                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-1995

Gottshall v Conrail Corp
Precedential or Non-Precedential:

Docket 91-1926




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Recommended Citation
"Gottshall v Conrail Corp" (1995). 1995 Decisions. Paper 157.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/157


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 91-1926



                         JAMES E. GOTTSHALL,

                                          Appellant

                                  V.

                  CONSOLIDATED RAIL CORPORATION



          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                (D.C. Civil Action No. 89-03102)



                         Argued May 7, 1992

               Before:    BECKER, NYGAARD and ROTH,
                          Circuit Judges

     On Remand from the Supreme Court of the United States
                         June 24, 1994
         Submitted On Remand from Supreme Court: August 29,1994


                 (Opinion Filed     June 6, l995 )

William L. Myers, Jr., Esquire
Davis & Myers
1601 Market Street
Suite 2330, Five Penn Center
Philadelphia, PA 19103
     Attorney for Appellant

Ralph G. Wellington, Esquire
Schnader, Harrison, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Attorney for Appellee
                        OPINION OF THE COURT



ROTH, Circuit Judge:



            This case returns to us on remand from the United

States Supreme Court.    The action was originally brought by James

E. Gottshall, a railroad worker, against his employer,

Consolidated Rail Corporation (Conrail).    Gottshall sought

damages under the Federal Employers' Liability Act (FELA), 45

U.S.C. §§ 51-60 (1988), for negligent infliction of emotional

distress.    Concluding that the FELA provided no remedy for the

plaintiff's emotional injuries in this case, the district court

granted Conrail's motion for summary judgment. Gottshall v.

Consolidated Rail Corp., 773 F. Supp. 778 (E.D. Pa. 1991).      This

Court, by a divided panel, reversed and remanded, finding the

injuries to Gottshall to be both foreseeable and possessed of

sufficient indicia of genuineness.   Gottshall v. Consolidated

Rail Corp., 988 F.2d 355 (3d Cir. 1993).

            Following the denial of its petition for rehearing,

Conrail filed a writ of certiorari with the United States Supreme

Court to obtain review of this case and of the companion case of

Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir. 1993).

The Supreme Court agreed to hear both cases.    By its decision of

June 24, 1994, the Court reversed both cases and remanded them to
us.   Consolidated Rail Corp. v. Gottshall, --- U.S. ---, 114 S.

Ct. 2396 (1994).   The Court instructed us to enter judgment

against the plaintiff in Carlisle and to reconsider the negligent

infliction of emotional distress claim in Gottshall under the

common law zone of danger test.     Id. at ---, 114 S. Ct. at 2411-

12.   For the reasons that follow, we find that the plaintiff in

Gottshall cannot satisfy the strictures of the zone of danger

test as articulated by the Supreme Court.

                                  I.

           Because the facts of this case have been discussed

extensively in earlier opinions, we will be brief.    James

Gottshall served on a Conrail work crew which was assigned on an

oppressively hot August day to replace defective railroad track

in a remote location between Watsontown and Strawberryridge,

Pennsylvania.   Gottshall's work crew included his friend of

fifteen years, Richard Johns.     The crew was supervised by Michael

Norvick.   Conrail was under time pressure to prepare for a safety

inspection and so the work crew was pushed to complete the task.

Conrail provided only one scheduled break, for lunch, and

discouraged unscheduled breaks.    Conrail did, however, make water

available to the men on an as-needed basis.1

1
 . There is no evidence in the record to indicate either that
the conditions under which the crew was working violated any work
rules or work conditions, agreed upon by the union and management
or that any union member working on the crew that day was not
physically qualified to perform his assigned duties. Cf.
Holliday v. Consolidated Rail Corp., 914 F.2d 421, 424 (3d Cir.
1990):
           About two and one-half hours into the job, while

Richard Johns was cutting a rail, he collapsed.    Gottshall and

the other workers rushed to Johns' assistance.    Johns, who had

high blood pressure and was overweight, was having trouble with

the weather conditions.   The crew members tended to him until

Norvick ordered them to return to work.    Within five minutes

Johns collapsed again.    This time it was apparent that Johns was

seriously afflicted.   Gottshall realized that Johns was having a

heart attack and, because Gottshall was the only person at the

scene certified in cardiopulmonary resuscitation, he began

administering CPR to Johns.

