Gottshall v. Consolidated Rail Corp., 91-1926

• Citation: 56 F.3d 530
• Decision Date: 06 June 1995
• Docket Number: No. 91-1926,91-1926
• Parties: James E. GOTTSHALL, Appellant v. CONSOLIDATED RAIL CORPORATION.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 530

56 F.3d 530

James E. GOTTSHALL, Appellant v. CONSOLIDATED RAIL CORPORATION.

No. 91-1926.

United States Court of Appeals, Third Circuit.

Argued May 7, 1992.

On Remand from the Supreme Court

of the United States June 24, 1994.

Submitted On Remand from Supreme Court Aug. 29, 1994.

Decided June 6, 1995.

William L. Myers, Jr., Davis & Myers, Philadelphia, PA, for Appellant.

Ralph G. Wellington, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for appellee.

Before: BECKER, NYGAARD and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This case returns to us on remand from the United States Supreme Court. The action was originally brought by James E. Gottshall, a railroad worker, against his employer, Consolidated Rail Corporation (Conrail). Gottshall sought damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1988), for negligent infliction of emotional distress. Concluding that the FELA provided no remedy for the plaintiff's emotional injuries in this case, the district court granted Conrail's motion for summary judgment. Gottshall v. Consolidated Rail Corp., 773 F.Supp. 778 (E.D.Pa.1991). This Court, by a divided panel, reversed and remanded, finding the injuries to Gottshall to be both foreseeable and possessed of sufficient indicia of genuineness. Gottshall v. Consolidated Rail Corp., 988 F.2d 355 (3d Cir.1993).

Following the denial of its petition for rehearing, Conrail filed a writ of certiorari with the United States Supreme Court to obtain review of this case and of the companion case of Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir.1993). The Supreme Court agreed to hear both cases. By its decision of June 24, 1994, the Court reversed both cases and remanded them to us. Consolidated Rail Corp. v. Gottshall, --- U.S. ----, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). The Court instructed us to enter judgment against the plaintiff in Carlisle and to reconsider the negligent infliction of emotional distress claim in Gottshall under the common law zone of danger test. Id. at ---- - ----, 114 S.Ct. at 2411-12. For the reasons that follow, we find that the plaintiff in Gottshall cannot satisfy the strictures of the zone of danger test as articulated by the Supreme Court.

I.

Because the facts of this case have been discussed extensively in earlier opinions, we will be brief. James Gottshall served on a Conrail work crew which was assigned on an oppressively hot August day to replace defective railroad track in a remote location between Watsontown and Strawberryridge, Pennsylvania. Gottshall's work crew included his friend of fifteen years, Richard Johns. The crew was supervised by Michael Norvick. Conrail was under time pressure to prepare for a safety inspection and so the work crew was pushed to complete the task. Conrail provided only one scheduled break, for lunch, and discouraged unscheduled breaks. Conrail did, however, make water available to the men on an as-needed basis. ¹

About two and one-half hours into the job, while Richard Johns was cutting a rail, he collapsed. Gottshall and the other workers rushed to Johns' assistance. Johns, who had high blood pressure and was overweight, was having trouble with the weather conditions. The crew members tended to him until Norvick ordered them to return to work. Within five minutes Johns collapsed again. This time it was apparent that Johns was seriously afflicted. Gottshall realized that Johns was having a heart attack and, because Gottshall was the only person at the scene certified in cardiopulmonary resuscitation, he began administering CPR to Johns.

Supervisor Norvick also appreciated that Johns now required immediate medical attention. Norvick's initial attempts to radio to the base station for help were unsuccessful because, unbeknownst to Norvick, Conrail had taken the base radio off-line for repairs. Norvick finally drove out in his truck to secure help. He summoned paramedics who arrived at the site some forty minutes after Gottshall had begun CPR. By this time, however, Johns had died. The paramedics ordered the crew to leave the body where it lay, covered by a sheet, until the coroner arrived. Shortly thereafter, Norvick directed the crew to return to work. The crew continued working for several hours. The coroner on his arrival determined that Johns had suffered a heart attack caused in part by the heat, humidity, and strenuous activity.

