EX PARTE CSX TRANSP., INC.

• Decision Date: 19 February 1999
• Citation: 735 So.2d 476
• Parties: Ex parte CSX TRANSPORTATION, INC. (In re Judith P. Sweeney, as administratrix of the estate of Charles Kenneth Sweeney, deceased v. CSX Transportation, Inc.)
• Court: Alabama Supreme Court

735 So.2d 476

Ex parte CSX TRANSPORTATION, INC.

(In re Judith P. Sweeney, as administratrix of the estate of Charles Kenneth Sweeney, deceased v. CSX Transportation, Inc.)

1971946.

Supreme Court of Alabama.

February 19, 1999.

Rehearing Denied April 30, 1999.

Stephen A. Rowe, David W. Spurlock, and John B. Tally, Jr., of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for petitioner.

Frank O. Burge, Jr., of Burge & Wettermark, P.C., Birmingham; and William W. Tally of Tally & Tally, Scottsboro, for respondent.

HOUSTON, Justice.

The Jackson Circuit Court entered a summary judgment for the defendant CSX Transportation, Inc., in the plaintiff Judith Sweeney's action filed under the Federal Employer's Liability Act ("FELA"). The action was based on the death of Ms. Sweeney's husband, and it alleged negligence, negligent assignment, and negligent infliction of emotional distress. The Court of Civil Appeals reversed the summary judgment as to two of those claims. Sweeney v. CSX Transp., Inc., 735 So.2d 472 (Ala.Civ.App.1998). We granted CSX's petition for certiorari review. We affirm.

The pertinent facts were set out in the opinion of the Court of Civil Appeals:

"CSX and Mrs. Sweeney both submitted the affidavit of Rodney M. Gray. Gray is a CSX employee; he was working with Sweeney on January 4, 1994, the day that Sweeney died. Gray and Sweeney made up a two-man crew on a train bound to Nashville, Tennessee, from Chattanooga, Tennessee. Their first stop after leaving Chattanooga was in Bridgeport, Alabama, where they were to pick up 6 cars. They unhitched the 50 or 60 cars making up their train and left them on another track before picking up the 6 cars. The cars left on the other track rolled back and collided with another train on the main track, causing the moving train to derail. At the time of the collision, Sweeney was in the locomotive of their train; the locomotive was approximately 4,500 feet from the point of impact of the collision and was not connected to the cars involved in the collision. Sweeney and Gray waited for the investigation to take place, and approximately three hours after the collision occurred Sweeney was asked to walk to the CSX office. He apparently walked a few car lengths and suffered a fatal heart attack.

"In opposition to CSX's motion for a summary judgment, Mrs. Sweeney submitted several affidavits. In her own affidavit, she stated that Sweeney had been fired from his position as CSX's drug and alcohol abuse counselor. He had threatened to sue CSX, because, he contended, he had been fired so that CSX could hire a younger person to take his place. On May 15, 1993, a few months after he was fired, CSX rehired Sweeney and placed him in the position of locomotive engineer. Mrs. Sweeney also stated that her husband had had four heart attacks before May 15, 1993, and that CSX did not conduct a cardiac examination on him before assigning him to this new position. She also stated that he had worked well over 40 hours a week for several months preceding his fatal heart attack. Attached to her deposition were her husband's medical records, showing that he had had a quadruple by-pass operation in 1984; a heart attack in 1987; and continuing treatment for heart disease and hypertension. According to Mrs. Sweeney's affidavit, her husband had had heart attacks in 1984, 1987, and 1991, and had also had a heart attack sometime before his 1984 attack.

"Mrs. Sweeney also submitted the affidavits of George Spence, Charles Latimer, and Richard Taylor. They stated that ... a locomotive engineer [has] a very stressful position under normal circumstances and that [the work] becomes even more stressful when there is a derailment. They also stated that it was commonly known that CSX's policy, after a derailment, was to fire the locomotive engineer and conductor of the train involved, regardless of who was at fault. Spence stated that Sweeney was obviously in poor health when he returned to work as a locomotive engineer in May 1993, and that, despite having doctors on its payroll, CSX failed to have a stress test conducted on Sweeney before assigning him to this position. Latimer, a locomotive engineer who has worked for CSX for 29 years, stated that not giving Sweeney a stress test before assigning him to the position of locomotive engineer was contrary to CSX's custom and practice. Latimer, who is also the local chairman of the union grievance committee, stated that another CSX employee had been fired for not informing the railroad of his heart condition and angiogram treatment. Taylor stated that he had had triple bypass surgery in 1991 and that he had had to pass two stress tests before CSX would allow him to return to work."

Sweeney v. CSX Transp., Inc., 735 So.2d at 474. The trial court entered a summary judgment against all of Ms. Sweeney's claims. The Court of Civil Appeals affirmed the summary judgment in part and reversed it in part. It agreed with CSX that, under Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), the summary judgment was appropriate on the claim alleging negligent infliction of emotional distress. Sweeney, 735 So.2d at 475. However, the court reversed with respect to the negligence and negligent-assignment claims, holding that Gottshall was inapplicable to those claims and that on those claims CSX was not entitled to a judgment as a matter of law. 735 So.2d at 475-476. We deal only with Ms. Sweeney's claim of negligent assignment, because we see her allegation of negligence (which was, in her complaint, stated in terms of a failure to determine whether Mr. Sweeney was qualified to be reassigned as a locomotive engineer) as being encompassed by her negligent-assignment claim.

When reviewing a summary judgment, we review the record de novo and examine all of the evidence in the light most favorable to the nonmoving party. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698, 701 (Ala.1988). Here, there is no material factual dispute between the parties; therefore, the summary judgment was appropriate as to the negligent-assignment claim if CSX was entitled to a judgment as a matter of law on that claim. Ala. R. Civ. P. 56(c). CSX argues here, as it did in the circuit court and the Court of Civil Appeals, that it was entitled to a judgment as a matter of law on that claim because Gottshall precludes any recovery under the claims advanced by Ms. Sweeney. In Gottshall, the Supreme Court adopted the "zone of danger" test for recovery, under FELA, for negligent infliction of emotional distress. 512 U.S. at 555,114 S.Ct. 2396. The Court stated:

"We believe that allowing recovery for negligently inflicted emotional injury as provided for under the zone of danger test best harmonizes [the purposes of FELA]. Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not."

Id. at 556, 114 S.Ct. 2396. Using this "zone of danger of physical impact" analysis, the Court held that a train dispatcher who became ill after he was forced to work long hours under poor conditions did not have a valid claim under FELA for negligent infliction of emotional distress.¹ 512 U.S. at 558, 114 S.Ct. 2396. According to the Court, the dispatcher's "work-stressrelated claim plainly does not fall within the common law's conception of the zone of danger" and his "complaint was that he `had been given too much—not too dangerous—work to do.'" Id. (citing Lancaster v. Norfolk & W. Ry., 773 F.2d 807, 813 (7th Cir.1985)). Based on this language, CSX concludes that any claim of negligence under FELA that involves work-related stress is inseparably intertwined with a claim of negligent infliction of emotional distress and must necessarily engage the "zone of danger" test. Such an interpretation, however, goes well beyond Gottshall's reach.

From the very first sentence of the Gottshall opinion, it is clear that the Supreme Court was limiting its discussion to determining "the proper standard for evaluating claims for negligent infliction of emotional distress." 512 U.S. at 535, 114 S.Ct. 2396. The Court indicated that it was restricting its consideration to just one tort theory of liability:

"The term `negligent infliction of emotional distress' is largely self-explanatory, but a definitional point should be clarified at the outset. The injury we contemplate when considering negligent

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