United States District Court, Eastern District of Pennsylvania
February 25, 1999
RONALD T. FERGUSON, PLAINTIFF,
CSX TRANSPORTATION, DEFENDANT.
The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
Plaintiff, Ronald T. Ferguson has filed a claim pursuant to
the Federal Employer's Liability Act, 45 U.S.C. § 51 ("FELA")
against his former employer, CSX Transportation ("CSX").
Specifically, plaintiff has brought a claim under FELA for the
negligent infliction of emotional distress caused by defendant
CSX. Before the Court is defendant's motion for summary
judgment. Because plaintiff was not within the "zone of danger"
as articulated by the United States Supreme Court in Gottshall,
defendant's motion will be granted.
The following facts are not in dispute or are construed in
the light most favorable to the plaintiff. On or about August
Larry Deery ("Deery")*fn1, an employee of CSX who was off-duty
at the time of this incident, drove his car to the site where
plaintiff was working and began screaming obscenities and
threats directed at plaintiff. At the time, plaintiff was
working at CSX's rail yard in Willsmere, Delaware. According to
plaintiff, Deery threatened to kill him for reporting to a CSX
supervisor some indiscretions on the part of Deery's brother,
Phillip Deery, who was also an employee of CSX.*fn2 Plaintiff
alleges that, for a period of about five to ten minutes, Deery
continued to scream at him, threatening to burn down his home
and kill his family.
Initially, when the verbal abuse began, plaintiff was
standing next to a running locomotive and Deery was inside his
parked car, behind a fence, approximately fifty (50) feet away.
However, because Deery was in his car and plaintiff was some
distance away standing next to a running train, plaintiff could
not hear exactly what Deery was saying. As a result, plaintiff
began walking toward the fence separating him from Deery. At
that point, continuing the verbal assault towards plaintiff,
Deery exited his car and also walked toward the fence
separating the two individuals. According to the plaintiff, the
two were now three (3) to five (5) feet away, still separated
by the fence. After verbally threatening plaintiff for a few
more minutes, Deery picked up some rocks and stones, as well as
a 2 X 4 piece of lumber and threw them at plaintiff. It is
undisputed that plaintiff was not hit by any of the objects
Deery threw at him.*fn3 Following Deery's tirade of both words
and rocks, plaintiff alleges that Deery returned to his car and
made slashing motions across his throat before driving out of
As a result of this confrontation, plaintiff claims to have
suffered severe emotional distress. Since the incident,
plaintiff has been continuously fearful for his life and that
of his family. In addition, he has been unable to work and has
difficulty concentrating. Lastly, plaintiff has suffered from
major depression and severe anxiety disorder which has required
long-term psychiatric care.
III. LEGAL STANDARD
Summary judgment is appropriate if the moving party can "show
that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). When ruling on a motion for summary
judgment, the Court must view the evidence in the light most
favorable to the non-movant. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must
accept the non-movant's version of the facts as true, and
resolve conflicts in the non-movant's favor. Big Apple BMW,
Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir.
1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d
The moving party bears the initial burden of demonstrating
the absence of genuine issues of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Once the movant has done so, however, the
non-moving party cannot rest on its pleadings. See Fed.R.Civ.P.
56(e). Rather, the non-movant must then "make a showing
sufficient to establish the existence of every element
essential to his case, based on the affidavits or by
depositions and admissions on file." Harter v. GAF Corp.,
967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
Furthermore, in order for a court to grant summary judgment
in a FELA negligence case, the defendant must demonstrate the
absence of a genuine issue of material fact on at least one of
the required elements for negligence and that the issue should
be resolved in its favor as a matter of law. See, e.g., Smolsky
v. Consolidated Rail Corp., 780 F. Supp. 283, 290 (E.D.Pa.
1991); Lauria v. National R.R. Passenger Corp., No. 95-1561,
1997 WL 83767, at *3 (E.D.Pa. Feb.20, 1997).
A. Recovery Under the FELA
The FELA provides that "[e]very common carrier by railroad .
. . 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. . . ."
45 U.S.C.A. § 51 (West 1986). However, FELA is not a workers'
compensation statute and does not require railroad employers to
insure the safety of their employees. See, e.g., Consolidated
Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129
L.Ed.2d 427 (1994); Inman v. Baltimore & Ohio R.R. Co.,
361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959).
