Holliday v. Consolidated Rail Corp., 90-1189

• Decision Date: 15 October 1990
• Docket Number: No. 90-1189,90-1189
• Citation: 914 F.2d 421
• Parties: Robert A. HOLLIDAY, Appellant, v. CONSOLIDATED RAIL CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

Page 421

914 F.2d 421

Robert A. HOLLIDAY, Appellant, v. CONSOLIDATED RAIL CORPORATION.

No. 90-1189.

United States Court of Appeals Third Circuit.

Argued Aug. 14, 1990.

Decided Sept. 14, 1990.

Rehearing and Rehearing In Banc Denied Oct. 15, 1990.

Cornelius C. O'Brien, III, Patrick T. Henigan (argued), O'Brien & Henigan, Philadelphia, Pa., for appellant.

Jonathan F. Altman (argued), Consol. Rail Corp., Philadelphia, Pa., for appellee.

Before MANSMANN, GREENBERG and SEITZ, Circuit Judges.

OPINION

GREENBERG, Circuit Judge.

Plaintiff Robert A. Holliday appeals from an order for summary judgment entered February 28, 1990, in favor of defendant Consolidated Rail Corporation in this action under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. Our review is plenary and thus we may affirm only if there is no dispute as to any material fact and Conrail is entitled to judgment as a matter of law. Metzger v. Osbeck, 841 F.2d 518, 519 (3d Cir.1988).

Viewing the facts most favorably to Holliday, we accept the following for purposes of this appeal. Holliday was first employed by Conrail in 1979 as a brakeman. Within one year he was promoted to yard conductor but was furloughed in 1980. In 1986 he was recalled by Conrail and in the fall of 1987 was serving as a brakeman at the Port Reading, New Jersey, terminal and at industrial sites along the Port Reading line. At that time Holliday was informed that he would be held out of service until he qualified as a conductor on the Port Reading line. While brakemen and conductors sometimes do similar work, conductors are in charge of trains and, unlike brakemen, must be familiar with the physical characteristics of the lines on which they work.

To qualify as a conductor, Holliday worked on the Port Reading line with a pilot on October 28 and October 29, 1987. He also worked with a pilot on another line on November 6, 1987, though by then he had worked without a pilot as a conductor. Holliday, however, did not become familiar with the track on the Port Reading line or the switching thereon. Furthermore, he was not examined by a Conrail official regarding his knowledge of the physical characteristics and switching of the tracks on the line, nor did he receive a notation in his rulebook that he was a qualified conductor.

On November 3, 4, 5 and 9, 1987, Holliday worked as a conductor on the Port Reading line without a pilot. However, this was over his objections as he did not consider himself qualified in that capacity, a conclusion he has supported in this case with expert testimony. While serving as a conductor Holliday was not involved in any accident, though he frequently threw the wrong switches and, on one occasion, was almost crushed during a switching operation.

The stress of the job adversely affected Holliday, as he started to experience heart palpitations, sleep disorder including nightmares of train wrecks and injuries, spastic colon, tenesmus, involuntary rectal discharge, anxiety and depression. His condition rapidly progressed so that when he completed service on November 9 he could no longer work and he sought the advice of a physician. There is evidence that his physical problems and psychological disorders were attributable to his fear of causing an accident and of being injured. Holliday did not work for Conrail for several months after November 9 but he then came back as a brakeman. However, he did not continue in that employment as his spastic colon, involuntary rectal discharge and tenesmus returned.

On September 20, 1989, Holliday filed this FELA action against Conrail, alleging that at "the time of the accident and the injuries [he] was employed by [Conrail] as a brakeman" and on or about November 3, 1987, "was injured due to being forced to work on a job that he had not been 'qualified' for." Holliday asserted that the "accident was caused by the negligent and/or unlawful conduct of [Conrail]." ¹ Conrail subsequently moved for summary judgment, pointing out in its supporting memorandum that Holliday made no claim of having been involved in an "accident" as he suffered "no actual physical impact ... to produce an injury." Thus, his condition was simply attributable to the working conditions. The district court granted summary judgment by an order entered February 28, 1990, without an opinion, and this appeal followed.

