                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-1994

Bloom v. Conrail Corp.
Precedential or Non-Precedential:

Docket 93-1903




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

Recommended Citation
"Bloom v. Conrail Corp." (1994). 1994 Decisions. Paper 214.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/214


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                   _______________

                     No. 93-1903
                   _______________


                   JERALD E. BLOOM

                          v.

           CONSOLIDATED RAIL CORPORATION,

                                     Appellant

____________________________________________________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
             (D.C. Civ. No. 89-cv-07452)
____________________________________________________

      Submitted Under Third Circuit LAR 34.1(a)
                    April 11, 1994

Before: BECKER, MANSMANN, and SCIRICA, Circuit Judges.

             (Filed   December 12, l994)

                   JAMES D. CRAWFORD
                   RALPH G. WELLINGTON
                   NICOLE REIMANN
                   Schnader, Harrison, Segal & Lewis
                   1600 Market Street, Suite 3600
                   Philadelphia, PA 19103

                          Attorneys for Appellant


                   JOSEPH A. COFFEY, JR.
                   PATRICK T. HENIGAN
                   LAWRENCE A. KATZ
                   Coffey and Kaye
                   Suite 718, Two Bala Plaza
                   Bala Cynwyd, PA    19004

                          Attorneys for Appellee
                      ___________________________

                         OPINION OF THE COURT
                      ___________________________


BECKER, Circuit Judge.

          This appeal requires that we apply the zone of danger

test recently announced in Consolidated Rail Corp. v. Gottshall,

114 S. Ct. 2396 (1994) to a claim for negligent infliction of

emotional distress.    The claim was brought by plaintiff Jerold E.

Bloom, a railroad employee, against his employer Consolidated

Rail Corporation ("Conrail") under the Federal Employer's

Liability Act ("FELA"), 45 U.S.C. § 51 et seq. (1986), and

resulted in a large judgment in his favor against Conrail.

Bloom's injuries were caused by the emotional stress that he

suffered after a locomotive engine he was operating struck and

killed a pedestrian.     Because under Gottshall the judgment cannot

stand, we reverse and remand with directions to enter judgment

for Conrail.


                I.     FACTS AND PROCEDURAL HISTORY

          Bloom was employed by Conrail as a locomotive engineer

beginning in 1976.    During his employment at Conrail, two of his

trains were involved in fatalities.     The first fatality occurred

in the spring of 1986, when Bloom's engine struck a car and

killed the driver.    Following this fatality, Conrail allowed

Bloom to return to work.    Medical treatment was available through

the health plan, though Conrail did not require psychiatric
desensitization1 or any other kind of treatment, and Bloom did

not seek any.   The second fatality occurred on October 28, 1986,

when Bloom's locomotive struck and killed a pedestrian who

stepped on the tracks to commit suicide.   Even though Bloom felt

faint, lightheaded, and nauseous, a Conrail patrolman required

him to exit the train and verify the point of contact, which was

to Bloom, at that point, a gruesome exercise.    Following the

second fatality, Bloom sought and received psychiatric treatment

covered under the health plan, and underwent extensive counseling

for post traumatic stress disorder and chronic phobia syndrome.

He was never able to resume railroad work.

           Bloom brought this FELA action for negligent infliction

of emotional distress in the District Court for the Eastern

District of Pennsylvania.   Conrail twice moved for summary

judgment on grounds that Bloom's claim was not actionable under

FELA.   The district court denied the motions.   At trial, after

the presentation of plaintiff's case, Conrail moved for judgment

as a matter of law on the grounds that Bloom's claim was not

actionable and that there was insufficient evidence of causation.

The motion was denied.   The jury determined that Bloom suffered

$425,000 total damages, of which thirty percent was caused by

Conrail's negligence and seventy percent was caused by the

suicidal pedestrian.   The district court entered a $425,000

1
 . One trauma, even if it fails to cause a severe reaction,
apparently may sensitize a person to subsequent traumas. During
psychiatric desensitization treatment, doctors attempt to reduce
a patient's propensity for a sensitized future response to trauma
via counseling and medication.
judgment for Bloom, reasoning that 45 U.S.C. § 51 holds carriers

liable for injuries resulting "in whole or in part" from their

negligence.   Conrail filed post-trial motions requesting judgment

as a matter of law or, alternatively, to amend the judgment to

limit damages.   The district court sua sponte dismissed the

motions for lack of prosecution.

          On this appeal Conrail has argued that the district

court erred in not granting judgment as a matter of law because

Bloom's claim is not actionable under FELA in light of Gottshall

(which was decided after the appellate briefs were filed),2 and

because there was no evidence that Conrail caused Bloom's injury.

