of summary judgment is plenary. Erie ...

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