Larry D. Vance v. Consolidated Rail Corp.
| Decision Date | 10 November 1993 |
| Docket Number | 93-LW-5201,63806 |
| Parties | LARRY D. VANCE, Plaintiff-Appellee v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Case No. 183406.
FOR PLAINTIFF-APPELLEE: Wallace R. Steffen, Esq., 330 Standard Building, Cleveland, Ohio 44113.
FOR DEFENDANT-APPELLANT: Sheila A. McKeon, Esq., Gallagher Sharp, Fulton, Seventh Floor, Bulkley Bldg., 1501 Euclid Avenue, Cleveland, Ohio 44115.
Defendant-appellant Consolidated Rail Corporation ("Conrail") appeals from a jury verdict of $500,000 in favor of plaintiff-appellee, Larry D. Vance, in a FELA case in which plaintiff claimed emotional distress and depression resulting from an alleged hostile work environment tolerated by Conrail. Defendant Conrail claims that the trial court erred in failing to direct a verdict or grant j.n.o.v. on the merits, on statute of limitation grounds, on failure to plead specific monetary damages and further erred in the admission of evidence, in instructing the jury and permitting evidence of lost wages. We find merit to Conrail's appeal and reverse and enter judgment for said defendant for the reasons hereinafter stated.
This claim was brought by a former employee of Conrail on January 26, 1990 under the Federal Employers' Liability Act ("FELA") 45 U.S.C. §51 et seq. Plaintiff claims the defendant negligently failed to provide him an emotionally safe, place to work in that plaintiff, a former employee of The Erie Lackawanna Railroad, suffered harassment and emotional distress at the hands of his co-workers, former employees of the Penn Central.
Plaintiff Vance was a carman with The Erie Lackawanna Railroad (Erie) from 1968 to 1976. In 1976 the Erie and six other bankrupt railroads (including the Penn Central) were merged to form Consolidated Rail Corporation (Conrail). Plaintiff became a Conrail employee and lost eight years of seniority through the reconciliation of employees' rights resulting from the merger of the seven railroads.
Plaintiff testified that from the day of merger the more numerous Penn Central employees hated the former employees of the Erie whom they constantly harassed and tormented. As a part of this harassment: he and other Erie employees were called scabs and other scurrilous names; a bloody rat was put in his lunch box; he was not always given a locker at new work locations; he received intimidating phone calls; sugar was put in the gas tank of his wife's car; his supervisors would override the bad order tickets he put on defective rail cars; he could not take vacations when he wanted them; he was almost run over by a fellow employee at night; he had to buy his own lantern and was not furnished appropriate safety equipment; a fellow employee threatened him with a chipping hammer; his fellow employees made taunting and suggestive remarks about. his wife and his sex life; and graffiti on the walls of locker rooms, bathrooms and box cars degraded former Erie employees. Testimony supported an overall atmosphere of animosity directed at former Erie employees by former Penn Central employees. The management of Conrail took no action to alleviate this hostility.
Vance claimed that as the result of this harassment he sought psychiatric help in 1985; took medical leave in May 1987 and in August 1988 was medically disqualified from work. Medical testimony at trial supported his claim of chronic and disabling depression which the stress of his work life caused or to which it contributed.
Aside from plaintiff's testimony, there was no evidence that Conrail management was informed of his harassment. His supervisors testified that they had no complaints of harassment from plaintiff. His shop files from his work locations contained no record of such complaints. Over the objections of defendant, five witnesses (former Erie employees) testified to their personal work experiences at Conrail. None of these witnesses testified to personal harassment of the plaintiff although they all testified to hostility between former Erie employees and former Penn Central employees.
Between 1981 and 1984 plaintiff wrote numerous letters to his Union and to Conrail complaining of seniority problems including his vacation scheduling. In February 1985, due to his own fault, he fell from a rail car, hitting his head and injuring his lower back. He was diagnosed with a cerebral concussion and lumbar radiculopathy. Conrail began disciplinary proceedings against plaintiff for safety violations leading to the accident. There was no claim that Conrail was in anyway negligent resulting in plaintiff's accident.
