Everett v. Norfolk S. Ry. Co.

• Decision Date: 19 November 2012
• Docket Number: No. S12G0729.,S12G0729.
• Parties: EVERETT v. NORFOLK SOUTHERN RAILWAY COMPANY.
• Court: Georgia Supreme Court

292 Ga. 106
734 S.E.2d 388

12 FCDR 3604

EVERETT
v.
NORFOLK SOUTHERN RAILWAY COMPANY.

No. S12G0729.

Supreme Court of Georgia.

Nov. 19, 2012.

[734 S.E.2d 389]

Michael J. Warshauer, Lyle Griffin Warshauer, Douglas Campbell Dumont, Warshauer Law Group, P.C., Atlanta, for appellant.

Laura Shaw Morris, William C. Thompson, Weissman, Nowack, Curry & Wilco, P.C., Atlanta, Ralph G. Wellington, Nancy Winkelman, Schnader Harrison Segal & Lewis, LLP, Philadelphia, PA, for appellee.

BENHAM, Justice.

[292 Ga. 106]This appeal comes to us pursuant to our granting a petition for a writ of certiorari in which we have asked if it was for a jury to decide whether a plaintiff in a case brought pursuant to the Federal Employers Liability Act (FELA), 45 U.S.C. 51 et seq., was within the “zone of danger” in order to recover for emotional distress injuries stemming from a work-related accident. Because we find the answer to be in the negative, we reverse and remand the case to the Court of Appeals for further proceedings.

The underlying facts show that in March 2006, appellant Michael Everett was employed as an engineer for appellee Norfolk Southern Railway Company and was tasked with using his locomotive to push a six-car train into an auto plant in Georgia. One of the employees working with appellant misinformed him that the train derailment device was in the “off” position when in fact it was in the “on” position. Acting at the direction of his supervisor, appellant moved the train forward, and, due to the position of the derailment device, three of the six cars derailed and two of the derailed cars crashed into the auto plant. Appellant's locomotive did not derail and he suffered no physical injury from the accident, however, soon after the accident, appellant was diagnosed with post-traumatic stress disorder and he has not been able to return to work. Appellant brought a suit against appellee to recover damages for emotional distress.

In order to be eligible to recover damages for emotional distress under the FELA, which applies to railroad workers injured on-the-job, a plaintiff must be shown to have been within the “zone of danger” when the accident occurred. [292 Ga. 107]Consolidated Rail Corp. v. Gottshall, 512 U.S. 532(III)(C), 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Under the zone of danger test, a plaintiff may recover for an emotional injury if he sustains

[734 S.E.2d 390]

a physical impact as a result of the defendant's negligent conduct or if he is placed in immediate risk of physical harm by the defendant's negligent conduct. Id. at 547–548, 114 S.Ct. 2396. In Norfolk Southern Railway Co. v. Everett, 299 Ga.App. 420, 425–426, 682 S.E.2d 621 (2009)( Norfolk I ), the Court of Appeals affirmed the trial court's denial of appellee's motion for summary judgment, holding that it could not “ conclude that [appellant] was, as a matter of law, outside the zone of danger....” This Court denied certiorari in regard to Norfolk I. Upon return to the trial court, the case was tried and the jury returned a verdict in favor of appellant. During the course of the trial, the trial court made certain decisions: it granted appellant's motion in limine to exclude argument by appellee that appellant was not within the zone of danger; it denied appellee's motions for a directed verdict; and it declined to give certain jury instructions requested by appellee. Appellee appealed these rulings to the Court of Appeals. Norfolk Southern Railway Co. v. Everett, 313 Ga.App. 345, 721 S.E.2d 591 (2011)( Norfolk II ).

In Norfolk II, the Court of Appeals concluded that “because the trial court's ruling on the motion in limine erroneously removed from the jury's consideration an essential element of the plaintiff's case, the judgment must be vacated...