Vance v. Consol. Rail Corp.

• Decision Date: 16 August 1995
• Docket Number: No. 94-137,94-137
• Parties: VANCE, Appellant, v. CONSOLIDATED RAIL CORPORATION, Appellee.
• Court: Ohio Supreme Court

Page 222

73 Ohio St.3d 222

652 N.E.2d 776

VANCE, Appellant, v. CONSOLIDATED RAIL CORPORATION, Appellee.

No. 94-137.

Supreme Court of Ohio.

Submitted April 5, 1995.

Decided Aug. 16, 1995.

On January 26, 1990, plaintiff-appellant Larry D. Vance filed suit against his former employer, defendant-appellee Consolidated Rail Corporation ("Conrail") seeking to recover damages from Conrail under the Federal Employers' Liability Act ("FELA"), Section 51 et seq., Title 45, U.S.Code, for infliction of emotional distress he claimed to have suffered during his employment.

Plaintiff began his employment with Conrail in 1976, when the corporation was formed by the merger of seven separate bankrupt railroads into one unit. Plaintiff had been an employee of one of the railroads involved in the merger, the Erie Lackawanna Railroad ("Erie"), since 1968. He went on sick leave from Conrail in 1987, and remained on sick leave until 1988, when he was medically disqualified from work. In his complaint, plaintiff claimed he was incapacitated from working due to emotional distress brought about by an abusive work environment which Conrail negligently failed to correct. The basis of plaintiff's claim is set forth in paragraphs one and five of his complaint:

"1. This suit is brought under the Federal Employers' Liability Act (45 U.S.C., Sec. 51, et seq.). The action arises out of the failure of Defendant Railroad, Consolidated Rail Corporation, to provide Plaintiff, Larry Vance, with a safe place to work. Defendant Railroad negligently caused and inflicted upon Plaintiff severe emotional distress, anxiety, and depression. This caused disabling psychological harm, and accompanying physical harm.

" * * *

"5. The severe emotional distress and resulting injury were directly and proximately caused by Defendant Railroad. It negligently supervised and condoned the known conduct of Plaintiff's superiors and fellow employees who in the process of making work assignments and in other work related associations, subjected Plaintiff to torment, embarrassment, humiliation, frustration, harassment, inequity, ridicule, and other severe emotional distress, because he was a former employee of Erie Lackawanna Railroad. This outrageous conduct throughout Plaintiff's employment relationship ultimately caused Plaintiff's said emotional breakdown and disqualification from his job, all of which was reasonably foreseeable by Defendant Railroad."

At trial, plaintiff testified that the former employees of Penn Central ("PC"), another railroad involved in the merger which formed Conrail, hated the less numerous former Erie employees. Plaintiff testified that he and other former Erie workers were subjected to name-calling, harassment and torment. Plaintiff recounted the following instances which he claimed were primarily inflicted by former PC employees. Specifically, he testified as to the following matters * He was called a scab and other scurrilous names by former PC employees of Conrail, and derogatory remarks about former Erie employees were written on locker room walls and elsewhere at the workplace.

* He found a dead bloody rat on top of his sandwich in his lunch box. Whoever put the rat into the lunch box had pried open the locked door of his truck cap.

* Not being assigned a locker at some work locations forced him to change clothes in parking lots.

* Sugar was put in the gas tank of his wife's car while it was parked at a railyard when he drove it to work one day.

* His supervisors would override his decision to pull railcars out of service for defects and would put the cars back in service.

* He was not allowed to schedule his vacations when he wanted them, even though he had more seniority than those who got their chosen dates.

* He was nearly run over by another employee in a truck who wanted to "put a scare" into him.

* He was not furnished needed safety equipment and had to buy his own lantern and batteries when the company failed to provide them. He was not furnished a key to control the blue signal lights that indicated the presence of a worker on the tracks.

* In the presence of a supervisor, he was threatened by a fellow employee with a chipping hammer (a sharp-pointed hammer with a four- or five-inch handle used for removing scale from welds), which caused great emotional distress.

* He was taunted about his sex life after he confided in a fellow employee about impotency problems and the other workers learned of the problem.

* He was not properly oriented as to track layout by supervisors when he traveled to different railyards to work.

* The words "Erie scab" were scraped into the side of his own truck, apparently with a key.

