Puthe v. Exxon Shipping Co.

• Decision Date: 19 August 1993
• Docket Number: No. 1245,D,1245
• Citation: 2 F.3d 480
• Parties: Kurt A. PUTHE, Plaintiff-Appellant, v. EXXON SHIPPING CO., Defendant-Appellee. ocket 92-9291.
• Court: U.S. Court of Appeals — Second Circuit

Page 480

2 F.3d 480

1994 A.M.C. 421

Kurt A. PUTHE, Plaintiff-Appellant, v. EXXON SHIPPING CO., Defendant-Appellee.

No. 1245, Docket 92-9291.

United States Court of Appeals Second Circuit.

Argued March 18, 1993.

Decided Aug. 19, 1993.

James M. Hazen, New York City (Susan P. Mahon, Hill, Betts & Nash, of counsel), for plaintiff-appellant.

Cary R. Wiener, New York City (Todd L. Platek, Kirlin, Campbell, Meadows & Keating, of counsel), for defendant-appellee.

Before: ALTIMARI, Circuit Judge, and LOKEN, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. ^*

ALTIMARI, Circuit Judge:

Plaintiff-appellant Kurt A. Puthe appeals from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge ), dismissing his complaint in its entirety following the grant of summary judgment for defendant-appellee Exxon Shipping Company ("Exxon"). Puthe brought an action pursuant to the Jones Act, 46 U.S.C.App. Sec. 688 (1988), alleging negligence and unseaworthiness on the part of Exxon.

Puthe maintained that after a series of allegedly negligent actions committed by Exxon employees he suffered psychological injuries. These allegedly negligent incidents range from being forced to work in adverse weather conditions to being demoted. Puthe's treating physician concluded that certain of his problems were caused in part by job-related stress.

The district court granted Exxon's motion for summary judgment on a number of grounds. First, the court found that Puthe failed to demonstrate any of the legally cognizable acts of negligence necessary to sustain a cause of action. See Puthe v. Exxon Shipping Co., 802 F.Supp. 819, 828 (E.D.N.Y.1992). Next, the court stated that plaintiff could not, as a matter of law, establish that any negligent conduct on the part of Exxon caused Puthe's emotional distress. See id. at 829. Finally, the court held that Puthe's action was barred by the applicable statutes of limitations. See id. at 830.

We affirm the district court's grant of summary judgment based on the court's finding that Puthe failed to demonstrate any legally cognizable acts of negligence.

BACKGROUND

Puthe is a former merchant seaman who was employed by Exxon from 1977 to 1986. During his nine year career as a seaman with Exxon, Puthe made thirty-eight voyages on

sixteen different vessels. Puthe claims that due to a series of negligent actions by Exxon employees, he suffered various psychological and emotional injuries while serving on several of Exxon's ships. In support of his claim for psychological injuries plaintiff presents the following incidents which he claim "all added up," and caused him great psychological stress:

1. In 1977, while aboard the Exxon Chester, Puthe was ordered to remove a scupper plug on deck during adverse weather conditions and was subsequently knocked down by a wave.

2. In 1978, while aboard the Exxon Philadelphia, Puthe fell on deck and sprained his neck after tripping on lines that collapsed.

3. While in the hospital recovering from the fall Puthe learned that a crewmember of the Exxon New Orleans was killed while working on the ship. Upon his release from the hospital, Puthe was assigned to the Exxon New Orleans. Puthe walked off the ship the same day he signed on because he had a "bad feeling" about working on the ship.

4. In 1980, Puthe claims he sprained his knee aboard the Exxon Florence, but did not want to leave the ship so that he could be home in time for Christmas vacation.

5. In 1981, the master of the Exxon Philadelphia, the ship that Puthe was then assigned to, "throttled up" the ship's engines in heavy seas and adverse weather. He also required the men to work on deck in very cold weather and high winds.

6. In 1981, Puthe was ordered to pull lines on the bow in adverse conditions, was blown around, and observed a fellow crewman get severely injured.

7. In 1982, Puthe was exposed to a sheen of oil in the vessel's water, which caused chloracne.

8. In 1982, Puthe was ordered to work in an overheated pump room. After refusing the order Puthe was threatened with violence. Puthe carried out the order, but burned his hand in the process.

9. In 1983, the captain of a ship that Puthe was sailing on, upon learning of a nearby vessel sinking in a winter storm, delayed seven hours before sending a distress signal. The ship sank and twenty-eight seaman died.