Conrail also assigns error in the district court's refusal to

apportion damages according to the jury's determination, and

contends that the district court abused its discretion by sua

sponte dismissing Conrail's post-trial motions.   Bloom counters

each of these contentions, and also responds that if Bloom's

claim is not actionable on the present record under Gottshall, we

should remand for further factual findings.3   We limit our


2
 . We held the case c.a.v. pending the Supreme Court's
disposition of Gottshall.
3
 . On appeal, Bloom has also contended that Conrail's appeal is
not properly before this court because Conrail did not timely
file its notice of appeal. We find Bloom's appellate
jurisdiction arguments plainly without merit. Bloom submits that
Conrail's appeal is not timely because: (1) under Rule 4(a)(1)
of the Federal Rules of Appellate Procedure ("FRAP"), Conrail's
notice of appeal was filed more than thirty days after the
district court entered judgment in favor of Bloom and (2) FRAP
4(a)(4) does not apply because Conrail's post-trial motions were
not "timely" since they were dismissed for lack of prosecution
under E.D. Pa. Local Rule 20(e).
discussion to the dispositive question whether Bloom's FELA claim

is actionable in the wake of Gottshall.    This is a question of

law and our review is plenary.



           II.   IS BLOOM'S CLAIM ACTIONABLE UNDER FELA?

          A.     Gottshall

          The Gottshall opinion dealt with two cases, both

emanating from this court, Gottshall v. Consolidated Rail Corp.,

988 F.2d 355 (3d Cir. 1993) and Carlisle v. Consolidated Rail

Corp., 990 F.2d 90 (3d Cir. 1993).

          Like Bloom, James Gottshall was an employee of Conrail.

Gottshall was a track repairman who was assigned along with his

co-workers the task of replacing a stretch of defective track on

an extremely hot and humid afternoon.   During that afternoon

Conrail drove the men to complete their task at an unusually fast

pace and, although water was available, repeatedly discouraged

breaks.   Under these conditions, Gottshall's longtime friend,

Richard Johns, collapsed.    In response, Gottshall administered a

cold compress which enabled Johns to regain consciousness.
(..continued)
          We hold that Conrail's notice of appeal was timely
filed within the thirty-day appeal period of FRAP 4(a)(4). Our
holding here is controlled by Osei-Afriyie v. Medical College of
Pennsylvania, 937 F.2d 876 (3d Cir. 1991). In Osei-Afriyie, we
held that a notice of appeal was timely when it was filed more
than thirty days after the judgment date, but within thirty days
of the district court's dismissal of post-trial motions for lack
of prosecution under E.D. Pa. Local Rule 20(e). In this case,
like Osei-Afriyie, Conrail's notice of appeal was filed more than
30 days after the judgment date, but within 30 days of the
district court's dismissal of post-trial motions for lack of
prosecution under E.D. Pa. Local Rule 20(e). Therefore, like the
appeal in Osei-Afriyie, it is timely under FRAP 4(a)(4).
Following this incident, Conrail ordered the men, except Johns,

back to work.   Five minutes later, Johns again collapsed.

Gottshall again rushed to assist him and, realizing that his

friend was having a heart attack, administered CPR.   The

supervisor tried the radio to call paramedics, but it had been

taken offline for repair.   By the time help arrived Johns had

died at Gottshall's side.   The men were then again ordered back

to work, with Johns' sheet-covered corpse left in view along the

tracks.

          The next day, Conrail reprimanded Gottshall for

administering CPR, and over the days that followed, Conrail

worked the crew as hard under similar conditions.   Gottshall

subsequently left work, secluded himself in his basement, and

spent three weeks in a psychiatric institution where he was

treated for major depression and post-traumatic stress disorder.

He exhibited suicidal preoccupations, anxiety, insomnia, appetite

loss, physical weakness, nightmares, and weight loss.

          We reversed the district court's grant of summary

judgment for Conrail and remanded for trial.   We reasoned that,

when considering the totality of the extreme facts, Gottshall's

claim had sufficient indicia of genuineness of emotional injury

to be cognizable under FELA, and that genuine issues of material

fact existed regarding breach of duty, injury, and causation.

Judge Roth dissented.   The Supreme Court granted certiorari, and

determined that the common-law "zone of danger" test is the

proper standard for evaluating whether a railroad employer has a

legal duty in negligent infliction of emotional distress claims
under FELA.    Since that test was different from and narrower than

this court's test, the Court reversed and remanded for

reconsideration.

