Estate of Phillip Raymond Morgan, by Administrator, Personal Representative, Kera Morgan v. Union Pacific Railroad Company, a Delaware corporation
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Opinion
In the Iowa Supreme Court
No. 23–1154
Submitted February 18, 2025—Filed April 25, 2025
Estate of Phillip Raymond Morgan, by administrator and personal representative, Kera Morgan,
Appellant,
vs.
Union Pacific Railroad Company, a Delaware corporation,
Appellee.
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
judge.
The administrator of the estate of a railroad worker who committed suicide
following workplace harassment by a supervisor appeals a district court’s
summary judgment ruling dismissing her claims under the Federal Employers’
Liability Act. Affirmed.
Mansfield, J., delivered the opinion of the court, in which Waterman,
McDermott, and May, JJ., joined. Oxley, J., filed a dissenting opinion, in which
McDonald, J., joined. Christensen, C.J., took no part in the consideration or
decision of the case.
Paul Slocomb (argued) of Blunt Slocomb, Ltd., St. Louis, Missouri, and
George F. Davison, Jr. of Law Office of George F. Davison, Jr., LC, Des Moines,
for appellants.
Jonathan B. Amarilio (argued), J. Timothy Eaton, and Benjamin S. Morrell
of Taft Stettinius & Hollister LLP, Chicago, Illinois, and R. Todd Gaffney and
Joseph F. Moser of Finley Law, Des Moines, for appellee. 2
Mansfield, Justice.
I. Introduction.
A railroad worker committed suicide following months of alleged
harassment at work by his supervisor. Seeking wrongful death damages, the
administrator of his estate has filed suit against the railroad under the Federal
Employers’ Liability Act (FELA). FELA provides that
[e]very common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
45 U.S.C. § 51. Despite this broad language, the United States Supreme Court
has concluded that FELA generally incorporates common law limits as to
compensable injuries. See Consol. Rail v. Gottshall, 512 U.S. 532, 555 (1994).
Accordingly, and consistent with the common law of negligence as it exists in a
number of jurisdictions, the Supreme Court has allowed railroad employees to
recover for physical and emotional injuries, but only when there is physical
impact or “negligent conduct of their employers that threatens them imminently
with physical impact.” Id. at 556.
We conclude that the claim here does not fall within these boundaries. The
injuries suffered by the worker because of his supervisor’s harassment were
emotional injuries not tied to a physical impact or harm or a near impact or
harm. FELA does not provide coverage. Therefore, we affirm the district court’s
grant of summary judgment to the railroad. 3
II. Facts and Procedural History.
A. Background Facts.1 Phillip Morgan began working for the engineering
services track department at the Union Pacific Railroad Company in 1998 as a
welder. However, he later bid for and took a position as a welder helper because
he did not want to have the additional responsibilities that came with being a
welder. Both the welder helper and welder jobs required working in “red zones.”
According to Union Pacific’s rules, a red zone is “that area, within an arm’s length
of the track or any physical position, which places the employee in a life-
threatening situation.”
Still, during Phillip’s twenty years working within red zones, Phillip’s wife
Kera could recall only time when her husband reported a safety-related incident
to her. That was when a train passed on a parallel track as Phillip and his crew
were working. No one was injured then, and Kera could not remember when that
incident occurred.
A family man and a hard worker, Phillip did not have many outside
interests. Rather, he dedicated most of his time to his work at Union Pacific and
to being with his family. Phillip also raised calves with Kera on their land in
Mapleton. Kera recalls that while work loomed large in Phillip’s life, he never
brought his work problems home with him. This changed a few months prior to
his suicide. Kera recalled that she and her husband began spending their nights
discussing the difficulties he was having at work, especially with his supervisor
Michael Tomka. In addition to working for Union Pacific, Tomka had a military
background and served in the Army National Guard.
1Because this is an appeal from a grant of summary judgment, we recite the facts in the
light most favorable to the plaintiff, Kera Morgan. 4
According to Kera, Tomka had been bothering Phillip about shifting back
to being a full welder. She claims Tomka told Phillip, “We need you to be a soldier.
We need you to step up. We need you to become a welder again.” She also
maintains that Tomka would require Phillip’s crew to complete more welds than
they were safely able to complete and would harass Phillip about incomplete
work. On at least one occasion, Tomka required Phillip’s crew to weld from inside
a wind tent to avoid inadvertently starting a grass fire while welding. Phillip told
his wife this made him feel unsafe because he wasn’t able to see if a train might
be coming.
Phillip complained to Tomka about his working conditions, with little
effect. Instead, Tomka transferred Phillip’s crew to work in eastern Iowa. This
transfer occurred on April 30, 2018, and the change of locations lasted until mid-
July. Tomka’s stated reason for the transfer was that there was not enough work
in the western area for Phillip’s crew. However, at the same time Phillip’s crew
moved east, another crew moved west to do the same work.
This crew swap placed Phillip far from home, requiring him to make a
three-and-a-half-hour commute each way. According to Kera, around the time
this swap occurred, Phillip began having trouble sleeping. He was only getting
two to four hours of sleep each night. One of Phillip’s coworkers, Chris Gatton,
recalled that Tomka harassed their crew at work and focused his ire on Phillip
in particular. Several times Tomka took Phillip aside to talk to him, and each
time Phillip would return noticeably shaken. On one occasion when Gatton
asked Phillip what was wrong, Phillip answered that Tomka had threatened to
fire him.
Tomka’s supervision made life difficult for Phillip in other ways as well.
Phillip’s requests for compensation for the additional miles he had to drive to the 5
eastern Iowa work location were routinely denied. Kera stated that at one point
the company was two months behind on compensating him for mileage.
Benton Warnke, Phillip’s union representative, recalled that following the
crew swap, Phillip began acting “really beat down.” Phillip confided in Warnke
that Tomka was “messing with him.” On May 8, Warnke confronted Tomka, who
responded that Phillip “needs to bid the welder position.” When Warnke told
Tomka that he needed to stop pressuring Phillip so much, Tomka responded that
Free access — add to your briefcase to read the full text and ask questions with AI
In the Iowa Supreme Court
No. 23–1154
Submitted February 18, 2025—Filed April 25, 2025
Estate of Phillip Raymond Morgan, by administrator and personal representative, Kera Morgan,
Appellant,
vs.
Union Pacific Railroad Company, a Delaware corporation,
Appellee.
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
judge.
The administrator of the estate of a railroad worker who committed suicide
following workplace harassment by a supervisor appeals a district court’s
summary judgment ruling dismissing her claims under the Federal Employers’
Liability Act. Affirmed.
Mansfield, J., delivered the opinion of the court, in which Waterman,
McDermott, and May, JJ., joined. Oxley, J., filed a dissenting opinion, in which
McDonald, J., joined. Christensen, C.J., took no part in the consideration or
decision of the case.
Paul Slocomb (argued) of Blunt Slocomb, Ltd., St. Louis, Missouri, and
George F. Davison, Jr. of Law Office of George F. Davison, Jr., LC, Des Moines,
for appellants.
Jonathan B. Amarilio (argued), J. Timothy Eaton, and Benjamin S. Morrell
of Taft Stettinius & Hollister LLP, Chicago, Illinois, and R. Todd Gaffney and
Joseph F. Moser of Finley Law, Des Moines, for appellee. 2
Mansfield, Justice.
I. Introduction.
A railroad worker committed suicide following months of alleged
harassment at work by his supervisor. Seeking wrongful death damages, the
administrator of his estate has filed suit against the railroad under the Federal
Employers’ Liability Act (FELA). FELA provides that
[e]very common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
45 U.S.C. § 51. Despite this broad language, the United States Supreme Court
has concluded that FELA generally incorporates common law limits as to
compensable injuries. See Consol. Rail v. Gottshall, 512 U.S. 532, 555 (1994).
