Halko v. New Jersey Transit Rail Operations, Inc., 84 Civ. 6300 (CHT).

• Decision Date: 07 December 1987
• Docket Number: No. 84 Civ. 6300 (CHT).,84 Civ. 6300 (CHT).
• Parties: Mary HALKO, as Administratrix of the Goods, Chattels and Credits of Edward Halko, Deceased, Plaintiff, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. and Consolidated Rail Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

677 F. Supp. 135

Mary HALKO, as Administratrix of the Goods, Chattels and Credits of Edward Halko, Deceased, Plaintiff, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. and Consolidated Rail Corporation, Defendants.

No. 84 Civ. 6300 (CHT).

United States District Court, S.D. New York.

December 7, 1987.

Elkind, Flynn & Maurer, P.C., New York City (Michael Flynn, of counsel), for plaintiff.

Hunton & Williams, New York City (Robert M. Peet and Thomas V. McMahon, of counsel), for defendant New Jersey Transit Rail Operations, Inc.

Johnston, McShane & Kilgannon, New York City (Bruce W. McShane, of counsel), Fitzhugh & Associates, Boston, Mass. (Michael A. Fitzhugh and Veronica J. Bailey, of counsel), and Schnader, Harrison, Segal & Lewis, Philadelphia, Pa. (Ralph G. Wellington and Margaret S. Woodruff, of counsel), for defendant Consol. Rail Corp.

OPINION

TENNEY, District Judge.

Plaintiff Mary Halko has brought this action pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1982), alleging that Consolidated Rail Corporation ("Conrail") and New Jersey Transit Rail Operations, Inc. ("NJT") were negligent in failing to properly hire, train and supervise its management which contributed to the death of Edward Halko ("Halko"), the plaintiff's decedent. Plaintiff's complaint states two counts of injury. The first claim seeks compensation for a physical injury to Halko's ankle and is only against Conrail. The second claim is for wrongful death caused by emotional injury.

Defendants move for partial summary judgment pursuant to Fed.R.Civ.P. 56, dismissing the second claim. They argue that the injury suffered is not cognizable under FELA and that Halko's suicide was not foreseeable. In addition, both defendants in their initial briefs also claim that this court lacks subject matter jurisdiction.¹

For the reasons set forth below, the Court finds (1) that the FELA covers the injury alleged to have been inflicted on Halko; (2) that a jury could find that Conrail acted negligently toward Halko; and (3) that a jury could find that Conrail's negligence played a role in Halko's death; but that (4) NJT did not act negligently toward Halko. Therefore, Conrail's motion for summary judgment is denied. The motion of NJT is granted, and the action against it is dismissed.

BACKGROUND

The plaintiff's decedent was a railway car inspector for Conrail commencing April 1976. He worked at Conrail's Bay Head Yard in New Jersey. His job duties entailed inspecting various mechanical parts of the cars and assuring their general safety. Plaintiff's claim is that Conrail negligently failed to hire competent supervisory personnel and retained them and was therefore derelict in its duty to provide Halko with a safe working environment. To demonstrate its allegation that the supervisory personnel were incompetent, plaintiff offers an internal memorandum of Conrail dated March 16, 1982. The memorandum was the culmination of an internal investigation in which foreman Robert Lisk ("Lisk") was accused of sexual harassment of female employees. The activity of Lisk involved placing mud on the floor of cars just cleaned, arbitrarily docking the complainants for time off, and various other episodes of general harassment. The memorandum was drafted by J.F. Allen, Conrail's assistant regional personnel manager, and was sent to F.J. Flynn, Conrail's division superintendent. The memorandum concludes that:

it is in my opinion the position of Foreman is one of responsibility and as such, the person filling this position is responsible for supervising other employees equally and without prejudice. We feel Mr. Lisk has demonstrated the inability to handle this position.

Plaintiff's Exhibit ("Pl. Exh.") K (emphasis added).

Plaintiff alleges that starting March 1982 members of Conrail's supervisory staff began a concerted effort to harass her husband Halko. The two main persons who allegedly abused Halko were general foreman Mark Wuelfing ("Wuelfing") and Lisk. On March 11, 1982, Halko was charged by Wuelfing with failing to adequately inspect a car on February 18, 1982. Pl. Exh. N. It is uncontradicted that no hearing was ever conducted. According to plaintiff, the notice of trial was a wrongful accusation whose sole aim was to cause Halko to fear for his job security.