           Supervisor Norvick also appreciated that Johns now

required immediate medical attention.    Norvick's initial attempts

to radio to the base station for help were unsuccessful because,

unbeknownst to Norvick, Conrail had taken the base radio off-line

for repairs.   Norvick finally drove out in his truck to secure

help.   He summoned paramedics who arrived at the site some forty

minutes after Gottshall had begun CPR.    By this time, however,

Johns had died.   The paramedics ordered the crew to leave the

body where it lay, covered by a sheet, until the coroner arrived.
(..continued)
          [P]laintiffs . . . were allegedly injured by
          performing the normal duties of their jobs as
          structured by management and as monitored by
          the union. As work rules and working
          conditions represent issues that are at the
          heart of labor-management negotiations, the
          court will not upset the delicate balance of
          the collective bargaining agreement absent a
          more compelling reason.
Shortly thereafter, Norvick directed the crew to return to work.

The crew continued working for several hours.     The coroner on his

arrival determined that Johns had suffered a heart attack caused

in part by the heat, humidity, and strenuous activity.

           Gottshall experienced a severe reaction to his

involvement in the incident.   In the days that followed, the crew

returned to the site to work the same long hours under the same

sweltering weather conditions.2    Gottshall, however, became

increasingly distraught and feared that he too would have a heart

attack.   After a few days, Gottshall left work and secluded

himself in the basement of his home.    He was then admitted to a

psychiatric hospital where he was diagnosed with major depression

and post traumatic stress disorder.     His symptoms included

extensive weight loss, suicidal preoccupations, insomnia, and

nausea.

                                  II.

           Gottshall brought this action in the United States

District Court for the Eastern District of Pennsylvania pursuant

to the FELA, 45 U.S.C. §§ 51-60 (1988).     We had jurisdiction on

appeal under 28 U.S.C. § 1291 (1988).     Following remand from the

Supreme Court, we now have jurisdiction under 28 U.S.C. § 2106

(1988).




2
 . The parties do not contest that the radio link was back in
commission during this subsequent period.
           Our task on remand is to apply the common law zone of

danger test, as defined by the Supreme Court, in reconsidering

Gottshall's FELA claim.   Both parties agree, and the Supreme

Court has advised, that the present factual record is

sufficiently developed for this purpose. See Gottshall, --- U.S.

---, 114 S. Ct. at 2411. See also Casey v. Planned Parenthood, 14

F.3d 848, 856-63 (3rd Cir. 1994) applic. for stay denied, ---

U.S. ---, 114 S. Ct. 909 (1994) (finding no need to reopen record

when "the Supreme Court remanded `for proceedings consistent with

this opinion'"); Kamen v. Kemper Financial Services, Inc., 939

F.2d 458, 459-460 (7th Cir. 1991), cert. denied, 502 U.S. 974

(1991).   Therefore, with the zone of danger test in mind, we will

address the issues on the existing record.

           Because this appeal is from the district court's

granting of Conrail's motion for summary judgment, our standard

of review of whether Gottshall's claim remains actionable under

the FELA is plenary.   See Dent v. Cunningham, 786 F.2d 173, 175

(3d Cir. 1986).    Pursuant to Rule 56(c) of the Federal Rules of

Civil Procedure, an entry of summary judgment is only appropriate

if there are no genuine issues of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

In conducting this evaluation, we are obliged to view the facts

in a light most favorable to Gottshall as the non-moving party.

See Erie Telecommunications v. Erie, 853 F.2d 1084, 1093 (3d Cir.
1988).
          Conrail, in pressing its motion for summary judgment,

makes two principal arguments which it draws from the Supreme

Court's discussion of the FELA and the zone of danger test.

First, Conrail draws an analogy between the facts in this case

and those in Carlisle, 990 F.2d 90 (1993), in support of its

premise that generalized work conditions cannot give rise to an

actionable FELA claim for emotional distress.   Second, Conrail

maintains that the zone of danger test must be construed to

permit recovery only by those persons who are at risk of an

actual physical impact.

          Gottshall vigorously contests both positions.    He

asserts that the extreme working conditions, which caused Richard

Johns' heart attack and under which Conrail forced Gottshall to

work both before and after Johns' death, caused him subjectively

to fear for his physical safety and to suffer a complete

emotional collapse with attendant physical manifestations.

Gottshall also argues for a broader construction of the zone of

danger, either one that does not require a threat of physical

impact or one that accepts merely the risk of slight physical

contact, such as dust in the eye or smoke inhalation.

                                A.