Accordingly, and consistent with the common law of negligence as it exists in a
number of jurisdictions, the Supreme Court has allowed railroad employees to
recover for physical and emotional injuries, but only when there is physical
impact or “negligent conduct of their employers that threatens them imminently
with physical impact.” Id. at 556.
We conclude that the claim here does not fall within these boundaries. The
injuries suffered by the worker because of his supervisor’s harassment were
emotional injuries not tied to a physical impact or harm or a near impact or
harm. FELA does not provide coverage. Therefore, we affirm the district court’s
grant of summary judgment to the railroad. 3
II. Facts and Procedural History.
A. Background Facts.1 Phillip Morgan began working for the engineering
services track department at the Union Pacific Railroad Company in 1998 as a
welder. However, he later bid for and took a position as a welder helper because
he did not want to have the additional responsibilities that came with being a
welder. Both the welder helper and welder jobs required working in “red zones.”
According to Union Pacific’s rules, a red zone is “that area, within an arm’s length
of the track or any physical position, which places the employee in a life-
threatening situation.”
Still, during Phillip’s twenty years working within red zones, Phillip’s wife
Kera could recall only time when her husband reported a safety-related incident
to her. That was when a train passed on a parallel track as Phillip and his crew
were working. No one was injured then, and Kera could not remember when that
incident occurred.
A family man and a hard worker, Phillip did not have many outside
interests. Rather, he dedicated most of his time to his work at Union Pacific and
to being with his family. Phillip also raised calves with Kera on their land in
Mapleton. Kera recalls that while work loomed large in Phillip’s life, he never
brought his work problems home with him. This changed a few months prior to
his suicide. Kera recalled that she and her husband began spending their nights
discussing the difficulties he was having at work, especially with his supervisor
Michael Tomka. In addition to working for Union Pacific, Tomka had a military
background and served in the Army National Guard.
1Because this is an appeal from a grant of summary judgment, we recite the facts in the
light most favorable to the plaintiff, Kera Morgan. 4
According to Kera, Tomka had been bothering Phillip about shifting back
to being a full welder. She claims Tomka told Phillip, “We need you to be a soldier.
We need you to step up. We need you to become a welder again.” She also
maintains that Tomka would require Phillip’s crew to complete more welds than
they were safely able to complete and would harass Phillip about incomplete
work. On at least one occasion, Tomka required Phillip’s crew to weld from inside
a wind tent to avoid inadvertently starting a grass fire while welding. Phillip told
his wife this made him feel unsafe because he wasn’t able to see if a train might
be coming.
Phillip complained to Tomka about his working conditions, with little
effect. Instead, Tomka transferred Phillip’s crew to work in eastern Iowa. This
transfer occurred on April 30, 2018, and the change of locations lasted until mid-
July. Tomka’s stated reason for the transfer was that there was not enough work
in the western area for Phillip’s crew. However, at the same time Phillip’s crew
moved east, another crew moved west to do the same work.
This crew swap placed Phillip far from home, requiring him to make a
three-and-a-half-hour commute each way. According to Kera, around the time
this swap occurred, Phillip began having trouble sleeping. He was only getting
two to four hours of sleep each night. One of Phillip’s coworkers, Chris Gatton,
recalled that Tomka harassed their crew at work and focused his ire on Phillip
in particular. Several times Tomka took Phillip aside to talk to him, and each
time Phillip would return noticeably shaken. On one occasion when Gatton
asked Phillip what was wrong, Phillip answered that Tomka had threatened to
fire him.
Tomka’s supervision made life difficult for Phillip in other ways as well.
Phillip’s requests for compensation for the additional miles he had to drive to the 5
eastern Iowa work location were routinely denied. Kera stated that at one point
the company was two months behind on compensating him for mileage.
Benton Warnke, Phillip’s union representative, recalled that following the
crew swap, Phillip began acting “really beat down.” Phillip confided in Warnke
that Tomka was “messing with him.” On May 8, Warnke confronted Tomka, who
responded that Phillip “needs to bid the welder position.” When Warnke told
Tomka that he needed to stop pressuring Phillip so much, Tomka responded that
Phillip “is a soldier and he needs to start stepping up to the plate and doing what
they want him to do, and then” things will get a “little more conven[ient] for him.”
Warnke also confronted Jason Cheney, Tomka’s supervisor, about why Tomka
had decided to swap the eastern and western crews, stating that the
arrangement “[w]asn’t making a lot of sense.” In mid-July, the decision was made
to reverse the swap and return the eastern Iowa and western Iowa crews back to
their original locations.
Even though Phillip resumed working closer to home, his mental state did
not improve. On July 24, Phillip left for work but did not arrive because he
decided to return home. He told Kera that “he could not go there. He could not
be there.” Kera was concerned; to her, Phillip looked “more frazzled than [she]
had ever seen him before.” She set up an appointment and brought him to see a
doctor that same day. Dr. Lynn Charrlin diagnosed Phillip with anxiety and
insomnia and prescribed him medication to relieve the symptoms from those
conditions. Dr. Charrlin also discussed the possibility of Phillip seeing a
counselor or psychiatrist for his problems, but Phillip declined. Around the same
time, union representative Warnke once again spoke with Tomka’s supervisor
Cheney about Phillip. Warnke told Cheney, “Phil’s got some -- there’s something
going on. We need to kinda get this guy some help because he’s not himself.” 6
On the evening of August 18, Kera thought that Phillip was acting
normally. He took his medications and went to bed. But at some point that night,
Phillip woke up, went to a hill overlooking his land, and ended his own life with
a firearm.
A psychiatric expert retained by Kera provided an opinion to a reasonable
degree of medical certainty that “Philip Morgan’s suicide was a direct result of
the stress and harassment he underwent for months at work culminating with
his self-inflicted gunshot wound on August 18, 2018.”
B. District Court Proceedings. Kera, as the personal representative and
administrator of Phillip’s estate, filed a petition in the Polk County District Court
against Union Pacific on July 22, 2021. She brought suit under FELA, which
covers claims by railroad employees against railroad companies for injuries
“resulting in whole or in part from the negligence” of the company’s officers,
agents, or employees. 45 U.S.C. § 51. Union Pacific moved for summary
judgment, arguing that FELA did not cover Phillip’s suicide due to workplace
harassment. The district court agreed and granted summary judgment. It
concluded that Phillip “clearly suffered an emotional injury caused at least in
some part by the stress of his job and supervisor. This emotional injury led to
anxiety, insomnia, and eventually Phillip’s tragic death.” However, the district
court held that because these injuries were the result of neither a physical
impact nor a narrowly escaped physical peril, they fell outside the scope of FELA.
Kera appealed that decision, and we retained the appeal.
III. Standard of Review.
“We review summary judgment rulings for correction of errors at law.”
Myers v. City of Cedar Falls, 8 N.W.3d 171, 176 (Iowa 2024) (quoting Feeback v.
Swift Pork Co., 988 N.W.2d 340, 346 (Iowa 2023)). “Summary judgment is proper 7
when the movant establishes there is no genuine issue of material fact and it is
entitled to judgment as a matter of law.” Id. (quoting Feeback 988 N.W.2d at
346). “We view the evidence in the light most favorable to the nonmoving party,
who is entitled to every legitimate inference that we may draw from the record.”
Id. (quoting Nelson v. Lindaman, 867 N.W.2d 1, 6–7 (Iowa 2015)).
IV. Analysis.
A. FELA. Kera brings this suit under FELA, which provides in relevant
part:
Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . , or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . .
45 U.S.C. § 51. “State courts have concurrent jurisdiction over FELA claims.”
Giza v. BNSF Ry., 843 N.W.2d 713, 715 n.1 (Iowa 2014).