          B.     Carlisle

          Alan Carlisle began working for Conrail as a train

dispatcher in 1976.    His job was to ensure timely and safe

movement of passengers and cargo.    A 1984 reduction in force,

combined with aging railstock and equipment, increased his job

stress and responsibility.    Conrail constantly pressured Carlisle

to achieve on-time performance and instructed him to ignore

safety concerns that would slow the movement of trains.    In 1988,

Carlisle additionally became trainmaster in the South

Philadelphia yards, where he troubleshot trains in dangerous

areas over erratic hours.    He began to experience insomnia,

fatigue, headaches, depression, sleep walking, and weight loss.

After working 12-15 hour days for 15 straight weeks, his stress-

related problems culminated in a nervous breakdown.

          We affirmed the jury award of $386,500 in damages,

reasoning that Carlisle's claim had sufficient indicia of

genuineness of emotional injury and that it was reasonably

foreseeable that extended exposure to the dangerous and stressful

working conditions would cause injury.    We therefore upheld his

FELA claim for negligent infliction of emotional injuries arising

from work-related stress.    The Supreme Court granted certiorari.

In contrast to Gottshall, which resulted in a remand for further

consideration in light of the newly announced standard, the Court

in Carlisle not only reversed, but also remanded with
instructions to enter judgment for Conrail, explaining that

Conrail had no legal duty since Carlisle plainly was not in the

zone of danger.

            C.    The Zone of Danger Test

            The Supreme Court adopted the zone of danger test, in

part, to limit defendants' liability to certain classes of

plaintiffs and to certain types of harm, notwithstanding that

some genuine claims would be foreclosed.     Gottshall, 114 S. Ct.

at 2408-09. In justifying these limitations, the Court wrote:
          Our FELA cases require that we look to the
          common law when considering the right to
          recover asserted by respondents, and the
          common law restricts recovery for negligent
          infliction of emotional distress on several
          policy grounds: the potential for a flood of
          trivial suits, the possibility of fraudulent
          claims that are difficult for judges and
          juries   to  detect,   and  the   specter of
          unlimited and unpredictable liability.




Id. at 2411.     The Court concluded that these policy

considerations "accord with the concerns that have motivated our

FELA jurisprudence."     Id.

            To effectuate these goals, the Court defined the zone

of danger test as follows:     "The zone of danger test limits

recovery for emotional injury to those plaintiffs who sustain a

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. at 2406 (emphasis added).    Unfortunately, using

different language seemingly in tension with the foregoing, the

Court later explained:     "Railroad employees thus will be able to
recover for injuries--physical and emotional--caused by the

negligent conduct of their employers that threatens them

imminently with physical impact."     Id. at 2411 (emphasis added).

Thus it is unclear whether the zone of danger test turns (in the

absence of actual physical impact) on risk of physical impact or

risk of physical harm.

          In the course of its opinion, the Court made several

other pertinent observations.     The Court stated that "[u]nder

this test, a worker within the zone of danger of physical impact

will be able to recover for emotional injury caused by fear of

physical injury to himself, whereas the worker outside the zone

will not,"    id. at 2410-11 (emphasis added),    However, again

using different language, the Court later stated that      "[w]e see

no reason . . . to allow an employer to escape liability for

emotional injury caused by apprehension of physical impact . . .

."   Id. at 2411 (emphasis added).    Then, the Court noted that

"[t]he zone of danger test is consistent with FELA's central

focus on physical perils,"      id. at 2410, and that "the rule will

further Congress' goal of alleviating the physical dangers of

railroading,"     id. at 2411, but this passage fails to clear up
the confusion.

             The Court also instructed that the "zone of danger test

announced today"     should be applied "in light of common-law

precedent."     Id. at 2411.   Similarly, in a concurring opinion,

Justice Souter emphasized that we should "develop a federal

common law of negligence under FELA, informed by reference to the

evolving common law."     Id. at 2412 (Souter, J., concurring).      We
take this as an injunction to look at common-law precedent, state

and federal, and to build upon it.

           In sum, Gottshall mandates application of the common-

law zone of danger test to determine whether a railroad employer

has a legal duty that would enable negligent infliction of

emotional distress claims to be made under FELA.   As we have

pointed out, the Supreme Court's language is in important

respects opaque and confusing in that it is unclear whether

plaintiffs must be placed in immediate risk of physical harm4 or

whether plaintiffs must be imminently threatened with physical

impact.5   Although these concerns are not outcome determinative

4
 . It is also unclear whether the Court would require the
plaintiff to actually fear physical injury (to himself) as a
prima facie element (absent physical impact) or would just
consider fear in determining damages. While the Court appears to
have adopted the damages approach (by stating that "a worker in
the zone of danger of physical impact will be able to recover for
emotional injury caused by fear of physical injury to himself,"
Gottshall, 114 S. Ct. at 2410-11), we note that some common-law
zone of danger tests include fear as a prima facie element. See,
e.g., Niederman v. Brodsky, 261 A.2d 84, 90 (Pa. 1970). Though
it does not appear under the facts of this case that Bloom feared
physical injury to himself, we need not reach the issue, since we
hold that Bloom fails to otherwise qualify under other aspects of
the enunciated test.

