Connie Szymanski, Administratrix of the Estate of Stanley Szymanski v. Columbia Transportation Company, a Division of Oglebay-Norton Co.

154 F.3d 591, 1998 U.S. App. LEXIS 21186, 1998 WL 546548

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 31, 1998
• Docket: 95-3205
• Status: Published

Opinions

BOGGS, J., delivered the opinion of the court, in which MERRITT, KENNEDY, NELSON, RYAN, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and COLE, JJ., joined. MOORE, J. (pp. 597-601), delivered a separate dissenting opinion, in which MARTIN, C. J., and DAUGHTREY, J., joined.

OPINION

BOGGS, Circuit Judge.

This case fundamentally concerns the application of the Supreme Court’s consolidated decisions in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), to a claim of a seaman’s physical injury (a heart attack) allegedly arising from job-related stress. We hold that Supreme Court precedent applies to bar this claim, under either the Jones Act or the doctrine of “unseaworthiness,” and we affirm the decision of the district court granting summary judgment to the defendant.

I

Stanley Szymanski was a conveyorman employed from 1974 to 1990 by the Oglebay-Norton Company on its selfunloading cargo vessels on the Great Lakes. Such vessels are unloaded by opening hydraulic gates at the bottom of holds to permit bulk cargo such as stone, coal, or taconite pellets to drop onto a large conveyor belt. Amid billows of dust, the cargo is borne on the belt to an unloading boom, and removed to the dock.

The “self-unloading” system is not entirely automatic. It requires a two-person convey- or gang, consisting of a conveyorman and a gateman. Conveyormen supervise gatemen in unloading cargo. They also inspect, monitor, and repair the machinery during unloading. The work of conveyormen is strenuous, fast-paced, and sometimes of long duration. Improperly unloaded cargo can break down the equipment or lead to spillage (which must be remedied with arduous shovelwork). Critical to smooth operation is the role of the gatemen, who control the unloading gates by means of a control panel and thereby regulate the flow of materials being off-loaded by the conveyor belts. Gatemen are supposed to assist conveyormen in their tasks; convey-ormen, in addition to their other tasks, periodically relieve the gatemen during meals and breaks.

On March 26, 1990, Szymanski was assigned to be the conveyorman in charge of Oglebay’s flagship, the M/V Courtney Burton. The ship’s gateman was considered by his crewmates to be incompetent, especially at the crucial task of controlling the rate of discharge of cargo; as a result of their contempt for him, they gave him the moniker of “The Bum.” Although the equipment on the Courtney Burton was in good condition, Szy-manski was unhappy that he was assigned to that ship and believed that the gateman with whom he was assigned to work was incompetent at operating the unloading gates.

Conveyormen who had worked with The Bum in the past had suffered heart attacks, and Oglebay allegedly knew of his shortcomings. Szymanski suffered chest pains during the time he was yoked to The Bum. Although he attributed those pains, at the time, to excessive cigarette smoking, he nonetheless complained to Oglebay of The Bum’s poor performance, and requested a transfer. Szy-manski’s last day on the Courtney Burton was July 21,1990. He took a short vacation, and on July 31 took up conveyorman duties on his favorite ship, the S.S. Armco (which he referred to as “my old home”).

Nothing aboard that vessel was amiss except for some squealing conveyor rollers, which Szymanski and his co-workers had to grease. Szymanski worked until 10:00 p.m. on August 16, when he went ashore in Toledo, his home port, to enjoy further vacation time. His wife picked him up at the dock and drove him home. A few hours later, he suffered a heart attack. He underwent coronary bypass surgery in February 1991, and he was expected to recover sufficiently to return to work. However, Szymanski, at age 60, suffered additional health problems, including diabetes. At one time, he had been an active alcoholic, and he smoked two packs of cigarettes a day at the time of his heart attack. In June 1991, he underwent surgery for ulcers and a bowel obstruction, after which his physicians informed him that his days as a conveyorman were over. In 1993, Szymanski filed this action for negligence under the Jones Act, 46 U.S.C. app. § 688, and for unseaworthiness under general maritime law.

On October 20, 1994, Szymanski suffered his second heart attack, this one fatal. His widow and administratrix, Connie Szymanski, continued this action.