FELA has been “liberally construed . . . to further Congress’ remedial
goal.” Gottshall, 512 U.S. at 543. For example, “[i]f negligence is proved . . . and
is shown to have ‘played any part, even the slightest, in producing the injury,’
then the carrier is answerable in damages even if ‘the extent of the [injury] or the
manner in which it occurred’ was not ‘[p]robable’ or ‘foreseeable.’ ” CSX Transp.,
Inc. v. McBride, 564 U.S. 685, 703–04 (2011) (second and third alterations in
original) (footnote omitted) (citation omitted) (first quoting Rogers v. Mo. Pac. R.R.,
352 U.S. 500, 506 (1957); and then quoting Gallick v. Balt. & Ohio R.R., 372 U.S.
108, 120–21, 120 n.8 (1963)). This is consistent with the broad causation
language in FELA—“resulting in whole or in part.” Id. at 703–05 (quoting 45
U.S.C. § 51). 8
B. The Gottshall Zone of Danger Test Under FELA. While FELA deviates
from the common law in certain respects, it is consistent with the common law
in others. Consolidated Rail v. Gottshall illustrates this point. 512 U.S. at 543–
44.
The lead plaintiff in Gottshall was a member of a railroad work crew
“assigned to replace a stretch of defective track on an extremely hot and humid
day.” Id. at 535. “The crew was under time pressure, and so the men were
discouraged from taking scheduled breaks.” Id. One worker collapsed, but the
supervisor told the crew to stop assisting him and to keep working. Id. at 536. A
few minutes later, that worker had a heart attack and died. Id. The supervisor
“ordered the men back to work, within sight of [the deceased worker’s] covered
body.” Id.
The entire experience left the plaintiff with deep psychological scars. Id.
The plaintiff “was admitted to a psychiatric institution, where he was diagnosed
as suffering from major depression and post-traumatic stress disorder.” Id. The
plaintiff lost a great deal of weight and suffered from suicidal preoccupations and
anxiety. Id. at 537. He continued to receive psychological treatment after his
discharge. Id.
The plaintiff sued the railroad under FELA seeking recovery for his
injuries. Id. But the federal district court granted summary judgment to the
railroad on the ground that “FELA did not provide a remedy for [the plaintiff’s]
emotional injuries.” Id. The United States Court of Appeals for the Third Circuit
reversed, but the Supreme Court in turn reversed the Third Circuit. Id. at 535,
537.
The Supreme Court also considered another lower court case in the same
opinion. Id. at 539. The second plaintiff worked as a train dispatcher. Id. He was 9
required to take on additional duties and work long hours. Id. “[The plaintiff] and
his fellow dispatchers frequently complained about safety concerns, the high
level of stress in their jobs, and poor working conditions.” Id. Following a
promotion that meant added responsibilities and more erratic hours, the plaintiff
“began to experience insomnia, headaches, depression, and weight loss.” Id.
Eventually, after an extended period of being required to work twelve- to
fifteen-hour shifts for weeks at a time, the plaintiff suffered a nervous
breakdown. Id.
The plaintiff sued the railroad under FELA and received a substantial jury
award of damages. Id. The Third Circuit affirmed. Id. And here too, the Supreme
Court reversed. Id. at 535.
Concerning both cases, the Supreme Court explained that FELA, subject
to qualifications in the statute, “is founded on common-law concepts of
negligence and injury.” Id. at 543 (quoting Urie v. Thompson, 337 U.S. 163, 182
(1949)).
Thus, although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis. Because FELA is silent on the issue of negligent infliction of emotional distress, common-law principles must play a significant role in our decision.
Id. at 544 (citation omitted). The Court highlighted that FELA is not “a workers’
compensation statute.” Id. at 543.
The Court noted that state courts, applying the common law, “have placed
substantial limitations on the class of plaintiffs that may recover for emotional
injuries and on the injuries that may be compensable.” Id. at 546.2 In particular,
2See Overturff v. Raddatz Funeral Servs., Inc., 757 N.W.2d 241, 245 (Iowa 2008) (“Absent
some physical injury to the plaintiff, emotional-distress damages are allowed only in a few situations where unique circumstances justify the imposition of such a duty on the defendant.”); 10
some states have applied a “physical impact” test, requiring that the plaintiff
seeking damages for emotional injuries for a negligent act “have
contemporaneously sustained a physical impact (no matter how slight) or injury
due to the defendant’s conduct.” Id. at 547. Other states have required that the
plaintiff either sustain a physical impact or be within “the zone of danger of
physical impact.” Id. at 547–48 (quoting Richard N. Peason, Liability to
Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature
of Arbitrary Rules, 34 U. Fla. L. Rev. 477, 489 (1982)). And still others allow
“bystanders” who witness the physical impact to recover in certain
circumstances. Id. at 548–49.
Expressing a concern that even genuine claims for emotional distress
could expose railroads to “unpredictable and nearly infinite liability,” the Court
held that the “zone of danger” test delineated the proper scope of the railroad’s
duty. Id. at 552–54. The Court concluded that “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 our FELA jurisprudence.” Id. at 557. The Court
specifically rejected the notion that FELA provides a remedy “for negligent
infliction of emotional distress arising from work-related stress.” Id. at 554
(quoting Carlisle v. Consol. Rail, 990 F.2d 90, 96 (3d Cir. 1993)).
Having adopted the zone of danger test for when a FELA plaintiff may
recover for emotional injuries, the court instructed the Third Circuit to enter
judgment in favor of the railroad on the second plaintiff’s “work-stress-related
Clark v. Est. of Rice, 653 N.W.2d 166, 170 (Iowa 2002) (“[L]ike most other jurisdictions, we have refused to recognize an independent claim for emotional distress based on negligence without some physical harm.”). Iowa has recognized a limited bystander exception. Clark, 653 N.W.2d at 170. It is available where the bystander was near the scene of the accident, was a close relative of the victim, and suffered serious emotional distress from witnessing the accident under a reasonable belief that the victim would be seriously injured or killed. Id. 11
claim.” Id. at 558. It remanded for further proceedings on whether the first
plaintiff’s claim—involving the plaintiff’s trauma from witnessing a nearby death
on a hot day—satisfied the zone of danger test. Id.
On remand, the railroad was successful in obtaining summary judgment
as to the first plaintiff’s case. Gottshall v. Consol. Rail, 56 F.3d 530, 535–36 (3d
Cir. 1995). While the Third Circuit found it somewhat unclear whether the
Supreme Court’s zone of danger test required an imminent threat of physical
impact or merely an imminent threat of physical harm, either way the plaintiff
fell outside the zone of danger. Id. at 534–35. No physical impact at all occurred
that day. Id. at 535. And while the coworker who died of a heart attack obviously
suffered physical harm, the plaintiff personally was never at immediate risk of
such harm. Id.
A few years after Gottshall, the Supreme Court reinforced these principles
when it turned down another railroad worker’s FELA claim. See Metro–North
Commuter R.R. v. Buckley, 521 U.S. 424, 426–27 (1997). That worker had been
negligently exposed to a carcinogen at work, but was seeking only emotional
distress damages and no symptoms of disease had emerged. Id. The Court noted
that Gottshall “recognized that the common law of torts does not permit recovery
for negligently inflicted emotional distress unless the distress falls within certain
specific categories that amount to recovery-permitting exceptions.” Id. at 429.
The Court applied Gottshall and common law precedents in rejecting the worker’s
claim. Id. at 430–36.
C. Applying Gottshall to This Case. On its face, our case does not appear
to meet Gottshall’s zone of danger test for FELA liability. “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 . . . .” Gottshall, 512 12
U.S. at 556. Phillip’s emotional injuries, however, resulted from an accumulation
of stress at work, due in large part to his supervisor’s mistreatment. There was
no physical impact or harm at the workplace, nor was Phillip within the zone of
danger of an actual or potential physical impact or harm.