* While working at a railyard, he received an anonymous phone call threatening that "you won't know what's going to hit you."

Plaintiff testified to a generally antagonistic work relationship between the former PC employees and the former Erie employees at Conrail and indicated that he believed Conrail did very little to regulate the conduct of former PC employees toward former Erie employees. Plaintiff testified that he complained of several of the abusive incidents recounted above to supervisors, and also that supervisors witnessed some of the incidents, but that no attempt to ameliorate the abuse was undertaken by Conrail. Plaintiff testified that it would have done no good for him to complain about the mistreatment through the union grievance process because the union was dominated by former PC employees who had no interest in stopping it.

Other witnesses, called both by plaintiff and by Conrail, also testified to animosity between the two groups of employees, although there was disagreement as to the extent of abuse. Conrail called some of the employees who allegedly had harassed plaintiff, and they denied that the events detailed by plaintiff had occurred. Conrail also called past supervisors of plaintiff, who testified that they did not remember that he had ever complained of harassment to them.

One of the chief points of contention between former Erie workers and Conrail was that many former Erie employees lost seniority when the merger forming Conrail occurred. Plaintiff had participated in an unsuccessful lawsuit with other former Erie employees against Conrail and the union in an attempt to regain seniority. Conrail contended that any anxiety caused to plaintiff by the seniority dispute was irrelevant to plaintiff's FELA case, and had nothing to do with whether Conrail failed to provide plaintiff a reasonably safe workplace.

Plaintiff's treating psychiatrist, Dr. James Fry, testified that he began to treat plaintiff in 1985, at which time plaintiff told Dr. Fry of his difficulties and unhappiness with his employment since the merger forming Conrail. Dr. Fry diagnosed plaintiff as severely depressed. In 1987, Dr. Fry declared that plaintiff was medically disabled from work due to the depression, which Dr. Fry opined was caused by plaintiff's worrying about his job. Dr. Fry recommended electric shock therapy in 1988. Plaintiff received ten treatments. At the time of trial, plaintiff was receiving fairly large doses of a tranquilizer and an antidepressant. Dr. Fry testified that plaintiff did not speak of specific incidents of harassment on the job until 1988, after plaintiff was disabled from work. Dr. Fry further testified that plaintiff may not have related the incidents until that time due to embarrassment and shame. Dr. Fry also testified that, if the incidents of harassment did occur, they certainly would have contributed to plaintiff's depression.

After the trial court overruled Conrail's motion for a directed verdict, the jury returned a general verdict for plaintiff for $500,000 in damages. The trial court denied Conrail's motions for judgment notwithstanding the verdict and for a new trial.

Conrail appealed to the Court of Appeals for Cuyahoga County, raising seven assignments of error. The court of appeals, in a split decision which resolved only Conrail's first two assignments of error, vacated the jury verdict and entered judgment for Conrail, holding that Conrail's motions for a directed verdict and for judgment notwithstanding the verdict should have been granted. The court of appeals majority held that "plaintiff has not proven a cause of action for negligent infliction of emotional distress, even if one were available under the FELA." The majority determined that plaintiff had not proved that Conrail was negligent, in part because he did not show that he was subjected to "unconscionable abuse," and also because he "failed to show that Conrail should have reasonably foreseen his extreme reaction to railroad yard harassment." Based upon its finding of no negligence, the court of appeals majority found it unnecessary to decide whether a claim for negligent infliction of purely emotional distress is cognizable under the FELA. ¹

The dissenting judge at the court of appeals concluded that a cause of action for emotional distress is available under the FELA, and believed that plaintiff presented sufficient evidence to create a jury question on the issue of Conrail's negligence. The dissenter would have overruled Conrail's first two assignments of error, and would have proceeded to address the remaining ones.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Wallace R. Steffen, Cleveland, for appellant.

Gallagher, Sharp, Fulton & Norman, and Sheila A. McKeon, Cleveland, for appellee.

ALICE ROBIE RESNICK, Justice.

The court of appeals' consideration of this case occurred before the United States Supreme Court announced its decision in Consol. Rail Corp. v. Gottshall (1994), 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427, which resolved some issues pertinent to this appeal. In light of Gottshall, this case presents two issues for our review: (1) Does plaintiff's claim of negligent infliction of emotional distress...