Gillman v. Burlington Northern R. Co.

• Decision Date: 11 July 1989
• Docket Number: No. 88-2280,88-2280
• Parties: Richard L. GILLMAN, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1020

878 F.2d 1020

Richard L. GILLMAN, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.

No. 88-2280.

United States Court of Appeals Seventh Circuit.

Argued Feb. 14, 1989.

Decided July 11, 1989.

Patrick S. O'Brien, Pratt & Callis, P.C., East Alton, Ill., for plaintiff-appellant.

John Newell, Kenneth J. Wysoglad & Assoc., Chicago, Ill., for defendant-appellee.

Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This is an appeal from the district court's order granting the defendant's motion to dismiss for failure to state a claim, or alternatively, for judgment on the pleadings. ¹ The appellant had filed this action in the district court under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60, alleging negligent infliction of emotional distress, and the district court ruled that such a cause of action is cognizable under FELA. The district court further ruled that although federal law governed FELA cases, the court would look to Illinois law for guidance. Under Illinois law, the district court held that the appellant's second amended complaint failed to state a cause of action for negligent infliction of emotional distress. On appeal, the appellant argues that he has alleged a cognizable claim under FELA and that his second amended complaint adequately states a claim for relief under Illinois law. We affirm the district court's ruling that the appellant's second amended complaint fails to state a claim for negligent infliction of emotional distress under Illinois law. In affirming the district court, we expressly do not reach the issue of whether a cause of action for negligent infliction of emotional distress, unaccompanied by physical contact or the threat of physical contact, is cognizable under FELA.

I

In ruling on the appellee's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), or alternatively, for judgment on the pleadings pursuant to Rule 12(c), the district court was required to accept as true all facts alleged in the appellant's second amended complaint and to draw all reasonable inferences from the pleadings in favor of the appellant. See Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 177 n. 2 (7th Cir.1986); Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 994-95 (11th Cir.1983); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."). Therefore, we set forth the facts of this case as they are alleged in the appellant's second amended complaint.

The appellant, Richard L. Gillman, was employed as a foreman by the appellee, Burlington Northern Railroad Company ("Burlington Northern"). On May 13, 1983, the appellant was performing maintenance work on the appellee's tracks in its yard in Chicago, Illinois. While Gillman was involved in lifting a rail, switching operations were taking place at an adjacent track. A piece of rail which was being lifted accidentally hit some railroad cars that were being switched on the adjacent track. Unexpectedly, the crane operator dropped the piece of rail. The rail hit one of Gillman's co-workers and started to drag him under the train.

The appellant apparently was not aware of the accident when it happened. Upon hearing his co-worker scream, however, Gillman went to the place of the accident. When Gillman realized that he could not free his co-worker from the rail, he ran around the front of the train in order to stop it before his co-worker was killed. His rescue attempts failed. Although Gillman's co-worker was fatally injured in this accident, Gillman was not physically contacted or hurt. As a result of the accident, however, Gillman claims that he suffered shock to his nervous system and severe emotional distress. On May 15, 1986, Gillman sued Burlington Northern for negligent infliction of emotional distress.

II

The appellant brought this action under FELA. This act provides that

[e]very common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... [when] such injury or death result[s] 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 it cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. Sec. 51. Although FELA allows an injured railroad employee to recover for injuries caused in whole or in part by the railroad's negligence, the act does not define negligence or delineate what type of negligent acts are redressable. See Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949). It is well settled, however, that "[w]hat constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws...." Id.; see also Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952) (noting that FELA presents issues of federal, not state, law); Ellis v. Union Pac. R.R., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572 (1947) ("Whether [FELA's] standards are satisfied is a federal question, the rights created being federal rights.").

The district court, after finding that an action for negligent infliction of emotional distress is cognizable under FELA, ² properly ruled that the appellant's complaint stated an issue of federal law. See District Court's Memorandum Opinion, Rec. 24, at 7. Because of the lack of federal common law on negligent infliction of emotional distress, however, the district court decided to apply Illinois law. See id. at 7-8. The court then dismissed the complaint for failure to state a claim, or alternatively, entered judgment on the pleadings in favor of Burlington Northern. District Court's Memorandum Opinion, Rec. 45, at 6.