Kera counters that her case is different from Gottshall, because suicide—
a self-inflicted death by gunshot—is clearly a physical injury. But to be precise
about it, Phillip sustained emotional injuries at work. Those injuries in turn had
physical consequences for Phillip, including the most serious consequence of
all—the taking of his own life. In that sense, what happened to Phillip is similar
in kind, although not in degree, to what happened to the Gottshall plaintiffs, who
were traumatized at work and thereafter suffered physical harms such as weight
loss, depression, and insomnia. Id. at 539.
In the present case, as in Gottshall, there wasn’t a direct physical impact,
physical harm, or threat of physical harm that occurred at the workplace. There
were emotional and psychological harms that then led to adverse physical effects
for the worker. And the Supreme Court has held that the worker cannot recover
in that situation unless the worker was in the zone of danger, which Phillip
wasn’t.
The Eighth Circuit’s decision in Crown v. Union Pacific Railroad illustrates
this point. 162 F.3d 984 (8th Cir. 1998). There the worker claimed that the
railroad required employees to work excessive hours, failed to install adequate
lighting, and ignored complaints about the poor working conditions. Id. at 985.
The worker alleged that he suffered severe workplace stress that led to extreme
weight gain, carpal tunnel syndrome, knee joint problems, cough syncope
syndrome, sleep apnea, diabetes, nicotine and alcohol addictions, and a nervous
breakdown requiring hospitalization. Id. Undoubtedly, these were serious 13
physical problems. Yet the Eighth Circuit affirmed summary judgment, holding
that
[d]espite his evidence of emotional and physical injuries, Crown has not shown that the railroad’s negligence caused him to suffer a physical impact or a risk of immediate physical harm as required by Gottshall . . . . Therefore, Crown has failed to show that he was within the zone of danger, which is an element essential to his recovery.
Id. at 986.
Fulk v. Norfolk Southern Railway provides a close factual parallel to the
present case. 35 F. Supp. 3d 749 (M.D.N.C. 2014). The worker in Fulk was a
safety inspector responsible for tagging defective or unsafe rail cars so they could
be taken out of use until repairs were complete. Id. at 752. The railroad
pressured the inspector not to tag cars and routinely removed the tags before
repairs were made. Id. Refusing to bow to this pressure, the inspector was then
subjected to “abusive intimidation, disciplinary threats, and job threats” and
received false disciplinary complaints that were “an attempt to terminate [him]
because he would not help violate [federal] regulations.” Id. at 752–53. Seven
days after the company made the false complaints, the inspector signed in to
work, walked out to the employee parking lot, and shot himself in the head. Id.
at 753.
Like Kera here, the plaintiffs in Fulk argued that a self-inflicted fatal
gunshot wound was a physical injury for FELA purposes. Id. at 756–57. The
federal district court disagreed, reasoning that the immediate injuries from the
company’s harassment and intimidation were emotional injuries which then had
a physical manifestation when the worker committed suicide. Id. The court
explained that “even severe mental or emotional injuries that lead to physical
manifestations are insufficient, on their own, to bring a claim within FELA.” Id. 14
at 756. The Fulk court therefore granted the railroad’s motion to dismiss as to
the FELA claim. Id. at 764–65.
In sum, we are not persuaded by Kera’s effort to distinguish Gottshall on
the ground that her case involves a physical as opposed to an emotional injury.
D. Arguments Based on the Literal Language of FELA. Kera argues that
FELA should be taken 100% literally. If someone suffers “injury” or “death” due
to the employer’s “negligence,” including the negligent infliction of emotional
distress, they should recover. 45 U.S.C. § 51. Truth be told, there is a Supreme
Court opinion that supports that view. However, it is the dissenting opinion in
Gottshall. In dissent, Justice Ginsburg wrote,
In my view, the Court of Appeals correctly determined that Gottshall’s submissions should survive Conrail’s motion for summary judgment, and that the jury’s verdict in favor of Carlisle should stand. Both workers suffered severe injury on the job, and plausibly tied their afflictions to Conrail’s negligence. Both experienced not just emotional, but also physical, distress: Gottshall lost 40 pounds and suffered from insomnia, physical weakness, and cold sweats, while Carlisle experienced “insomnia, fatigue, headaches, . . . sleepwalking and substantial weight-loss.”
Gottshall, 512 U.S. at 568 (Ginsburg, J., dissenting) (omission in original)
(quoting Carlisle, 990 F.2d at 92).
The Gottshall majority, by contrast, reasoned that “the common-law
background of this right of recovery must play a vital role in giving content to
the scope of an employer’s duty under FELA to avoid inflicting emotional injury.”
Id. at 551 (majority opinion). In the majority’s view, FELA incorporates the
common law zone of danger test, under which negligently inflicted emotional
distress resulting in physical harm is compensable only if the plaintiff first
suffered a physical impact or was in immediate risk of such an impact. Id. at
547–48. We are constrained to follow the Supreme Court majority opinion in
Gottshall. 15
Gottshall is not an outlier in Supreme Court jurisprudence. As the Court
has put it, “Statutory causes of action are regularly interpreted to incorporate
standard common-law limitations on civil liability . . . .” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 130 n.5 (2014).
Kera also argues that FELA treats emotional distress resulting in death
differently from nonfatal emotional distress. We see no basis for such a
distinction. FELA addressed injury and death separately because the wrongful-
death action did not exist at common law. See St. Louis, Iron Mountain, & S. Ry.
v. Craft, 237 U.S. 648, 655 (1915) (“By the common law the death of a human
being, although wrongfully caused, affords no basis for a recovery of damages,
and a right of action for personal injuries dies with the person injured.”).
Therefore, if the employee died in a workplace accident, it was necessary to
specify who could bring a FELA claim and for whose benefit. See id. at 657
(stating that 45 U.S.C. § 51 “provide[s] for two distinct rights of action: one in
the injured person for his personal loss and suffering where the injuries are not
immediately fatal, and the other in his personal representative for the pecuniary
loss sustained by designated relatives where the injuries immediately or
ultimately result in death”).
It then became apparent that FELA had a gap: what about damages for
the “personal loss and suffering” of the fatally injured employee prior to their
death? Id. at 656–57. The common law extinguished that cause of action as well.
Id. So, two years after 45 U.S.C. § 51 was enacted, 45 U.S.C. § 59 was added.
See St. Louis, Iron Mountain, & S. Ry., 237 U.S. at 657–58. It provides, “Any right
of action given by this chapter to a person suffering injury shall survive to his or
her personal representative . . . .” 45 U.S.C. § 59. This enables the personal
representative 16
to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other.
St. Louis, Iron Mountain, & S. Ry., 237 U.S. at 658.
Thus, Congress wrote FELA as it did to overcome common law limits on
legal standing when the injured party died, not to exempt parties from common
law limits on recovery for emotional distress. Certainly there is no language in
Gottshall to support a different view, and we are obligated to follow Gottshall.
As the Supreme Court put it in Gottshall, “The zone of danger test also is
consistent with FELA’s central focus on physical perils. We have recognized that
FELA was intended to provide compensation for the injuries and deaths caused
by the physical dangers of railroad work by allowing employees or their estates
to assert damages claims.” 512 U.S. at 555; see also id. at 555–56 (“FELA was
(and is) aimed at ensuring ‘the security of the person from physical invasions or
menaces.’ ” (quoting Lancaster v. Norfolk & W. Ry., 773 F.2d 807, 813 (7th Cir.
1985))).
E. Restatement (Second) of Torts Section 455. Alternatively, Kera
argues that suicide is sui generis and therefore not covered by the Gottshall
ruling. Kera relies on the Restatement (Second) of Torts section 455, which
states,
If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity
(a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or 17
(b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.
