Szymanski v. Columbia Transp. Co., a Div. of Oglebay- Norton Co., OGLEBAY-NORTON

• Citation: 154 F.3d 591
• Decision Date: 31 August 1998
• Docket Number: No. 95-3205,OGLEBAY-NORTON,95-3205
• Parties: Connie SZYMANSKI, Administratrix of the Estate of Stanley Szymanski, Plaintiff-Appellant, v. COLUMBIA TRANSPORTATION COMPANY, A DIVISION OFCO., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 591

154 F.3d 591

1998 A.M.C. 2868

Connie SZYMANSKI, Administratrix of the Estate of Stanley Szymanski, Plaintiff-Appellant, v. COLUMBIA TRANSPORTATION COMPANY, A DIVISION OF OGLEBAY-NORTON CO., Defendant-Appellee.

No. 95-3205.

United States Court of Appeals Sixth Circuit.

Argued June 11, 1997.

Decided Aug. 31, 1998.

Leonard C. Jaques, Judith A. Schornack-Smith (briefed), Michael J. Connor (argued), Jaques Admiralty Law Firm, Detroit, MI, for Plaintiff-Appellant.

Harold W. Henderson (argued and briefed), Thompson, Hine & Flory, Clevelantd, OH, for Defendant-Appellee.

Before: MARTIN, Chief Judge; and MERRITT, KENNEDY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and COLE, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which MERRITT, KENNEDY, NELSON, RYAN, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and COLE, JJ., joined. MOORE, J. (pp. 597-601), delivered a separate dissenting opinion, in which MARTIN, C. J., and DAUGHTREY, J., joined.

OPINION

BOGGS, Circuit Judge.

This case fundamentally concerns the application of the Supreme Court's consolidated decisions in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), to a claim of a seaman's physical injury (a heart attack) allegedly arising from job-related stress. We hold that Supreme Court precedent applies to bar this claim, under either the Jones Act or the doctrine of "unseaworthiness," and we affirm the decision of the district court granting summary judgment to the defendant.

I

Stanley Szymanski was a conveyorman employed from 1974 to 1990 by the Oglebay-Norton Company on its selfunloading cargo vessels on the Great Lakes. Such vessels are unloaded by opening hydraulic gates at the bottom of holds to permit bulk cargo such as stone, coal, or taconite pellets to drop onto a large conveyor belt. Amid billows of dust, the cargo is borne on the belt to an unloading boom, and removed to the dock.

The "self-unloading" system is not entirely automatic. It requires a two-person conveyor gang, consisting of a conveyorman and a gateman. Conveyormen supervise gatemen in unloading cargo. They also inspect, monitor, and repair the machinery during unloading. The work of conveyormen is strenuous, fast-paced, and sometimes of long duration. Improperly unloaded cargo can break down the equipment or lead to spillage (which must be remedied with arduous shovelwork). Critical to smooth operation is the role of the gatemen, who control the unloading gates by means of a control panel and thereby regulate the flow of materials being off-loaded by the conveyor belts. Gatemen are supposed to assist conveyormen in their tasks; conveyormen, in addition to their other tasks, periodically relieve the gatemen during meals and breaks.

On March 26, 1990, Szymanski was assigned to be the conveyorman in charge of Oglebay's flagship, the M/V Courtney Burton. The ship's gateman was considered by his crewmates to be incompetent, especially at the crucial task of controlling the rate of discharge of cargo; as a result of their contempt for him, they gave him the moniker of "The Bum." Although the equipment on the Courtney Burton was in good condition, Szymanski was unhappy that he was assigned to that ship and believed that the gateman with whom he was assigned to work was incompetent at operating the unloading gates.

Conveyormen who had worked with The Bum in the past had suffered heart attacks, and Oglebay allegedly knew of his shortcomings. Szymanski suffered chest pains during the time he was yoked to The Bum. Although he attributed those pains, at the time, to excessive cigarette smoking, he nonetheless complained to Oglebay of The Bum's poor performance, and requested a transfer. Szymanski's last day on the Courtney Burton was July 21, 1990. He took a short vacation and on July 31 took up conveyorman duties on his favorite ship, the S.S. Armco (which he referred to as "my old home").

