Norfolk Southern Ry. Co. v. Everett

• Decision Date: 16 December 2011
• Docket Number: No. A11A0951.,A11A0951.
• Citation: 721 S.E.2d 591,11 FCDR 4043,313 Ga.App. 345
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY v. EVERETT.
• Court: Georgia Court of Appeals

11 FCDR 4043

313 Ga.App. 345

721 S.E.2d 591

NORFOLK SOUTHERN RAILWAY COMPANY

v.EVERETT.

No. A11A0951.

Court of Appeals of Georgia.

Dec. 1, 2011.Reconsideration Denied Dec. 16, 2011.

Weissman, Nowack, Curry & Wilco, William C. Thompson, Atlanta, fop appellant.

Michael J. Warshauer, Douglas Campbell Dumont, Lyle Griffin Warshauer, Atlanta, for appellee.

ELLINGTON, Judge.

In this suit under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq., Norfolk Southern Railway Company (“Norfolk Southern”) appeals from the final judgment and jury verdict in favor of Michael Everett on his negligence suit for emotional damages arising out of a train derailment and collision into a commercial building. Norfolk Southern contends that the trial court erred in granting Everett's motion in limine concerning the “zone of danger” test, in denying Norfolk Southern's motion for a directed verdict, and in refusing to give certain jury charges. Because the trial court's ruling on the motion in limine erroneously removed from the jury's consideration an essential element of the plaintiff's case, the judgment must be vacated and this case remanded for a new trial.

1. Norfolk Southern contends that the trial court erred in granting Everett's pretrial motion in limine on the issue of whether Everett was within the zone of danger. “When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review.” (Citation omitted.) Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). The undisputed facts relevant to the resolution of this question of law are as follows.

This is the second appearance of this case before us. In Norfolk Southern R. Co. v. Everett, 299 Ga.App. 420, 682 S.E.2d 621 (2009) (“ Norfolk I ”), we affirmed an order of the trial court denying Norfolk Southern's motion for summary judgment on Everett's FELA claim. Specifically, we held that the trial court correctly found that Everett had presented sufficient evidence from which a reasonable factfinder might conclude that he was within the zone of danger, a legal prerequisite for a finding of liability in a negligent infliction of emotional distress case. As the plaintiff presented sufficient evidence demonstrating a disputed issue of material fact, we held that the trial court correctly denied Norfolk Southern's motion for summary judgment. Id. at 425–426, 682 S.E.2d 621.

The facts of this case were summarized in Norfolk I as follows:

[O]n March 6, 2006, Everett was employed as an engineer for Norfolk Southern and was tasked with moving a six-car train filled with auto parts down an incline into the Ford Hapeville auto plant. Assisted by two other Norfolk Southern employees standing on the outside of the leading railroad car, Everett operated the locomotive that pushed the cars toward the Ford plant. One of the employees misinformed Everett that the train derailment device was in the “off” position when in fact it was in the “on” position. Acting at the direction of his supervisor, Everett moved the train forward, and, due to the position of the derailment device, the cars began derailing about 150 feet from the plant's entrance. The derailed cars continued toward the plant, and the train's emergency brakes immediately activated. Everett, assuming that the train had derailed, quickly applied the engine brakes. Before the train came to a complete stop, it traveled approximately 300 feet from the point of derailment, causing a total of three of the train's six cars to derail, with two of those cars crashing into the Ford plant, setting off a fire alarm light and the building's fire sprinklers. Everett was “slightly pulled” in his seat during the incident but suffered no physical injury. Everett made unanswered radio calls to the two other employees and waited in the locomotive until someone came to him and announced the derailment and that no one had been hurt. When Everett went home, he experienced severe emotional distress from the incident, resulting in his temporary hospitalization. He has not been able to return to work.

(Punctuation omitted.) Id. at 421, 682 S.E.2d 621.