Restatement (Second) of Torts § 455, at 493 (Am. L. Inst. 1965). She also directs
our attention to the following illustration in section 455:
A negligently injures B. The injuries cause insanity which takes the form of suicidal mania. While suffering in this condition, B locks his door to prevent interference and cuts his throat with a knife which he has secreted and sharpened for that purpose. A’s negligence is the legal cause of B’s death or other harm resulting from his cutting his throat.
Id. cmt. c., illus. 3, at 494.
We question whether section 455 even creates a suicide exception to the
general rule that negligent conduct causing emotional injury is not compensable
unless there was physical impact, physical harm, or the threat of physical impact
or physical harm. Note that illustration 3 first requires a negligent injury, which
in context we believe refers to a negligent physical injury. The illustration states
that it is based on In re Sponatski, 108 N.E. 466 (Mass. 1915), a case where the
decedent received a splash of molten lead into his eye and then ultimately
became insane and took his own life. Id. at 466. Section 455 is part of a chapter
of the Restatement (Second) on legal cause, not duty, and is not replicated in the
Restatement (Third).
Kera cites three federal district court cases that recognized the possibility
of recovering under FELA for a suicide that could be traced to workplace stress
and mistreatment. See Delise v. Metro–N. R.R., 646 F. Supp. 2d 288, 291
(D. Conn. 2009) (denying summary judgment on a FELA suicide claim because
there was a fact issue whether the railroad’s negligent supervision played a part
in the decedent’s death and whether the suicide was the result of an
“uncontrollable impulse”); Halko v. N.J. Transit Rail Operations, Inc., 677 F. 18
Supp. 135, 142 (S.D.N.Y. 1987) (“[S]uicide is actionable under the FELA when
the suicide is committed in a state of insanity.”); Nelson v. Seaboard Coast Line
R.R., 398 So. 2d 980, 982 (Fla. Dist. Ct. App. 1981) (explaining that a FELA
suicide claim is permissible if the railroad’s negligence drove the employee
“beyond the point where he could rationally decide against killing himself”).
Of these cases, only Delise v. Metro–North Railroad was decided after
Gottshall. Delise’s discussion of the FELA claim is brief and does not mention
Gottshall. See Delise, 646 F. Supp. 2d at 291. That diminishes the value of Delise
for our purposes. The federal district court in Fulk had the same critique: “[T]he
[Delise] opinion offers very little in the way of specific facts and, in the absence
of any discussion about Gottshall, the opinion is not persuasive as to this case.”
Fulk, 35 F. Supp. 3d at 758.
Even if we assume that Restatement (Second) section 455 would not
require a prior physical injury, the section “is in some tension with Gottshall,
which requires plaintiffs to satisfy the zone of danger test for negligent infliction
of emotional distress claims.” Id. at 755 n.4. Hence, the Fulk court determined
that it did not need to consider section 455 because the Gottshall zone of danger
test controlled. Id. at 755. We are bound by Gottshall.
F. The “Red Zone” vs. the Zone of Danger. Finally, Kera argues that the
zone of danger test is met because Phillip, in fact, regularly worked in “red
zones.” But the “zone of danger” for FELA purposes and Union Pacific’s “red
zones” are two different things. Under the zone of danger test, the worker must
be within the area at risk of physical impact or physical harm when the impact
or near-impact occurs. Gottshall, 512 U.S. at 556 (“Railroad employees . . . will
be able to recover for injuries—physical and emotional—caused by the negligent
conduct of their employers that threatens them imminently with physical 19
impact.”). There is no evidence that this paradigm describes Phillip’s case. Phillip
suffered emotional trauma from harassment and stress, not from witnessing a
specific accident or a close call. In fact, Kera could recall Phillip telling her about
only one close call in his twenty-year career. This was when he and his crew were
working on one set of tracks and a train came down the adjacent set of tracks.
No one was hurt, and Kera had no recollection of when it occurred. There is no
showing that it bore an actual relationship to Phillip’s suicide, which Kera
attributes to Tomka’s ongoing harassment and the general stress of the job.
The term “red zone,” by contrast, is simply Union Pacific’s name for an
area where heightened safety precautions are necessary due to an elevated
degree of risk. Union Pacific welders and assistant welders regularly work in red
zones. “Red zone” does not refer to an actual incident of physical harm or impact
or near physical harm or impact. Thus, the fact that Phillip regularly worked in
“red zones” does not mean he was in the zone of danger for Gottshall purposes.
We take guidance from the Tenth Circuit’s decision in Smith v. Union Pacific
Railroad, 236 F.3d 1168 (10th Cir. 2000). There the Tenth Circuit applied
Gottshall in rejecting a railroad worker’s claim for emotional injuries that
included anxiety attacks, depression, and insomnia based on job stress. Id. at
1169–70. The court reasoned, “Under the zone of danger test, Mr. Smith’s claim
for his emotional injuries can survive only if he can show he was within the zone
of danger of some physical impact.” Id. at 1172. The court added,
Mr. Smith does not contend that any object or any employee at Union Pacific had a physical impact on him. Nor does he assert that he feared physical impact with an object because his erratic work schedule caused him to be drowsy during work hours. Indeed, Mr. Smith does not describe any accident at all.
Id. at 1173; see also Murphy v. Metro. Transp. Auth., 548 F. Supp. 2d 29, 46
(S.D.N.Y. 2008) (finding that an employer’s order to an employee to return to 20
work in a dangerous environment was insufficient for liability under the zone of
danger test); Tongret v. Norfolk & W. Ry., 980 F. Supp. 903, 907–08 (N.D. Ohio
1997) (holding that workplace threats and harassment, including a supervisor
putting the employee in a headlock, did not mean that the employee was in the
zone of danger for FELA purposes).
In sum, we believe Gottshall controls here and requires us to affirm the
district court’s grant of summary judgment.
V. Conclusion.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Union Pacific.
Affirmed.
Waterman, McDermott, and May, JJ., join this opinion. Oxley, J., files a
dissenting opinion, in which McDonald, J., joins. Christensen, C.J., takes no
part. 21
#23–1154, Morgan v. Union Pacific Railroad Co.
Oxley, Justice (dissenting).
Kera Morgan brought a Federal Employers’ Liability Act (FELA) claim for
wrongful death premised on her husband Phillip’s suicide, allegedly caused by
his employer’s negligence. In granting summary judgment, the district court first
characterized the claim as one for negligent infliction of emotional distress
subject to the “zone of danger test.” It then concluded that Phillip’s suicide was
not compensable because only “emotional damages that stem from actual
physical injuries suffered by an employee” are covered under the FELA. The
majority adopted this position to affirm summary judgment.
But Kera isn’t suing to recover for Phillip’s emotional or mental injuries.
She is suing for his death. I respectfully dissent.
I. Background of FELA Liability.
Before FELA was enacted [in 1908], the “harsh and technical” rules of state common law had “made recovery difficult or even impossible” for injured railroad workers. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 3, 84 S. Ct. 1113, 12 L. Ed. 2d 89 (1964). “[D]issatisfied with the [railroad’s] common-law duty,” Congress sought to “supplan[t] that duty with [FELA’s] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers [v. Mo. Pac. R.R.], 352 U.S. [500, 507 (1957)].
CSX Transp., Inc. v. McBride, 564 U.S. 685, 695 (2011) (second, third, fourth,
and fifth alterations in original). So, Congress passed FELA, under which:
Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . .
45 U.S.C. § 51. 22
This case requires us to determine the proper framework for considering
whether Phillip’s suicide could be covered by FELA. The United States Supreme
Court has repeatedly rejected attempts to limit the types of injuries to which
FELA liability can attach. In Urie v. Thompson, the Court rejected the Missouri
Supreme Court’s holding that a railroad was not liable to its employee who
contracted silicosis from breathing “silica dust blown or sucked into the cabs of
the locomotives on which he had worked” as a fireman for over thirty years. 337
U.S. 163, 166, 168, 196 (1949). Addressing the “novel” question of “whether
silicosis is an ‘injury’ ” under FELA, the Court held that “silicosis is within the
statute’s coverage when it results from the employer’s negligence.” Id. at 180.