Nothing aboard that vessel was amiss except for some squealing conveyor rollers, which Szymanski and his co-workers had to grease. Szymanski worked until 10:00 p.m. on August 16, when he went ashore in Toledo, his home port, to enjoy further vacation time. His wife picked him up at the dock and drove him home. A few hours later, he suffered a heart attack. He underwent coronary bypass surgery in February 1991, and he was expected to recover sufficiently to return to work. However, Szymanski, at age 60, suffered additional health problems, including diabetes. At one time, he had been an active alcoholic, and he smoked two packs of cigarettes a day at the time of his heart attack. In June 1991, he underwent surgery for ulcers and a bowel obstruction, after which his physicians informed him that his days as a conveyorman were over. In 1993, Szymanski filed this action for negligence under the Jones Act, 46 U.S.C. app. § 688, and for unseaworthiness under general maritime law.

On October 20, 1994, Szymanski suffered his second heart attack, this one fatal. His widow and administratrix, Connie Szymanski, continued this action.

The district court granted summary judgment for Oglebay. A divided panel of this court reversed. See Szymanski v. Columbia Transp. Co., 107 F.3d 371 (6th Cir.1997). We granted Oglebay's suggestion for rehearing en banc, 107 F.3d 371 (6th Cir.1997), and now affirm the decision of the district court.

II

We review the district court's decision granting summary judgment de novo, using the same standards applied by the district court. See Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir.1992). Summary judgment is proper if the evidence submitted shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.1994). We consider all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Ibid.

At issue in this case is the proper application 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) (consolidated with Consolidated Rail Corp. v. Carlisle ). As the district court in this case stated:

In Gottshall, the Court considered two claims for negligent infliction of emotional distress: that of Carlisle, a plaintiff who had worked for the railroad as a train dispatcher for several years and who suffered a nervous breakdown and other injuries due to overwork; and that of Gottshall, a plaintiff who suffered major depression and post-traumatic stress disorder after witnessing a co-worker have a heart attack and die while working.

The Gottshall Court adopted the common law "zone of danger" test to determine who may recover for negligent infliction of emotional distress under the FELA. [512 U.S. at 554-57, 114 S.Ct. 2396.] The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain physical impact as a result of a defendant's negligent conduct or who are placed in immediate risk of physical harm by that conduct. Id. Based on that standard, the Court remanded the Gottshall portion of the case for reconsideration under the zone of danger test, and remanded the Carlisle portion of the case with instructions to the lower court to enter judgment in favor of the defendant.

... [T]he Carlisle portion of the Gottshall case ... controls this case....

....

Carlisle testified at trial that, as a result of being overworked and burdened with both excessive responsibility and an abusive, alcoholic supervisor in the South Philadelphia yards, he experienced insomnia, fatigue, headaches, depression, sleepwalking and substantial weight-loss. Carlisle testified further that, as a result of being made to work 12 to 15 hour shifts for 15 consecutive days in August, 1988, his stress-related problems finally culminated in a nervous breakdown. Carlisle introduced evidence showing that his emotional and physical injuries were a foreseeable result of his working conditions. Over defendant's objection, the court admitted into evidence a series of depositions, taken in a separate case, in which Carlisle's co-workers and subordinates testified that their jobs as dispatchers and supervisors in the Philadelphia Consolidated Rail offices had caused them to suffer cardiac arrests, nervous breakdowns, and a variety of emotional problems such as depression, paranoia and insomnia. [Carlisle v. Consolidated Rail Corp., 990 F.2d 90, 92 (3d Cir.1993).] Carlisle testified that the train dispatchers he supervised often complained about Consolidated Rail's outdated equipment and about the long hours and high level of stress in their jobs; Carlisle, in turn, passed on their complaints to his supervisors and added his own concerns about the excessive hours and stress of his job. He received no response to these complaints. Id.

Szymanski v. Columbia Transportation Co., No. 93 CV 7423, 1995 WL 329407, at * 3-5 (N.D. Ohio Jan 30, 1995) (footnotes omitted).

Despite these sympathetic facts, the Supreme Court reversed in each case, and granted summary judgment to the defendant in Carlisle. It 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 suffering such an impact. See Gottshall, 512 U.S. at 555-56, 114 S.Ct. 2396. In particular, the Court held that "Carlisle's work-stress-related claim plainly does not fall within the common law's conception of the zone of danger.... [W]e will not take the radical step of reading FELA as compensating for stress arising in the ordinary course of employment. In short, the core of Carlisle's complaint was that he had been given too much--not too dangerous--work to do. That is not our idea of an FELA claim." Id. at 558, 114 S.Ct. 2396 (internal...