Gottshall v. Consolidated Rail Corp.

• Decision Date: 30 September 1991
• Docket Number: Civ. A. No. 89-3102.
• Citation: 773 F. Supp. 778
• Parties: James E. GOTTSHALL v. CONSOLIDATED RAIL CORPORATION.
• Court: U.S. District Court — Eastern District of Pennsylvania

773 F. Supp. 778

James E. GOTTSHALL v. CONSOLIDATED RAIL CORPORATION.

Civ. A. No. 89-3102.

United States District Court, E.D. Pennsylvania.

September 30, 1991.

John J. O'Brien, Jr., Philadelphia, Pa., for plaintiff.

D. Scott Morgan, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

DITTER, District Judge.

In this Federal Employers' Liability Act case, plaintiff seeks damages for the emotional distress he suffered as a result of a co-worker's death. His employer, the defendant, Consolidated Rail Corporation, moves for summary judgment. After considering the record, both parties' briefs, and oral argument, I will grant the motion.

I. BACKGROUND

On August 10, 1988, plaintiff, James E. Gottshall, was replacing defective railroad track with seven other Conrail employees near Watsontown, Pennsylvania. The day was extremely humid and the temperature exceeded ninety degrees.

Replacing rails is hard physical labor, especially during hot weather. Moreover, on this day the group was under time pressure. For various reasons, the most strenuous activity did not begin until after noon, and supervisors instructed the group to finish the assignment by the end of the day.

In addition, these workers were mostly older. One man had previously suffered a heart attack and another a stroke. Conrail knew these facts and provided water at the work site, but discouraged the workers from taking frequent breaks because of the time pressure.

At about 2:45 P.M., Mr. Gottshall saw Richard Johns, a coworker and longtime friend, fall over. When workers reached Mr. Johns to assist him, they saw he was conscious. Someone gave Mr. Johns a cold compress and within five minutes, Mr. Johns was revived. The supervisor ordered the group back to work, and the employees complied without objecting. Mr. Johns continued to rest.

Five minutes later, Mr. Gottshall saw Mr. Johns fall again. Mr. Gottshall rushed to Mr. Johns and found him lying face down, turning white. Mr. Johns was not breathing, his heart was fluttering ever faster, his eyes were rolled back, and he was drooling. Mr. Gottshall began cardiopulmonary resuscitation ("CPR") on Mr. Johns, and was able to start Mr. Johns' heart momentarily. Mr. Gottshall continued his efforts until paramedics arrived.

In the meantime, Michael Norvick, Conrail's track supervisor, attempted to contact medical help. Conrail's standard procedure was to clear a radio channel and contact a dispatcher. At that moment, however, Conrail was repairing an intermediary radio base. Because the base was necessary for contacting emergency services, Norvick's radio was useless. Realizing that obtaining medical assistance from the worksite would be impossible, Norvick left in his car to summon help. Just before he reached a telephone, he was able to contact the emergency personnel by radio. He met them and lead them back to the worksite. This process took any where from thirty minutes to an hour.

When the paramedics arrived, Mr. Gottshall was performing CPR on Mr. Johns. Mr. Gottshall convinced the paramedics to use electric shock to revive Mr. Johns, but the efforts were unsuccessful. Ultimately, the paramedics decided they could do no more. They called the coroner and told the workers not to move the body before the coroner had examined it. The paramedics also directed everyone to remain at the scene until the coroner arrived.

From the outset, Mr. Johns death affected Mr. Gottshall. Other workers noticed he was emotional and upset during the incident.

Mr. Gottshall worked for the next four days, but was afraid he might suffer the same fate as Mr. Johns. Over the weekend, Mr. Gottshall felt ill. He lost his appetite, and though he was able to return to work on the following Tuesday, he went home early. Mr. Gottshall withdrew to his basement and his father eventually found him there a few days later. On August 27, 1988, Mr. Gottshall was admitted to the Northwestern Institute of Psychiatry.

At Northwestern, Mr. Gottshall was diagnosed as having depression and post-traumatic stress disorder with symptoms that included suicidal preoccupation, anxiety, sleep onset insomnia, cold sweats, repetitive nightmares, and weight loss. Another doctor identified various emotional disorders in Mr. Gottshall, and connected them to the incident.

Mr. Gottshall sued Conrail for negligent infliction of emotional distress.