Nevertheless, the Supreme Court has liberally construed FELA to
further the statute's broad remedial goal. Gottshall, 56 at
The traditional common law negligence elements of duty,
breach, foreseeability, causation and damages apply in an
action brought under FELA. Robert v. Consolidated Rail Corp.,
832 F.2d 3, 6 (1st Cir. 1987); see also Finley v. National R.R.
Passenger Corp., No. 95-3594, 1997 WL 59322, at *3 (E.D.Pa.
Feb.12, 1997); Lauria, 1997 WL 83767, at *2 (E.D.Pa. Feb.20,
1997) Walsh v. Consolidated Rail Corp., 937 F. Supp. 380, 383
(E.D.Pa. 1996). The question in this case is whether, under the
circumstances of this case, defendant owed plaintiff a legal
B. Claims for Negligent Infliction of Emotional Distress
Under the FELA — Zone of Danger Test.
The United States Supreme Court, in Consolidated Rail Corp.
v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427
(1994), outlined the standard to be applied when considering
claims for negligent infliction of emotional distress under the
FELA. In Gottshall, the Supreme Court held that "an emotional
injury constitutes `injury' resulting from the employer's
`negligence' for purposes of FELA only if it would be
compensable under the terms of the zone of danger test." Id. at
555, 114 S.Ct. 2396 (citing 45 U.S.C. § 51). It defined the
zone of danger test by stating that the law "limits recovery of
emotional injury to those plaintiffs who sustain a physical
impact as a result of a defendant's negligent conduct, or who
are placed in immediate risk of physical harm by that conduct."
Id. at 547-48, 114 S.Ct. 2396. According to the Third Circuit,
"[t]he Supreme Court adopted the zone of danger test, in part,
to limit defendants' liability to certain classes of plaintiffs
and to certain types of harm, notwithstanding that some genuine
claims would be foreclosed." Bloom v. Consolidated Rail
Corp., 41 F.3d 911, 914 (3d Cir. 1994) (citing Gottshall, 512
U.S. at 552, 114 S.Ct. 2396).
The Third Circuit has concluded that under
Gottshall, when plaintiff asserts a claim for negligent
infliction of emotional distress, a defendant will owe the
plaintiff a legal duty only if: 1) the plaintiff sustained a
physical impact or 2) plaintiff was placed in immediate risk of
physical harm or threatened imminently with physical impact.
Bloom, 41 F.3d at 915-16. It is clear from the record that
plaintiff did not sustain a physical impact. Plaintiff
testified at his deposition and concedes in his Response that
he was never hit by any of the objects thrown by Deery. See
Pl.'s Dep. at 43, 100; Pl.'s Br. in Resp. to Defs.' Mot. for
Summ. J. at 5. Therefore, the only issue remaining is whether,
under the circumstance, does plaintiff satisfy the second prong
of the Bloom test.
Plaintiff's deposition testimony clearly reveals that the
emotional distress he claims was not the result of the fear of
immediate physical harm from being hit by the objects thrown
over the fence by Deery, but rather by the fear of the threats
of future harm which Deery was making toward plaintiff and his
family. See Pl.'s Dep. at 99. As he testified at his
deposition, due to these threats, he remains in constant fear
and has suffered severe emotional distress. Pl.'s Dep. at
99-100; Pl.'s Exs. C, F.*fn5 This Court concludes that the
fear of some future harm caused by verbal threats is
insufficient to place plaintiff within the actionable zone of
danger because these threats of future harm did not place
plaintiff "in immediate risk of physical harm or threatened
[him] imminently with physical impact." Bloom, 41 F.3d at
915-16. The fear plaintiff suffered due to the threat to burn
down his house, as well as the threat of future harm to
plaintiff and his family is, therefore, not compensable. Cf.
Krause v. Security Search & Abstract Co. of Phila., Inc., Nos.
96-595, 96-5742, 1997 WL 528081, at *8 (E.D.Pa. Aug.21, 1997)
(verbal threats made to plaintiffs about physically harming
family members not enough to meet Pennsylvania's zone of danger
test and allow recovery for negligent infliction of emotional