937 F.2d 1004 (5th Cir. 1991), 90-3183, Plaisance v. Texaco, Inc.

Docket Nº:90-3183.
Citation:937 F.2d 1004
Party Name:Mr. & Mrs. Henry PLAISANCE, Jr., Plaintiffs-Appellants, v. TEXACO, INC., et al., Defendants-Appellees.
Case Date:August 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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937 F.2d 1004 (5th Cir. 1991)

Mr. & Mrs. Henry PLAISANCE, Jr., Plaintiffs-Appellants,

v.

TEXACO, INC., et al., Defendants-Appellees.

No. 90-3183.

United States Court of Appeals, Fifth Circuit

August 9, 1991

Page 1005

Joseph J. Weigand, Jr., Weigand, Weigand & Meyer, Houma, La., for plaintiffs-appellants.

David E. Faure and John D. Fitzmorris, Jr., New Orleans, La., for Texaco, Inc.

J. Ralph White, and Robert B. Acomb, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Crosby Marine.

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

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

POLITZ, Circuit Judge:

Today we determine whether there can be recovery under the Jones Act for a purely emotional injury. Concluding for the reasons assigned that such recovery is permissible, but that the claims of appellants herein factually do not qualify, we reach the same result as did the district court and affirm its dismissal.

Background

Henry A. Plaisance, Jr. had over 30 years experience as a tugboat captain, the last 10 of which had been in the employ of Crosby Marine Service, Inc., when, on January 29, 1989, he allegedly sustained a significant emotional injury as a result of an allision with an underwater gas line. On that date Plaisance was operating the tug TOMMY CROSBY, towing a workover barge from one well location to another in Louisiana coastal waters. The TOMMY CROSBY was under contract to Texaco, Inc. A second tug, the VERGIE CENAC, was tied to the rear of the barge. Apparently one of the barge's spuds projected below its bottom and came in contact with an underwater 4-inch gas pipeline. The pipeline ruptured, the gas escaped, and an explosion and fire ensued.

The TOMMY CROSBY had a relatively short tow line. Plaisance immediately backed up to the barge and the workers on the barge and the crew of the VERGIE CENAC quickly moved to the safety of the TOMMY CROSBY. The tow was disconnected and the TOMMY CROSBY was taken a short distance off. It was immediately apparent that the fire was confined to the rear of the barge and the front of the trailing tug; the tether lines between the two burned and separated and the VERGIE CENAC began to drift. Upon instructions from the Texaco supervisor aboard, Plaisance reconnected the tow lines, pulled the barge away from the rupture site and spudded it in place. The fire was then extinguished by the combined crews aided by the crews of other vessels which were attracted by the fire. The entire operation took less than 30 minutes.

No one was injured by the explosion or fire. The flotilla (the two tugs and the barge) then proceeded to the nearby Texaco camp, the barge was spudded and the TOMMY CROSBY went to a Texaco fuel dock in the vicinity to get a load of diesel for transfer to the barge. The fuel was transferred and the barge was then towed in for repairs. Several hours later, upon arriving at the repair dock, Plaisance asked to be relieved of duty because he did not feel well.

Plaisance first went to a local hospital for a few days and then transferred to a psychiatric hospital where he remained for 45 days. According to the treating psychiatrist, Plaisance was suffering from post-traumatic stress disorder and depression resulting from his perception that he and the others could have been injured or killed

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in the explosion and fire. As of the time of the disposition in the trial court, Plaisance continued to receive periodic psychiatric care and continued to express an inability to return to work.

Plaisance and his wife filed the instant personal injury action, invoking the Jones Act, 46 U.S.C.App. Sec. 688, and general maritime law against Crosby, and general maritime law against Texaco, claiming total disability from an emotional injury. Defendants moved to dismiss the claims as not being cognizable under either the Jones Act or general maritime law. The district court agreed and dismissed the Plaisance claims, 735 F.Supp. 686. They timely appealed.

