Gaston v. Flowers Transp.

• Decision Date: 03 March 1989
• Docket Number: No. 88-3025,88-3025
• Citation: 866 F.2d 816,1989 A.M.C. 1761
• Parties: , 1989 A.M.C. 1761, 57 USLW 2544 Roger GASTON, Plaintiff-Appellant, v. FLOWERS TRANSPORTATION, (Cro-Marine Division, A Division of Chromalloy American Corporation), Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 816

866 F.2d 816

99 A.L.R.Fed. 661, 1989 A.M.C. 1761,

57 USLW 2544

Roger GASTON, Plaintiff-Appellant, v. FLOWERS TRANSPORTATION, (Cro-Marine Division, A Division of Chromalloy American Corporation), Defendant-Appellee.

No. 88-3025.

United States Court of Appeals Fifth Circuit.

March 3, 1989.

Leonard A. Radlauer, New Orleans, La., for plaintiff-appellant.

W.J. Larzelere, Jr., Kristi A. Post, C. Theodore Alpaugh, III, Metairie, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, THORNBERRY and POLITZ, Circuit Judges.

GEE, Circuit Judge:

Background

Roger Gaston appeals the dismissal of his action under the Jones Act against Flowers Transportation for emotional injury, allegedly sustained when he observed the death of his half-brother. We affirm.

Facts

In February 1986 Roger Gaston and his half-brother, James Easom, were employed as deckhands on a barge being pushed by the M/V Mariner. Gaston had recently helped James get the job and was responsible for supervising him. In the course of the voyage, the Mariner allegedly struck the barge violently, throwing down both Gaston and his half-brother. Gaston fell to the deck; but James slipped between the barge and the vessel and was crushed to death, despite Gaston's efforts to pull him to safety.

The plaintiff himself suffered only trivial physical injury--a bruised elbow--but was allegedly diagnosed as having suffered post-traumatic stress disorder as a result of viewing James's death. In addition to his Jones Act claim for witnessing the death, Gaston seeks recovery for alleged unseaworthiness under General Maritime Law.

Analysis

A. The Jones Act

Roger Gaston seeks recovery under the Jones Act, 46 U.S.C.App. Sec. 688, for a purely emotional injury. The trial court, for purposes of ruling on the defendant's motion for summary judgment, adopted the plaintiff's allegations of fact. 675 F.Supp. 1036. Thus, for the sake of the motion, the court presumed the Mariner's captain negligent. Notwithstanding, the judge determined that Gaston should not recover because he sought damages resulting, not from his own injuries, but from the injuries of another person--in fine, bystander liability. ¹

As the trial court noted, this is a case of first impression. No case in this circuit has yet addressed the issue whether an individual may recover under the Jones Act for wholly emotional injuries. Nor have we discovered any case in any circuit dealing with bystander liability under the Jones Act. The Federal Employers' Liability Act, 45 U.S.C. Sec. 51, et seq. (FELA), which served as the basis for the Jones Act, is similarly devoid of bystander precedent. The standard of liability is the same under both acts, and the case law of the FELA therefore sheds light on the Jones Act. Ferguson v. Moore-McCormick Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957); Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 98 (5th Cir.1985). Indeed, the Jones Act in its entirety consists of only two sentences granting seamen the same remedies as railway employees. See 46 U.S.C.App. Sec. 688; Kopczynski v. The Jacqueline, 742 F.2d 555, 558 (9th Cir.1984); Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 79 (9th Cir.1983).

The Act states in relevant part:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in all 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....

46 U.S.C.App. Sec. 688.

B. Legislative History

Whether even a liberal interpretation of the Jones Act requires extending recovery to those who suffer purely emotional injury is doubtful. The legislative history of the FELA, a statutory and not a common-law system of recovery, indicates clearly the several purposes of the original bill, the Senate Report listing four principal ones:

First. It amends the law as to the liability of employers for injuries sustained by one employee through the negligence of a coemployee. This doctrine of fellow-servants is very old and possibly had sound reason to support it before the occupations of men became complex and diversified....

Second. This measure proposes to set aside the earlier rule of law which presumes that a workman have notice of and assume the risks incident to all dangers of his employment and defects in the machinery with which he works.

* * *

Third. It is the purpose of this measure to modify the law of contributory negligence....

Fourth. The proposed measure contains a section affecting contracts made by a workman limiting or relieving the employer's liability for negligence.

