Gottshall v. Consolidated Rail Corp., 91-1926

Citation988 F.2d 355
Decision Date11 March 1993
Docket NumberNo. 91-1926,91-1926
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

John J. O'Brien, Jr. (argued), G. Sander Davis & Associates, Philadelphia, PA, for appellant.

David S. Morgan (argued), Gallagher, Wheeler, Reilly & Lachat, Philadelphia, PA, for appellee.

Before: BECKER, NYGAARD and ROTH, Circuit Judges.


NYGAARD, Circuit Judge.

James E. Gottshall appeals from a summary judgment in favor of Consolidated Rail Corporation in this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. In the context of the facts that follow, we will examine whether FELA recognizes negligent infliction of emotional distress as a basis for liability, and if so, define the contours of this liability. We will construe the facts in the light most favorable to Gottshall. Metzger v. Osbeck, 841 F.2d 518, 519 (3d Cir.1988). We hold that Gottshall has shown a sufficient basis to sustain his suit under FELA. Conrail is not entitled to judgment as a matter of law, and we will reverse and remand for further proceedings.


On an exceedingly hot and humid August day during the summer of 1988, Conrail dispatched a work gang of nine men and among them were James Gottshall and his friend Richard Johns. The crew was supervised by Michael Norvick. Conrail sent its men to replace a stretch of defective tracks on the Watertown Secondary near Turbotville, Pennsylvania. Despite many technological advances in the railway industry, replacing steel rails still requires raw human labor. It remains heavy, strenuous work, requiring workers to unload, carry, saw, and drill holes in steel rails, and to extract spikes. Because trains were operating on the track, work did not begin until high noon when the temperature had exceeded 95 degrees. The temperature of the rail itself was 118 degrees. The track was out in the flats--in the open.

Most of the men were in their fifties and many were overweight. Conrail knew that one worker had suffered a serious heart attack. It also knew Johns was overweight, had high blood pressure and athero or arteriosclerotic cardiovascular disease, and was taking medication.

Conrail was on a strict time schedule because, as Gottshall explained, it had violated a railway safety regulation and knew it was scheduled for a safety inspection. On this particular day Conrail drove its men hard; the pace of the work was unusually fast. Although conditions became increasingly inhospitable, the men were discouraged repeatedly from taking rest breaks except to get water on a need basis. As a practical matter it was difficult for workers to take unscheduled breaks because they often worked in teams. As Norvick stated, "We aren't going to stop our maintenance work because of the heat."

Under these stark conditions the men worked continuously for about two and a half hours until the work routine was unexpectedly disrupted. While Johns was cutting a rail, Gottshall saw him collapse. Gottshall and several men rushed to help their coworker. Norvick saw that Johns was pale and sweating profusely and realized he was having trouble with the weather conditions. They administered a cold compress and soon Johns regained consciousness. Ever aware of the time constraints on the work to be done, Norvick ordered the men to stop assisting Johns and to get back to work. They did so, leaving Johns with Norvick who neither took Johns from the worksite nor sought medical assistance. Five minutes later, Gottshall saw Johns stand up and collapse again.

Gottshall rushed to help his friend and saw that Johns was in trouble. Johns had turned white; his teeth had been knocked out by the fall; his eyes were rolled back; he was gasping for breath; his heart was fluttering; and saliva was drooling from his mouth. Gottshall realized Johns was suffering from a heart attack and began cardiopulmonary resuscitation. At one point Gottshall managed to restart Johns' heart, but only briefly. Although Gottshall was emotionally perturbed, and at times crying, he continued the cardiac procedure for about forty minutes while waiting for medical help.

This time Norvick realized Johns needed medical help immediately. The men had communication equipment, but that equipment was useless because on this particular day Conrail had taken the Turbotville base station off the air for repairs without notifying the men. Norvick was forced to physically seek help.

Rather than take the dying Johns to the nearest town, Norvick sped along an old country road to a firehall, only to find it closed. Sometime after the initial attempted distress call, the radio equipment apparently became operational and Norvick managed to reach a Conrail dispatcher. Norvick then raced to Agway Feed to place a 911 emergency call just in case the dispatcher's lines would not work. The worksite was isolated, so Norvick arranged to meet the medical help at a nearby road. When the paramedics arrived some thirty minutes to an hour later, he led them through a path to the worksite.