The district court granted summary judgment for Oglebay. A divided panel of this court reversed. See Szymanski v. Columbia Transp. Co., 107 F.3d 371 (6th Cir.1997). We granted Oglebay’s suggestion for rehearing en banc, 107 F.3d 371 (6th Cir.1997), and now affirm the decision of the district court.

II

We review the district court’s decision granting summary judgment de novo, using the same standards applied by the district court. See Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir.1992). Summary judgment is proper if the evidence submitted shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.1994). We consider all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Ibid.

At issue in this case is the proper application of the Supreme Court’s decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (consolidated with Consolidated Rail Corp. v. Carlisle). As the district court in this case stated:

In Gottshall, the Court considered two claims for negligent infliction of emotional distress: that of Carlisle, a plaintiff who had worked for the railroad as a train dispatcher for several years and who suffered a nervous breakdown and other injuries due to overwork; and that of Gottshall, a plaintiff who suffered major depression and post-traumatic stress disorder after witnessing a co-worker have a heart attack and die while working.

The Gottshall Court adopted the common law “zone of danger” test to determine who may recover for negligent infliction of emotional distress under the FELA. [512 U.S. at 554-57, 114 S.Ct. 2396.] The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain 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. Based on that standard, the Court remanded the Gottshall portion of the case for reconsideration under the zone of danger test, and remanded the Carlisle portion of the case with instructions to the lower court to enter judgment in favor of the defendant.

... [T]he Carlisle portion of the Gotts-hall case ... controls this case_

Carlisle testified at trial that, as a result of being overworked and burdened with both excessive responsibility and an abusive, alcoholic supervisor in the South Philadelphia yards, he experienced insomnia, fatigue, headaches, depression, sleepwalking and substantial weight-loss. Car-lisle testified further that, as a result of being made to work 12 to 15 hour shifts for 15 consecutive days in August, 1988, his stress-related problems finally culminated in a nervous breakdown. ■' Carlisle introduced evidence showing that his emotional and physical injuries were a foreseeable result of his working conditions. Over defendant’s objection, the court admitted into evidence a series of depositions, taken in a separate case, in which Carlisle’s co-workers and subordinates testified that their jobs as dispatchers and supervisors in the Philadelphia Consolidated Rail offices had caused them to suffer cardiac arrests, nervous breakdowns, and a variety of emotional problems such as depression, paranoia and insomnia. [Carlisle v. Consolidated Rail Corp., 990 F.2d 90, 92 (3d Cir.1993).] Carlisle testified that the train dispatchers he supervised often complained about Consolidated Rail’s outdated equipment and about the long hours and high level of stress in their jobs; Carlisle, in turn, passed on their complaints to his supervisors and added his own concerns about the excessive hours and stress of his job. He received no response to these complaints. Id.

Szymanski v. Columbia Transportation Co., No. 93 CV 7423, 1995 WL 329407, at *3-5 (N.D. Ohio Jan 30, 1995) (footnotes omitted).

Despite these sympathetic facts, the Supreme Court reversed in each case, and granted summary judgment to the defendant in Carlisle. It held that claims essentially based on infliction of emotional distress must meet the common-law “zone of danger” rule, requiring that a plaintiff making such a claim suffer a physical impact, or be in the zone of danger of suffering such an impact. See Gottshall, 512 U.S. at 555-56, 114 S.Ct. 2396. In particular, the Court held that “Carlisle’s work-stress-related claim plainly does not fall within the common law’s conception of the zone of danger.... [W]e will not take the radical step of reading FELA as compensating for stress arising in the ordinary course of employment. In short, the core of Car-lisle’s complaint was that he had been given too much — not too dangerous — work to do. That is not our idea of an FELA claim.” Id. at 558, 114 S.Ct. 2396 (internal quotations omitted).

Plaintiffs fundamental problem is getting around'the Supreme Court’s Gottshall-Carlisle holding, recently reinforced in Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997). In Metro-North, the Supreme Court emphasized its adherence to the Gottshall holding in reiterating the reasons “common law courts have restricted recovery for emotional harm to cases falling within rather narrowly defined categories.... ” Id. 521 U.S. at ---, 117 S.Ct. at 2118-19.

