Gottshall v. Consolidated Rail Corp.: Recognizing Negligently Inflicted Emotional Injuries Under the Federal Employers' Liability Act - J. Scott Hale

• Publication year: 1995

Gottshall V. Consolidated Rail Corp,: Recognizing Negligently Inflicted Emotional Injuries Under The Federal Employers' Liability Act

The United States Supreme Court in Consolidated Rail Corp. v. Gottshall¹ granted certiorari for two cases from the United States Court of Appeals for the Third Circuit ("Third Circuit").² Both cases involved claims for negligent infliction of emotional distress under the Federal Employers' Liability Act ("FELA").³ In Gottshall v. Consolidated Rail Corp.⁴ the plaintiff alleged that he suffered from major depression and post-traumatic stress disorder because his employer, Conrail, negligently forced him to watch and actively participate in the events leading to a close friend's death.⁵ Conrail dispatched plaintiff and several other employees, including plaintiffs close friend Richard Johns, to replace a defective stretch of track.⁶ Johns suffered a heart attack and died at the work site. The crew's supervisor, Michael Norvick, was unable to summon rescue workers because Conrail had taken the radio base station off the air for repairs without notifying him.⁷ Once paramedics arrived, they covered Johns' body and laid it by the tracks.⁸ Norvick ordered the men back to work in plain view of the body.⁹ After the incident, Gottshall was admitted to a psychiatric hospital where he suffered from insomnia, loss of appetite, nausea, physical weakness, and repetitive nightmares of Johns' death¹⁰ The United States District Court for the Eastern District of Pennsylvania granted summary judgment for Conrail¹¹ The Third Circuit reversed, holding that FELA provides a cause of action for genuine and serious emotional injuries¹² The case was subsequently remanded to the district court for determination of material issues of fact relating to breach of duty, causation, and injury.¹³ In Carlisle v. Consolidated Rail Corp.,¹⁴ the plaintiff alleged that the railroad negligently produced a stressful work environment that caused him to suffer a nervous breakdown.¹⁵ In 1984 Conrail reduced its work force thus increasing Carlisle's responsibilities as a dispatcher. Conrail moved Carlisle to trainmaster in 1988, which required him to work long, erratic hours often in dangerous areas, while still performing his duties as a dispatcher on occasion.¹⁶ Carlisle began experiencing insomnia, headaches, depression, and weight loss. After an extended period of working twelve to fifteen hour shifts for weeks at a time, Carlisle suffered a nervous breakdown.¹⁷ A jury awarded Carlisle damages based on his FELA claim of negligent infliction of emotional distress.¹⁸ In upholding the verdict, the Third Circuit stated that no common law standard for recovery had been adopted.¹⁹ Instead, the court relied on the elements of common law negligence and added a genuineness test based on a review of the facts and common law standards.²⁰ Reviewing both decisions, the Supreme Court held that FELA does recognize a cause of action based on negligent infliction of emotional distress.²¹ To recover under FELA, however, an employee must also meet the criteria of the common law zone of danger test.²²

Congress enacted FELA in 1908 to impose liability on railroad companies for the large number of injuries suffered by railroad employees.²³ The Supreme Court has liberally construed FELA to accomplish the remedial goals that motivated its enactment.²⁴ On issues not expressly addressed by FELA, however, the Court has said that common law principles will guide the Court's analysis.²⁵ Congress did not define "injury" in FELA; consequently, the Court's determination of whether negligent infiiction of emotional distress qualifies as an injury relies heavily on common law principles.²⁶ Today, only a few states do not allow recovery for mental or emotional harm caused by another's negligence.²⁷ In those states that do recognize a cause of action for negligently inflicted emotional injuries, policy concerns have prompted limitations on recovery.²⁸ The policy reasons most often cited include: (1) the potential for an infinite number of trivial suits; (2) unlimited and unpredictable liability; and (3) the fear of fraudulent claims based on injuries that are difficult to measure.²⁹ In an attempt to combat these fears, at least three primary tests have emerged from the common law.³⁰ First, the physical impact test requires a plaintiff seeking recovery for emotional injuries to sustain some type of physical injury from the negligent act that allegedly caused the emotional injuries.³¹ This test attempts to avoid fraudulent claims by establishing a clear relationship between the negligent act of the defendant and the injury suffered by the plaintiff.³² However, the physical manifestation requirement has been criticized as overinclusive because it allows compensation for trivial mental injuries if accompanied by any physical injury. The requirement has also been attacked as underinclusive since serious mental injuries may go uncompensated if a plaintiff escapes physical injury.³³ The second test courts have applied is the zone of danger test.³⁴ This test expands recovery to plaintiffs that suffer a physical impact or apprehension of a physical impact from the defendant's negligent act.³⁵ The zone of danger test hmits the scope of potential recovery for emotional injuries but recognizes that sometimes "a near miss may be as frightening as a direct hit."³⁶ Fourteen jurisdictions currently follow the zone of danger test.³⁷ The third test, the relative bystander test, was first recognized in Dillon v. Legg₃₈In Dillon, the California Supreme Court concluded that reasonable foreseeabihty should govern recovery for emotional injuries.³⁹ The court listed three factors that determine reasonable foreseeabihty: (1) the plaintifTs proximity to the scene of the accident; (2) actual observation of the accident by the plaintiff; and (3) a close relationship between the plaintiff and the victim.⁴⁰ Nearly half the states allow recovery under this standard or some similar variation.⁴¹ The courts using this test believe that the factors established in Dillon limit recovery in a manner consistent with existing policy concerns.⁴² In Atchison, Topeka & Santa Fe Railway v. Buell,⁴³ the Supreme Court recognized the lack of a uniform standard for negligent infliction of emotional distress under

FELA.⁴⁴ The Court stated, however, that "broad pronouncements in [the area of emotional injuries under FELA] may have to bow to the precise application of developing legal principles."⁴⁵ Since Buell, no clear standard has emerged. The United States Courts of Appeals for the First, Second, and Sixth Circuits have avoided the issue by resolving FELA claims for emotional injuries on the general common law elements of negligence.⁴⁶ When they have gone beyond a pure negligence analysis, the United States Courts of Appeals for the Fourth and Fifth Circuits have required unconscionable or outrageous conduct to recover for emotional injuries under FELA.⁴⁷ The Fifth Circuit has expressly rejected the relative bystander theory as a basis for recovery.⁴⁸ Other jurisdictions have been more willing to accept the common law tests as limiting recovery for emotional injuries. In Holliday v. Consolidated Rail Corp.,⁴⁹ the Third Circuit applied the physical impact test to deny recovery under FELA for a purely emotional injury.⁵⁰ However, the Third Circuit has also shown a willingness to consider other common law tests as a basis for recovery. In Outten v. National Railroad Passenger

Corp.,⁵¹ the Third Circuit applied several common law theories of recovery, but it rejected the plaintiffs FELA claim because he could not prove that he suffered a physical impact, was in the zone of danger, was located physically close to the alleged negligent act, or that he had any personal responsibility for the incident.⁵² Failing to find guidance in the federal common law, the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") relied on state law to establish a standard for recovery in Gillman v. Burlington...