In reaching that conclusion, the Court recognized “that, when the statute
was enacted, Congress’ attention was focused primarily upon injuries and death
resulting from accidents on interstate railroads.” Id. at 181. But even if
accidental injuries “were the major causes of injury and death resulting from
railroad operations, . . . [they] were not the only ones likely to occur.” Id. Looking
to the language of FELA, the Court concluded that industrial diseases were also
covered, explaining:
The language is as broad as could be framed . . . . On its face, every injury suffered by any employee while employed by reason of the carrier’s negligence was made compensable. The wording was not restrictive as to the employees covered; the cause of injury, except that it must constitute negligence attributable to the carrier; or the particular kind of injury resulting.
Id.
Forty-five years later, the question of whether FELA covers mental injuries
arose in Consolidated Rail v. Gottshall, 512 U.S. 532, 542 (1994) (“Our task today
is determining under what circumstances emotional distress may constitute
‘injury’ resulting from ‘negligence’ for purposes of the statute.”); see also id. at 23
544 (“[A] definitional point should be clarified at the outset. The injury we
contemplate when considering negligent infliction of emotional distress is mental
or emotional injury . . . .” (citation omitted)). The Court concluded the answer
was “an easy one”—yes, FELA covers mental injuries as well as physical ones.
Id. at 550. In reaching that conclusion, the Court again first “look[ed] to FELA
itself” and then “consider[ed] the common law’s treatment of the right of recovery
asserted by respondents.” Id. at 541–42.
The right to recover emotional distress damages “was recognized in some
form by many American jurisdictions at the time FELA was enacted” and was
“nearly universally recognized among the States” when Gottshall was decided. Id.
at 550. Given this then-current state of the common law, the Court saw “no
reason why emotional injury should not be held to be encompassed within th[e]
term [‘injury’], especially given that ‘severe emotional injuries can be just as
debilitating as physical injuries.’ ” Id. (quoting Gottshall v. Consol. Rail, 988 F.2d
355, 361 (3d Cir. 1993)).
That said, “[n]o jurisdiction . . . allow[ed] recovery for all emotional harms,
no matter how intangible or trivial, that might be causally linked to the
negligence of another.” Id. at 545 (recognizing that “a variety of policy
considerations” supported the limitations). So, the common law placed
“significant limitations, taking the form of ‘tests’ or ‘rules’ ” on the right to recover
emotional distress damages. Id. The limitations helped avoid “the very real
possibility of nearly infinite and unpredictable liability for defendants” by limiting
the class of plaintiffs who could recover for emotional injuries and the injuries
that were compensable. Id. at 546.
It was within this context that the Court considered the three theories of
liability then recognized for a claim for negligent infliction of emotional distress: 24
the “physical impact” test, the “zone of danger” test, and the “relative bystander”
test. Id. at 546–48. The relative bystander test had been extended beyond the
direct bystander, and the Court was concerned that “any Conrail employees who
heard or read about the events surrounding [their coworker’s] death could also
foreseeably have suffered emotional injury as a result.” Id. at 553. So, the Court
concluded that the zone of danger test was a better fit for applying FELA liability
while avoiding “unlimited and unpredictable liability.” Id. at 557; see also Norfolk
& W. Ry. v. Ayers, 538 U.S. 135, 146 (2003) (describing the Court’s concern in
Gottshall: “that uncabined recognition of claims for negligently inflicted
emotional distress would ‘hol[d] out the very real possibility of nearly infinite and
unpredictable liability for defendants’ ” (alteration in original) (quoting Gottshall,
512 U.S. at 546)).
Gottshall’s approach—looking to the common law to help define the extent
of a railroad’s liability for its negligent acts—followed from what the Court had
earlier said in Kernan v. American Dredging Co., 355 U.S. 426 (1958). “[I]nstead
of a detailed statute codifying common-law principles, Congress saw fit to enact
a statute of the most general terms, thus leaving in large measure to the courts
the duty of fashioning remedies for injured employees in a manner analogous to
the development of tort remedies at common law.” Id. at 432. In writing the
statute as it did, Congress expressed a clear intent “to provide liberal recovery
for injured workers.” Id. Further, Congress did not create a “static remedy, but
one which would be developed and enlarged to meet changing conditions and
changing concepts of [the] industry’s duty toward its workers.” Id.; see also
Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 570 (1987) (“In short,
the question whether one can recover for emotional injury may not be susceptible
to an all-inclusive ‘yes’ or ‘no’ answer. As in other areas of law, broad 25
pronouncements in this area may have to bow to the precise application of
developing legal principles to the particular facts at hand.”).
These Supreme Court precedents reveal the following relevant points:
(1) FELA liability is intended to broadly apply to injuries or death caused by a
railroad’s negligence; (2) courts have a “duty of fashioning remedies for injured
employees in a manner analogous to the development of tort remedies at
common law,” Kernan, 355 U.S. at 432; (3) FELA remedies are not trapped in
amber, but should “be developed and enlarged to meet changing conditions and
changing concepts of [the] industry’s duty toward its workers,” id.; and (4) the
Court has repeatedly rejected attempts to limit the types of injuries compensable
under FELA.
II. Death by Suicide Is Not Governed by the Gottshall Zone of Danger Test. The majority starts with the foregone conclusion that Kera’s claim must fit
within Gottshall’s zone of danger test to be compensable under FELA. But
Gottshall did not involve a suicide. Rather, it involved the very different question
of whether an emotional or mental injury was an “injury” for FELA purposes.
Having concluded that it is, the Court then set out to determine the scope of the
employer’s liability for a mental injury, settling on the zone of danger test among
the three tests then recognized at common law to identify when damages for
emotional distress injuries are recoverable.
The majority reasons that suicide is merely a physical manifestation, or
physical consequence, of what is really an emotional injury. In the majority’s
view, taking one’s life is just the most serious of such consequences, and Phillip’s
suicide merely followed from the emotional injuries he suffered at work. So, the
reasoning goes, his death is really only an emotional injury. The majority
analogizes Phillip’s death to the physical manifestations identified in Gottshall, 26
such as nausea, weight loss, and insomnia, 512 U.S. at 536–37, or the weight
gain, carpal tunnel syndrome, knee joint problems, cough syncope syndrome,
sleep apnea, and diabetes identified in Crown v. Union Pacific Railroad, 162 F.3d
984, 985 (8th Cir. 1998), as the symptoms an employee manifested from
stressful working conditions. The majority finds significance in the fact that
Gottshall and Crown both involved “serious physical problems,” yet the courts in
those cases still applied the zone of danger test to preclude recovery.
But that reasoning ignores the fact that the employees in Gottshall and
Crown sought to recover damages for emotional distress, not for the related
physical injury. The “physical problems” were relevant in those cases only
because a manifestation of physical symptoms is generally a prerequisite for
awarding emotional distress damages under a negligent infliction of emotional
distress claim. See Gottshall, 512 U.S. at 544 (“The injury we deal with here is
mental or emotional harm (such as fright or anxiety) that is caused by the
negligence of another and that is not directly brought about by a physical injury,
but that may manifest itself in physical symptoms.”); see also Sawyer Bros. v.
Island Transporter, LLC, 887 F.3d 23, 39–40 (1st Cir. 2018) (“Whether the
physical consequences requirement applies to NIED claims under the general
maritime law is a matter of some disagreement among the federal courts.” (citing
Tassinari v. Key West Water Tours, L.C., 480 F. Supp. 2d 1318, 1321–22
(S.D. Fla. 2007), as collecting cases)).
