Vance v. Consolidated Rail Corp.

652 N.E.2d 776, 73 Ohio St. 3d 222

• Court: Ohio Supreme Court
• Decided: August 16, 1995
• Docket: No. 94-137
• Status: Published

Opinions

Alice Robie Resnick, J.

The court of appeals’ consideration of this case occurred before the United States Supreme Court announced its decision in Consol. Rail Corp. v. Gottshall (1994), 512 U.S.-, 114 S.Ct. 2396, 129 L.Ed.2d 427, which resolved some issues pertinent to this appeal. In light of Gottshall, this case presents two issues for our review: (1) Does plaintiffs claim of negligent infliction of emotional distress place him within the class of plaintiffs who may recover under the FELA? (2) If issue one is resolved in plaintiffs favor, did plaintiff sufficiently demonstrate that Conrail’s negligence caused his injuries so as to create a jury question on Conrail’s duty, breach of duty, foreseeability, and causation?

At this juncture, we clarify that, while plaintiffs claim may appear to be based upon the intentional actions of fellow employees, the essence of his FELA claim against Conrail is that his employer negligently failed in its duty to provide him with a safe workplace. Therefore, his claim sounds in terms of negligent infliction of emotional distress, going to Conrail’s negligence in allowing a hostile workplace environment to flourish.

I

A

Federal Employers’ Liability Act

Section 1 of the FELA, Section 51, Title 45, U.S.Code, 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 * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.”

“In 1906, Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. * * * The coverage of the statute is defined in broad language, which has been construed even more broadly.” (Footnotes omitted.) Atchison, Topeka & Santa Fe Ry. Co. v. Buell (1987), 480 U.S. 557, 561-562, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563, 570-571. The FELA is to be liberally construed to further its remedial goal. Gottshall, 512 U.S. at -, 114 S.Ct. at 2404, 129 L.Ed.2d at 440.

What constitutes negligence for purposes of the FELA is a federal question, which does not vary under different conceptions of negligence under non-FELA state and local laws. “Federal decisional law formulating and applying the concept governs.” Urie v. Thompson (1949), 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1295. Generally, “FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” St. Louis Southwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306. Thus, past decisions of the courts of this state setting the parameters of negligence law in Ohio are largely irrelevant to a negligence inquiry under the FELA. As a state court, we are as capable of interpreting the FELA as a federal court would be, but we apply the same federal law as the federal courts, without regard to Ohio’s negligence law. Since we are bound to apply the unique body of federal decisional law interpreting the FELA, our discussion in this case is of virtually no precedential value to any nonFELA negligence issues that arise under Ohio law.

B

Gottshall and the “Zone of Danger” Test

In Gottshall, supra, the United States Supreme Court granted certiorari to determine “the threshold standard that must be met by plaintiffs bringing claims for negligent infliction of emotional distress under FELA.” 512 U.S. at-, 114 S.Ct. at 2403, 129 L.Ed.2d at 438. The Gottshall court determined that “claims for damages for negligent infliction of emotional distress are cognizable under FELA.” Id. at-, 114 S.Ct. at 2407, 129 L.Ed.2d at 444. The court went on to hold that “a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” Id. at -, 114 S.Ct. at 2408, 129 L.Ed.2d at 444.

The liability faced by a railroad for inflicting emotional distress is not, however, unlimited. Even though the FELA requires a liberal interpretation, it is not a workers’ compensation statute. Liability is based on the employer’s negligence. Id. at-, 114 S.Ct. at 2404, 129 L.Ed.2d at 440. The Gottshall court, noting that common-law principles play a significant role in the development of the FELA negligence law, evaluated the various common-law tests which have developed to determine which claims of negligent infliction of emotional distress may go forward, based on the policy considerations underlying recognition of the tort. The court chose the “zone of danger” test as the proper test to be applied in determining whether, as a threshold matter, a plaintiff has stated a cognizable claim under the FELA. 512 U.S. at-, 114 S.Ct. at 2410, 129 L.Ed.2d at 447.

Under the zone of danger test, recovery for emotional injury 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 physical harm by that conduct.” Id. at-, 114 S.Ct. at 2406,129 L.Ed.2d at 443. “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-, 114 S.Ct. at 2410-2411, 129 L.Ed.2d at 448.

c

Was Plaintiff in the Zone of Danger?

