*1 III. above, hereby we

For the reasons set forth E. Lutz’s convic- Appellant

AFFIRM Truth

tion and sentence. SZYMANSKI, Administratrix of

Connie Stanley Szymanski,

the Estate of

Plaintiff-Appellant, COM

COLUMBIA TRANSPORTATION

PANY, A OGLEBAY- DIVISION OF CO., Defendant-Appellee.

NORTON

No. 95-3205. Appeals,

United States Court of

Sixth Circuit.

Argued June Aug.

Decided *2 hydraulic gates at by opening

are unloaded cargo permit bulk bottom of holds to the stone, coal, drop pellets to such as taconite of large conveyor Amid billows onto a belt. dust, the to an cargo is borne on belt the boom, dock. unloading and removed to the entirely “self-unloading” system is not convey- two-person requires a automatic. It conveyorman A. Jaques, consisting C. Judith Schornack- of and a gang, Leonard (briefed), (argued), gatemen J. Connor Conveyormen supervise Michael gateman. Smith Detroit, MI, Firm, for Jaques Admiralty They inspect, Law moni- unloading cargo. tor, machinery Plaintiff-Appellant. repair during unload- and the strenuous, conveyormen ing. The of work (argued and Harold W. Henderson long duration. fast-paced, and sometimes of Flory, briefed), Thompson, Hiñe & Cleve- cargo can down Improperly unloaded break OH, land, Defendant-Appellee. (which spillage to equipment the or lead MARTIN, Judge; shovelwork). Chief and Before: with arduous must be remedied NELSON, RYAN, KENNEDY, MERRITT, of operation to is the Critical smooth role SUHRHEINRICH, NORRIS, BOGGS, by unloading gates gatemen, who control the BATCHELDER, DAUGHTREY, SILER, regu- thereby means of control and MOORE, COLE, Judges. Circuit being off-loaded late flow materials conveyor supposed belts. Gatemen are BOGGS, J., opinion delivered the tasks; convey- conveyormen assist in their to MERRITT, KENNEDY, court, in which tasks, ormen, peri- to other addition their RYAN, NORRIS, NELSON, odically gatemen during relieve the meals SUHRHEINRICH, SILER, breaks. COLE, JJ., joined. BATCHELDER, and 26, 1990, Szymanski as- 597-601), March was On MOORE, (pp. delivered J. conveyorman charge signed to be the dissenting opinion, in separate Courtney Bur- DAUGHTREY, Oglebay’s flagship, J., MARTIN, J.,C. M/V ship’s gateman ton. considered joined. incompetent, especially to be his crewmates OPINION controlling task of the rate of crucial discharge cargo; as con- a result BOGGS, Judge. Circuit him, they gave tempt him the moniker of fundamentally ap case concerns This Although equipment “The Bum.” on the plication Supreme Court’s consolidated of the condition, Szy- Courtney good Burton was in Corp. Rail v. Gotts decisions Consolidated assigned unhappy that he was manski hall, ship gateman with that the and believed (1994), to a claim of seaman’s incompe- assigned whom he was to work was (a attack) allegedly heart unloading gates. operating tent job-related We hold arising from stress. applies precedent to bar Supreme Court Conveyormen who worked with The had Act or the this under either the Jones attacks, past Bum in the had suffered heart “unseaworthiness,” and we affirm doctrine allegedly Oglebay knew his shortcom- granting district court decision Szymanski pains during ings. suffered chest judgment to the defendant. Although yoked he The Bum. the time was time, pains, those he attributed smoking, he cigarette excessive nonetheless poor The Bum’s conveyorman complained Oglebay Stanley was a requested Szy- a transfer. Oglebay- performance, employed from 1974 to 1990 day Courtney Burton cargo on the Company selfunloading its manski’s last Norton vacation, July 21,1990. He took short Lakes. Such vessels was vessels on Great July up conveyorman duties consider all facts and inferences drawn and on 31 took (which light ship, the Armco he therefrom the most favorable to the on his favorite S.S. home”). non-moving party. “my old Ibid. referred to proper applica At issue in this case is the Nothing ex- aboard that vessel was amiss *3 Supreme tion of the decision in Court’s Con rollers, squealing conveyor cept for some Gottshall, Corp. solidated Rail v. Szymanski had and his co-workers to (1994) 532, 2396, 129 L.Ed.2d 427 grease. Szymanski p.m. worked 10:00 until (consolidated Corp. with Consolidated Rail v. August in when he went ashore Tole- Carlisle). As in the district court this case do, port, enjoy his home further vacation stated: picked up time. His wife him at the dock Gottshall, later,