But once liability under a claim for negligent infliction of emotional distress
is established, the damages award is based on compensation for the emotional
injuries, not the physical manifestations. See Sawyer Bros., 887 F.3d at 41
(affirming $50,000 awards for emotional distress under general maritime law to
each of two individuals who were inside construction vehicles on a ferry when 27
high waves caused their vehicles to tip over on the ferry where each suffered
minor physical symptoms to support the emotional distress claim but neither
suffered significant physical injuries that would justify a $50,000 award). In
other words, a claim for negligent infliction of emotional distress is a claim that
seeks to recover for the mental injuries; the physical manifestations merely serve
to corroborate the existence of the emotional distress injuries and avoid the
concern identified in Gottshall of “the very real possibility of nearly infinite and
unpredictable liability for defendants.” 512 U.S. at 546.
None of these cases address the separate and distinct issue of whether
death by suicide is covered by FELA. This discussion highlights the importance
of analyzing the plaintiff’s claim for damages. See id. at 541–42 (considering “the
common law’s treatment of the right of recovery asserted by respondents”
(emphasis added)). Critically here, Kera does not seek damages for the emotional
distress Phillip suffered, as she points out from the fact that she did not bring a
survivor’s claim under 45 U.S.C. § 59 (“Any right of action given by this chapter
to a person suffering injury shall survive to his or her personal representative
. . . .”). She is seeking damages for Phillip’s death. Whether Phillip was within
the zone of danger under the Gottshall test is simply irrelevant to this very
different claim.
Nor does the majority’s concern that FELA is not a workers’ compensation
insurance statute bring it within Gottshall’s framework. When the Court said
FELA’s liberal construction did not make it “a workers’ compensation statute,”
Gottshall, 512 U.S. at 543, the Court was distinguishing between strict liability,
which applies to insurers under such statutes, and liability for negligence, which
is what triggers FELA liability, see id. (“We have insisted that FELA ‘does not
make the employer the insurer of the safety of his employees while they are on 28
duty. The basis of his liability is his negligence, not the fact that injuries occur.’ ”
(quoting Ellis v. Union Pac. R. Co., 329 U.S. 649, 653 (1947))). Recognizing that
FELA can provide coverage for an employee’s suicide does not make it a workers’
compensation statute—so long as the negligence element is maintained. In other
words, FELA’s requirement that recovery is allowed only when the employer’s
negligence causes the employee’s injury or death is what keeps it from becoming
a workers’ compensation statute. Limiting its remedies to exclude suicides does
not.
The Court’s most recent case addressing the extent of FELA liability
reinforces that its statutory language provides broad coverage, contrary to the
majority’s extension of Gottshall beyond its reach. “The charge proper in FELA
cases . . . simply tracks the language Congress employed, informing juries that
a defendant railroad caused or contributed to a plaintiff employee’s injury if the
railroad’s negligence played any part in bringing about the injury.” McBride, 564
U.S. at 688. The Court found support for its broad reading directly from
Gottshall: “Given the breadth of the phrase ‘resulting in whole or in part from the
[railroad’s] negligence,’ and Congress’ ‘humanitarian’ and ‘remedial goal[s],’ we
have recognized that, in comparison to tort litigation at common law, ‘a relaxed
standard of causation applies under FELA.’ ” Id. at 691–92 (alteration in original)
(quoting Gottshall, 512 U.S. at 542–43).
Our focus should be on liability for a suicide, not liability for emotional
distress. See, e.g., Burdett v. Harrah’s Kan. Casino Corp., 311 F. Supp. 2d 1166,
1178–79 (D. Kan. 2004) (noting that the “purpose of the physical injury rule” as
a prerequisite to a negligent infliction of emotional distress claim “is to guard
against fraudulent or exaggerated claims” and that the rule “recognizes that
emotional distress is a common experience in life and is usually trivial” before 29
rejecting out of hand the argument that suicide by “asphyxiation which results
in death is not a physical injury to the individual who experiences it,” aptly
observing that “the contrary position would be inarguable”). Death by suicide is
simply not a mental injury governed by Gottshall.
III. Applying the Proper Suicide Framework.
The majority dismisses Kera’s argument that Gottshall does not govern a
claim for death from suicide under FELA by relying on the one district court case
that has rejected such a claim, Fulk v. Norfolk Southern Ry., 35 F. Supp. 3d 749
(M.D.N.C. 2014). But Fulk started with the same foregone conclusion as the
majority—that recognizing liability for a suicide is in “tension with Gottshall,
which requires plaintiffs to satisfy the zone of danger test for negligent infliction
of emotional distress claims.” Id. at 755 n.4. This reliance is circular. Kera argues
Gottshall does not apply because it did not involve a suicide—essentially, death
is different than an emotional injury. The majority responds by saying no it’s not,
see Gottshall. But that assumes the answer to the question.
Before Gottshall, courts had recognized that an employer could be liable
for an employee’s suicide under FELA. See Halko v. N.J. Transit Rail Operations,
677 F. Supp. 135, 141–42 (S.D.N.Y. 1987) (denying summary judgment on a
FELA claim for employee’s suicide based on evidence showing that the railroad
“was aware of the character and propensities of various supervisors” who preyed
on the employee and holding that “the question of whether the state of mind led
to an uncontrollable impulse is far from clear and therefore is for a jury to
determine”); Nelson v. Seaboard Coast Line R.R., 398 So. 2d 980, 982 (Fla. Dist.
Ct. App. 1981) (holding that an employer may “be liable for the suicide of the
deceased” employee if it was “shown that the negligent act of the employer drove
the deceased beyond the point where he could rationally decide against killing 30
himself” and admitting suicide note as “evidence of that state of mind”); see also
Marazzato v. Burlington N. R.R., 817 P.2d 672, 674–75 (Mont. 1991) (recognizing
that suicide could give rise to FELA liability but granting summary judgment
where “there [wa]s no suggestion of any kind in any of the evidence submitted to
the Court that would give rise to a finding of foreseeability with respect to a
suicide arising from the use of [a rubber room], by any of the employees, or by
this specific employee” (second alteration in original)).
Fulk and Delise v. Metro–North Railroad are the only post-Gottshall cases
involving a FELA claim premised on an employee’s suicide. See Fulk, 35 F. Supp.
3d at 756 (“Having found that the zone of danger test applies to Plaintiffs’ FELA
claim, this court finds that the Complaint does not satisfy that test.”); Delise,
646 F. Supp. 2d 288, 291 (D. Conn. 2009) (denying summary judgment on a
FELA suicide claim because “genuine issues exist as to whether negligent
supervision by [the railroad] played a part in [the employee’s] death, and as to
whether [the employee’s] suicide was the result of an ‘uncontrollable impulse’ ”).
The majority rejects Delise in favor of Fulk because Fulk follows Gottshall while
Delise doesn’t mention it. But it might be that the Delise court didn’t mention
Gottshall for the very reason that Gottshall did not involve a suicide—and
therefore had no bearing on the case before it.
