Grube v. Union Pacific R. Co., 69,233

• Decision Date: 16 December 1994
• Docket Number: No. 69,233,69,233
• Citation: 256 Kan. 519,886 P.2d 845
• Parties: Ernest M. GRUBE, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 845

886 P.2d 845

256 Kan. 519

Ernest M. GRUBE, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant.

No. 69,233.

Supreme Court of Kansas.

Dec. 16, 1994.

Syllabus by the Court

1. The Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), provides in part that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury [or death] while he is employed by such carrier ... for such injury or death resulting 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 its cars, engines, appliances, machinery, track, roadbed, works, boats, wharfs, or other equipment."

2. What constitutes negligence under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), is a federal question and does not vary in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026-27, 93 L.Ed. 1282 (1949).

3. Whether a claim for negligent infliction of emotional distress may be advanced under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), is resolved by the decision in Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).

4. The threshold standard which must be met by plaintiffs bringing claims for negligent infliction of emotional distress under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), is the zone of danger test. Essential elements for recovery under the zone of danger test are that plaintiff be within the zone of danger and suffer imminent apprehension of physical harm which causes or contributes to the emotional injury.

5. In an action filed under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), physical impact under the zone of danger test contemplates an impact relating to the resulting emotional distress. Where evidence establishes that plaintiff experienced no fear for his or her personal safety and that the physical impact did not cause injury and did not have any effect on plaintiff's resulting severe emotional distress, plaintiff's claim for negligent infliction of emotional distress fails.

Michael B. Buser, of Shook, Hardy & Bacon P.C., Overland Park, argued the cause, and Rebecca J. Lubbers, of the same firm, was with him on the briefs for appellant.

Laurence M. Jarvis, of Laurence M. Jarvis, Chartered, Kansas City, argued the cause and was on the briefs for appellee.

DAVIS, Justice:

This case deals with the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (1988), (FELA) and involves a question of whether a railroad employee may recover damages against employer railroad for negligent infliction of emotional distress.

At the time this case was argued, the question had not been resolved by the United States Supreme Court. Because of the conflict among the federal circuit courts of appeal concerning the threshold standard which must be met by the plaintiffs bringing claims for negligent infliction of emotional distress under FELA, the United States Supreme Court granted certiorari in two cases arising in the Third Circuit Court of Appeals: Gottshall v. Consolidated Rail Corp., 988 F.2d 355 (3d Cir.), cert. granted, 510 U.S. 912, 114 S.Ct. 299, 126 L.Ed.2d 247 (1993); Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir.), cert. granted, 510 U.S. 912, 114 S.Ct. 299, 126 L.Ed.2d 247 (1993).

After the arguments in this case, the United States Supreme Court on June 24, 1994, rendered its decision in Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). On July 7, 1994, we entered an order offering the parties an opportunity to address the following questions:

"(1) Does the United States Supreme Court decision [in Gottshall ] apply to this case?

"(2) Assuming the United States Supreme Court decision applies, would the record in this case permit this court to resolve the issue of whether plaintiff is within the 'zone of danger' standard?

"(3) Assuming the United States Supreme Court decision applies, must this case be reversed and remanded for a new trial under the standard announced by the United States Supreme Court?

"(4) Any other questions deemed appropriate by the parties."

The parties responded with supplemental briefs. Both parties agree and we conclude that the United States Supreme Court decision in Gottshall governs the disposition of this case. We will discuss the parties' further contentions concerning Gottshall below.

The facts are not in dispute. Although the briefs and oral arguments at times suggest otherwise, the factual findings of the trial court have not been appealed. Ernest A. Grube was employed by Union Pacific Railroad Company (Union Pacific). This case arose when the train he was operating as engineer collided with an automobile trapped upon a railroad crossing outside Lawrence. One of the occupants in the automobile died and two others suffered serious injury as a result of the collision. The decedent's heirs and the injured parties sued Grube and Union Pacific. These claims were settled and are not at issue in this appeal.

Grube filed a cross-claim against his employer, seeking damages for negligent infliction of emotional injury with accompanying physical manifestations. Grube saw the trapped car before the collision. He remembers the driver of the vehicle, a young man, looking at the approaching engine with an expression of shock, fright, or fear. Grube sustained no physical injury as a result of the collision, but when the train eventually stopped, he ran back to the accident scene attempting to render aid. He felt the pulse of the driver and touched the deceased, attempting to find a pulse. At the accident scene, Grube exhibited physical manifestations of his emotional distress; he became physically ill and, as he testified, he "threw up ... [and] that's when it started hitting me." Grube further testified that he had no thoughts of fear of personal injury at the time of the accident but was reacting and not thinking at the time and merely doing his job. The other employee in the cab of the engine with Grube, however, ducked down before impact out of fear of possible explosion at the time of impact.

At the close of Grube's evidence, Union Pacific moved for a directed verdict, claiming that Grube could not recover damages for infliction of emotional distress under FELA absent physical injuries. The trial court took this motion under advisement. Union Pacific renewed its motion at the close of all evidence. Again, the trial court took the matter under advisement. The jury returned a verdict for Grube, awarding him $121,500 in damages.

Union Pacific moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied this motion except for the question of whether Grube could recover for emotional distress absent physical injury. Ultimately the court ruled for Grube, stating in part:

"[T]here's no question that plaintiff suffered significant mental distress as a result of the accident and subsequent litigation brought against him. With such proof, why should he not recover because he suffered no physical injury (physical injury/impact theory) or did not himself experience fear for his own safety at the time of the accident (zone of danger theory)?"

The court appeared to base its holding primarily on the evidence that the plaintiff played "an active participatory role in the tragedy." The court thus denied defendant's motions to dismiss plaintiff's claims "for purely emotional injuries."

Section 1 of FELA provides in pertinent part:

"Every common carrier by railroad ... shall be liable in damages to any person suffering injury [or death] while he is employed by such carrier ... for such injury or death resulting 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 its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51.

Kansas law is clear in its requirements that a plaintiff demonstrate some physical impact/injury in order to recover for negligent inflection of emotional distress. Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032 (1990); Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988). The United States Supreme Court has made clear, however, that federal common law governs such claims under FELA. In Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026-27, 93 L.Ed. 1282 (1949), the Court held: "What constitutes negligence for [FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs."

Later in Atchison, T. & S. F. R. Co. v. Buell, 480 U.S. 557, 568, 107 S.Ct. 1410, 1417, 94 L.Ed.2d 563 (1987), the Court declined to decide whether the plaintiff could recover under FELA for his emotional injuries but stated:

"The question whether 'emotional injury' is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see Urie v. Thompson, 337 U.S. at 174, , whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity."

Whether a plaintiff may recover damages from his or her employer on the basis of negligent...