Lukowski v. Csx Transp., Inc.

• Decision Date: 19 July 2005
• Docket Number: No. 04-4141.,04-4141.
• Citation: 416 F.3d 478
• Parties: James R. LUKOWSKI and Lester J. Blauvelt, Plaintiffs-Appellants, v. CSX TRANSPORTATION, INC.; Estate of John D. Reese; and Maura Gossard Reese, Individually and as Administrator of the Estate of John D. Reese, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

416 F.3d 478

James R. LUKOWSKI and Lester J. Blauvelt, Plaintiffs-Appellants, v. CSX TRANSPORTATION, INC.; Estate of John D. Reese; and Maura Gossard Reese, Individually and as Administrator of the Estate of John D. Reese, Defendants-Appellees.

No. 04-4141.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2005.

Decided and Filed: July 19, 2005.

Steven P. Garmisa, Hoey & Farina, Chicago, Illinois, for Appellants.

Richard F. Ellenberger, Anspach Meeks Ellenberger LLP, Toledo, Ohio, Mark J. Metusalem, Nationwide Insurance Company, Toledo, Ohio, for Appellees.

Steven P. Garmisa, James T. Foley, Hoey & Farina, Chicago, Illinois, for Appellants.

Richard F. Ellenberger, Garrick O. White, Anspach Meeks Ellenberger LLP, Toledo, Ohio, Mark J. Metusalem, Nationwide Insurance Company, Toledo, Ohio, for Appellees.

Before: CLAY and SUTTON, Circuit Judges; O'MEARA, District Judge.^*

OPINION

CLAY, Circuit Judge.

Plaintiffs James R. Lukowski and Lester J. Blauvelt appeal from the district court's grant of summary judgment to Defendants CSX Transportation, Inc., the Estate of John D. Reese, and Maura Gossard Reese as the Administrator of the Estate of John D. Reese, in this tort action arising from a collision between a train and a passenger automobile, brought pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq., and Ohio common law. For the reasons that follow, we AFFIRM the district court's judgment.

I. BACKGROUND

At all times relevant to this lawsuit, Plaintiffs were employees of CSX Transportation, Inc. ("CSXT"). Around 4:00 p.m. on July 16, 2000, Lukowski was the conductor/brakeman, and Blauvelt the engineer, on a train heading west through Allen County, Ohio. The train approached an "unguarded" crossing at Rumbaugh Road, traveling at a speed of approximately 50 miles per hour, with its whistle blowing and headlights and ditch lights operating properly.¹ There were some tree branches and vegetation next to or alongside the track that obstructed the train crew's view of the crossing until shortly before the train was about to pass across the road. Right before the train went through the crossing, Blauvelt saw a truck between three and five feet from the tracks, but at that point it was too late for him to stop the train. Similarly, Lukowski saw "a blotch of white" as the train approached the crossing, but was not immediately able to tell that the blotch was a truck.

The train and the truck collided as both attempted to go through the crossing at the same time. During the collision, Blauvelt and Lukowski were jostled around inside the train, but neither was thrown from his seat, and the train did not derail. As the train came to a stop, Blauvelt made an emergency call to report the accident, and sent Lukowski outside the train to investigate. When Lukowski walked back to the crossing, he saw the dead body of the driver of the truck, John Reese ("Reese"). Soon afterward, having not heard anything from Lukowski, Blauvelt also went back to the crossing, and also saw Reese's body.

Both Blauvelt and Lukowski claim to suffer from severe post-traumatic stress disorder as a result of witnessing Reese's body after the accident. It is undisputed that Lukowski was unable to return to work for about seven months following the accident, and that when he did return, he was assigned to a yard job because he feared another accident. Blauvelt was also unable to return to work for several months, but he eventually came back as an emergency call center operator. In August 2001, Blauvelt had to stop working entirely due to increasing anxiety and emotional problems.

Tests performed after the accident showed that Reese had a blood alcohol level of .095, and nine empty beer cans were found inside the cab of the truck during a post-accident inventory search.² Plaintiffs allege, and Defendants do not dispute, that Reese violated a number of Ohio traffic laws in proceeding through the rail crossing without stopping and looking for a train. Plaintiffs filed the instant lawsuit on July 15, 2002, seeking damages for their emotional injuries. Plaintiffs alleged claims against CSXT under FELA, and Ohio common law claims against the Estate of John D. Reese ("Reese Estate") and Reese's widow, Maura Reese, both individually and as the Administrator of the Reese Estate.³ Specifically, Plaintiffs claimed that their emotional injuries were a direct and proximate result of Reese's negligence, and, additionally, that Maura Reese was individually liable for the accident because she negligently entrusted her husband with the truck when she knew or should have known that he would operate it under the influence of alcohol. Plaintiffs claimed that CSXT was at fault for failing to properly maintain vegetation and trees along the right-of-way, which obstructed Plaintiffs' view of the Rumbaugh Road crossing until it was too late for them to safely stop the train.