Consistent with the principles espoused in Gottshall, we must determine if plaintiff’s claim meets the requirements of the zone of danger test, which it must in order for him to be placed in the class of plaintiffs who may potentially recover under the FELA for the negligent infliction of emotional distress.

The United States Supreme Court opinion in Gottshall actually involved the appeals of two separate cases which were consolidated for review. The plaintiff in one of the cases, James Gottshall, sought to recover against his employer, Conrail, for negligent infliction of emotional distress. His claim was based on witnessing the death of a longtime friend and fellow employee. The cause of death was a heart attack which was allegedly precipitated by Conrail’s forcing employees, including the deceased friend and also plaintiff, to do overly strenuous work on a hot, humid day. See 512 U.S. at-, 114 S.Ct. at 2400-2401, 129 L.Ed.2d at 435-436. Plaintiff Gottshall thus appeared to present primarily a theory of bystander recovery which involved to some extent witnessing an injury to another person as the event that brought about his distress. After holding that the zone of danger test must be satisfied for recovery for emotional distress under the FELA, the court declined to decide whether Gottshall was in the zone of danger, but remanded to the Third Circuit Court of Appeals to consider the issue. Id. at-, 114 S.Ct. at 2411, 129 L.Ed.2d at 449. Since the Gottshall court made no comments on whether plaintiff Gottshall was in the zone of danger, we can discern no guiding principles emerging from the Supreme Court on that particular plaintiffs situation to aid us in our inquiry in the case before us.

The other case considered on appeal by the Supreme Court in Gottshall involved plaintiff Alan Carlisle. Carlisle claimed his employer, Conrail, caused him emotional distress, and a nervous breakdown, by subjecting him to a great deal of stress on his job, brought about by excessive work responsibilities and working overly long hours. See 512 U.S. at-, 114 S.Ct. at 2402, 129 L.Ed.2d at 437-438. Plaintiff Carlisle thus based his claim against Conrail on emotional distress he suffered due to Conrail’s alleged failure to provide a safe workplace. After enunciating the zone of danger test, the Gottshall court found as a matter of law that Carlisle was not in the zone of danger, refusing to “take the radical step of reading FELA as compensating for stress arising in the ordinary course of employment.” 512 U.S. at -, 114 S.Ct. at 2412, 129 L.Ed.2d at 449.

In Buell, supra, the United States Supreme Court stated that “whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity.” 480 U.S. at 568, 107 S.Ct. at 1417, 94 L.Ed.2d at 575. While Gottshall establishes the general rule that a plaintiff must be in the zone of danger to recover for emotional distress under the FELA, the case did not attempt to define which plaintiffs are in the zone of danger under situations factually distinguishable from those before the court. In such distinguishable situations, a case-by-case analysis must be undertaken.

We find, through the evidence he presented at trial, that plaintiff was placed in immediate risk of physical impact by Conrail’s negligence, so that the zone of danger test was satisfied. In particular, plaintiff testified that important safety devices were denied to him, that a fellow employee came at him with a chipping hammer, and also that a fellow employee attempted to run him over. These instances of abuse to which plaintiff testified at trial indicating plaintiffs fear for his physical safety due to the acts of fellow employees are sufficient to place him in the zone of danger, pending a resolution by the jury of the relevant issues of fact. Plaintiff alleged that Conrail was negligent in failing to provide him with a safe place to work. While much of plaintiff’s evidence went to Conrail’s failure to provide an emotionally safe place to work, some of the evidence also went to Conrail’s failure to provide a physically safe place to work, so that plaintiff was in the zone of danger, as that requirement is defined in Gottshall

We are struck by the differences between plaintiffs emotional-distress claim resulting from effects of his workplace environment and the emotional-distress claim of plaintiff Carlisle in Gottshall. Plaintiff here is claiming damages for injuries different in kind from those which arise in the ordinary course of employment. Plaintiff in this case claims that his injuries were caused by a hostile work environment, not merely by a stressful work environment.

Since plaintiff was in the zone of danger based on an immediate risk of physical impact, we need not determine whether there would be some threshold level of hostility, accompanied by no threat of physical impact, that a plaintiff in a FELA action could demonstrate when the employer is allegedly negligent for allowing the atmosphere of abuse to flourish and that could allow the plaintiffs claim to proceed despite Gottshall. In that situation, the plaintiff’s claim may be a square peg that does not appear to fit in Gottshall’s round hole.

