ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 89-03102).
Before: Becker, Nygaard and Roth, Circuit Judges.
James E. Gottshall appeals from a summary judgment in favor of Consolidated Rail Corporation in this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. In the context of the facts that follow, we will examine whether FELA recognizes negligent infliction of emotional distress as a basis for liability, and if so, define the contours of this liability. We will construe the facts in the light most favorable to Gottshall. Metzger v. Osbeck, 841 F.2d 518, 519 (3d Cir. 1988). We hold that Gottshall has shown a sufficient basis to sustain his suit under FELA. Conrail is not entitled to judgment as a matter of law, and we will reverse and remand for further proceedings.
On an exceedingly hot and humid August day during the summer of 1988, Conrail dispatched a work gang of nine men and among them were James Gottshall and his friend Richard Johns. The crew was supervised by Michael Norvick. Conrail sent its men to replace a stretch of defective tracks on the Watertown Secondary near Turbotville, Pennsylvania. Despite many technological advances in the railway industry, replacing steel rails still requires raw human labor. It remains heavy, strenuous work, requiring workers to unload, carry, saw, and drill holes in steel rails, and to extract spikes. Because trains were operating on the track, work did not begin until high noon when the temperature had exceeded 95 degrees. The temperature of the rail itself was 118 degrees. The track was out in the flats -- in the open.
Most of the men were in their fifties and many were overweight. Conrail knew that one worker had suffered a serious heart attack. It also knew Johns was overweight, had high blood pressure and athero or arteriosclerotic cardiovascular disease, and was taking medication.
Conrail was on a strict time schedule because, as Gottshall explained, it had violated a railway safety regulation and knew it was scheduled for a safety inspection. On this particular day Conrail drove its men hard; the pace of the work was unusually fast. Although conditions became increasingly inhospitable, the men were discouraged repeatedly from taking rest breaks except to get water on a need basis. As a practical matter it was difficult for workers to take unscheduled breaks because they often worked in teams. As Norvick stated, "We aren't going to stop our maintenance work because of the heat."
Under these stark conditions the men worked continuously for about two and a half hours until the work routine was unexpectedly disrupted. While Johns was cutting a rail, Gottshall saw him collapse. Gottshall and several men rushed to help their coworker. Norvick saw that Johns was pale and sweating profusely and realized he was having trouble with the weather conditions. They administered a cold compress and soon Johns regained consciousness. Ever aware of the time constraints on the work to be done, Norvick ordered the men to stop assisting Johns and to get back to work. They did so, leaving Johns with Norvick who neither took Johns from the worksite nor sought medical assistance. Five minutes later, Gottshall saw Johns stand up and collapse again.
Gottshall rushed to help his friend and saw that Johns was in trouble. Johns had turned white; his teeth had been knocked out by the fall; his eyes were rolled back; he was gasping for breath; his heart was fluttering; and saliva was drooling from his mouth. Gottshall realized Johns was suffering from a heart attack and began cardiopulmonary resuscitation. At one point Gottshall managed to restart Johns' heart, but only briefly. Although Gottshall was emotionally perturbed, and at times crying, he continued the cardiac procedure for about forty minutes while waiting for medical help.
This time Norvick realized Johns needed medical help immediately. The men had communication equipment, but that equipment was useless because on this particular day Conrail had taken the Turbotville base station off the air for repairs without notifying the men. Norvick was forced to physically seek help.
Rather than take the dying Johns to the nearest town, Norvick sped along an old country road to a firehall, only to find it closed. Sometime after the initial attempted distress call, the radio equipment apparently became operational and Norvick managed to reach a Conrail dispatcher. Norvick then raced to Agway Feed to place a 911 emergency call just in case the dispatcher's lines would not work. The worksite was isolated, so Norvick arranged to meet the medical help at a nearby road. When the paramedics arrived some thirty minutes to an hour later, he led them through a path to the worksite.