The next episode which plaintiff claims is evidence of harassment occurred over a six month time span. Beginning in April 1982 and continuing into September 1982, Halko experienced inexplicable paycheck shortages on a regular basis. Plaintiff claims that the daily time records were called into a Conrail bookkeeping office by either foreman Dege or Wuelfing. According to plaintiff, Halko first requested help from Lisk. When this approach proved unsuccessful, Halko confronted Wuelfing but the shortages continued. A fellow employee had stated that "he Halko would talk to me about it, about the bills, and five kids he has to feed, he was upset about it. He was a hard worker. He also wanted to work and feed his family, couldn't understand why they were fooling around with all of this, the pay checks, jobs." Deposition ("Dep.") of DiSanto at 37, Pl. Exh. M. Another co-worker stated, "he was being harassed. I felt he was being harassed through his payroll then. That is the way they did it...." Dep. of Rockwell at 4, Pl. Exh. P.

The Halkos continued to request assistance from Conrail at various management levels. The Halkos then wrote a letter to the president of Conrail. Pl. Exh. Q. In it, they referred to the problem with the paychecks. Interestingly, the letter requested emphatically that Halko not be labeled a troublemaker for fear of losing his job. "I hope this doesn't cause my husband to lose his job as being a trouble maker." Id. Shortly following the letter to Crane, the shortages ceased. In connection with the paycheck shortages, plaintiff offers an internal Conrail memorandum addressed to Wuelfing. The letter refers to the paycheck problem and specifically states, "M.E. Wuelfing—Watch closely!" Pl. Exh. R.

The next episode of torment which allegedly plagued Halko involved the takeover of NJT. Pursuant to the North East Rail Service Act of 1981, 45 U.S.C. § 1101, NJT was compelled to take over Conrail's passenger operations in New Jersey including Bay Head Yard. Conrail's employees were required to bid for positions with NJT or remain with Conrail in freight operations. Halko bid for a job with NJT. NJT evaluated the bids and then awarded jobs. At the time, Halko did not enjoy seniority and consequently was unsure of his future employment. Plaintiff alleges that Wuelfing played mind games with Halko by informing him on one day he was selected by NJT and then reversing himself by telling Halko he was not selected. Wuelfing would tell Halko "once you got the job, the next day you don't have the job ..." at least twice a week in December. Dep. of Pietraszka at 18, Pl. Exh. F. Another coworker stated, "they were playing handball with him, really, where he got bounced back and forth. He didn't know where he was going, as a matter of fact, and it got him all distressed." Dep. of Rockwell at 6, Pl. Exh. P. At around Christmas, Halko discussed his anxiety over the NJT takeover with foreman Thomas Powers ("Powers"). Powers stated that Halko was very nervous about the NJT takeover. Dep. of Powers, Pl. Exh. G at 57. Powers also stated that Halko "was the worst case" he had ever seen. Id. at 79. Conrail admits that both Wuelfing and Halko were notified of NJT's decision relating to Halko on January 7, 1983. Plaintiff claims Wuelfing's remarks to Halko in December constituted severe emotional torment.

Another incident of claimed harassment also occurred at around this time. It is undisputed that Halko received a personal injury while disconnecting and coupling two railway cars. The injury was a severe steam burn to his ankle. Pl. Exh. W. According to plaintiff, the physicians at the hospital instructed him not to work for a while for fear of developing an infection. Plaintiff alleges that Lisk threatened to discipline Halko if he did not work. Lisk claims that he does not remember threatening Halko. Dep. of Lisk at 58, Pl. Exh. E.

A co-worker stated that Halko told him if he (Halko) did not work he would be brought up on charges. Rockwell Dep. at 11, Pl. Exh. P. Another fellow employee stated that Halko informed him, "I have to come in to work or they are going to bring me up on charges, if I don't come in to work." DiSanto Dep. at 41, Pl. Exh. M.

Another co-worker stated that he discussed the situation with Halko after Halko showed him the injury. After observing the burned ankle, he asked Halko why he was not at home and Halko replied that he feared for his job. Dep. of McGuire at 61-62, Pl. Exh. T.

On New Year's Eve, a Conrail doctor removed Halko from active employment after his ankle became infected. Halko, still unsure whether he was hired by NJT, called co-worker Rockwell on New Year's Eve. "Ed Halko was crying to me over the phone, he was in complete disarray, he didn't know what he was doing, and he said, `please help me.' He was really upset." Rockwell Dep. at 7, Pl. Exh. P. According to plaintiff, Halko then called George Toadvine, a Conrail counselor. The counselor advised Halko that because no one knew whether Halko was an employee of NJT or Conrail, no assistance could be rendered.

Allegedly at around this time, Halko made an unsuccessful suicide attempt.² Halko continued to work at Bay Head Yard and was notified on January 7, 1983 that NJT had in fact hired him.

Shortly after being employed by NJT, plaintiff asserts that Halko was the victim of continued emotional abuse. This harassment involved Wuelfing's threat to bring Halko and a fellow employee up on charges for failing to properly inspect an air hose. The other incident involved foreman Powers accusing Halko and this same co-worker of sleeping on the job.

Immediately thereafter, Halko approached...