By this time, it was too late. Johns had died. His corpse was covered and laid on the gravel beside the track where it remained in the open, under the hot sun and in full view of the men until the coroner arrived, some three hours later. Meanwhile, Norvick ordered the men back to work because an empty coal train needed to use the railway line. When the men finished the work, Norvick ordered Gottshall and the others to stay at the worksite.

After the coroner finished, Gottshall and several men carried Johns' body to the ambulance parked in the distance. The coroner reported that Johns had died from a heart attack, precipitated by the excessive heat and humidity, combined with the heavy physical exertion. He also found that Johns did not receive prompt medical attention and that, had he, his chances of survival would have been significantly enhanced.

From the outset, the incident hit Gottshall hard. Other workers noticed he was emotional and upset during the ordeal. While he was giving CPR to Johns, he kept repeating, "Come on Dick, breathe, breathe." Even as the work crew returned from the worksite hours after Johns had died, a worker noticed Gottshall was still crying.

Johns was Gottshall's friend, and their friendship went beyond work. Johns often visited Gottshall to socialize. They spent time on the weekends, socializing and discussing the railway industry. Johns planned to join the National Historical Society of which Gottshall is a member. They attended union meetings, worked and took their meals together, and sometimes went drinking together. They had enjoyed this relationship for fifteen years. Conrail knew they were "personal friends."

When Gottshall returned to work the next morning, a Conrail supervisor reprimanded him for administering CPR to Johns. Otherwise, it was work as usual. The extreme weather conditions persisted. The men went back to the track and continued to work long, hard hours under the sun. Conrail did not implement scheduled breaks but water, as usual, was provided.

Gottshall began to feel sick and lost his appetite. He became preoccupied with the events surrounding Johns' death, and he became increasingly afraid that he would die under the same extreme conditions.

Johns' funeral was held the following weekend. The following Tuesday, Gottshall told his supervisor he was sick and was going home. The supervisor told him that he had to explain to the division engineer. As Gottshall recalled, "I had to explain to him after all of this heat and exhaustion, I'm getting sick and I can't take it, I'm going home and taking a couple of days off, and I just got sick and just couldn't go back anymore."

He returned home, retreated to his basement, and stayed there until his father found him several days later. Gottshall, along with the others who witnessed the accident, underwent a stress test given by their local union. The results indicated that the general consensus among the men was that the death was avoidable and that the men exhibited considerable depression and rage towards Conrail. The test identified Gottshall as suffering the most and recommended he seek medical treatment.

Gottshall was admitted to the Northwestern Institute of Psychiatry and remained there under the care of Dr. Byron Braid for about three weeks. Doctor Braid diagnosed that Gottshall was suffering from major depression and post-traumatic stress disorder. Gottshall was having suicidal preoccupations, anxiety, sleep onset insomnia, cold sweats, loss of appetite, nausea, physical weakness, repetitive nightmares of the death scene and a fear of leaving home. During this time Gottshall lost forty pounds. Another psychiatrist, Dr. Gary Glass, and a clinical psychologist, Dr. Sharon Silberman, confirmed Dr. Braid's diagnosis. Since his discharge from the hospital, Gottshall has continued to receive out-patient psychological treatment.

Gottshall brought an action against Conrail under FELA, 45 U.S.C. § 51 et seq., seeking damages for emotional and physical injuries suffered and alleging that Conrail's negligence created the circumstances under which he was forced to watch and participate in the events surrounding the death of his friend. The district court reasoned that Gottshall's allegations failed to satisfy the elements of any of the recognized common law theories of liability, including the bystander and the zone of danger tests. Gottshall v. Consolidated Rail Corp., 773 F.Supp. 778, 781 (E.D.Pa.1991). It further reasoned that Conrail did not breach a general duty of care because it considered the failure to provide means of communication the only possible conduct breaching that duty and that Conrail could not have reasonably foreseen that such conduct would lead to Gottshall's injuries. Last, it...

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