II. ANALYSIS

Summary judgment is appropriate where there are no genuine issues of material fact, and the moving party is entitled to a decision as a matter of law. An issue is genuine if a reasonable fact finder considering the evidence presented could find for the non-moving party. In deciding a summary judgment motion, I must view all facts in favor of the non-moving party.

With these principles in mind, I will address the merits of this case.

A. Emotional Injuries Under the FELA.

In Atchison, Topeka, and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), the Supreme Court refused to make a blanket rule governing emotional injuries under FELA. Rather, the court explained how "FELA jurisprudence gleans guidance from common-law developments," id at 568, 107 S.Ct. at 1417, and how there was little agreement among the various jurisdictions concerning emotional injury suits. The court concluded an ad hoc analysis was appropriate because recovery "could rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity." Id.

The court, however, clearly indicated that Congress intended FELA as a broad remedy to ensure railroad workplace safety, and "adopted a standard of liberal construction in order to accomplish Congress' objects." Id. at 562, 107 S.Ct. at 1414.

The Third Circuit discussed emotional injuries under the FELA in two recent cases. See Outten v. National Railroad Passenger Corporation, 928 F.2d 74 (3d Cir.1991); Holliday v. Consolidated Rail Corp, 914 F.2d 421 (3d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 970, 112 L.Ed.2d 1057 (1991). In both, the court applied the Atchison approach and found the plaintiffs had not alleged recognizable tort claims.

In Holliday, the plaintiff was working as a conductor before he was fully trained to do the job. The position required the deployment of various switches, and the plaintiff made frequent mistakes. While the plaintiff did not cause any accidents, in one case, he almost crushed himself. Because of these errors, the plaintiff suffered acute stress and eventually developed severe physical symptoms. These problems forced him to stop working, and he sued the railroad under FELA. The district court granted summary judgment to the railroad.

The court of appeals affirmed noting that no recognized tort theory supported recovery. Judge Greenburg wrote every job creates stress, and that even under FELA's liberal standards, the plaintiff's injury was not compensable.

In Outten, a railroad employee mistakenly switched a train down the track where the plaintiff was working. Fearing a collision with electrical equipment on the track, the plaintiff fled for his life. Actually, the equipment was a mile down the rail, and the plaintiff was not hurt. After the incident, though, the plaintiff suffered psychological injuries and sued for negligent infliction of emotional distress.

Emphasizing FELA's broad, remedial purpose, the court applied Pennsylvania's relatively lenient bystander law. Despite this liberal test, the Third Circuit denied the plaintiff's claim because he could not have been physically hurt under the circumstances. In addition, the court also noted the plaintiff's injury was not foreseeable.

These cases make my inquiry clear. First, I must decide whether the events that caused Mr. Gottshall's injury show there was a breach of duty under common law that would support a claim for the negligent infliction of emotional damage. Second, I must inquire whether Mr. Gottshall can show the other basic elements of a tort claim: foreseeability, actual cause, proximate cause, and damages.

Mr. Gottshall cannot succeed at either step. First, his circumstances do not satisfy even the most liberal requirements for a negligent infliction of emotional damages claim. Second, Mr. Gotshall cannot show his injury was foreseeable and he cannot show actual or proximate cause.

1. Negligent Infliction of Emotional Injury.

As the Outten court noted, there are fairly strict limits on claims for negligent infliction of emotional injury.

Some states require a contemporaneous physical injury before there can be recovery for an emotional injury. Here, Mr. Gottshall has made no such allegation. Other states employ the zone of danger concept. Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), the seminal case in this area, held there is a duty to a bystander if he was located near enough to the accident, was closely related to the victim, actually witnessed the event, and this experience injured him.

Dillon is inapplicable here because Mr. Gottshall and Mr. Johns were not related, but other tests are less strict. Pennsylvania's zone of danger test is among the least restrictive. It requires a negligent force that was aimed at the plaintiff and put him in fear and danger of physical impact. See Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 90 (1970). I will use the Niederman test here keeping in mind FELA's broad, remedial aims.

Applying this relatively liberal standard to the instant facts shows there is no liability.

At first glance, there is intuitive merit to the idea that Conrail negligently put Mr. Gottshall in danger. The men in the work gang were mostly older, at least two had a history of illness, the weather was extraordinarily hot and humid, and defendant clearly asked the men to perform very strenuous labor at a heightened pace. In some ways, there is no surprise that one of the workers became ill.

Nevertheless, drawing the zone of...