5
 . Finally, it is also unclear, inter alia, whether by this
language ("physical impact") the Court would require a
plaintiff's initial injuries to be physically manifested. Many
zone of danger jurisdictions "require that a plaintiff
demonstrate a 'physical manifestation' of an alleged emotional
injury, that is, a physical injury or effect that is the direct
result of the emotional injury, in order to recover." Gottshall,
114 S. Ct. at 2407 n.11 (citing Garvis v. Employers Mut. Casualty
Co., 497 N.W.2d 254 (Minn. 1993)). However, under Gottshall's
formulation, it is not clear whether physical manifestation is an
element. In Atchison, Topeka & Santa Fe Railway Co. v. Buell,
107 S. Ct. 1410, 1418 & n.22 (1987), the Supreme Court hinted but
here, we hope the Supreme Court will clarify them in its next

FELA emotional distress case.

          D.      Discussion

          In applying Gottshall to this case, it is necessary

that we assess:    (1) whether Bloom sustained a physical impact;

or (2) whether Bloom was placed in immediate risk of physical

harm (or alternatively whether Bloom was threatened imminently

with physical impact).


                                 1.


          Under the zone of danger test announced by the Court in

Gottshall, Conrail has a legal duty if Bloom sustained a physical
impact.   Bloom argues that he sustained a physical impact because

the locomotive engine struck the pedestrian, and he could hear

the thump. Bloom further argues any physical impact, no matter
(..continued)
failed to decide, whether physical manifestation is required
under FELA. Ultimately, we also need not reach this issue
because, in light of common law precedent, Bloom did demonstrate
physical manifestation through weight loss, loss of sleep,
nightmares, vomiting, and diagnosed post-traumatic stress
disorder. See, e.g., Towns v. Anderson, 579 P.2d 1163, 1164
(Colo. 1978) (en banc) (nightmares, sleepwalking, nervousness,
and irritability showed sufficient physical manifestation);
Savard v. Cody Chevrolet, Inc., 234 A.2d 656, 657, 660 (Vt. 1967)
(nervous shock, sleeplessness, weight loss, faintness, and
trembling showed sufficient physical manifestation); Daley v.
LaCroix, 179 N.W.2d 390, 395-96 (Mich. 1970) (weight loss,
inability to perform household duties, extreme nervousness, and
irritability are facts from which jury could find physical
injury); Johnson v. State, 334 N.E.2d 590, 591 (N.Y. 1975)
(recurrent nightmares, difficulty in concentrating, irritability,
inability to function properly at work, tenseness, anxiety, and
psychiatric confirmation of emotional distress showed objective
manifestations of the injury).
how slight, suffices, citing Plummer v. United States, 580 F.2d

72, 76-77 (3d Cir. 1978), where the plaintiff was negligently

exposed to potentially lethal tuberculosis.    Plummer, 580 F.2d at

76.   Conrail counters that Bloom did not sustain a physical

impact because at all times he safely rode in the locomotive's

cab, and, while the pedestrian was physically impacted by the

train, Bloom was not.    We agree.