II

That plaintiff was in the zone of danger, and so satisfies the threshold Gottshall test placing him within the class of plaintiffs who may recover for negligent infliction of emotional distress under the FELA, answers only one of the issues in this case. “To prevail on a FELA claim, a plaintiff must ‘prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.’” Adams v. CSX Transp., Inc. (C.A.6, 1990), 899 F.2d 536, 539, quoting Robert v. Consol. Rail Corp. (C.A.1, 1987), 832 F.2d 3, 6. The court of appeals majority in this case found that plaintiff failed to prove that Conrail was negligent. We, therefore, must examine the elements of plaintiffs claim.

As this case comes to us, the court of appeals majority reversed the trial court’s denial of Conrail’s motions for a directed verdict and for judgment notwithstanding the verdict. In FELA cases Ohio law applies where matters of procedure, rather than of substantive federal FELA law, are involved, so that both motions must be evaluated under Ohio’s Civ.R. 50. In so doing the evidence must be construed most strongly in favor of the party opposing the motion. To grant either motion, a trial court must find that reasonable minds could come to but one conclusion and that conclusion must be adverse to the party opposing the motion. Civ.R. 50(A)(4); White v. Ohio Dept. of Transp. (1990), 56 Ohio St.3d 39, 45, 564 N.E.2d 462, 468 (if reasonable minds can come to more than one conclusion the issue should go to the jury). See McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 272-273, 40 O.O. 318, 320, 89 N.E.2d 138, 141 (standards for granting motion for judgment notwithstanding the verdict and for granting motion for directed verdict are the same).

As a preliminary matter, we agree with the observation made by the court of appeals majority that “there was sufficient medical evidence to establish that plaintiff was suffering from chronic and disabling depression.” Conrail does not dispute that plaintiff has suffered emotional injury. Conrail does dispute, however, that the injury is attributable to its negligence.

Duty

There is no doubt that an employer has a responsibility under the FELA to provide a safe place to work. Furthermore, “as part of its ‘duty to use reasonable care in furnishing its employees with a safe place to work,’ Buell, 480 U.S. [557], at 558 [94 L.Ed.2d 563 at 568, 107 S.Ct. 1410 at 1412], a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” Gottshall, 512 U.S. at -, 114 S.Ct. at 2408, 129 L.Ed.2d at 444. The zone of danger test outlines Conrail’s duty pertaining to negligent infliction of emotional distress. Id. at -, 114 S.Ct. at 2410, 129 L.Ed.2d at 447. Conrail clearly had a duty to provide plaintiff, an employee in the zone of danger, with a reasonably safe workplace.

Breach of Duty

Plaintiff testified that the atmosphere of abuse endured by former Erie employees was pervasive throughout the company. It does not require a great leap of reasoning to conclude that if the jury gave credence to plaintiffs allegations, then Conrail had to be aware of the abusive environment, or at the very least, should have been aware of it. Plaintiff alleged that foremen witnessed some of the incidents of abuse, and that nothing was ever done by Conrail to deal with the problems in plaintiffs work environment. Conrail countered at trial by presenting evidence that plaintiff never sufficiently complained of the abuse, and also that much of the abuse did not actually occur, or if it did occur that plaintiff exaggerated the significance of the events. If the jury accepted plaintiffs view of the facts, it could easily have determined that Conrail, acting through its “officers, agents, or employees” (Section 51, Title 45, U.S.Code) at the very least should have been aware that plaintiff was in an unsafe work environment. We find that plaintiff presented sufficient evidence to create a jury question on whether Conrail breached its duty to provide a safe workplace.

In Adams, supra, 899 F.2d at 539-540, the United States Court of Appeals for the Sixth Circuit held that the FELA requires a plaintiff claiming emotional injury to show “unconscionable abuse” before an employer can be found to have breached its duty to provide a safe workplace.