By this time, it was too late. Johns had died. His corpse was covered and laid on the gravel beside the track where it remained in the open, under the hot sun and in full view of the men until the coroner arrived, some three hours later. Meanwhile, Norvick ordered the men back to work because an empty coal train needed to use the railway line. When the men finished the work, Norvick ordered Gottshall and the others to stay at the worksite
After the coroner finished, Gottshall and several men carried Johns' body to the ambulance parked in the distance. The coroner reported that Johns had died from a heart attack, precipitated by the excessive heat and humidity, combined with the heavy physical exertion. He also found that Johns did not receive prompt medical attention and that, had he, his chances of survival would have been significantly enhanced.
From the outset, the incident hit Gottshall hard. Other workers noticed he was emotional and upset during the ordeal. While he was giving CPR to Johns, he kept repeating, "Come on Dick, breathe, breathe." Even as the work crew returned from the worksite hours after Johns had died, a worker noticed Gottshall was still crying.
Johns was Gottshall's friend, and their friendship went beyond work. Johns often visited Gottshall to socialize. They spent time on the weekends, socializing and discussing the railway industry. Johns planned to join the National Historical Society of which Gottshall is a member. They attended union meetings, worked and took their meals together, and sometimes went drinking together. They had enjoyed this relationship for fifteen years. Conrail knew they were "personal friends."
When Gottshall returned to work the next morning, a Conrail supervisor reprimanded him for administering CPR to Johns. Otherwise, it was work as usual. The extreme weather conditions persisted. The men went back to the track and continued to work long, hard hours under the sun. Conrail did not implement scheduled breaks but water, as usual, was provided.
Gottshall began to feel sick and lost his appetite. He became preoccupied with the events surrounding Johns' death, and he became increasingly afraid that he would die under the same extreme conditions.
Johns' funeral was held the following weekend. The following Tuesday, Gottshall told his supervisor he was sick and was going home. The supervisor told him that he had to explain to the division engineer. As Gottshall recalled, "I had to explain to him after all of this heat and exhaustion, I'm getting sick and I can't take it, I'm going home and taking a couple of days off, and I just got sick and just couldn't go back anymore."
He returned home, retreated to his basement, and stayed there until his father found him several days later. Gottshall, along with the others who witnessed the accident, underwent a stress test given by their local union. The results indicated that the general consensus among the men was that the death was avoidable and that the men exhibited considerable depression and rage towards Conrail. The test identified Gottshall as suffering the most and recommended he seek medical treatment.
Gottshall was admitted to the Northwestern Institute of Psychiatry and remained there under the care of Dr. Byron Braid for about three weeks. Doctor Braid diagnosed that Gottshall was suffering from major depression and post-traumatic stress disorder. Gottshall was having suicidal preoccupations, anxiety, sleep onset insomnia, cold sweats, loss of appetite, nausea, physical weakness, repetitive nightmares of the death scene and a fear of leaving home. During this time Gottshall lost forty pounds. Another psychiatrist, Dr. Gary Glass, and a clinical psychologist, Dr. Sharon Silberman, confirmed Dr. Braid's diagnosis. Since his discharge from the hospital, Gottshall has continued to receive out-patient psychological treatment.
Gottshall brought an action against Conrail under FELA, 45 U.S.C. § 51 et seq., seeking damages for emotional and physical injuries suffered and alleging that Conrail's negligence created the circumstances under which he was forced to watch and participate in the events surrounding the death of his friend. The district court reasoned that Gottshall's allegations failed to satisfy the elements of any of the recognized common law theories of liability, including the bystander and the zone of danger tests. Gottshall v. Consolidated Rail Corp, 773 F.Supp. 778, 781 (E.D. Pa. 1991). It further reasoned that Conrail did not breach a general duty of care because it considered the failure to provide means of communication the only possible conduct breaching that duty and that Conrail could not have reasonably foreseen that such conduct would lead to Gottshall's injuries. Last, it applied the causation standard under Pennsylvania law and concluded that "Gottshall's injury was just too far down the causal chain, and as a result linking defendant's negligence to the harm treats the defendant like an insurer." Id. at 784. For these reasons the district court granted Conrail's motion for summary judgment, and Gottshall appeals, contending he is entitled to a trial on the merits under FELA.
