Sweeney v. CSX Transp., Inc.

• Decision Date: 19 June 1998
• Citation: 735 So.2d 472
• Parties: Judith P. SWEENEY, as administratrix of the estate of Charles Kenneth Sweeney, deceased v. CSX TRANSPORTATION, INC.
• Court: Alabama Court of Civil Appeals

735 So.2d 472

Judith P. SWEENEY, as administratrix of the estate of Charles Kenneth Sweeney, deceased v. CSX TRANSPORTATION, INC.

2970585.

Court of Civil Appeals of Alabama.

June 19, 1998.

Rehearing Denied July 24, 1998.

Frank O. Burge, Jr., of Burge & Wettermark, P.C., Birmingham; and William W. Talley of Talley & Talley, Scottsboro, for appellant.

Stephen A. Rowe, David W. Spurlock, and John B. Talley, Jr., of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for appellee.

MONROE, Judge.

Judith P. Sweeney, as administratrix of the estate of Charles Kenneth Sweeney, sued CSX Transportation, Inc. ("CSX"), under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, alleging negligence, negligent assignment, and negligent infliction of emotional distress. Mrs. Sweeney also alleged that CSX's negligent acts had caused the death of her husband Charles Kenneth Sweeney. The trial court entered a summary judgment in favor of CSX. Mrs. Sweeney appealed to the Alabama Supreme Court, which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

A summary judgment is properly entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmoving party to produce substantial evidence in support of its position and creating a genuine issue of fact. § 12-21-12, Ala.Code 1974; Chatham v. CSX Transportation, Inc., 613 So.2d 341 (Ala.1993). "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmovant. Turner v. Systems Fuel, Inc., 475 So.2d 539 (Ala.1985).

Many of the material facts are undisputed. CSX and Mrs. Sweeney both submitted the affidavit of Rodney M. Gray. Gray is a CSX employee; he was working with Sweeney on January 4, 1994, the day that Sweeney died. Gray and Sweeney made up a two-man crew on a train bound to Nashville, Tennessee, from Chattanooga, Tennessee. Their first stop after leaving Chattanooga was in Bridgeport, Alabama, where they were to pick up 6 cars. They unhitched the 50 or 60 cars making up their train and left them on another track before picking up the 6 cars. The cars left on the other track rolled back and collided with another train on the main track, causing the moving train to derail. At the time of the collision, Sweeney was in the locomotive of their train; the locomotive was approximately 4,500 feet from the point of impact of the collision and was not connected to the cars involved in the collision. Sweeney and Gray waited for the investigation to take place, and approximately three hours after the collision occurred Sweeney was asked to walk to the CSX office. He apparently walked a few car lengths and suffered a fatal heart attack.

In opposition to CSX's motion for a summary judgment, Mrs. Sweeney submitted several affidavits. In her own affidavit, she stated that Sweeney had been fired from his position as CSX's drug and alcohol abuse counselor. He had threatened to sue CSX, because, he contended, he had been fired so that CSX could hire a younger person to take his place. On May 15, 1993, a few months after he was fired, CSX rehired Sweeney and placed him in the position of locomotive engineer. Mrs. Sweeney also stated that her husband had had four heart attacks before May 15, 1993, and that CSX did not conduct a cardiac examination on him before assigning him to this new position. She also stated that he had worked well over 40 hours a week for several months preceding his fatal heart attack. Attached to her deposition were her husband's medical records, showing that he had had a quadruple by-pass operation in 1984; a heart attack in 1987; and continuing treatment for heart disease and hypertension. According to Mrs. Sweeney's affidavit, her husband had had heart attacks in 1984, 1987, and 1991, and had also had a heart attack sometime before his 1984 attack.

Mrs. Sweeney also submitted the affidavits of George Spence, Charles Latimer, and Richard Taylor. They stated that being a locomotive engineer is a very stressful position under normal circumstances and that it becomes even more stressful when there is a derailment. They also stated that it was commonly known that CSX's policy, after a derailment, was to fire the locomotive engineer and conductor of the train involved, regardless of who was at fault. Spence stated that Sweeney was obviously in poor health when he returned to work as a locomotive engineer in May 1993, and that, despite having doctors on its payroll, CSX failed to have a stress test conducted on Sweeney before assigning him to this position. Latimer, a locomotive engineer who has worked for CSX for 29 years, stated that not giving Sweeney a stress test before assigning him to the position of locomotive engineer was contrary to CSX's custom and practice. Latimer, who is also the local chairman of the union grievance committee, stated that another CSX employee had been fired for not informing the railroad of his heart condition and angiogram treatment. Taylor stated that he had had triple bypass surgery in 1991 and that he had had to pass two stress tests before CSX would allow him to return to work. In its brief before this court, as in its brief before the trial court in support of its motion for a summary judgment, CSX contends that Mrs. Sweeney's claims must fail because Sweeney was not in the "zone of danger." The United States Supreme Court has adopted the "zone of danger" test for claims of negligent infliction of emotional distress under FELA. The Supreme Court has held that actions alleging negligent infliction of emotional distress are cognizable under FELA, provided that the "zone of danger" test is met:

"Under this

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