10. In 1984, Puthe sprained his foot on the vessel's mooring lines due to a lip that had never been cut off.

11. Puthe was required to work in areas where he was exposed to asbestos and hydrocarbons.

12. Puthe was demoted in status.

In the summer of 1986 Puthe began to feel extremely depressed. He took his last voyage on August 27, 1986. After leaving Exxon's employ, plaintiff came under the care of Dr. Marguerite Larson. Puthe alleges that during this time he was so depressed and lacking in self-esteem that he began playing Russian roulette with loaded guns. Dr. Larson made a diagnosis of depression and prescribed anti-depressant medication.

In 1987, Puthe saw Dr. Roy Carmen, a gastro-intestinal specialist, regarding his weight loss and rectal bleeding. Dr. Carmen diagnosed his illness as a probable spastic bowel and hemorrhoid disease, suggesting that his illness was related to an "underlying functional and psychological complaint." That same year, Puthe was also examined by Dr. Wren Nealy, an Exxon physician. Dr. Nealy concluded that Puthe was "disabled" and should be restricted to shore duty.

Puthe continued treatment with Dr. Larson through March 22, 1989. Larson's final medical report and diagnosis indicated that Puthe suffered from dysthymia with his work as a stress factor. Another psychiatrist, Dr. Lawrence L. Kaplan, evaluated Puthe and described his condition as an "adjustment disorder with an episode of major depression, precipitated by his experience at Exxon when he became apprehensive and depressed as a result of working under unsafe conditions."

On February 28, 1991, Puthe was examined by psychiatrist Dr. Mortimer F. Shapiro, on behalf of Exxon. Dr. Shapiro strongly disagreed with the diagnosis of Dr. Larson and Dr. Kaplan, and characterized Puthe's personality disorder as classic "Passive Aggressive Personality Disorder." Dr. Shapiro

firmly believed that Puthe's condition was a "built-in" personality disorder.

PROCEDURAL BACKGROUND

On May 16, 1989, Puthe commenced an action in the United States District Court for the Eastern District of New York (Spatt, J.) seeking two million dollars in damages for psychological illness and injuries based on his employment with Exxon. His action was brought pursuant to the Jones Act, 46 U.S.C. app. Sec. 688 (1988), which creates a cause of action for seaman who have been injured in the course of their employment.

On September 26, 1992, the district court granted Exxon's motion for summary judgment. Puthe v. Exxon Shipping Co., 802 F.Supp. 819 (E.D.N.Y.1992). The court found that Puthe had failed to demonstrate a cause of action under the Jones Act based on emotional injuries allegedly suffered as a result of Exxon's negligent conduct. The court found that in order to succeed on such a claim "plaintiff must demonstrate that the defendant's actions amounted to an 'unconscionable abuse' of the plaintiff, causing 'severe emotional distress' resulting in some physical manifestation of the harm." Id. at 828. Using that standard, the district court found that Exxon had not subjected Puthe to unconscionable abuse and that Puthe's injuries were not severe. The court added that Puthe could not, as a matter of law, establish that any negligent conduct on the part of Exxon was a cause of his emotional distress. As a separate ground for dismissal, the court ruled that Puthe, as a matter of law, was aware of his psychological injuries and their cause more than three years before he commenced this action. As a result, the court held that the action was barred by the applicable statutes of limitations set forth in 45 U.S.C. Sec. 56 (Federal Employer's Liability Act) and 46 U.S.C.App. Sec. 763a (Uniform Statute of Limitations for Maritime Torts).

Puthe now appeals.

DISCUSSION

On appeal, Puthe argues that the district court established an incorrect test for determining recovery for emotional injuries under the Jones Act. Under the Jones Act:

[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law ... and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.

Id. Sec. 688(a). Because the Federal Employer's Liability Act, 45 U.S.C. Sec. 51 (1988) ("FELA"), is incorporated by reference in the Jones Act, the analysis of Puthe's claims is guided by the law developed under FELA as well as the Jones Act. FELA 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....

Id. Neither the Jones Act nor FELA distinguishes between claims for physical or emotional injury.

The Supreme Court has thus far declined to answer the question of whether a claim for emotional injury is compensable under FELA or the Jones Act. See Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 567, 107 S.Ct. 1410, 1416, 94 L.Ed.2d 563 (1987). In dicta, however, the Court in Buell indicated that such a claim may be viable. See id. at 568, 107 S.Ct. at 1417. See also, Gottshall v. Consolidated Rail Corp., 988 F.2d 355, 360-71 (3d Cir.1993), petition for cert. filed, (U.S. June 9, 1993) (No. 92-1956) (discussing Buell in finding that a cause of action for...