FELA creates a cause of action for railway employees who have been killed or injured by the railway's negligence. It provides:
Every common carrier . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence . . . .
45 U.S.C. § 51 (emphasis added). The statute nowhere draws a distinction between claims for physical or emotional injury.
In Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987), the Supreme Court addressed whether negligent infliction of an emotional injury is actionable under FELA. The employee there brought a FELA action alleging that the railroad harassed, threatened and intimidated him and that as a result he suffered "a mental breakdown, and certain associated physical disorders." The Court first held that an employee retains his right to bring a FELA action for damages even though the injury was caused by conduct possibly subject to arbitration under the Railway Labor Act. 107 S. Ct. at 1416-17. The Court then turned to the railway's contention that an employee's "wholly mental injury" was not compensable under FELA. It declined to resolve this issue, noting that the record was incomplete as to the exact nature of the allegedly tortious activity and the extent of the injuries allegedly suffered. It opined that "broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand." Id. at 1418. Thus federal courts are left to develop the degree to which negligent infliction of emotional distress is actionable under FELA.
The Buell Court said, however, that federal courts should "glean guidance from common-law developments." Id. at 1417. So, we first look to the common law. In seeking guidance we are not limited to the law of the forum state, but instead must gauge the development of the common law from a broader base. Outten v. National R.R. Passenger Corp., 928 F.2d 74, 77 (3d Cir. 1991).
Among states, a majority recognizes a cause of action in tort for negligent infliction of emotional distress. See Buell, 107 S. Ct. at 1418 & n.20. But from recognition to application, the doctrinal divergence is great.
A minority employs the "physical impact" rule.*fn1 The rule requires a contemporaneous physical injury or impact to recover for negligent infliction of emotional distress. "The purpose of the rule requiring physical impact is to prevent 'illusory or imaginative or faked' claims." Zelinsky v. Chimics, 196 Pa. Super. 312, 318, 175 A.2d 351, 354 (1961). See Restatement (Second) of Torts, § 436A, comment b (1965).
A large majority of jurisdictions employs either the "zone of danger" or "physical manifestation" rules. See supra n.1, Comment, 33 Vill. L. Rev. at 796-98 & n.; Restatement §§ 313, 436, 436A. The zone of danger rule permits recovery for emotional injuries resulting from witnessing physical harm to another or from fearing physical harm to oneself, provided that plaintiff was actually threatened by physical harm. The physical manifestation rule requires that plaintiff exhibit a physical injury or symptom as the direct and natural result of the initial emotional distress suffered.
Many jurisdictions also permit a bystander to recover for emotional injuries. The quintessential common law case involves the mother who witnesses the death of her child. See Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) (en banc). See generally Comment, 33 Vill. L. Rev. at 806-07 n.139 (as of 1988 at least ten states have adopted the Dillon approach). The Supreme Court of California restated the Dillon bystander test as this: Plaintiff can recover if she (1) is present at the accident scene at the time it occurs and contemporaneously perceives the injury to the victim, (2) suffers serious emotional distress as a result of watching the injury, and (3) is closely related to the injured victim. Thing v. La Chusa, 48 Cal.3d 644, 668-69, 257 Cal. Rptr. 865, 771 P.2d 814 (1989). As for the last factor, the court limited recovery to relatives residing in the same household, parents, siblings, children, and grandparents of the victim. 771 P.2d at 829 n.10. While some jurisdictions require that the plaintiff and the victim stand in some familial relationship, others seem to suggest a showing of strong emotional ties will suffice. See Champion v. Gray, 420 So.2d 348, 353 (Fla. 1985), 478 So.2d 17, 20 (Fla. 1985); Versland v. Caron Transp., 206 Mont. 313, 671 P.2d 583, 587 (1983); Paugh v. Hanks, 6 Ohio St. 3d 72, 79-80, 451 N.E.2d 759, 766-67 (1983); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096, 1103 (1976); Toms v. McConnell, 45 Mich. App. 647, 207 N.W.2d 140, 144-45 (1973); Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668, 670 (1979). Thus a plaintiff must show physical, temporal, and relational proximity.