Analysis

The Plaisances seek recovery under the Jones Act 1 for a purely emotional injury. The Jones Act, and its underlying statutory structure, the Federal Employers' Liability Act, 45 U.S.C. Secs. 51 et seq., are silent as to whether injuries, within their meaning, include an injury which is entirely mental. Appellees contend that our recent decision in Gaston v. Flowers Transp., 866 F.2d 816 (5th Cir.1989), forecloses this inquiry. It does not. Gaston was a bystander case and we very carefully noted its limitations, stating:

We do not hold today that no recovery can be had under the FELA/Jones Act for a purely emotional injury resulting from actions directed against the plaintiff or an occurrence that happened to him.

Id. at 821. In the case at bar Plaisance alleges an occurrence that happened to him. We therefore here address an issue of first impression for our court.

The Supreme Court recently considered the issue of recovery for purely emotional injuries under the FELA in Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), but declined to decide whether the FELA permitted such claims. The Court, did, however, opine that

[t]he question whether "emotional injury" is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common law developments, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity.... 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 568, 570, 107 S.Ct. at 1417, 1418 (citations omitted). The Supreme Court thus left open the question whether one may recover for purely emotional injuries under the FELA, suggesting that the federal courts consult the common law for guidance. Buell, 480 U.S. at 568, 107 S.Ct. at 1417; Gaston, 866 F.2d at 820. We do so, mindful that "[w]hat constitutes negligence for the statute's purpose is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes." Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949); see also Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952).

The comments by the Supreme Court in Buell generally have been viewed as an open invitation to the lower federal courts to explore the possibility of recovery under the FELA for a purely emotional injury. Moody v. Maine C.R. Co., 823 F.2d 693 (1st Cir.1987). Other than the Ninth Circuit in the underlying Buell decision, 771 F.2d 1320 (9th Cir.1985), and its progeny, e.g.,

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Taylor v. Burlington Northern Railway Co., 787 F.2d 1309 (9th Cir.1986), no circuit has as yet so ruled. We previously have brushed against the edges but have not dispositively addressed this issue.

We first considered the matter in Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir.1986), wherein the plaintiff sought recovery for his fear of developing cancer as a result of being soaked with toxic chemicals. The district court granted defendant a summary judgment stating that Hagerty had no cause of action because he had not sustained a physical injury. We reversed, seizing on the fact that Hagerty had been doused with the toxic chemicals and, as a result, temporarily had experienced dizziness, leg cramps, and a stinging sensation in his extremities. We found a cause of action. In remanding, we stated that Hagerty's "present fear or anxiety due to the possibility of contracting cancer constitutes a present fact of mental anguish and may be included in recoverable damages." Id . at 317. Although we declined to decide whether emotional injuries alone could serve as a basis for recovery, in dicta we indicated support for the proposition. We first noted that the Jones Act was "intended to provide coverage for all work-related 'injuries,' whether characterized as mental or physical." Id. at 318. We then criticized the negligence rules limiting recovery for emotional distress to claims accompanied by a physical injury or physical impact, stating that these rules were unrealistic and provided dubious mechanisms for objectively assuring that an alleged mental injury was not feigned. "With or without physical injury or impact, a plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where his fear is reasonable...." Id. at 318.

We next considered the matter in Netto v. Amtrak, 863 F.2d 1210 (5th Cir.1989), where the plaintiff based his FELA claim on a nervous breakdown which allegedly resulted from either deliberate harassment or negligent treatment by the employer. The trial court indicated a willingness to permit recovery under the FELA for purely emotional injuries but granted summary judgment to the defendant because Netto had failed to make the required showing of unconscionable abuse or outrageous conduct. 2 On appeal we affirmed on the ground advanced by the trial court. In doing so we declined to decide if an FELA plaintiff may recover for purely emotional injuries.

In our most recent foray, Gaston v. Flowers Transportation, the plaintiff sought...

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