Goodrich v. Long Island Rail Rd. Co.

• Citation: 654 F.3d 190,32 IER Cases 1662
• Decision Date: 15 August 2011
• Docket Number: Docket No. 10–2809–cv.
• Parties: Gregory GOODRICH, Plaintiff–Appellant,v.LONG ISLAND RAIL ROAD COMPANY, Donald Russell, and John Doe “A,” Name Being Fictitious, True Name Unknown, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

654 F.3d 190

32 IER Cases 1662

Gregory GOODRICH, Plaintiff–Appellant,

v.LONG ISLAND RAIL ROAD COMPANY, Donald Russell, and John Doe “A,” Name Being Fictitious, True Name Unknown, Defendants–Appellees.

Docket No. 10–2809–cv.

United States Court of Appeals, Second Circuit.

Submitted: March 7, 2011.Decided: Aug. 15, 2011.

Philip J. Dinhofer, Philip J. Dinhofer, LLC, Rockville Centre, NY, of counsel to Frederic M. Gold, P.C., New York, NY, for Plaintiff–Appellant.Brian K. Saltz, Esq., for Catherine A. Rinaldi, Vice President/General Counsel & Secretary, The Long Island Rail Road Company, Jamaica, NY, for Defendant–Appellee Long Island Rail Road Company.Before: FEINBERG, LIVINGSTON, and LOHIER, Circuit Judges.DEBRA ANN LIVINGSTON, Circuit Judge:

Plaintiff–Appellant Gregory Goodrich (“Goodrich”) is an employee of Defendant–Appellee The Long Island Rail Road Company (“LIRR”). On March 12, 2010, he brought suit under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq., against his employer, the LIRR, and two individual defendants, alleging claims of negligent infliction of emotional distress (“NIED”) and intentional infliction of emotional distress (“IIED”) against each of the three defendants. He appeals from a June 30, 2010, judgment of the United States District Court for the Southern District of New York (Scheindlin, J.), granting the LIRR's motion to dismiss his complaint, including his IIED claim against the LIRR, for failure to state a claim. Because we hold that the district court correctly concluded that a plaintiff bringing a claim for IIED under FELA is required to satisfy the “zone of danger” test outlined by the Supreme Court in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547–48, 554, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), we affirm.

BACKGROUND

In reviewing the district court's grant of a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept as true the nonconclusory factual allegations made by Goodrich in his complaint. See Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int'l N.V., 623 F.3d 61, 63 (2d Cir.2010).

Goodrich alleges that while he was employed by the LIRR as an electrician at its facility in Hillside Yard, Queens, New York, he suffered severe emotional distress as a result of the actions of defendants the LIRR and two LIRR employees, Donald Russell (“Russell”) and an unnamed individual “John Doe ‘A.’ ” At a pretrial conference conducted after the LIRR had filed its motion to dismiss in this case, Goodrich further alleged that, at the time the challenged conduct took place, he had been HIV positive for a number of years. ¹ In August 2009, he had allegedly been out of work with the flu for several days and had submitted a sick leave application in order to be compensated for the days missed while he was ill. While he was away from work, an individual, whom Goodrich believes was Russell, took the sick leave form from Goodrich's locker, added the words “And HIV positive” beneath the doctor's flu diagnosis, and posted it on a public bulletin board at the LIRR's facility. Goodrich alleges that in doing so, Russell was acting within the scope of his employment.

Goodrich filed his complaint in March 2010, asserting subject matter jurisdiction under FELA and alleging an NIED claim and an IIED claim against the LIRR, Russell, and the unknown individual John Doe “A.” The LIRR filed a motion to dismiss with respect to the claims against it, arguing that to state a claim either for NIED or for IIED under FELA, Goodrich was required to satisfy the “zone of danger” test by alleging that he had either sustained a physical impact or been placed in immediate risk of physical harm by the conduct of the LIRR or its agents. Goodrich subsequently withdrew his NIED claim, acknowledging the need to satisfy the zone of danger test in that context, but contested the need to satisfy the same test to bring an IIED claim.