Finally, the majority summarily rejects Kera’s argument that the common
law recognizes liability for the suicide of another, including, inter alia, under the
Restatement (Second) of Torts section 455, which addresses a narrow exception
to the suicide rule. The majority concludes that the Restatement (Second)’s
exception to the suicide rule relies on a lack of causation rather than duty and
notes that the provision is not replicated in the Restatement (Third) of Torts. 31
But the majority fails to recognize the modern trend away from a strict
application of the suicide rule and away from the Restatement (Second) of Torts
section 455’s narrow exception that allows recovery only when the plaintiff
commits suicide while in a state of delirium or insanity. See Alex B. Long,
Abolishing the Suicide Rule, 113 Nw. U. L. Rev. 767, 820 (2019) [hereinafter Long]
(“Courts should also abolish the rage or frenzy/delirium or insanity exception to
the standard suicide rule. The exception is a relic from a time when suicide was
not well understood, when societal attitudes on the subject were quite different,
and when suicide remained a crime.”). Modern cases apply more general
causation standards focusing on foreseeability to claims involving liability for the
suicide of another. See Wickersham v. Ford Motor Co., 853 S.E.2d 329, 332
(S.C. 2020) (“South Carolina courts apply traditional proximate cause principles
in analyzing whether a particular plaintiff can recover for wrongful death from
suicide.”); Cotten v. Wilson, 576 S.W.3d 626, 639–47 (Tenn. 2019) (reviewing the
history of the suicide rule in Tennessee, rejecting the argument that conduct had
to fit one of the “common exceptions to the suicide rule,” and concluding “that
‘the touchstone is foreseeability, not whether a given case fits into a previously
carved-out exception’ ” (quoting Ramsey v. Cocke County, No. E2016–02145–
COA–R3–CV, 2017 WL 2713213, at *6 (Tenn. Ct. App. Mar. 23, 2017))); see also
Long, 113 Nw. U. L. Rev. at 767 (discussing the “trend among court decisions
away from singling out suicide cases for special treatment and toward an
analytical framework that more closely follows traditional tort law principles”); 1
Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 33 cmt. e.,
at 564–65, cmt. e., illus. 2, at 565 (Am. L. Inst. 2010) (explaining that an
intentional tortfeasor can be liable for another’s suicide even if it was an
unintended harm). This modern trend away from tightly circumscribed 32
exceptions to the suicide rule is a better explanation for section 455’s
disappearance from the Restatement (Third) of Torts.
I believe federal courts would consider Kera’s request that we look to
modern cases addressing liability for the suicide of another in determining
whether her FELA claim survives summary judgment. See Kernan, 355 U.S. at
432 (explaining that FELA damages should “be developed and enlarged to meet
changing conditions and changing concepts of [the] industry’s duty toward its
workers”); see also Delise, 646 F. Supp. 2d at 291 (noting that “genuine issues
exist as to whether negligent supervision by [the employer] played a part in
Mr. Delise’s” suicide to reject summary judgment on a FELA claim); Fuller v.
Preis, 322 N.E.2d 263, 266 (N.Y. 1974) (“[R]ecovery for negligence leading to the
victim’s death by suicide should perhaps, in some circumstances, be had even
absent proof of a specific mental disease or even an irresistible impulse provided
there is significant causal connection.” (citations omitted)). “[T]he more recent
trend [and better rule] is to place less emphasis on the mental state and more
on the causal connection.” Kivland v. Columbia Orthopaedic Grp., LLP, 331
S.W.3d 299, 308 (Mo. 2011) (en banc) (alterations in original) (quoting Halko,
677 F. Supp. at 142).
Under this modern view, the concern with imposing liability for negligence
that leads to another’s suicide turns on foreseeability. See Patton v. Bickford, 529
S.W.3d 717, 731–34 (Ky. 2016) (“We . . . conclude that when the anxiety or
torment of bullying is shown to have been a substantial factor in causing death
by suicide, the resulting suicide is not a superseding intervening event which
bars a victim’s estate from prosecuting a wrongful death claim.”); Kivland, 331
S.W.3d at 309–10 (“A plaintiff can show that the defendant’s negligence was the
proximate cause of the decedent’s suicide by presenting evidence that the 33
decedent’s suicide was the ‘natural and probable consequence’ of the injury he
suffered at the hands of the defendant. . . . [T]he testimony of Dr. Jarvis, if
admissible, meets the proximate cause requirement. The burden, as usual, is
still on the plaintiff to prove causation to the jury.”); Spring v Allegany-Limestone
Cent. Sch. Dist., 200 N.Y.S.3d 594, 597–99 (App. Div. 2023) (denying summary
judgment to a principal and teacher who were made aware of bullying against a
student who died by suicide); see also Wickersham v. Ford Motor Co., 997 F.3d
526, 533–34 (4th Cir. 2021) (“But ‘[i]n cases involving wrongful death from
suicide, [South Carolina] courts have consistently decided legal cause as a
matter of law.’ Accordingly, the district court must first decide whether
Wickersham’s suicide was ‘unforeseeable as a matter of law.’ If not, ‘the jury
must consider foreseeability’ as well as causation-in-fact.” (alterations in
original) (citations omitted) (quoting Wickersham, 853 S.E.2d at 332–33)).
Construing the record here in the light most favorable to Kera as the
nonmoving party, Kera presented evidence of bullying and harassment by
Michael Tomka that Tomka’s supervisor failed to address. Tomka specifically
targeted and harassed Phillip. He pushed Phillip to bid back into the more
stressful welder position, and when Phillip refused, Tomka threatened to fire him
and “ma[de] comments about going to jail.” He retaliated against Phillip by
sending his crew to the eastern part of the state, requiring Phillip to commute
three hours each way to work. And the railroad was aware of the harassing
behavior. When Phillip’s union representative, Benton Warnke, first confronted
Tomka, telling him to stop pressuring Phillip so much, Tomka responded that
Phillip “is a soldier and he needs to start stepping up to the plate and doing what
they want him to do, and then” things will get a “little more conven[ient] for him.”
Warnke then went to Tomka’s supervisor, Jason Cheney, telling him that 34
Tomka’s treatment of Phillip was pushing him close to the edge: “We need to
kinda get this guy some help because he’s not himself.”
And Kera presented an expert whose opinion provided sufficient
foreseeability to send the issue to a jury:
Based on my review of the above materials it is my opinion to a reasonable degree of medical certainty that Phillip Morgan’s suicide was a direct result of the stress and harassment he underwent for months at work culminating with his self-inflicted gunshot wound on August 18, 2018. I concur with Dr. Charrlin’s diagnosis of anxiety and insomnia. Unfortunately, both of these symptoms continued to worsen after his July 24, 2018 visit with Dr. Charrlin. It is well documented in the literature that chronic insomnia as well as anxiety can lead to a psychotic type state and be associated with self-harm behaviors.
My review of the materials you provided, particularly his coworkers and wife’s description of his personality traits strongly suggests that Mr. Morgan was a mission driven, ethical family man with a highly developed sense of responsibility and duty. Unfortunately, these somewhat rigid personality traits did not serve him well when confronted with the persistent harassment, bullying and threats he endured by primarily from Mr. Tomka. The tragic end result of these actions was unfortunately almost predictable.
. . . . Putting increased pressure on a gentleman who has already been recognized by his supervisors and coworkers to be “not himself” is in effect a disaster waiting to happen.
In summation, it is my opinion to a reasonable degree of medical certainty that Phillip Morgan’s suicide was directly caused by the harassment, bullying and pressure he endured from his supervisor in the weeks and months leading up to his demise.
These facts of bullying and harassment reveal that Tomka did much more
than create a stressful working environment by not hiring more people or by
demanding long hours in generally dangerous conditions, taking this case
outside the “unprecedented holding” discussed in Gottshall that would
“dramatically expand employers’ FELA liability to cover the stresses and strains
of everyday employment.” 512 U.S. at 554. The summary judgment record 35
should get Kera’s case to a jury. See Patton, 529 S.W.3d at 731–34; Kivland, 331
S.W.3d at 309–10; Spring, 200 N.Y.S.3d at 597–99.
The evidence might not convince a jury that Phillip’s death “result[ed] in
whole or in part from the negligence of any of the officers, agents, or employees”
of Union Pacific. 45 U.S.C. § 51. But the majority’s opinion that short-circuits
the broad framework for FELA liability put in place by Congress ensures the jury
will never get the chance. I respectfully dissent.
McDonald, J., joins this dissent.
Related
Cite This Page — Counsel Stack
Estate of Phillip Raymond Morgan, by Administrator, Personal Representative, Kera Morgan v. Union Pacific Railroad Company, a Delaware corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-phillip-raymond-morgan-by-administrator-personal-iowa-2025.