           As Conrail submits, Bloom rode safely in the

locomotive's cab, and the physical impact was between the train

and the pedestrian.    Even if the "no-matter-how-slight" standard

applies, Bloom's claim would unavailingly stretch the broadest

common-law cases.6    Even Stoddard v. Davidson, 513 A.2d 419 (Pa.
6
 . Under the common law, courts applying the physical impact
test developed the "no-matter-how-slight" standard to prevent
sometimes harsh results in near-miss situations. Thus, physical
impact was found in some tenuous circumstances. W. Page Keeton
et al., Prosser and Keeton on the Law of Torts 363-64 (5th ed.
1988) (" 'Impact' has meant a slight blow, a trifling burn or
electric shock, a trivial jolt or jar, a forcible seating on the
floor, dust in the eye, or inhalation of smoke.") (citations
omitted); see, e.g., Homans v. Boston Elevated Ry. Co., 62 N.E.
737 (Mass. 1902) (slight blow); Kentucky Traction & Terminal Co.
v. Roman's Guardian, 23 S.W.2d 272 (Ky. 1929) (trifling burn);
Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980) (x-rays of pregnant
woman); Zelinsky v. Chimics, 175 A.2d 351 (Pa. Super. Ct. 1961)
(jostling of occupants in low-speed car collision); Porter v.
Delaware, Lackawanna W. R.R. Co., 63 A. 860 (N.J. 1906) (dust in
eye); Morton v. Stack, 170 N.E. 869 (Ohio 1930) (smoke
inhalation). Other courts applying the physical impact test,
however, have not extended it so far. See, e.g., Williams v.
Baker, 572 A.2d 1062, 1064 n.8 (D.C. 1990) ("We use the term
'impact' in this discussion and throughout the opinion in its
ordinary use, just as its use has developed under the impact
rule. It means a violent physical contact, a striking together,
a collision.") (citing Webster's New World Dictionary 703 (2d ed.
1984)).
     As courts increasingly adopted the zone of danger test, the
need to stretch the definition of physical impact dissipated.
Some zone of danger jurisdictions, however, do include the no-
Super. Ct. 1986), where it was held that the plaintiff sustained

a "physical impact" when he was jostled as a result of his motor

vehicle running over a corpse left in the road, is

distinguishable in terms of extent of the impact.7   Moreover,

Plummer is also distinguishable because it is a toxic exposure

case involving the threat of future physical harm -- not an

accident case like this one.   So then, Bloom did not sustain a

physical impact, and hence we turn to the other facets of the

test.

                                2.

          Under the zone of danger test announced by the Supreme

Court in Gottshall, Conrail may have a legal duty to Bloom if he

was placed in immediate risk of physical harm or if Bloom was

threatened imminently with physical impact.   Compare Towns v.

Anderson, 579 P.2d 1163 (Colo. 1979) (boy on porch of home

destroyed by explosion and fire who experienced no direct

physical impact was subjected to "unreasonable risk of bodily

harm"); Robb v. Pennsylvania R.R. Co., 210 A.2d 709 (Del. 1965)

(woman who lodged car in rut on train track and jumped prior to

collision but who experienced no direct physical impact was
(..continued)
matter-how-slight qualifier in the physical impact prong of the
zone of danger test. See Plummer, 580 F.2d at 76 (quoting Kahle
v. Glosser Bros., 462 F.2d 815, 817 (3d Cir. 1972)).
Importantly, in Gottshall, the Supreme Court included the no-
matter-how-slight qualifier when defining the physical impact
test but did not include it when defining the zone of danger
test. Gottshall, 114 S. Ct. at 2406.
7
 . Moreover, the Stoddard panel was seriously divided. Judge
Brosky wrote the opinion of the court, Judge Johnson dissented,
and Judge Lipez concurred in the result without opinion.
"within the immediate zone of physical risk") with Resavage v.

Davies, 86 A.2d 879 (Md. 1952) (mother who, from porch, watched

child get hit by car was not subjected to unreasonable risk of

bodily harm); Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980)

(parents who, from a few yards away, watched child get hit by car

not in "zone of danger of physical impact"); Asaro v. Cardinal

Glennon Memorial Hosp., 799 S.W.2d 595 (Mo. 1990) (mother who

sustained emotional injury after child was mistreated at hospital

was not "threatened with bodily harm").      While Bloom contends

that he met this test, Conrail counters that Bloom was not placed

in immediate risk of physical harm because at all times he safely

rode in the locomotive's cab.   We agree, and conclude Bloom was

neither placed in immediate risk of physical harm nor threatened

imminently with physical impact.



                        III.    CONCLUSION

          In sum, we hold that the district court erred as a

matter of law in denying Conrail's motion for judgment as a

matter of law because Bloom's evidence fails to establish any set

of facts actionable under FELA in light of the zone of danger

test announced by the Supreme Court in Gottshall.      Accordingly,

we will reverse the judgment and remand with instructions to

enter judgment for Conrail.8

8
 . Bloom contends that if we find insufficient evidence in the
record to support a finding of physical impact or zone of danger,
then the appropriate remedy is a new trial because "[a] new trial
will permit Mr. Bloom to present evidence that was not relevant
under this Court's decision and that did not become relevant
until the Gottshall decision was rendered on June 24, 1994."
                  _____________________________




(..continued)
Supplemental Brief of Appellee at 5 n.4. But in making this
argument, Bloom neither proffers nor suggests what new evidence
is now relevant and would be introduced in light of Gottshall.
Hence we reject this argument.
