Norfolk Southern Railway Co. v. Everett

721 S.E.2d 591, 313 Ga. App. 345, 2011 Fulton County D. Rep. 4043, 2011 Ga. App. LEXIS 1086

• Court: Court of Appeals of Georgia
• Decided: December 1, 2011
• Docket: A11A0951
• Status: Published

Opinions

Ellington, Judge.

In this suit under' the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., Norfolk Southern Railway Company (“Norfolk Southern”) appeals from the final judgment and jury verdict in favor of Michael Everett on his negligence suit for emotional damages arising out of a train derailment and collision into a commercial building. Norfolk Southern contends that the trial court erred in granting Everett’s motion in limine concerning the “zone of danger” test, in denying Norfolk Southern’s motion for a directed verdict, and in refusing to give certain jury charges. Because the trial court’s ruling on the motion in limine erroneously removed from the jury’s consideration an essential element of the plaintiffs case, the judgment must be vacated and this case remanded for a new trial.

1. Norfolk Southern contends that the trial court erred in granting Everett’s pretrial motion in limine on the issue of whether Everett was within the zone of danger. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). The undisputed facts relevant to the resolution of this question of law are as follows.

This is the second appearance of this case before us. In Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420 (682 SE2d 621) (2009) (“Norfolk I”), we affirmed an order of the trial court denying Norfolk Southern’s motion for summary judgment on Everett’s FELA claim. Specifically, we held that the trial court correctly found that Everett had presented sufficient evidence from which a reasonable factfinder might conclude that he was within the zone of danger, a legal prerequisite for a finding of liability in a negligent infliction of emotional distress case. As the plaintiff presented sufficient evidence demonstrating a disputed issue of material fact, we held that the trial court correctly denied Norfolk Southern’s motion for summary judgment. Id. at 425-426.

The facts of this case were summarized in Norfolk I as follows:

[O]n 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.

(Punctuation omitted.) Id. at 421.

In Norfolk I, we set forth the law applicable to the zone of danger test, id. at 421-423, which we reiterate here. Negligent infliction of emotional distress is a cognizable claim under FELA. Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 549-550 (III) (A) (114 SC 2396, 129 LE2d 427) (1994). In Gottshall, the High Court held that, “as part of its ‘duty to use reasonable care in furnishing its employees with a safe place to work,’ a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” (Citation and punctuation omitted.) Id. Because that duty “is not self-defining[,]” id., the Supreme Court adopted the zone of danger test to define the scope of the duty FELA places on employers to avoid imposing emotional distress on their employees. The zone of danger test, the Court said, was “well established” when FELA was passed in 1908, id. at 554 (III) (C), is still presently in use in many states, id. at 555 (III) (C), and is “consistent with FELA’s central focus on physical perils.” Id.

Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries — physical and emotional — caused by the negligent conduct of their employers that threatens them imminently with physical impact.

Id. at 556 (III) (C). Thus, under the zone of danger test adopted in Gottshall, the railroad employer’s duty under FELA for the negligent infliction of emotional distress is limited 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 a physical harm by that conduct.” Id. at 547-548 (II) (B). As we explained in Norfolk I, “[t]he zone of danger inquiry is necessarily fact-based,” and requires a review of the unique risks to which a plaintiff is exposed in each case. 299 Ga. App. at 423. But, because the zone of danger test resolves a question of duty based upon an objective evaluation of the facts demonstrating the physical risk to which the employee was exposed, whether an employee was within the zone of danger may be, in most cases, resolved by the court.¹ If the facts cannot be resolved by the court, however, then whether the plaintiff was within the zone of danger remains an issue for the jury² upon proper instructions.³

After this Court affirmed the trial court’s denial of summary judgment in Norfolk I and remanded the instant case, Everett filed a motion in limine moving the trial court for an order preventing Norfolk Southern from arguing to the jury that he was not within the “zone of danger.” Specifically, Everett moved the court for the following:

[Norfolk Southern] must be prohibited from arguing that Plaintiff Everett was not within the “zone of danger” when the train derailed, that Everett’s apprehension of physical harm as a result of the derailment was unreasonable!,] or that he was not exposed to an immediate risk of physical harm as a result of the derailment and ensuing collision. These arguments speak to questions of law that have been decided in Plaintiff’s favor by this Court and the Georgia Court of Appeals.