On June 1, 1990, the district court filed a memorandum opinion explaining why it had granted summary judgment. It rejected Holliday's claim "that the cause of his stress was the fact that he was almost involved in some kind of accident during one of the trips that he made without a pilot," as it viewed the depositions as not supporting this conclusion. The court explained that if "it was fear of imminent impact that was the cause of [Holliday's] claimed injuries then it was [Holliday's] obligation to get that onto the record in a form that is cognizable by a court that is deciding a motion for summary judgment, merely claiming it in his brief is not enough." The court then held that the physical manifestations of the injuries were not in themselves sufficient for Conrail to be liable. Ultimately, the court concluded that:

A fair reading of the evidence in this case taking all inferences in favor of the plaintiff and resolving all questions of credibility in his favor indicates that: 1) the plaintiff thought he was unqualified for the job he was doing; 2) he had a very responsible and important job; 3) he never did undergo a test to see if he was familiar with the physical characteristics of the railroad; 4) failure of the conductor to do his job properly could cause a serious accident; and 5) these facts made the plaintiff deeply afraid. This is insufficient to support a claim under the FELA. It was for these reasons that I entered summary judgment for the defendant.

Undoubtedly, the Federal Employers' Liability Act provides a broad basis for recovery, as it recites that "[e]very common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier...." 45 U.S.C. Sec. 51. Yet it is evident from the Supreme Court opinion in Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), that it is not clear that the FELA was intended to provide for a recovery in a situation such as that here. In Buell an employee brought a FELA action in district court, alleging that the railroad was liable to him because he had been harassed, threatened and intimidated on the job, causing him to suffer "a mental breakdown, and certain associated physical disorders." Id. 107 S.Ct. at 1413. The railroad moved for and obtained summary judgment on the ground that the action involved a minor dispute subject to the procedures of the Railway Labor Act. The Court of Appeals reversed, holding that the employee's claims were not arbitrable under that act and that the FELA action was therefore not precluded. Buell v. Atchison, Topeka and Santa Fe Ry. Co., 771 F.2d 1320 (9th Cir.1985). Furthermore, though the issue had not been briefed, the Court of Appeals indicated that an employee's wholly mental injury stemming from railroad employment is compensable under the FELA.

The Supreme Court granted certiorari. 476 U.S. 1103, 106 S.Ct. at 1946, 90 L.Ed.2d 356 (1986). It rejected the railroad's arguments that the Railway Labor Act provides the exclusive forum for any dispute arising out of working conditions and that emotional injuries should not be actionable under the FELA because of their close relationship to minor disputes under the Railway Labor Act. 480 U.S. 557, 107 S.Ct. 1410, at 1415, 94 L.Ed.2d 563 (1987). These conclusions, however, did not resolve the question of whether the term "injury" within the FELA included emotional injuries. The Court indicated that "[t]he 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." 107 S.Ct. at 1417. Thus, "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." Id. In the circumstances, it declined to determine whether the employee's claim was cognizable under the FELA as the facts of the case had not been adequately developed. Accordingly, the judgment of the Court of Appeals was vacated on this point.

Unlike the Supreme Court in Buell, we have a record permitting us to make an exacting scrutiny of the facts of the case and thus the matter is ripe for determination. The essence of Holliday's claim is that he was inadequately trained as a conductor and, as he was thus unqualified for that position, he suffered stress with resultant physical manifestations when he worked as a conductor. Holliday does not contend that he was in an accident with physical impact, that there was an injury to any other Conrail employee or for that matter to anyone else, or indeed that there was any accident at all. We must make the legal determination of whether in these circumstances he has established facts which could justify a finding that he suffered an "injury" within the meaning of 45 U.S.C. Sec. 51. Our inquiry in this regard, as directed by Buell, particularly focuses on the "nature of [his] injury and the character of the tortious activity." 107 S.Ct. at 1417.

We have not previously passed upon a case similar to this, but the district court recently did so in Kraus v. Consolidated Rail Corp., 723 F.Supp. 1073 (E.D.Pa.1989) appeal dismissed, 899 F.2d 1360 (3d Cir.1990), an action involving emotional injuries including...