and drove him home. A few he In hours the Court considered two negligent a heart attack. He suffered underwent coro- claims for infliction of emotional Carlisle, nary bypass surgery February plaintiff and distress: that of who expected sufficiently he had recover worked for the railroad as a train However, Szymanski, age dispatcher years return to work. for several and who suf- problems, suffered in- additional health fered a nervous breakdown and other in- time, overwork; cluding juries At diabetes. one he had been due to and that of alcoholic, packs major an active and he two smoked who suffered cigarettes day depression post-traumatic at the time of his heart and stress dis- In surgery witnessing attack. June he underwent order after a co-worker have a obstruction, working. for ulcers and a bowel after heart attack and die while physicians which his him informed that his adopted The Gottshall the com- Court days conveyorman as a In were over. danger” mon law “zone of to deter- test negligence filed action this may negligent mine who recover for inflic- § app. under the U.S.C. tion of emotional distress under general and for unseaworthiness under mari- FELA. [512 U.S. at S.Ct. time law. danger 2396.] The zone of test limits re- covery plain- for emotional to those 20, 1994, Szymanski On October suffered physical impact tiffs who sustain as re- attack, his second heart this one fatal. His of a sult defendant’s conduct or administratrix, Szymanski, widow and Connie placed physi- who immediate risk of continued this action. cal harm that conduct. Id. Based on granted summary judg The district court standard, the Court remanded Oglebay. ment for A divided of this portion Gottshall of the case for reconsid- Szymanski court reversed. See Columbia test, eration under the zone of and (6th Cir.1997). Co., Transp. 107 F.3d 371 portion remanded Carlisle of the case granted Oglebay’s suggestion for rehear with instructions to the court to en- lower (6th banc, Cir.1997), ing en 107 F.3d 371 judgment ter favor of the defendant. affirm of the district court. now the decision portion ... [T]he Carlisle Gotts- case_ ... hall case controls this II that, the district court’s decision Carlisle at trial