          In this case, the Supreme Court for the first time

recognized a plaintiff's right to recover under the FELA for

negligently produced emotional distress.   See Gottshall, --- U.S.

at ---, 114 S. Ct. at 2409.   The Court found support both in the
statute and at common law for extending the FELA's coverage to

purely emotional claims.3   In examining the statute itself, the

Court reiterated the premise that the FELA should be liberally

construed in a manner consistent with its remedial purpose.   Id.

at ---, 114 S. Ct. at 2404.    See also Rogers v. Missouri Pacific

R. Co., 352 U.S. 500 (1957).    Noting that the FELA is silent on

the issue of recovery for negligent infliction of emotional

distress, the Court turned to common law principles to fill the

statutory gaps.    Gottshall, --- U.S. at ---, 114 S. Ct. at 2404.

See also Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.

557, 568 (1987).    Cf. Urie v. Thompson, 337 U.S. 426, 432 (1958).

The Court surveyed the States and determined that nearly all have

permitted claims for emotional injury in one form or another.

Gottshall, --- U.S. at ---, 114 S. Ct. at 2405.   Based in part on

these observations, the Court found that within the broad duty to

furnish workers with a safe work place there was "a duty under

FELA [for an employer] to avoid subjecting its workers to

negligently inflicted emotional injury."   Id. at ---, 114 S. Ct.

at 2408, (quoting Buell, 480 U.S. at 558).
3
 . By "purely emotional claims," we mean mental disturbance
unaccompanied by a contemporaneous infliction of physical injury.
This concept is distinguishable from damages for pain and
suffering which often attach to claims for physical injury.
Moreover, in defining "purely emotional claims" we do not take a
position as to whether emotional distress, to be actionable, must
produce accompanying physical manifestations in reaction to the
mind's disturbance. Because Gottshall's emotional disturbance
did affect him physically, e.g., extensive weight loss, we need
not reach that issue. See Bloom v. Consolidated Rail Corp., 41
F.3d 911, 915 n.5 (3d Cir. 1994).
            Although the Court was willing to recognize such a duty

as a conceptual matter, it also appreciated that, as a practical

matter, limitations were warranted to restrict the scope of an

FELA employer's duty.     The Court was concerned by what it saw, if

recovery were permitted for emotional distress, as the "very real

possibility of nearly infinite and unpredictable liability for

defendants."      Id. at ---, 114 S.Ct. at 2405.    The Court noted

that the FELA retains the common law concept of negligence and so

"`does not make the employer the insurer of the safety of his

employees.'"      Id. ---, 114 US.Ct. at 2408, (quoting Ells v. Union

Pacific R. Co., 329 U.S. 649, 653 (1947)).         Developing this theme

of limited liability, the Court turned to several common law

"tests" or "rules" which have restricted the right to recover for

negligent infliction of emotional distress.

            The Court reviewed the "physical impact,"      the "zone of

danger," and      the "relative bystander" common law tests.    It

rejected the "physical impact" and the "relative bystander" tests

as either too restrictive or inapplicable, and it settled on the

"zone of danger" test as the best measure of recovery under the

FELA.   Id. at ---, 114 S. Ct. at 2410-11.     In doing so, the Court

consulted the common law of 1908, the year the FELA was enacted,

and found that the zone of danger test was considered both more

progressive and less restrictive than its counterparts of the

same era.   Id.     The Court characterized these qualities of the
zone of danger test as consistent with the FELA's broad

construction and remedial purpose.

          The Court noted nevertheless that the statute's primary

purpose remained the protection of workers from physical, rather

than emotional, perils.    Id. at ---, 114 S. Ct. at 2410.   See

also Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 813 (1985),

cert. denied, 480 U.S. 945 (1987).    Acknowledging that the FELA's

goal of liberal recovery was tempered by the statute's emphasis

on physical injuries, the Court found, however, that the

statute's reference to "injury" could encompass both physical and

emotional injury and that the zone of danger test best harmonized

these considerations:
          Under 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 a
          worker outside the zone will not. 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.


Gottshall,       U.S. at       , 114 S.Ct. at 2410-11.



                                 B.

          Although the Supreme Court generally upheld an FELA

cause of action for negligent infliction of emotional distress,
the Court did not precisely define what situations might place a

plaintiff in a position to be within the zone of danger.4

          For instance, does the Supreme Court's zone of danger

test require the imminent threat of a physical impact or does it

require merely a threat of physical harm?    In our recent decision

in Bloom v. Consolidated Rail Corp., 41 F.3d 911 (3d Cir. 1994),

we noted the Supreme Court's various articulations of the zone of

danger test at certain instances throughout the opinion are

somewhat imprecise.5   41 F.3d at 914-15.   We found, however, in

Bloom that it was not necessary to expressly resolve this issue

as the plaintiff was threatened with neither physical harm nor

physical impact.   We conclude from our review of the facts in the

present case that we again do not have to resolve this issue.