The appellant does not argue that the district court erred in applying Illinois law and that is not an issue in this appeal. Rather, Gillman asserts that under Illinois law, his second amended complaint adequately states a claim for negligent infliction of emotional distress.

Traditionally, the Illinois courts required a bystander to suffer contemporaneous physical injury or impact from a defendant's negligent act in order to recover for emotional distress. See, e.g., Carlinville Nat'l Bank v. Rhoads, 63 Ill.App.3d 502, 20 Ill.Dec. 386, 380 N.E.2d 63, 65 (1978); Kaiserman v. Bright, 61 Ill.App.3d 67, 18 Ill.Dec. 108, 111, 377 N.E.2d 261, 264 (1978). In Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1 (1983), however, the Illinois Supreme Court adopted the zone of physical danger rule as the standard to be applied when a bystander seeks to recover for negligent infliction of emotional distress.

Basically, under [this standard] a bystander who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact. The bystander, as stated, must show physical injury or illness as a result of the emotional distress caused by the defendant's negligence.

Id., 75 Ill.Dec. at 215, 457 N.E.2d at 5; see also Siemieniec v. Lutheran Gen. Hosp., 117 Ill.2d 230, 111 Ill.Dec. 302, 318, 512 N.E.2d 691, 707 (1987) (affirming the use of the Rickey standard). Although the adoption of the Rickey test was an expansion of negligent infliction of emotional distress law, the Illinois courts have strictly construed Rickey. See Courtney v. St. Joseph Hosp., 149 Ill.App.3d 397, 102 Ill.Dec. 810, 812-13, 500 N.E.2d 703, 705-06 (1986) ("[T]rial courts have been cautioned to limit claims of negligent infliction of emotional distress to those that closely adhere to the rule enunciated in Rickey."), appeal denied, 114 Ill.2d 544, 108 Ill.Dec. 415, 508 N.E.2d 726 (1987); Johnston v. St. Anne's Hosp. W., Inc., 146 Ill.App.3d 763, 100 Ill.Dec. 430, 431, 497 N.E.2d 408, 409 (1986) ("[C]ases subsequent to Rickey have strictly construed that decision.").

A review of Illinois cases shows that the Rickey standard consists of three elements: (1) the plaintiff must have been in the zone of danger (high risk of physical impact from the defendant's negligent act); see, e.g., Robbins v. Kass, 163 Ill.App.3d 927, 114 Ill.Dec. 868, 871, 516 N.E.2d 1023, 1026 (1987), appeal denied, 119 Ill.2d 574, 119 Ill.Dec. 397, 522 N.E.2d 1256 (1988); Hammond v. Lane, 162 Ill.App.3d 17, 113 Ill.Dec. 843, 845, 515 N.E.2d 828, 830 (1987); Lewis v. Westinghouse Elec. Corp., 139 Ill.App.3d 634, 94 Ill.Dec. 194, 195, 487 N.E.2d 1071, 1072 (1985); (2) the plaintiff must have felt contemporaneous fear for his safety; see, e.g., Hammond, 113 Ill.Dec. at 845, 515 N.E.2d at 830; Alexander v. DePaepe, 148 Ill.App.3d 831, 102 Ill.Dec. 285, 288, 499 N.E.2d 1065, 1068 (1986); Gihring v. Butcher, 138 Ill.App.3d 976, 93 Ill.Dec. 631, 633, 487 N.E.2d 75, 77 (1985); and (3) the plaintiff must show some sign of physical injury or illness as a result of his emotional distress; see, e.g., Robbins, 114 Ill.Dec. at 872, 516 N.E.2d at 1027; Courtney, 102 Ill.Dec. at 813, 500 N.E.2d at 706. If a plaintiff fails to allege even one of the three elements, then he has failed to allege a cause of action for...