The trial court granted the motion in limine, holding that “a FELA action is a creature of federal law and, under federal law, the zone of danger test is a legal question for the Court.” Although the trial court noted that, in Norfolk I, this Court held that disputed issues of fact remained for jury resolution, it nevertheless concluded, based upon other statements in our opinion,⁴ that the zone of danger issue “does not appear to be subject to jury determination” and that “there does not appear to be disputed issues of fact underlying this question in any event.” Without entering a summary judgment on the issue in Everett’s favor, which would have been directly appeal-able pursuant to OCGA § 9-11-56 (h), the trial court granted Everett’s motion in limine, barring Norfolk Southern from presenting evidence on or making argument concerning whether Everett was within the zone of danger. The court’s order was erroneous for the following reasons.

The record reveals that only Norfolk Southern moved for summary judgment. The question the railroad presented to the trial court was whether Everett’s claim for negligent infliction of emotional distress was cognizable as a FELA claim under the facts of this case. This inquiry required an analysis of whether the objective evidence, viewed in the light most favorable to the nonmovant, placed Everett outside the zone of danger as a matter of law. The trial court denied Norfolk Southern’s motion, holding that it could not conclude that Everett “was not within the zone of danger or that the fears experienced by [him] . . . were unreasonable under the circumstances.” Thus, the trial court did not rule as a matter of law that Everett was within the zone of danger, in essence granting summary judgment to Everett on this issue, but only that the undisputed evidence did not establish that he was outside of it. Although the trial court’s order contained statements suggesting that the evidence adduced by Everett demonstrated that he was within the zone of danger, the trial court never expressly issued such a ruling nor did it conclude that Everett’s account of facts was undisputed, and one may not infer from the denial of a motion for summary judgment that the facts have been resolved conversely in the opponent’s favor. See Northside Equities v. Hulsey, 275 Ga. 364, 365 (567 SE2d 4) (2002) (“It is important to remember that this case is not at a stage of presenting evidence to a factfinder in order to resolve issues of fact. This case involves summary judgment, and the non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact.”). Finally, when a court denies summary judgment, it does not actually resolve the issues presented such that they have the conclusive effect of a judgment. Thus, a party’s renewed or second motion for summary judgment on the same issue may be considered, even if no new evidence has been introduced since the denial of the first motion for summary judgment. See, e.g., Southeastern Metal Products v. Horger, 166 Ga. App. 205, 206 (1) (303 SE2d 536) (1983).

Pursuant to a granted interlocutory appeal, Norfolk Southern challenged the trial court’s order denying its motion for summary judgment, and we affirmed the trial court’s order on that narrow legal issue. Finding that Everett presented sufficient evidence to dispute the facts presented by Norfolk Southern, we held: “[W]e cannot conclude that Everett was, as a matter of law, outside the zone of danger here.” Norfolk I, 299 Ga. App. at 425-426. Although this Court, like the trial court, made statements which could be construed as a belief that the evidence adduced by Everett showed that he was within the zone of danger, our appellate review was necessarily limited to the scope of the ruling in the trial court. Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998); Adamson v. Adamson, 220 Ga. App. 716, 718 (2) (470 SE2d 289) (1996) (“The scope of our review is limited to the scope of the ruling in the trial court as shown by the trial record.”) (citations and punctuation omitted). See also Capital Land USA v. Mitsubishi Motors Credit &c., 308 Ga. App. 71, 73 (1) (706 SE2d 590) (2011). (“It is well established that this Court is limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.”) (citation and punctuation omitted). Thus, in Norfolk I, our review was limited to the issue actually adjudicated by the trial court and which was before us on appeal, that is, whether the undisputed facts entitled Norfolk Southern to summary judgment as a matter of law. Coweta County v. Simmons, 269 Ga. at 694. Any statements of opinion beyond the scope of our holding were obiter dicta,⁵ and dicta does not constitute the law of the case.⁶ Because Everett did not move for summary judgment in his favor in the trial court and obtain a ruling on that issue, whether the facts demanded a judgment in his favor was not before us and we were without authority to consider it. Id.

[D]ue process requires that a party be given reasonable opportunity to contest a claim that there are no genuine issues of material fact. There having been no notice to [Norfolk Southern] that the Court of Appeals might consider the merits of the issue [of whether Everett was within the zone of danger as a matter of law], a holding that [is] tantamount to an award of summary judgment against [it], would deny [it] due process.