Although these common law tests seem as different as they are arbitrary, and have been so criticized, they share common roots. While severe emotional injuries can be just as debilitating as physical injuries, they are not as manifest. One can see frayed skin, but one cannot see frayed nerves; hence, an emotional injury is easier to fake. These tests therefore have been judicially developed to screen causes of action and send only the meritorious ones to juries.
As an unfortunate product of this thinking, the focus shifted from traditional principles of liability to mechanical adherence to these tests, which are based upon a theory that liability is the extraordinary exception. Thus, even in cases of gross negligence resulting in reasonably foreseeable injuries, common law courts preserve the limits of the established rules, thereby precluding recovery for many meritorious claims.*fn2
These common law tests provide instruments that are intended to separate the meritorious claims from the others, but they do not necessarily etch the contours of the federal right. While we assume that "FELA jurisprudence gleans guidance from common-law developments," Buell, 107 S. Ct. at 1417 (citing Urie, 69 S. Ct. at 1026), we are not called upon to resolve matters of state law, nor predict how state courts would resolve them. Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938); Robertson v. Allied Signal, Inc., 914 F.2d 360, 364 (3d Cir. 1990). Determining FELA liability is distinctly a federal question. Urie, 69 S. Ct. at 1027-28.
While federal courts uniformly agree that claims for negligent infliction of emotional distress are cognizable under FELA, they are badly splintered as to the elements necessary to bring such a claim.
The Court of Appeals for the Seventh Circuit has held that FELA does not create a cause of action for emotional injuries absent actual or threatened physical impact. Ray v. Consolidated Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991) (quoting Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 813 (7th Cir. 1985) (pre-Buell case) ("the critical question in this case is simply whether [plaintiff] has stated a claim under the FELA, which means a claim for a violation of one of the traditional 'physical' torts, such as assault, battery, and negligent infliction of personal injury, all of which are torts actionable under the [FELA]")). Accord Hammond v. Terminal R.R. Ass'n, 848 F.2d 95, 98 (7th Cir. 1988); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1025 (7th Cir. 1989).
The Court of Appeals for the Ninth Circuit has taken the position that purely emotional injuries are compensable under FELA, though it has yet to delineate the circumstances in which recovery is permitted. Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1313 (9th Cir. 1986) (pre-Buell case). See Pierce v. Southern Pacific Transp. Co., 823 F.2d 1366, 1372 n.2 (9th Cir. 1987) (applying the "egg-shell plaintiff" doctrine to emotional claims if injury results in physical manifestation, in this case a heart attack).
The Court of Appeals for the Sixth Circuit has decided that FELA does not recognize a claim for intentional infliction of emotional distress resulting in purely emotional injuries. Adkins v. Seaboard Sys. R.R., 821 F.2d 340, 342 (6th Cir. 1987). It has yet to decide whether a claim for negligent infliction of emotional distress without verifiable physical manifestation is actionable. See Stoklosa v. Consolidated Rail Corp., 864 F.2d 425, 426 (6th Cir. 1988); Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir. 1990). But in Stoklosa and Adams, the court took two potentially contradictory views of an employer's duty to its employees to provide an "emotionally safe" workplace.
In Stoklosa the court concluded that an employer's duty is defined by whether its conduct could be reasonably foreseen to cause an employee's emotional distress. 864 F.2d at 426. In Adams, however, the court concluded that "an employer has not breached its duty to provide an emotionally safe workplace unless the employer (acting through its agents) engages in 'unconscionable abuse' of an employee." 899 F.2d at 540.*fn3
The Court of Appeals for the Fourth Circuit requires plaintiff to show outrageous conduct as a predicate to a claim for negligent infliction of emotional distress under FELA, thus taking the same position as the Sixth Circuit Adams court. Elliott v. Norfolk & W. Ry. Co., 910 F.2d 1224, 1229 (4th Cir. 1990) (citing Buell, 107 S. Ct. at 1416 n.13; Netto, 863 F.2d at 1214-15). It declined to decide whether one may recover under FELA for purely emotional injuries without additional physical symptoms. Id.
