Teague v. National RR Passenger Corp.

• Decision Date: 21 February 1989
• Docket Number: Civ. A. No. 88-1543-Y,88-0661-Y.
• Citation: 708 F. Supp. 1344
• Parties: Richard W. TEAGUE, Carol Teague, Kathleen Teague, Colleen Teague, Meghan Teague and Michael Teague, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORP. d/b/a Amtrak, Defendant.
• Court: U.S. District Court — District of Massachusetts

708 F. Supp. 1344

Richard W. TEAGUE, Carol Teague, Kathleen Teague, Colleen Teague, Meghan Teague and Michael Teague, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORP. d/b/a Amtrak, Defendant.

Civ. A. Nos. 88-1543-Y, 88-0661-Y.

United States District Court, D. Massachusetts.

February 21, 1989.

Raymond J. Kenney, Jr., John P. Mulvey, Martin, Magnuson, McCarthy & Kenney, Boston, Mass., for plaintiffs.

Michael Fitzhugh, Fitzhugh & Assoc., Boston, Mass., for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The defendant National Railroad Passenger Corp. (hereinafter "AMTRAK") moves today to dismiss two complaints brought by the plaintiffs Richard Teague (hereinafter "Teague"), Carol Teague, and their children, Kathleen, Colleen, Meghan, and Michael Teague.

The gravamen of Teague's claims are the intentional and negligent infliction of emotional distress by the defendant AMTRAK.¹ In August, 1988, Teague filed an action in federal court (C.A. No. 88-0661-Y), which characterized the wrong done to him as a Federal Employers' Liability Act ("FELA") claim, together with a state court action straightforwardly charging the two torts. AMTRAK removed the state court action to federal court and the new case (C.A. No. 88-1543-Y) was assigned to this Court because it was related to 88-0661-Y. AMTRAK's motions to dismiss both actions, for failure to state a claim, are presently before the Court. Ruling from the bench at the time of the hearing, the Court had earlier dismissed the state claims as preempted by the FELA, and dismissed the FELA claim to the extent that it was grounded on the negligent infliction of emotional distress. Thus, only the intentional infliction FELA claim survived. Further reflection on the FELA claims' viability led the Court sua sponte to vacate its earlier ruling and address the entire matter in this written opinion.

I. The Facts as Alleged by the Plaintiff.

Teague, a management employee of AMTRAK, asserts that his superiors subjected him to "embarrassment, humiliation, harassment, degradation, and other severe emotional distress" through their treatment of him. Specifically, Teague alleges that his supervisors threatened him with the loss of his job if he did not rule against union members at a disciplinary hearing; ignored his reports of safety violations and chastised him for making them; made disparaging and humiliating remarks about an unspecified medical condition from which Teague suffers; unfairly gave him a low job evaluation; humiliated him by telling an individual outside the company that he was not impartial in employee matters; required confirmation of surgery performed on Teague's daughter, an event which Teague had used to justify his absence from a training class; unfairly put him on probation; and forced him to perform apparently undesirable duty riding the train between New York and Boston in order to detect employee theft. See Complaint (88-0661-Y) at paras. 10-55. Teague alleges that this pattern of harassment resulted in psychological and physical harm (e.g., ulcers, duodenitis, chest pain) to him.

II. The Negligent Infliction of Emotional Distress Under the FELA.

The law is becoming settled that a claim for the negligent infliction of emotional distress is cognizable under the FELA. See Amendola v. Kansas City Southern Ry., 699 F.Supp. 1401, 1408-10 (W.D. Mo. 1988); Althoff v. Consolidated Rail Corp., C.A. No. 87-4384, 1988 WL 61734 (E.D.Pa. 1988); Halko v. New Jersey Transit Rail Operations, Inc., 677 F.Supp. 135, 139-40 (S.D.N.Y.1987); Gillman v. Burlington Northern R.R., 673 F.Supp. 913, 916-17 (N.D. Ill.1987); see also Hagerty v. L & L Marine Services Inc., 788 F.2d 315 (5th Cir.), modified, 797 F.2d 256 (5th Cir.1986) (permitting a seaman to sue under the Jones Act, see infra note 10, for serious mental distress in a decision preceding that of the Supreme Court in Atchison, Topeka and Santa Fe Ry. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 1987 discussed below); Taylor v. Burlington Northern R.R., 787 F.2d 1309 (9th Cir. 1986) (holding that such a claim is cognizable in a decision preceding Buell); cf. Gaston v. Flowers Trans., 675 F.Supp. 1036, 1037-39 (E.D. La.1987) (suggesting but not ruling that such a claim is cognizable). The Supreme Court recently addressed the issue, focusing on whether the FELA permits such a claim where only emotional injury is alleged. Atchison, Topeka and Santa Fe Ry. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). Its words are instructive:

The question whether "emotional injury" is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common law developments, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity.