(Citations omitted.) Id. Therefore, because neither the trial court in its summary judgment order nor this Court in Norfolk I ruled as a matter of law that the undisputed facts established that Norfolk Southern owed Everett a legal duty under the zone of danger test, that question remained for jury resolution and it was incumbent upon Everett to prove that element of his case by a preponderance of the evidence.⁷

Finally, the trial court’s ruling on Everett’s motion in limine was not harmless. It relieved Everett of his burden of proving by a preponderance of the evidence that Norfolk Southern owed him a legal duty of care, a duty that is defined by the zone of danger test. It prevented Norfolk Southern from effectively arguing a key element of its defense, that Norfolk Southern owed Everett no legal duty based upon its position that Everett was outside the zone of danger. Even the trial court’s ruling denying Norfolk Southern’s motion for a directed verdict was based upon an assumption that the zone of danger question had already been decided rather than upon a reasoned assessment of’ the facts adduced at trial. Finally, it improperly took from the jury the question of whether the facts supported, by a preponderance of the evidence, that Everett was within the zone of danger such that his claim for the negligent infliction of emotional distress is cognizable under FELA. The court rejected Norfolk Southern’s written request to charge the jury concerning the zone of danger test, denying it the framework of legal principles necessary for a proper determination of the scope of Norfolk Southern’s duty and whether damages for mental anguish could appropriately be awarded given the scope of that duty. Instead, it charged the jury that “the only issue for you to decide is what [of Everett’s] damages, if any, were legally caused in whole or in part by the derailment event.”

Because the trial court erred in granting Everett’s motion in limine, and because that error was not harmless, the jury’s verdict must be vacated and this case remanded for a new trial.

2. Because we can only speculate about how the evidence and any argument upon that evidence would have been different but for the trial court’s ruling on Everett’s motion in limine, it is impossible for this Court to engage in any meaningful review of whether Norfolk Southern would have been entitled to a directed verdict or whether the jury charges it requested, even if legally correct, were adjusted to the evidence. Consequently, Norfolk Southern’s remaining claims of error, that the trial court erred in denying its motion for a directed verdict and in refusing to give certain jury charges, are declared moot.

3. Everett’s motion for frivolous appeal penalties is denied.

Judgment vacated and case remanded for new trial.

Smith, P. J., Phipps, P J., and Andrews, J., concur. Miller, P. J., Doyle and McFadden, JJ., dissent.

1 Under federal law, “[wlhether an employee’s claim satisfies the zone of danger test is a legal question, which [an appellate court] review[s] de novo.” (Citations omitted.) Smith v. Union Pacific R. Co., 236 F3d 1168,1170 (I) (10th Cir. 2000); K. A. C. v. Benson, 527 NW2d 553, 558 (a) (Minn. 1995) (“[w]hether plaintiff is within a zone of danger is an objective inquiry”). See also Nelson v. Metro-North Commuter R., 235 F3d 101, 113 (II) (D), n. 12 (2d Cir. 2000) (“unlike the question of whether there is negligence or not, the inquiry into the weightiness of the physical risk to which a plaintiff is exposed, would, even in FELA cases, be performed by courts and not primarily by juries”) (emphasis supplied).

2 See Gentry v. Norfolk Southern R. Co., 1997 Tenn. App. LEXIS 505 (Tenn. Ct. App. July 22, 1997) (jury verdict in FELA case affirmed; trial court properly instructed jury on zone of danger). See also City of Mobile v. Taylor, 938 S2d 407 (Ala. Civ. App. 2005) (In non-FELA negligent infliction of emotional distress case, the trial court erred in refusing to give a jury charge on the zone of danger. The appellate court observed: “The trial judge refused to give the requested instruction because he concluded that whether the plaintiffs were actually in a zone of danger was a question of law for the judge. That is not a correct conclusion, at least where, as here, the facts are in dispute. It appears that the trial court was led astray by an analogy to those cases that hold that duty is a question of law for the court.”) (citations omitted).

3 See Pattern Jury Instructions, 11th Cir. 2005, Federal Claims Instructions § 7.1, p. 371 (zone of danger test).

4 In concluding that Everett was within the zone of danger, the trial court quotes this portion of our opinion: “[B]ecause Everett was actually on the train as half of its cars derailed and two cars collided into a building, the 300-foot distance did not remove him from the zone of danger in this case.” (emphasis supplied by trial court).

5 See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (The language in the cases relied upon by the appellant “was obiter dicta lacking the force of an adjudication because it was a statement in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.”) (citations and punctuation omitted). See also Rivers v. Brown, 200 Ga. 49, 52 (36 SE2d 429) (1945) (“An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated.”) (citation and punctuation omitted).

6 See South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998).

7 To recover under a FELA negligence claim, a plaintiff must prove by a preponderance of the evidence “traditional common law elements of negligence: duty, breach, foreseeability, and causation.” (Citations and punctuation omitted.) Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995). See also Leonard B. Sand et al., 4 Modern Federal Jury Instructions (Civil; FELA) § 89.04, at 89-27 (2011) (accord).