Those cases control. Plaintiffs efforts at distinction are unpersuasive.

Plaintiff claims, first, that this suit is for physical injury, not for emotional injury. This confuses the “physical impact” that is a prerequisite for liability (meaning either actual impact by a physical object¹ or being in the zone of danger for such an impact) with any physical manifestations of an emotional injury that may have occurred. In Carlisle itself, the plaintiff complained of physical se-quelae of the alleged stress — headache, insomnia, depression, and weight loss. See 512 U.S. at 539, 114 S.Ct. 2396. And in Buckley, even “physical impact” by a carcinogenic substance was not deemed adequate to satisfy the requirement, which we take as another sign that Gottshall encompasses traditional common law concepts of physical impact.²

Second, Szymanski claims that his injury was actually caused by “dangerous work, not too much work.” However, Carlisle forecloses this claim as well. In Carlisle, conditions much harsher than Szymánski’s—12 to 15 hour days, repeated “for weeks at a time,” “under a high level of stress ... and poor working conditions,” 512 U.S. at 539, 114 S.Ct. 2396 —were not sufficient to fall outside the “too much work” rubric. Surely Szyman-ski’s working with an unpleasant or incompetent workmate, for up to 4 months, necessitating some augmenting of his own job, does not qualify either.

Third, he contends, as did the majority of the panel, that the limitation to injuries caused by physical stress should be extended to those caused by “extraordinary non-physical stress.” But there is no authority for such a distinction,. which inevitably would lead to a large increase in potential employer liability. In Carlisle itself, there was extraordinary non-physical stress, leading to physical manifestations, yet the Supreme Court did nqt permit liability. In particular, the concluding reference in Carlisle denying compensation “for stress arising in the ordinary course of employment” certainly does not constitute a limitation to “ordinary stress.” By its terms, it refers to the “ordinary course of employment,” which both Car-lisle and Szymanski were engaged in. Certainly any type of work-related stress that brings on the type of physical results that occurred to either Mr. Carlisle or Mr. Szy-manski are extra-ordinary in common parlance. However, all of the reasons given for limiting liability to actions falling within the common-law “zone of danger” test would apply to bar eases of “extra-ordinary non-physical” stress as well. See Gottshall, 512 U.S. at 554-57, 114 S.Ct. 2396.

Ill

We turn now to Szymanski’s unseaworthiness claim. The district court disposed of that claim as follows:

[Bjecause summary judgment is appropriate on Plaintiffs Jones Act case, it is also appropriate on Plaintiffs unseaworthiness claim. A seaman alleging injury has only one claim, which is split conceptually into separate parts (negligence and unseaworthiness) because of historical development in seamen’s remedies. Fitzgerald v. United States Lines Co., 374 U.S. 16, 18-21, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). Thus, as summary judgment is proper on Plaintiffs Jones Act claim, it is also proper on Plaintiffs unseaworthiness claim.

1995 WL 329407, at *5.

The panel rejected that holding, stating:

While the remedies available pursuant to a seaman’s unseaworthiness cause of action are generally no broader than those available under the Jones Act, the causes of action themselves have different elements and must be analyzed separately. See Miles, 498 U.S. at 32-33, 111 S.Ct. at 326....

This court recently explained that Jones Act causes of action and unseaworthiness causes of action are separate claims comprised of different elements. Cook v. American Steamship Co., 53 F.3d 733, 740-41 (6th Cir.1995). We explained that the Jones Act cause of action was based on the shipowner’s negligence, while the unseaworthiness cause of action has no negligence element. Rather, the shipowner’s absolute and nondelegable duty is to “furnish a vessel and appurtenances reasonably fit for their intended use.” Id. at 741 (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960))....

: An incompetent crew member could make a vessel unseaworthy. See Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 727 n. 4, 87 S.Ct. 1410, 1412 n. 4, 18 L.E.2d 482 (1967) (unseaworthiness may result when a member of the crew is not competent to meet the tasks arising on a voyage). Thus, we reverse the district court’s order granting summary judgment to Oglebay.

Szymanski, 1997 WL 65748, at *7-8.

The panel correctly recognized that claims brought under the Jones Act and claims of unseaworthiness brought under general maritime law are distinct caus'es of action, the elements of which differ somewhat. The panel also correctly identified the salient' differences: the applicable standard of liability, and the applicable standard of causation.

