Norfolk Southern Ry. Co. v. Spence

• Decision Date: 19 August 1993
• Docket Number: No. A93A1715,A93A1715
• Citation: 210 Ga.App. 284,435 S.E.2d 680
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY et al. v. SPENCE.
• Court: Georgia Court of Appeals

Page 680

435 S.E.2d 680

210 Ga.App. 284

NORFOLK SOUTHERN RAILWAY COMPANY et al. v. SPENCE.

No. A93A1715.

Court of Appeals of Georgia.

Aug. 19, 1993.

Reconsideration Denied Sept. 16, 1993.

Certiorari Denied Jan. 6, 1994.

Neely & Player, Edgar A. Neely, Jr., William C. Thompson and Laura A. Shaw, Atlanta, for appellants.

Agnew, Schlam & Bennett, Paul R. Bennett, Columbus and Leroy Langston, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Spence's amended complaint states claims under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 ("FELA"), for negligent infliction of emotional distress and for intentional infliction of emotional distress, and under the Hours of Service Act, 45 U.S.C.A. § 61 et seq., for requiring plaintiff to work two jobs for periods of time in excess of the maximum hours permitted. Defendants Norfolk Southern Corporation, Norfolk Southern Railway Company and Central of Georgia Railway Company moved for summary judgment. A summary judgment was granted to defendant Central of Georgia Railway Company which had contended that plaintiff was not its employee while the motion for summary judgment of the remaining two defendants was denied. This appeal from the denial of their motion for summary judgment by defendants Norfolk Southern Corporation and Norfolk Southern Railway Company follows the grant of their application for interlocutory appeal. Held:

We granted the application for interlocutory appeal in order to address contentions that the infliction of emotional distress claims are not viable FELA claims and that, if they are, plaintiff has failed to begin his action within the statute of limitation. However, under guidance from our recent decision in Bowers v. Estep, 204 Ga.App. 615, 617 (2), 420 S.E.2d 336, we find that we need not reach these issues as this appeal may properly be decided upon the same basis as our earlier decision, that is, without deciding whether a plaintiff may assert a claim under FELA for negligent or intentional infliction of emotional distress, we hold that even if we allowed such a claim plaintiff Spence has failed to assert a claim that would entitle him to relief.

"Looking to common law developments for guidance, Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1949), we recognize that, as the Court noted in [Atchison etc. R. Co. v. Buell, 480 U.S. 557, 568-569, 107 S.Ct. 1410, 1417, 94 L.Ed.2d 563], most states recognize the tort of intentional infliction of emotional distress, but 'they vary in the degree of intent required to establish liability, and the level of physical manifestation of the emotional injury required to support recovery. Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.' (Footnotes omitted.) Id. The description of the tort given in the Restatement (Second) of Torts § 46 has been adopted by many jurisdictions and has been characterized as the general rule prevailing in the United States. Buell, supra at 568 n. 16, 107 S.Ct. at 1417 n. 16. The Restatement, supra, provides that 'one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,' id. at 71, and notes that 'the cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character,...