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Negligent Infliction of Emotional Distress

Under the Jones Act and General Maritime Law

Recovery for wholly emotional injury under the Jones Act and the general maritime law is a recurring issue of federal personal injury law. In Conrail v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed. 2d 427 (1994), the Supreme Court held that negligent infliction of emotional distress was recoverable under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51-60. Therefore, the Court held that as part of its "duty to use reasonable care in furnishing its employees with a safe place to work," a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.

After a lengthy discussion of the various tests, the Court decided to adopt the "zone of danger" test because "the policy considerations of the common law as they are embodied in the zone of danger test best accord with the concerns that have motivated [the Court's] FELA jurisprudence." Id. 114 S.Ct. at 2409.

In two subsequent cases the Supreme Court further defined the parameters of recovery for emotional distress damages. In Metro-North Commuter Railroad Company vs. Buckley, 521 U.S. 424, 117 S.Ct. 2113 (1997), a FELA case, the plaintiff was exposed to asbestos at work, but had not developed symptoms of any disease related to that exposure. He sued his employer for negligent infliction of emotional distress based upon his fear of developing asbestosis or cancer. The Supreme Court held that he did not satisfy the "impact" rule because he had not yet developed any asbestos-related disease.

The "physical impact" to which Gottshall referred does not include a simple physical contact with a substance that might cause a disease at a substantially later time where that substance, or related circumstance, threatens no harm other than that disease-related risk.

Id. 521 U.S. at 425.

In 2003 the Supreme Court decided Norfolk & Western Railway Co. vs. Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261(2003), in which the plaintiff had been diagnosed with asbestosis. The Court held that the plaintiff was entitled to recover for his fear of cancer. Although the plaintiff could not prove that he was more likely than not to develop cancer in the future, the Court allowed the plaintiff to recover for his fear that he would. The Court stated that asbestosis, as an injury, was compensable under FELA, and that the fear of cancer emotional damages were related to, and supported by, that injury. In these three cases the Court established the main parameters for recovery for negligent infliction of emotional distress under FELA, and therefore the Jones Act.

In the FELA context the courts have had ample opportunity to apply Gottshall. For example, in Marchica v. Long Island R. Co., 31 F.3d 1270 (2d Cir. 1994), the plaintiff suffered a hypodermic needle puncture at work. He developed Post Traumatic Stress Disorder based upon his fear of developing AIDS. The court of appeals affirmed the $126,000 jury award because the plaintiff had suffered a physical impact, the puncture, and he had physical manifestations of his injury, Post Traumatic Stress Disorder.

In Higgins v. Metro-North R. Co. 318 F.3d 422 (2d Cir. 2003), another FELA case, the plaintiff sued because her latent multiple sclerosis became symptomatic as a result of stress induced by the verbal and physical harassment of her supervisor. Her supervisor had verbally and physically harassed her, including touching her breasts and buttocks. She claimed intentional infliction of emotional distress. The district court dismissed her emotional distress claim because she was not within the "zone of danger." The court of appeals affirmed on the basis that FELA employers may be held liable for intentional torts when they are committed to promote the employer's purpose, or if the tortfeasor was negligently supervised. The court of appeals held that plaintiff failed to prove either one of these propositions.

In Grube v. Union Pacific R. Co., 886 P.2d 845 (Kan. 1994), a railroad engineer was involved in a crossing accident. He saw the car before it was hit by the train. Immediately after impact he left the train to render assistance to those in the car. The court noted that the engineer demonstrated physical manifestations of his emotional distress because he threw up after assisting the injured. However, his claim failed because he was never personally in danger during the accident. "[F]ear for one's safety is an essential element of the zone of danger test and must be expressed at or near the time of the danger in order for plaintiff to prevail in the action." Id. 886 P.2d at 851.

In Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir. 1995)(on remand from the Supreme Court), the claimant had been working on a section of isolated train track on a very hot day when his co-worker, and friend, collapsed from a heart attack. The railroad's radios were out of commission and the workers were unable to summon medical assistance. The co-worker died. The claimant suffered from Post Traumatic Stress Disorder after watching his friend die. Nevertheless, the Third Circuit rejected the claimant's negligent infliction of emotional distress count because he had never been in the zone of danger, and he was never in fear of his personal safety.