The district court concluded that the zone of danger test was applicable to IIED claims brought under FELA, granting LIRR's motion to dismiss on that basis. Although the individual defendants did not appear before the district court—according to the LIRR, Russell had not been served with a summons and complaint in this proceeding, while the other individual remained unidentified—the district court dismissed the action as to them as well, on the ground that a FELA action can only be brought against a “common carrier by railroad” and not an individual.

This appeal followed.

DISCUSSION

I. Standard of Review

We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, “accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010).

II. Applicability of the Zone of Danger Test to IIED Claims Brought Under FELA

The sole question presented by this appeal is whether the zone of danger test applies to IIED claims brought under FELA. We begin with the text of the statute. FELA provides in relevant part that:

Every 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. § 51. On its face, the statute offers little reason to conclude that its coverage extends to claims for the intentional infliction of emotional distress, in that the statute creates liability for the “negligence” of a common carrier by railroad resulting in “injury or death” to a worker. The Supreme Court, however, has “recognized generally that the FELA is a broad remedial statute, and ha[s] adopted a ‘standard of liberal construction in order to accomplish [Congress'] objects' ” in enacting it. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (second alteration in original) (quoting Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)). Of particular relevance to this case, despite the fact that FELA's text refers to injuries caused by a railroad's “negligence,” the statute has long been understood to recognize causes of action for some intentional torts like battery as well. See id. at 562 n. 8, 107 S.Ct. 1410 (citing, inter alia, Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1930)); see also Higgins v. Metro–North R.R. Co., 318 F.3d 422, 425 (2d Cir.2003) (citing Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922), and Harrison v. Mo. Pac. R.R. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963)).

The Supreme Court has only more recently addressed the question whether FELA, through its use of the phrase “injury or death,” provides for recovery not only for physical but also purely emotional harms. In Buell, confronting for the first time the question whether a purely emotional injury is cognizable under FELA, the Court noted that the question “may not be susceptible to an all-inclusive ‘yes' or ‘no’ answer.” 480 U.S. at 570, 107 S.Ct. 1410. It found the factual record in the case before it insufficiently developed to allow it to come to a conclusion, vacating the lower court's determination that such harms were cognizable and remanding for further proceedings. See id.

In Gottshall, the Supreme Court returned to the issue, addressing in particular the question whether and to what extent a claim for negligent infliction of emotional distress is cognizable under FELA. See 512 U.S. at 541, 114 S.Ct. 2396. The Court structured its analysis into two inquiries. First, it considered “FELA itself, its purposes and background and the construction [the Court has] given it over the years.” Id. Second, “because ‘FELA jurisprudence gleans guidance from common-law developments,’ ” the Court considered the common law treatment of the NIED cause of action. See id. at 541–42, 114 S.Ct. 2396 (quoting Buell, 480 U.S. at 568, 107 S.Ct. 1410).

With respect to the first inquiry, the Court noted that the statutory purpose of FELA is clear: “when Congress enacted FELA in 1908, its ‘attention was focused primarily upon injuries and death resulting from accidents on interstate railroads.’ ” Id. at 542, 114 S.Ct. 2396 (quoting Urie, 337 U.S. at 181, 69 S.Ct. 1018). Under these circumstances, “[c]ognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year,” id., Congress sought through FELA to “d[o] away with several common-law tort defenses that had effectively barred recovery by injured workers,” thereby allowing injured workers to bring claims against their railroad employers more easily, id.

The Court then proceeded to the second inquiry, the relevant common law treatment of NIED claims, noting that “although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis.” Id. at 544, 114 S.Ct. 2396. As an initial matter, it held that NIED claims could be brought under FELA, given the wide recognition of the claim in some form by many American jurisdictions at the time FELA was passed, its near-universal recognition by the States at present, and the traditionally broad interpretation given to the term “injury” in the statute. Id. at 549–50, 114 S.Ct. 2396.

Having recognized NIED claims as cognizable under FELA, the Court next adopted the zone of danger test to define the scope of the duty FELA places on employers to avoid imposing emotional distress on their employees....