S.Rep. No. 460, 60th Cong., 1st Session 1-3 (1908). The Report continues by stating that the purpose of the legislation is not to "add burdens to the business enterprise of the country, but rather to promote the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to ... those who ... ought to share the burden." Id. at 4. The House Report cites similar goals. H.R.Rep. No. 1386, 60th Cong., 1st Session 1-3 (1908). See also S.Rep. No. 661, 76th Cong., 1st Session (1939).

C. The Open Texture of the Law: The Supreme Court

The most recent statement from the Supreme Court regarding recovery for purely emotional injuries under the FELA, and therefore the Jones Act, is to be found in Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). In Buell, the Court declined to decide whether damages were recoverable for purely emotional injuries under the FELA because the record was not fully developed on the alleged tort of the employer and the claimed resulting injury to the respondent. Id. at 567, 107 S.Ct. at 1417. The court did, however, offer the following observation:

In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive "yes" or "no" answer. As in other areas of law, 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 570, 107 S.Ct. at 1418. This statement has been viewed as an open invitation "to parse the FELA in light of the specific facts" of a case. Netto v. Amtrak, 863 F.2d 1210, 1213 (5th Cir.1989). Indeed, a liberal interpretation has traditionally been ascribed to the legislation; and the common law has served as a guide to interpreting the statute. See Buell, 480 U.S. at 568, 107 S.Ct. at 1417.

D. The Law in the Circuits

1. Pre-Buell

In the underlying case that first presented the issue of FELA recovery for purely emotional injury to the Supreme Court, the Ninth Circuit had held that the Act allowed recovery for "an injury attributable to employer negligence ... regardless of its characterization as mental or physical." Buell v. Atchison, Topeka and Santa Fe Railway Co., 771 F.2d 1320, 1324 (9th Cir.1985). The plaintiff in Buell had alleged that "harassment, threats, and intimidation he suffered while employed at the Railroad" caused his emotional breakdown. Id. at 1321.

The Ninth Circuit's holding in Buell is echoed, although not without reservations, by then Judge Kennedy in Taylor v. Burlington Northern Railroad Co., 787 F.2d 1309, 1313 (9th Cir.1986). The plaintiff in Taylor, who was borderline mentally retarded, alleged that harassment by a railroad foreman caused him to suffer paranoid schizophrenia. Id. at 1312-13. On these facts the court held the employer liable for the plaintiff's emotional injury. Id. at 1313. See also Lewy v. Southern Pacific Transportation Co., 799 F.2d 1281, 1288 (9th Cir.1986).

2. Post-Buell

In the wake of Buell, several circuits have considered attempts to recover for purely emotional injuries. The first of these cases was Adkins v. Seaboard System Railroad, 821 F.2d 340 (6th Cir.1987). In Adkins, the plaintiff sought recovery for emotional injury because employees "deliberately and premeditately [sic] conspired to have the plaintiff terminated without any regard to the possible consequences of their actions...." Id. at 341. The Sixth Circuit noted that the Supreme Court had left open the possibility of recovery for emotional injury under the FELA but held that recovery would not lie for intentional infliction of emotional distress. Id. at 342. The court also noted that the plaintiff's complaint was for an intentional rather than a negligent tort. Since Buell addressed only negligent acts and the harm was purely emotional, the Sixth Circuit seemed especially reluctant to allow recovery. Id. at 341-42. The court hints, however, that it might not have allowed recovery even for a negligent tort that produced a merely emotional injury. Id. at 342.

Next, the First Circuit refused to make Moody v. Maine Central Railroad Co., 823 F.2d 693 (1st Cir.1987), "a pioneer case exploring the frontier possibly opened up by Buell." Id. at 694. The plaintiff had alleged that employer harassment had caused his angina attacks, but failed to establish the necessary element of causation. Id. at 693-94. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court observed that its earlier holding refusing recovery for purely emotional injury might now be in doubt. Id. at 694. See Bullard v. Central Vermont Railway, Inc., 565 F.2d 193, 197 (1st Cir.1977). Even so, it went on to opine that Buell might have left "the door to recovery for wholly emotional injury somewhat ajar but not by any means wide open." Moody, supra at 694. Whether the First Circuit would allow recovery in a properly pleaded case is doubtful.

The most recent post-Buell case is Hammond v. Terminal Railroad Association of St. Louis, 848 F.2d 95 (7th Cir.1988). In an opinion by...