In Capriotti v. Consolidated Rail Corp., 878 F.Supp. 429 (N.D. N.Y. 1995), the railroad worker had been assigned a grueling work schedule which violated certain safety statutes related to the maximum hours of work permitted in the industry. It was undisputed that the railroad knew that he suffered from heart disease. He claimed that assigning him to the grueling schedule worsened his heart condition and led to his total disability. The district court rejected his claim because it reasoned that he had never been within the zone of imminent danger.

On the other hand, in Duncan v. American Commercial Barge Line, LLC, 166 S.W.3d 78 (Mo. App. 2004), the plaintiff was overworked through the years and deprived of the help and sleep he needed while working aboard the defendant's vessels. In consequence of these conditions, he suffered from stress and fatigue that contributed to his coronary artery disease that ultimately led to his death. The court of appeals, relying upon Norfolk & Western Railway Co. vs. Ayers, 538 U.S. 135 (2003), affirmed the jury's verdict in plaintiff's favor. The court reasoned that the plaintiff was not seeking recovery for a purely emotional injury, but instead an actual injury—a heart attack—caused by unsafe working conditions created by the defendant's negligence. The court concluded that the Jones Act does not prohibit a cause of action for a fatal heart attack caused by work-related stress in the absence of any evidence of physical impact or emotional injury caused by being within the "zone of danger" of a physical impact.

In Chan v. Society Expeditions, 39 F.3d 1398 (9th Cir. 1994), the Ninth Circuit addressed whether or not the tort of negligent infliction of emotional distress was cognizable under the general maritime law.

In Chan, a father and daughter were passengers in an inflatable raft in French Polynesia. The father suffered personal injuries when the raft capsized; the pilot of the raft and a passenger died in the capsizing. The district court dismissed the emotional distress claims brought by the daughter, the mother (who was on a nearby cruise ship at the time of the accident), and the other Chan children (who were in Washington state at the time of the accident), holding that the mental pain and anguish of an injured party's family is not compensable in an action under the general maritime law.

The Ninth Circuit disagreed. The Ninth Circuit explained that "[b]ecause we look to case law developed under the Jones Act in guiding the development of the general maritime law, we find that the cases interpreting FELA instructive." Id. 39 F.3d at 1408. Thus, the Ninth Circuit cited the Consolidated Rail Corp. v. Gottshall as authority:

Although Gottshall involved a FELA claim, the Supreme Court's discussion of emotional distress claims guides us here. We see no reason to disallow meritorious claims under the general maritime law when they are available to railroad workers under FELA and to plaintiffs in nearly all states. Thus, consistent with our authority to develop the general maritime law when new situations arise that are not directly governed by congressional legislation or admiralty precedent, we hold that claims for emotional distress are cognizable under admiralty law.

Id. Having recognized a cause of action for negligent infliction of emotional distress, the next step for the Ninth Circuit was to decide which of the three tests to apply. After outlining the three tests, however, the Ninth Circuit declined to take that step. Because none of the tests permitted recovery for emotional distress when the plaintiff is not present at the accident scene, according to the Ninth Circuit, "it [was] clear that [the court] need not decide which test to adopt . . . to decide this appeal." Id. 39 F.3d at 1409. The other Chan children were not physically present at the accident scene, and therefore they could not state a claim for emotional distress under any of the three tests.

However, the Ninth Circuit reversed the dismissal of claim for emotional distress by the daughter who witnessed the severe injuries suffered by her father, and who was clearly in the "zone of danger" (she was riding in the raft and could have suffered the same fate as those who died or were seriously injured). The court also expressed no opinion whether the mother (who was nearby on a cruise ship) had a similar claim because she failed to allege facts that might support a claim under any of the three tests.

The federal law of negligent infliction of emotional distress is a developing area of law which requires vigorous advocacy to define the parameters of the tort in the manner most favorable to injured workers and passengers. There is an excellent article which summaries the case law by each circuit court of appeal. Recovery For Negligent Or Intentional Infliction Of Emotional Distress Under The Jones Act Or Under The Federal Employers Liability Act, 123 ALR Fed 583 (2005).

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