The court of appeals in this case reversed the jury verdict in part because it determined that plaintiff failed to show unconscionable abuse. However, the trial judge instructed the jury that plaintiff had to show that “Conrail’s actions amounted to unconscionable abuse” before it would be established that a breach of the duty to provide a safe workplace occurred. Since the jury returned a general verdict for plaintiff that was unclarified by interrogatories, we must assume that the jury followed the trial court’s instruction in this regard and that the jury found that plaintiff did suffer unconscionable abuse, as required by Adams. We do not comment on the ambiguities of requiring unconscionable abuse (a concept that seems more appropriate in an inquiry regarding a claim for intentional infliction of emotional distress) in a negligence action brought under the FELA. Furthermore, we need not determine whether the Adams unconscionable-abuse test is consistent with the general contours of the Supreme Court’s opinion in Gottshall, because we find that plaintiff met the heightened burden of showing unconscionable abuse.

C

Foreseeability

The court of appeals majority in this case reversed the jury verdict for plaintiff in part because it found that plaintiff failed to show Conrail should have foreseen his “extreme reaction” to the claimed workplace abuse. However, the foreseeability of plaintiff’s reaction is directly dependent on the degree of abuse he endured. As discussed above, we must assume that the jury found that Conrail at the least should have been aware of the hostile work environment surrounding plaintiff; we must also assume that the mistreatment plaintiff endured amounted to unconscionable abuse. We cannot say that a plaintiff who endures unconscionable abuse is not to be expected to display strong reactions or emotions. We are not prepared, as the court of appeals majority was, to characterize plaintiffs response to his situation as an “extreme reaction,” which Conrail could not have foreseen as a matter of law. Instead, we find that plaintiff created a jury question as to foreseeability. Since the jury’s general verdict was unclarified by interrogatories, we accept the jury’s decision that plaintiffs reaction was not excessive given the circumstances, a decision the jury necessarily had to make to arrive at its ultimate' conclusion that Conrail was negligent.

D

Causation

As part of the liberal construction accorded to the FELA, a “relaxed standard of causation applies” to a negligence claim under the act. Gottshall, 512 U.S. at -, 114 S.Ct. at 2404, 129 L.Ed.2d at 440. “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific RR. Co. (1957), 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499. We see no reason to apply a more stringent standard of causation for emotional injury under the FELA than for physical injury, recognizing like the Supreme Court in Gottshall that “ ‘severe emotional injuries can be just as debilitating as physical injuries,’ ” 512 U.S. at -, 114 S.Ct. at 2408, 129 L.Ed.2d at 444 (quoting Gottshall v. Consol. Rail Corp. [1993], 988 F.2d 355, 361). We therefore find that in the process of establishing the other elements of Conrail’s negligence to the satisfaction of the jury, plaintiff easily met his burden of proving that Conrail’s negligence played at least a slight part in producing his injury.

Ill

In summary, based on Part I of our discussion, plaintiff was in the zone of danger under the standards set forth by the Supreme Court in Gottshall for recovery for emotional injury under the FELA. In addition, based on Part II of our discussion, we agree with the conclusion of the dissenting judge below that plaintiff raised a jury question as to Conrail’s negligence. Construing the evidence most strongly in favor of plaintiff, we defer to the decision of the jury, since reasonable minds could come to different conclusions regarding Conrail’s negligence. We adopt the position of the dissenting judge below, who would have resolved Conrail’s first two assignments of error in that court by concluding that Conrall’s “motions for directed verdict and judgment notwithstanding the verdict were correctly overruled by the trial court.”

For all the foregoing reasons, the judgment of the court of appeals on the issues addressed in its opinion is reversed.² We remand this cause to the court of appeals for further proceedings, to allow that court to rule on those assignments of error raised by Conrail that have not yet been addressed.

Judgment reversed and cause remanded.

Moyer, C.J., Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Wright, J., concurs separately. Cook, J., dissents.

2 . In addition to arguments relative to the FELA, plaintiff argues that the court of appeals actually-reversed the jury verdict by a two-to-one vote on the weight of the evidence, thereby violating the prohibition contained in Section 3(B)(3), Article IV of the Ohio Constitution that “[n]o judgment resulting from a trial by jury shall be reversed on the weight of the evwrence except by the concurrence of all three judges hearing the cause.” We find that the court of appeals majority did not reverse on the weight of the evidence, but reversed based on its resolution of a question of law, so that a violation of the Ohio Constitution did not occur. See Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115, 430 N.E.2d 935.