Gottshall experienced a severe reaction to his involvement in the incident. In the days that followed, the crew returned to the site to work the same long hours under the same sweltering weather conditions. ² Gottshall, however, became increasingly distraught and feared that he too would have a heart attack. After a few days, Gottshall left work and secluded himself in the basement of his home. He was then admitted to a psychiatric hospital where he was diagnosed with major depression and post traumatic stress disorder. His symptoms included extensive weight loss, suicidal preoccupations, insomnia, and nausea.

II.

Gottshall brought this action in the United States District Court for the Eastern District of Pennsylvania pursuant to the FELA, 45 U.S.C. Secs. 51-60 (1988). We had jurisdiction on appeal under 28 U.S.C. Sec. 1291 (1988). Following remand from the Supreme Court, we now have jurisdiction under 28 U.S.C. Sec. 2106 (1988).

Our task on remand is to apply the common law zone of danger test, as defined by the Supreme Court, in reconsidering Gottshall's FELA claim. Both parties agree, and the Supreme Court has advised, that the present factual record is sufficiently developed for this purpose. See Gottshall, --- U.S. ----, 114 S.Ct. at 2411. See also Casey v. Planned Parenthood, 14 F.3d 848, 856-63 (3rd Cir.1994) applic. for stay denied, --- U.S. ----, 114 S.Ct. 909, 127 L.Ed.2d 352 (1994) (finding no need to reopen record when "the Supreme Court remanded 'for proceedings consistent with this opinion' "); Kamen v. Kemper Financial Services, Inc., 939 F.2d 458, 459-460 (7th Cir.1991), cert. denied, 502 U.S. 974, 112 S.Ct. 454, 116 L.Ed.2d 471 (1991). Therefore, with the zone of danger test in mind, we will address the issues on the existing record.

Because this appeal is from the district court's granting of Conrail's motion for summary judgment, our standard of review of whether Gottshall's claim remains actionable under the FELA is plenary. See Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986). Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, an entry of summary judgment is only appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In conducting this evaluation, we are obliged to view the facts in a light most favorable to Gottshall as the non-moving party. See Erie Telecommunications v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988).

Conrail, in pressing its motion for summary judgment, makes two principal arguments which it draws from the Supreme Court's discussion of the FELA and the zone of danger test. First, Conrail draws an analogy between the facts in this case and those in Carlisle, 990 F.2d 90 (1993), in support of its premise that generalized work conditions cannot give rise to an actionable FELA claim for emotional distress. Second, Conrail maintains that the zone of danger test must be construed to permit recovery only by those persons who are at risk of an actual physical impact.

Gottshall vigorously contests both positions. He asserts that the extreme working conditions, which caused Richard Johns' heart attack and under which Conrail forced Gottshall to work both before and after Johns' death, caused him subjectively to fear for his physical safety and to suffer a complete emotional collapse with attendant physical manifestations. Gottshall also argues for a broader construction of the zone of danger, either one that does not require a threat of physical impact or one that accepts merely the risk of slight physical contact, such as dust in the eye or smoke inhalation.

A.

In this case, the Supreme Court for the first time recognized a plaintiff's right to recover under the FELA for negligently produced emotional distress. See Gottshall, --- U.S. at ----, 114 S.Ct. at 2409. The Court found support both in the statute and at common law for extending the FELA's coverage to purely emotional claims. ³ In examining the statute itself, the Court reiterated the premise that the FELA should be liberally construed in a manner consistent with its remedial purpose. Id. at ----, 114 S.Ct. at 2404. See also Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Noting that the FELA is silent on the issue of recovery for negligent infliction of emotional distress, the Court turned to common law principles to fill the statutory gaps. Gottshall, --- U.S. at ----, 114 S.Ct. at 2404. See also Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 568, 107 S.Ct. 1410, 1417, 94 L.Ed.2d 563 (1987). Cf. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949). The Court surveyed the States and determined that nearly all have permitted claims for emotional injury in one form or another. Gottshall, --- U.S. at ----, 114 S.Ct. at 2405. Based in part on these observations, the Court found that within the broad duty to furnish workers with a safe work place there was "a duty under FELA [for an employer] to avoid subjecting its workers to negligently inflicted emotional injury." Id. at ----, 114 S.Ct. at 2408, (quoting Buell, 480 U.S. at 558, 107 S.Ct. at 1411).

Although the Court was willing to recognize such a duty as a conceptual matter, it also appreciated that, as a practical matter, limitations were warranted to restrict the scope of an FELA employer's duty. The Court was concerned by what it saw, if recovery were permitted for emotional distress, as the "very real possibility of...