4
 . In moving on to our discussion of the zone of danger, we will
not dwell on the negligence of Conrail. Whether Conrail's
conduct placed Gottshall in a zone of danger is a different
question than whether or not Conrail's conduct satisfied the
requirement of ordinary negligence (which is necessary for FELA
liability in any case). That negligence, however, to the extent
that Conrail interrupted the crew's radio link without warning
and without providing an alternate means of communication, is
admitted by the parties. Because there is agreement on this
aspect of Conrail's negligence, we do not need to go on to
resolve whether a combination of other factors, such as the
extreme working conditions and/or Conrail's ordering the crew to
go back to work while Jones's body lay covered beside the track,
might also constitute negligence on Conrail's part.
5
 . For instance, at one point the Court refers to the zone of
danger test as limiting recovery to plaintiffs "who are placed in
immediate risk of physical harm by that conduct." Gottshall, ---
U.S. ---, 114 S. Ct. at 2406 (emphasis added). The Court later
refers to an actionable claim as one involving "a worker within
the zone of danger of physical impact." Id. at ---, 114 S. Ct. at
2410 (emphasis added).
           We will first consider whether James Gottshall was

subjected to the threat of a physical impact.   In their briefs,

the parties contest the specific meaning of the term "impact."

Recognizing that we cannot anticipate every possible situation

that may give rise to an impact, we decline to provide a

comprehensive definition of what constitutes an impact.    Suffice

it to say that what Gottshall experienced involved no impact and

Gottshall therefore was not in the zone of danger, if the test is

to be construed to require threat of impact.    If the sun's rays

and heated air constitute physical impacts, then many work place

situations could give rise to an impact within the meaning of the

test.6   Such an encompassing definition of impact would undercut

the Court's desire to draw reasonable limits to employer

liability for emotional distress claims.

           We will next consider whether Gottshall was placed in

immediate risk of physical harm.   Here, the crew was working

under time pressure on an oppressively hot August afternoon and

the base radio was taken off-line for repair.    However, as we

noted earlier, there is no evidence in the record to indicate

that Gottshall, who was thirty four and in good physical

condition, was not physically qualified to perform his assigned


6
 . We do not determine at this time whether our definition of
impact under the FELA reaches contacts with such intangibles as
smoke, gases, or drugs. See, e.g. Plummer v. United States, 580
F.2d 72, 75-76 (3d Cir. 1978) (holding, in non-FELA context, that
exposure to tuberculosis bacilli constituted physical impact
under both the zone of danger and physical impact tests).
duties.   While it was extremely hot that afternoon in

northcentral Pennsylvania, it was still, for purposes of the zone

of danger test, within the bounds of conditions under which

Conrail crews were expected to work.   Indeed, Gottshall does not

contend that the conditions under which he was working violated

any work rules.   In sum, we simply do not view the physical

working conditions to be extreme and dangerous enough as to place

this plaintiff in immediate risk of physical harm.7



                               III.

          We will, therefore, affirm the district court's grant

of summary judgment in favor of Conrail.   We find that Gottshall

was not within the zone of danger because Conrail's negligence

7
 . In Bloom, we noted that it is not clear whether a plaintiff
would be required, in a FELA action for negligent infliction of
emotional distress, to fear physical injury to himself as a prima
facie element or whether the lack of such fear would merely be
considered in determining damages. Bloom, 41 F.3d at 915 n.4.
We also noted in Bloom that some common-law zone of danger tests
include contemporaneous fear as a prima facie element, but that
the Supreme Court in Gottshall appeared to adopt the damages
approach. Id.    As in Bloom, it is not necessary in this case to
decide the issue since Gottshall otherwise fails to satisfy the
zone of danger test. We do note, however, that to the extent
that fear does go to liability, Gottshall, like Bloom, would fail
a contemporaneous fear requirement. Gottshall claims that his
mental distress arose after Johns' death and was brought about by
his fear that the heat and strenuous work pace would also cause
him to suffer a fatal heart attack. As the district court
pointed out, however, Gottshall cannot show that he perceived any
threat of physical harm during the time that Conrail had
negligently closed down the radio link, nor can he show that any
negligent act was committed by Conrail during the ensuing period
when he feared the working conditions might cause him to suffer a
heart attack. Gottshall, 773 F. Supp. at 782.
threatened him neither with the threat of physical impact nor

with the threat of physical harm.