Plaintiff first sought psychiatric help from Dr. James Frey on June 20, 1985 on referral from his family doctor. He told the psychiatrist that he couldn't sleep, was irritable, and had problems concentrating and communicating since his accident. He was also overwrought about loss of seniority.
He continued under psychiatric care until August 1987, when he was placed on medical leave due to severe depression. On September 27, 1988, he was found to be medically disqualified from work due to the depression and was separated from Conrail.
Prior to his medical disqualification from work, plaintiff did not tell his treating psychiatrist about the harassment that took place from 1985 to 1987, until a year after he left Conrail. There was no evidence that his supervisors or fellow employees knew that he was under psychiatric care; nor was there evidence they were aware of his fragile mental condition as it developed.
In closing argument, over defendant's objection, plaintiff's counsel projected plaintiff's future lost wages from age 39 to age 70 for a total of $767,884; and plaintiff's pain and suffering at $3.00 per day until age 70 for a total figure of $814,680. The jury returned a verdict for plaintiff in the amount of $500,000. Conrail's motions for directed verdicts, j.n.o.v. and a new trial were overruled.
We will address Assignments of Error I and II together as they relate to many of the same issues and are dispositive of this appeal.
I. THE TRIAL COURT ERRED IN DENYING CONRAIL'S MOTION FOR DIRECTED VERDICT/MOTION JNOV ON PLAINTIFF'S CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
II. THE TRIAL COURT ERRED IN DENYING CONRAIL'S MOTION FOR DIRECTED VERDICT/MOTION JNOV ON THE ISSUE OF NEGLIGENCE.
We find that the controlling issues on appeal are whether plaintiff can maintain a negligent infliction of emotional distress claim under the FELA, and whether he proved railroad negligence required by the Act. Defendant's motions for a directed verdict and j.n.o.v. should have been granted.
Plaintiff claims that his emotional condition of depression resulted from a pattern of harassment by former Penn Central employees, who made his working life miserable. Whether this is a claim of intentional or negligent infliction of emotional injury is difficult to determine. In the absence of a bright line dividing these theories, a consideration of the history of these kind of claims is appropriate.
It has long been disputed whether employee claims for emotional injuries as the result of stressful working conditions are cognizable under the FELA. The United States Supreme Court last addressed this issue in Atchison, Topeka and Santa Fe Railway Co. v. Buell (1987), 480 U.S. 557. The plaintiff in Buell, a carman, alleged that he had endured mental and emotional suffering at the hands of his foreman and fellow employees as a result of their harassment and intimidation. He claimed this conduct was condoned by the Sante Fe thereby depriving him of a safe place to work. The Supreme Court refused to rule on whether a cause of action for wholly emotional injuries lies under the FELA and stated that:
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 US, at 174, 93 L.Ed. 1282, 69 S Ct 1018, 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.
The Court declined to decide the issue on the limited record presented by the railroad's motion for summary judgment. "As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand." Id. at 570. Since Buell, the state of the law continues to be unsettled. However, the United States Supreme Court has recently granted certiorari in Gottshall v. Consolidated Rail Corp. (C.A. 3 1993), 988 F.2d 355 and in Carlisle v. Consolidated Rail Corp. (C.A. 3 1993), 990 F.2d 90. See Case No. 92-1956, 62 U.S. L.W. 3272, Oct. 12, 1993.
The Sixth Circuit Court of Appeals has declined to rule that as a matter of law a claim for negligent infliction of emotional distress states a cause of action under the FELA. Adams v. CSX Transportation, Inc. (C.A. 6 1990), 899 F.2d 536, 539; Stoklosa v. Consolidated Rail Corp. (C.A. 6 1988), 864 F.2d 425, 426. However, the sixth Circuit has squarely held that intentional infliction of purely emotional injury is not cognizable under the FELA because the Act is limited to negligence claims.(fn1) Adkins v. Seaboard System R.R. 821 F.2d 340, 342 (C.A. 6 1990); Antalek v. Norfolk & Western Co. (C.A. 6 Aug. 30, 1984) No. 84-3057, unreported.
The failure, of the United States Supreme Court and the Sixth Circuit Court of Appeals time and...
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