The Court of Appeals for the First Circuit understands Buell as "an attempt to leave the door to recovery for wholly emotional injury somewhat ajar but not by any means wide open." Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 694 (1st Cir. 1987). The court declined "to make this a pioneer case exploring the frontier possibility opened up by Buell " and rejected plaintiff's claim because he failed to show causation between the alleged injury and the tortious conduct. Id. at 694, 696. Likewise, in Robert v. Consolidated Rail Corp., 832 F.2d 3 (1st Cir. 1987), the court avoided the issue and held that plaintiff failed to establish that Conrail could have reasonably foreseen that he would suffer a heart attack from stress of which Conrail was never informed. It declined to resolve whether a heart attack induced solely by stress and not accompanied by any precipitating physical injury is a compensable injury. Id. at 7. But see Pierce, 823 F.2d at 1372 n.2 (emotional distress leading to heart attack is actionable under FELA).
The Court of Appeals for the Fifth Circuit has decided a series of cases on this issue. In Hagerty v L & L Marine Serv., Inc., 788 F.2d 315 (5th Cir. 1986) (pre-Buell case), plaintiff was drenched with toxic, carcinogenic chemicals and suffered emotional injuries arising from cancerphobia. The court concluded that FELA allows plaintiffs to recover for psychic and emotional harm because it was intended to provide broad coverage for all work-related "injuries" whether characterized as physical or mental. Id. at 318. On reconsideration, the court modified Hagerty, stating that a plaintiff may recover for serious mental distress assuming an "actionable injury." 797 F.2d 256 (1986).
In Netto v. AMTRAK the court declined to decide whether a plaintiff may recover for purely emotional injuries under FELA because he had failed to show any evidence of unconscionable or outrageous conduct. 863 F.2d at 1214. While the Sixth Circuit position in Adams and the Fourth Circuit position in Elliot purportedly adopted the Netto holding, it is clear Netto is of a different genre because the court emphasized that the claim was only for intentional infliction of emotional distress. Id. at 1214 n.4. The Netto court did not require unconscionable conduct for all claims for emotional distress. Rather, since it was presented with a claim based on intentional infliction of emotional distress only, it had no occasion to discuss negligent infliction of emotional distress. See supra n.2.
In Gaston v. Flowers Transp., 866 F.2d 816 (5th Cir. 1989), a seaman saw his half-brother crushed to death and sued under the Jones Act.*fn4 The facts indicate that plaintiff, in some capacity, was not merely a witness, but was an active participant in the events: "Gaston [plaintiff] fell to the deck; but James [victim] slipped between the barge and the vessel and was crushed to death, despite Gaston's efforts to pull him to safety." Id. at 817. The court refused to provide recovery for an emotional injury stemming from witnessing the violent death of a relative, reasoning that the plaintiff's injury was the result of watching another person die and was not a result of fear for his own safety. It thus rejected the bystander rule of liability and required that plaintiff be in the zone of danger to recover for emotional distress. Id. at 819 (restricting Hagerty as a "physical impact" case). The court left open the question whether a purely emotional injury is cognizable. Id. at 821.
In Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991), the plaintiff sued under the Jones Act for emotional harm suffered as a result of sexual harassment. The evidence showed that the plaintiff was subjected to tortious physical contact and that she suffered physical manifestations of harm, including weight loss, vomiting, and diarrhea. Id. at 265. The court held that in these circumstances the plaintiff's claim was cognizable under the Jones Act. The court did not reach the issue of whether a purely emotional injury would be cognizable. Id. at 266 n.8.
In Plaisance v. Texaco, Inc., 937 F.2d 1004 (5th Cir. 1991), the plaintiff, a tug boat captain with over 30 years experience, witnessed an explosion when a barge ruptured a pipeline. He helped to ease the emergency by moving several vessels to safety. No one was injured in the accident. Soon thereafter, he developed post-traumatic stress disorder and depression resulting from his belief that he ...