This suit was initially filed in United States District Court for the Northern District of Indiana, but venue was transferred to the Northern District of Ohio in January 2003. After the transfer of venue, Defendants moved for summary judgment. Without addressing the merits of Plaintiffs' claims against the Reese Estate and Maura Reese as Administrator, the district court found that the Estate and Mrs. Reese were entitled to summary judgment because Plaintiffs failed to follow the estate claim notification procedures set forth in Ohio Rev.Code § 2117.06. The court also granted summary judgment to Maura Reese on the merits of the negligent entrustment claim against her, finding that there was no genuine issue of material fact on the question of whether Mrs. Reese knew or should have known that her husband was intoxicated on the afternoon of the accident, or that he had a propensity to drive while intoxicated. Finally, the court granted CSXT's motion for summary judgment, holding that under FELA, a plaintiff may only recover for emotional injuries that result from a fear of physical injury to his or her own person. See Lukowski v. CSX Transp., Inc., 332 F.Supp.2d 1065, 1068 (N.D.Ohio 2004). The court found that rather than making a claim that their emotional distress was a result of their fear for personal physical injury, Plaintiffs claim that they suffered emotional distress due to a fear for Reese's physical safety. Id. ("Plaintiffs have neither alleged nor shown that the emotional consequences of the accident resulted from any apprehension of possible injuries to themselves. On the contrary, they attribute the disabling consequences of the accident to what they saw in its aftermath, and a sense of guilt at not having been able to see the truck and stop the train."). According to the district court, such emotional distress is not cognizable under FELA in light of the Supreme Court's decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Id. at 1068-69. Plaintiffs now appeal the district court's grant of summary judgment to CSXT, the Reese Estate, and Maura Reese as Administrator of the estate only.

II. DISCUSSION

A. Emotional Distress Claims Under FELA

This case presents a matter of first impression in this circuit: whether a plaintiff who is within the "zone of danger" may recover damages under FELA for emotional distress suffered not as a result of fear for personal physical safety, but rather, as a result of witnessing a third party's peril. The district court answered that question in the negative, but Plaintiffs argue that because they were in the zone of danger, they are automatically entitled to recover for any emotional injuries resulting from CSXT's negligence, regardless of the cause of the emotional distress. We review the district court's grant of summary judgment de novo. Moorer v. Baptist Mem. Health Care, 398 F.3d 469, 486 (6th Cir.2005). Additionally, as a purely legal issue, we review the district court's interpretation of FELA de novo. See, e.g., Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th Cir.2004); United States v. Graham, 327 F.3d 460, 464 (6th Cir.2003).

The starting point for any analysis of emotional distress claims under FELA is the Supreme Court's decision in Gottshall. In Gottshall, the Court held that in order to recover emotional distress damages under FELA, a plaintiff must demonstrate that he or she was within the "zone of danger" of physical impact. Gottshall, 512 U.S. at 555-56, 114 S.Ct. 2396. This is so because Congress' purpose in adopting FELA was "to provide compensation for the injuries and deaths caused by the physical dangers of railroad work." Id. at 555, 114 S.Ct. 2396. Thus, "FELA was (and is) aimed at ensuring `the security of the person from physical invasions or menaces.'" Id. at 555-56, 114 S.Ct. 2396 (quoting Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 813 (7th Cir.), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987)). However, even though the goal of FELA is compensation for physical injuries, the statute "refers simply to `injury,' which may encompass both physical and emotional injury." Id. at 556, 114 S.Ct. 2396. Balancing the statute's goal and its broad language, the common law "zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, those within the zone of danger of physical impact can recover for fright, and those outside of it cannot." Id. at 547-48, 114 S.Ct. 2396 (quotation and citation omitted); see Szymanski v. Columbia Transp. Co., 154 F.3d 591, 594 (6th Cir.1998) (en banc) (explaining that Gottshall "held that claims essentially based on infliction of emotional distress must meet the common law `zone of danger' rule, requiring that a plaintiff making such a claim suffer a physical impact, or be in the zone of danger of...