Norfolk Southern Railway Co. v. Everett

682 S.E.2d 621, 299 Ga. App. 420, 2009 Fulton County D. Rep. 2406, 2009 Ga. App. LEXIS 786
CourtCourt of Appeals of Georgia
DecidedJuly 7, 2009
DocketA09A0003
StatusPublished
Cited by8 cases

This text of 682 S.E.2d 621 (Norfolk Southern Railway Co. v. Everett) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk Southern Railway Co. v. Everett, 682 S.E.2d 621, 299 Ga. App. 420, 2009 Fulton County D. Rep. 2406, 2009 Ga. App. LEXIS 786 (Ga. Ct. App. 2009).

Opinions

Doyle, Judge.

In this action under the Federal Employers’ Liability Act (“FELA”), Norfolk Southern Railway Company appeals the trial court’s denial of its motion for summary judgment on Michael Everett’s claim for emotional damages arising out of a train derailment and collision into a building. Because the trial court correctly concluded that Everett was within the zone of danger caused by the derailment, we affirm.

[421]*421Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “In reviewing the grant of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmo-vant.”1

Viewed in favor of Everett, the evidence shows that on March 6, 2006, Everett was employed as an engineer for Norfolk Southern and was tasked with moving a six-car train filled with auto parts down an incline into the Ford Hapeville auto plant. Assisted by two other Norfolk Southern employees standing on the outside of the leading railroad car, Everett operated the locomotive that pushed the cars toward the Ford plant. One of the employees misinformed Everett that the train derailment device was in the “off’ position when in fact it was in the “on” position. Acting at the direction of his supervisor, Everett moved the train forward, and, due to the position of the derailment device, the cars began derailing about 150 feet from the plant’s entrance. The derailed cars continued toward the plant, and the train’s emergency brakes immediately activated. Everett, assuming that the train had derailed, quickly applied the engine brakes. Before the train came to a complete stop, it traveled approximately 300 feet from the point ,of derailment, causing a total of three of the train’s six cars to derail, with two of those cars crashing into the Ford plant, setting off a fire alarm light and the building’s fire sprinklers. Everett was “slightly pulled” in his seat during the incident but suffered no physical injury.

Everett made unanswered radio calls to the two other employees and waited in the locomotive until someone came to him and announced the derailment and that no one had been hurt. When Everett went home, he experienced severe emotional distress from the incident, resulting in his temporary hospitalization. He has not been able to return to work.

Everett sued Norfolk Southern under FELA (45 USC § 51), alleging a claim for negligent infliction of mental distress. Everett has testified that during the incident, he became frightened that if the train did not stop, he and his co-workers might be killed through fire, through the building collapsing on them, through the train turning over, or through the train’s fuel tanks becoming compromised and exploding. Three physicians have testified that the incident severely depressed Everett, resulting in nightmares, panic [422]*422attacks, loss of weight, difficulty sleeping, an irritable and angry disposition, and suicidal ideations. Norfolk Southern moved for summary judgment, which the trial court denied. With leave of this court, Norfolk Southern has appealed.

As explained by the United States Supreme Court in Consolidated Rail Corp. v. Gottshall,2

FELA was intended to provide compensation for the injuries and deaths caused by the physical dangers of railroad work. ... By imposing liability, FELA presumably also was meant to encourage employers to improve safety measures in order to avoid those claims. . . . [W]hile the statute may have been primarily focused on physical injury, it refers simply to “injury,” which may encompass both physical and emotional injury.3

When evidence of negligence is shown, “a relaxed standard of causation applies,” and the United States Supreme Court “has interpreted the Act’s language ‘liberally’ in light of its humanitarian purposes” and remedial goal.4

Interpreting FELA, the Court in Gottshall explained that a plaintiff may pursue a cause of action for negligent infliction of mental distress based on the “zone of danger” test:

the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, those within the zone.of danger of physical impact can recover for fright, and those outside of it cannot.5

In its order denying Norfolk Southern’s motion for summary judgment, the trial court stated that it “cannot say that [Everett] was not within the zone of danger or that the fears experienced by plaintiff of fire or complete derailment were unreasonable under the circumstances.”

Under federal law, “[wjhether an employee’s claim satisfies the zone of danger test is a legal question, which [an appellate court] [423]*423review[s] de novo.”6 We will therefore review de novo whether the evidence (construed in favor of Everett) shows that either aspect of the zone of danger test is met.

The first aspect of the zone of danger test is whether Everett sustained a physical impact as - a result of Norfolk Southern’s negligent conduct. Nelson v. Metro-North Commuter R., supra, held that “an event cannot constitute a physical impact, even if it entails contact, unless it has a physically harmful effect on the body. . . ,”7 Thus, a train engineer who experiences a “jolt of the movement of the cars in the train” caused by the train hitting another railroad car and crushing an employee between those cars “is insufficient.”8

Here, there was no physically harmful effect on Everett resulting from a physical impact. Everett was “slightly pulled,” but this slight sensation of pulling was insufficient to constitute the physical impact required to meet the first aspect of the zone of danger test.

Nevertheless, with respect to the second aspect of the zone of danger test, i.e., whether the event placed him in “immediate risk of physical harm,”9 Everett did make a showing sufficient to survive summary judgment. The zone of danger inquiry is necessarily fact-based, and there are few, if any, cases directly addressing a scenario similar to the one presented here. In light of the facts of this case, however, we conclude that the trial court correctly ruled that Everett was placed in immediate risk of physical harm by the train derailment and building collision. Everett was the engineer of a six-car train when three of the cars derailed and two cars crashed into a building, activating a fire alarm and sprinklers. There is competent evidence that the derailment and collision were a direct result of misinformation from a co-worker that it was safe for Everett to proceed. This is precisely the type of physical danger posed by railroad work that FELA was intended to address.

For example, in Lukowski v. CSX Transp.,10 the court addressed a train collision with a truck and stated (in dicta) that the plaintiffs were

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Cite This Page — Counsel Stack

Bluebook (online)
682 S.E.2d 621, 299 Ga. App. 420, 2009 Fulton County D. Rep. 2406, 2009 Ga. App. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-southern-railway-co-v-everett-gactapp-2009.