Id. at 568, 107 S.Ct. at 1417. Indeed, the Supreme Court observed that, although most states now recognize a tort of intentional infliction of emotional distress, and many recognize a tort of negligent infliction of emotional distress, there are numerous doctrinal divergences between the states with respect to the contours of these actions.

In short, the question whether one can recover for emotional injury may not be susceptible to an all inclusive "yes" or "no" answer. As in other areas of the law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand.

Id. at 570, 107 S.Ct. at 1418 (footnotes and citation deleted). The Court went on to hold that, based on the insufficient record before it, it was unable to determine whether the respondent-employee's claim was cognizable, and therefore remanded the matter on this issue.²

The courts that have considered this issue since Buell have uniformly held negligent infliction cognizable under the FELA,³ and differ only on the elements necessary to make out such a claim. Some courts have held that such a claim requires an objective physical manifestation of the emotional distress, but no physical impact. See Amendola, 699 F.Supp. at 1410; Halko, 677 F.Supp. at 139. Other courts have employed the older "zone of danger" test requiring that although a claimant need not exhibit physical injury, she must have been placed in immediate physical danger by the negligence of the employer. See Gillman, 673 F.Supp. at 916-17; cf. Gaston, 675 F.Supp. at 1037-39 (suggesting, but not deciding, that such is the test for a FELA negligent infliction claim). Still another court has held that it is enough to avoid summary judgment where one does not exhibit any physical manifestation, was not in the zone of danger, did not witness another's injury, but did operate the instrumentality of another worker's death. Althoff v. Consolidated Rail Corp., C.A. No. 87-4384, 1988 WL 61734 (E.D.Pa.1988).

This Court begins its analysis by agreeing that a negligent infliction claim is indeed cognizable under the FELA. Indeed, given the state of the common law, one could glean no other guidance from it. See Buell, 480 U.S. at 568, 107 S.Ct. at 1417; Gillman, 673 F.Supp. at 916 (quoting Buell). Although intentional and negligent infliction were not recognized as torts in 1906 when the FELA was enacted, most jurisdictions now recognize both torts. Buell, 480 U.S. at 568-70, 107 S.Ct. at 1417-18; Gillman, 673 F.Supp. at 916.

The more difficult question for this Court is whether Teague's claim, which asserts no zone of danger element, is cognizable. The Court holds that a review of developments in state common law, see S. Plotkin, The Evolution of Tort Liability for Psychic Injuries: A Proposal to Protect Relational Interests (1986) (unpublished thesis on file at the University of Virginia School of Law), as well as developments in Supreme Court FELA jurisprudence, reveal a sufficient claim has been made out. Teague claims that the insults and harassment of his superiors at AMTRAK caused him mental anguish as well as physical ailments. As the Supreme Court has observed, "While the traditional rule was that a plaintiff could not recover for mental injuries unconnected with actual or threatened impact, the majority of jurisdictions now appear to have abandoned that rule." Buell, 480 U.S. at 569 n. 20, 107 S.Ct. at 1418 n. 20. Indeed, the present majority rule allows recovery for "mental distress when certified by some physical injury, illness, or other objective physical manifestation." Prosser and Keeton on the Law of Torts, sec. 54 at 364 (5th ed. 1984) (hereinafter, "Prosser and Keeton");⁴ see, e.g., Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982); Restatement (Second) of Torts, secs. 436, 436A and Comments. The fact that some "objective physical manifestation" of the emotional distress is present here — the ulcers and duodenitis — brings this case easily within the boundaries of the tort as defined by the majority common law rule.

As noted, the Gillman court chose severely to limit recovery under the FELA for the negligent infliction of emotional distress to plaintiffs within the zone of danger. In so doing, the court sought to follow what it perceived to be "the purpose of the FELA — to protect the security of the worker from `physical invasions or menaces.'" Gillman, 673 F.Supp. at 917 (quoting Lancaster, 773 F.2d at 813); see also Gaston, 675 F.Supp. at 1037-39 (suggesting, but not ruling, that the zone of danger test is appropriate for a FELA negligent infliction claim).⁵

This Court respectfully rejects such a narrow reading of a statute meant to be broadly interpreted. See Halko, 677 F.Supp. at 139-40 (also employing the broader majority-rule version of the tort). The first problem with the Gillman court's analysis is that it attempts to divine...