In Norfolk I, we set forth the law applicable to the zone of danger test, id. at 421–423, 682 S.E.2d 621, which we reiterate here. Negligent infliction of emotional distress is a cognizable claim under FELA. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 549–550(III)(A), 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). In Gottshall, the High Court held that, “as part of its ‘duty to use reasonable care in furnishing its employees with a safe place to work,’ a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” (Citation and punctuation omitted.) Id. Because that duty “is not self-defining [,]” id., the Supreme Court adopted the zone of danger test to define the scope of the duty FELA places on employers to avoid imposing emotional distress on their employees. The zone of danger test, the Court said, was “well established” when FELA was passed in 1908, id. at 554(III)(C), 114 S.Ct. 2396, is still presently in use in many states, id. at 555(III)(C), 114 S.Ct. 2396, and is “consistent with FELA's central focus on physical perils.” Id.

Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries—physical and emotional—caused by the negligent conduct of their employers that threatens them imminently with physical impact.

Id. at 556(III)(C), 114 S.Ct. 2396. Thus, under the zone of danger test adopted in Gottshall, the railroad employer's duty under FELA for the negligent infliction of emotional distress is limited 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 a physical harm by that conduct.” Id. at 547–548(II)(B), 114 S.Ct. 2396. As we explained in Norfolk I, “[t]he zone of danger inquiry is necessarily fact-based,” and requires a review of the unique risks to which a plaintiff is exposed in each case. 299 Ga.App. at 423, 682 S.E.2d 621. But, because the zone of danger test resolves a question of duty based upon an objective evaluation of the facts demonstrating the physical risk to which the employee was exposed, whether an employee was within the zone of danger may be, in most cases, resolved by the court.¹ IF THE FACTS CANNOt be resolved by the court, however, then whether the plaintiff was within the zone of danger remains an issue for the jury² UPON PROPER INSTructions.³

After this Court affirmed the trial court's denial of summary judgment in Norfolk I and remanded the instant case, Everett filed a motion in limine moving the trial court for an order preventing Norfolk Southern from arguing to the jury that he was not within the “zone of danger.” Specifically, Everett moved the court for the following:

[Norfolk Southern] must be prohibited from arguing that Plaintiff Everett was not within the “zone of danger” when the train derailed, that Everett's apprehension of physical harm as a result of the derailment was unreasonable [,] or that he was not exposed to an immediate risk of physical harm as a result of the derailment and ensuing collision. These arguments speak to questions of law that have been decided in Plaintiff's favor by this Court and the Georgia Court of Appeals.

The trial court granted the motion in limine, holding that “a FELA action is a creature of federal law and, under federal law, the zone of danger test is a legal question for the Court.” Although the trial court noted that, in Norfolk I, this Court held that disputed issues of fact remained for jury resolution, it nevertheless concluded, based upon other statements in our opinion,⁴ that the zone of danger issue “does not appear to be subject to jury determination” and that “there does not appear to be disputed issues of fact underlying this question in any event.” Without entering a summary judgment on the issue in Everett's favor, which would have been directly appealable pursuant to OCGA § 9–11–56(h), the trial court granted Everett's motion in limine, barring Norfolk Southern from presenting evidence on or making argument concerning whether Everett was within the zone of danger. The court's order was erroneous for the following reasons.

The record reveals that only Norfolk Southern moved for summary judgment. The question the railroad presented to the trial court was whether Everett's claim for negligent infliction of emotional distress was cognizable as a FELA claim under the facts of this case. This inquiry required an analysis of whether the objective evidence, viewed in the light most favorable to the nonmovant, placed Everett outside the zone of danger as a matter of law. The trial court denied Norfolk Southern's motion, holding that it could not conclude that Everett “was not within the zone of danger or that the fears experienced by [him] ... were unreasonable under the circumstances.” Thus, the trial court did not rule as a matter of law that Everett was within the zone of danger, in essence granting summary judgment to Everett on this issue, but only that the undisputed evidence did not establish that he was outside of it. Although the trial court's order contained statements suggesting that the evidence adduced by Everett demonstrated that he was within the zone of danger, the trial court never expressly issued such a ruling nor did it conclude that Everett's account of facts was undisputed, and one may not infer from the denial of a motion for summary judgment that the facts have been resolved conversely in the opponent's favor. See Northside Equities v. Hulsey, 275 Ga. 364, 365, 567 S.E.2d 4 (2002) (“It is important to remember that this case is...