However, it is also necessary to consider the nature of the injuries for which a plaintiff may seek a remedy under the two causes of action. We conclude that, despite their other differences,- the two causes of action are uniform in the injuries they reach. Where an injury is not remediable under the Jones Act, as we hold is true here, neither can the doctrine of unseaworthiness offer redress.

We are guided to this conclusion by the reasoning of the Supreme Court in Miles, whose thrust we interpret quite differently than the panel did. In Miles, the Court extensively discussed Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), a case that overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and held that a cause of action for wrongful death exists under general maritime law. The Moragne Court noted that, in the decades following The Harrisburg, the federal government and all fifty states enacted wrongful-death statutes covering maritime employees. Because “[admiralty is not created in a vacuum [and] legislation has always served as an important source of both common law and admiralty principles,” Miles, 498 U.S. at 24, 111 S.Ct. 317, “[t]he unanimous legislative judgment behind the Jones Act, [the Death on the High Seas Act], and [the wrongful death statutes in all fifty states] created a strong presumption in favor of a general maritime wrongful death action.” Ibid. Consequently, Moragne recognized that an action alleging unseaworthiness could be brought to remedy' a wrongful death, thereby “creating] a general maritime wrongful death cause of action.” Id. at 27, 111 S.Ct. 317.

Miles, for its part, similarly aligned the range of injuries covered by statute and general maritime law. The question was whether a general maritime action could afford recovery to a seaman’s survivor for loss of society. The Court noted that the Death on the High Seas Act, by its terms, and the Jones Act, by its history, limit recoverable damages in wrongful death suits to pecuniary losses, not non-pecuniary losses such as loss of society. The Court therefore held, in a passage cited by the panel in this case, that

[i]t would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. We must conclude that there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman.

Id. at 32-33, 111 S.Ct. 317 (quoted in Szymanski, 1997 WL 65748, at *7).

In Carlisle, the Court refused to recognize “a claim under the FELA [and thus the Jones Act] for negligent infliction of emotional distress arising from work-related stress.” 512 U.S. at 554, 114 S.Ct. 2396. To do otherwise “would tend to make railroads the insurers of the emotional well-being and mental health of their employees,” a result running counter to the Court’s clear holdings that “FELA is not an insurance statute.” Ibid. Following Carlisle, we have held today that recognizing Szymanski’s Jones Act claim for the physical manifestations of his work-related stress would have a similarly unacceptable tendency. Supra, at 594-95. Consistent with the approach of the Court in Miles and Moragne, we believe that the unseaworthiness action should not reach an injury that the statute does not.

A seaman’s claim under either the Jones Act or the unseaworthiness doctrine is fundamentally a single cause of action, and remedies under one must be congruent with remedies under the other. If no damages are permitted under the Jones Act, then an unseaworthiness claim cannot supply them either. Indeed, we said as much in Miller v. American President Lines, Ltd., 989 F.2d 1450 (6th Cir.1993), where we stated that “punitive damages are not available in a general maritime law unseaworthiness action for wrongful death” because they are not available under “federal maritime wrongful death statutes”—i.e., the Jones Act or the Death on the High Seas Act. See id. at 1459.

While an incompetent workman could, as a general matter, cause a ship to be unseaworthy, “unseaworthiness” that leads only to the type of “emotional distress” claim that we have rejected above is not unseaworthiness that entitles a seaman to compensation. The incompetent employee still must either cause some kind of direct physical injury, or place the plaintiff within the zone of danger of such an injury.

Although standards for affixing liability may differ (the Jones Act requires negligence, but has a relaxed standard of causation, while unseaworthiness claims rest on strict liability but require traditional proximate cause), the liability must be due to a compensable injury. Under either standard, there was no compensable injury as a result of the consequences of Szymanski’s emotional distress.

IV

The judgment of the district court is therefore AFFIRMED.

1 . "Physical object” includes, of course, such things as radiation, gases given off as a result of an explosion, and the like.

2 . To the extent that our decision in Steele v. Louisville & Nashville R.R., 506 F.2d 315 (6th Cir.1974) could be read as holding to the contrary, it is overruled.