We review testified result novo, granting summary judgment using being de overworked and burdened with applied by responsibility standards the district both excessive the same abu- sive, Reynolds supervisor court. Middleton v. Metals alcoholic the South (6th Cir.1992). Co., Philadelphia yards, experienced 963 F.2d Sum- he insom- nia, headaches, mary judgment proper fatigue, depression, sleep- if the evidence genuine walking weight-loss. shows that there is no submitted substantial Car- moving that, of material fact and that lisle testified further as a issue result judgment being as a matter of party is entitled made to work to 15 hour shifts City Management Corp. days August, v. U.S. for 15 consecutive law. See Cir.1994). problems finally his stress-related Chemical culmi- n ' (internal quotations breakdown. Carlisle in a nervous nated omitted). showing his emo introduced evidence injuries were a foresee tional problem is Plaintiffs fundamental working conditions. able result getting Supreme around'the Court’s Gotts objection, the court ad defendant’s Over recently holding, reinforced hall-Carlisle deposi into a series of mitted evidence Buckley, R.R. Metro-North Commuter Co. case, tions, separate in which taken in a and subordinates tes co-workers Carlisle’s Metro-North, Supreme Court jobs dispatchers tified that emphasized to the Gottshall its adherence Philadelphia supervisors in the Consolidat reiterating holding in the reasons “common them to suffer ed Rail offices had caused emo restricted law courts have *4 arrests, breakdowns, and nervous cardiac falling rather harm cases tional to problems as variety a of emotional such ” categories.... narrowly defined Id. depression, paranoia and insomnia. [Car at ---, at 2118-19. U.S. Corp., v. Rail 990 F.2d lisle Consolidated at Plaintiffs efforts Those cases control. (3d Cir.1993).] Carlisle testified unpersuasive. distinction supervised dispatchers he that the train Rail’s complained about Consolidated first, often claims, that Plaintiff this suit is long equipment and about outdated injury. injury, not physical for emotional jobs; high of in their hours and level stress “physical impact” is a This confuses the that turn, Carlisle, passed on their com liability (meaning either ac prerequisite for supervisors and added his plaints to object1 being in impact physical a tual the excessive hours own concerns about danger impact) with the zone of for such an job. He no and of his received stress any physical manifestations of an emotional response complaints. Id. to these may have In that occurred. Carlisle itself, plaintiff physical se- complained of Co., Transportation Szymanski v. Columbia headache, alleged in quelae of at *3-5 stress — No. CV WL somnia, weight depression, loss. See 1995) omitted). (N.D. (footnotes Ohio Jan Buckley, at And in U.S. S.Ct. 2396. facts, Despite sympathetic the Su- these “physical by carcinogenic impact” even a sub case, each preme Court reversed adequate satisfy to stance was not deemed granted judgment to the defendant requirement, which we take as another essentially It held that claims Carlisle. encompasses sign that Gottshall traditional must on infliction of emotional distress based concepts physical impact.2 common law of rule, danger” of meet the common-law “zone Second, Szymanski making claims that his requiring such claim that work, actually by “dangerous impact, caused not suffer a or be zone However, suffering impact. an too much work.” Carlisle fore such Carlisle, In at 2396. closes this claim as well. condi Szymánski’s tions much harsher than particular, In the Court held that “Carlisle’s — 12 time,” days, at plainly repeated not fall 15 hour “for weeks work-stress-related does high poor “under ... conception law’s level stress within the common conditions,” working danger.... will not take [W]e zone reading compensat- not fall FELA as S.Ct. 2396— were sufficient to outside step of radical Surely arising ordinary Szyman- much course the “too work” rubric. ing for stress short, working unpleasant incompe an employment. In core Car- ski’s with workmate, months, up given he necessi complaint had been tent lisle’s job, tating augmenting of does dangerous to do. some his own too much —not too —work qualify of an FELA claim.” either. That is not our idea course, includes, "Physical object” To the extent that our decision in Steele such R.R., (6th radiation, Louisville & Nashville 506 F.2d 315 things gases given off as a result of Cir.1974) holding to the con- could be read explosion, and the like. trary, is overruled. it elements have different contends, majority of action themselves Third, he as did the analyzed separately. See injuries and must be the limitation panel, Miles, 32-33, 111 should be extended by physical stress caused “extraordinary non-physi 326.... caused to those authority for is no But there cal stress.” recently explained that Jones This court distinction,. inevitably would which such and unseaworthiness Act causes of action employer potential large to a increase lead separate claims com causes of action are itself, ex liability. there was In Carlisle elements. Cook prised of different stress, leading to

traordinary non-physical Steamship American manifestations, yet Supreme Cir.1995). explained that 740-41 nqt particular, liability. permit did Court was based on Act cause of action the Jones denying concluding reference Carlisle un negligence, while the shipowner’s arising in ordi compensation “for stress negli action has no cause of seaworthiness certainly does nary employment” course Rather, shipowner’s gence element. “ordinary a limitation not constitute duty “fur nondelegable is to absolute and terms, By refers to the “ordi its it stress.” reason appurtenances nish a vessel both Car- nary employment,” course of at 741 ably their intended use.” Id. fit for engaged in. Cer were lisle Racer, Inc., v. Trawler (quoting Mitchell *5 stress that tainly any type of work-related 550, 926, 933, 539, 4 80 S.Ct. 362 U.S. type results that brings on the (1960)).... 941 Szy- Carlisle or Mr. occurred to either Mr. incompetent crew member could An: par extra-ordinary in common are manski unseaworthy. make a vessel See Waldron However, given reasons for all of the lance. Lines, Inc., 386 U.S. v. Moore-McCormack falling the limiting liability to actions 1410, 4, 1412 n. 727 n. 87 S.Ct. danger” ap test would “zone of common-law (unseaworthiness (1967) may L.E.2d 482 “extra-ordinary non-physi ply eases of to bar of the crew is not result a member when Gottshall, 512 U.S. as well. See cal” stress arising tasks on a competent to meet the 554-57, 114 S.Ct. 2396. Thus, reverse the district voyage). we summary judgment granting court’s order Ill Oglebay. Szymanski’s unsea turn now We dis The district court at *7-8. Szymanski, worthiness claim. 1997WL claim as follows: posed of that correctly recognized that panel The [Bjecause judgment appropri- is the Jones Act and brought claims under case, it is Act also ate on Plaintiffs Jones brought under of unseaworthiness claims unseaworthiness on Plaintiffs appropriate are distinct caus'es of general maritime law alleging has A claim. seaman action, differ some the elements of which claim, split conceptually into is one correctly the panel The also identified what. unseawor- (negligence and separate parts applicable the standard salient' differences: thiness) development historical because of applicable standard of liability, and the Fitzgerald v. Unit- in seamen’s remedies. causation. 16, 18-21, States Lines ed (1963). Thus, L.Ed.2d 720 However, necessary it is to con proper on Plain- summary judgment is injuries the which a the nature of for sider proper on it is also Act tiffs Jones may remedy a under the two seek claim. Plaintiffs unseaworthiness that, despite conclude of action. We causes 329407,at *5. 1995WL differences,- two causes their other holding, stating: rejected injuries they reach. are uniform the action not remediable under the an is to a Where pursuant available the remedies While here, Act, true neither as we hold is Jones cause of action unseaworthiness seaman’s doctrine of unseaworthiness offer those avail- than can generally no broader are redress. Act, causes of under the Jones able Szy (quoted guided this conclusion Miles, manski, 65748, *7).

reasoning Supreme Court 1997WL quite interpret differently whose thrust we Carlisle, recognize In refused Court Miles, panel did. than the Court FELA thus [and “a claim under the extensively Moragne discussed v. States Ma emotion- Act] Jones Lines, Inc., 90 S.Ct. rine arising from work-related stress.” al distress 339 (1970), 26 L.Ed.2d a case that overruled do 114 S.Ct. 2396. To 512 U.S. at Harrisburg, 7 S.Ct. tend to make railroads otherwise “would (1886), a and held that cause of L.Ed. well-being and the emotional insurers of wrongful gener under action for death exists employees,” a result mental health of their Moragne al maritime law. The Court noted running holdings counter to the Court’s clear that, following The Harris decades that “FELA is not an insurance statute.” government fifty burg, the and all federal Carlisle, today Following we have held Ibid. wrongful-death states enacted statutes cover Szymanski’s recognizing Jones Act ing employees. “[admi maritime Because of his work- manifestations legisla in vacuum ralty [and] created similarly have unac- related stress would always important tion has served tendency. Supra, ceptable at 594-95. Con- admiralty law and source both common approach sistent with Court Miles, principles,” U.S. at Moragne, un- believe that the Miles and we legislative judgment “[t]he unanimous in- not reach an seaworthiness action should High Death on the [the behind jury that the statute does not. Act], wrongful death statutes [the Seas A seaman’s claim under either the Jones fifty strong presump created states] all funda Act the unseaworthiness doctrine is general wrongful maritime tion favor of action, mentally single cause of and reme Consequently, Moragne action.” Ibid. death congruent *6 dies under one must be with reme alleging recognized that action unseawor If damages the other. no are dies under remedy' wrong a brought to thiness could be Act, permitted un under the Jones then an death, thereby “creating] general mari a ful supply claim cannot ei seaworthiness them wrongful cause of action.” Id. at death time Indeed, in ther. we said as much Miller v. 27, 111 S.Ct. 317. Ltd., Lines, President F.2d American Miles, aligned part, similarly for its (6th Cir.1993), where we stated injuries by gen- statute and range of covered damages gen “punitive are not in a available question was wheth- maritime law. The eral law eral maritime unseaworthiness action for action could afford general er a maritime wrongful they are death” because not avail for loss recovery to a seaman’s survivor wrongful under “federal maritime death able on society. that the Death The Court noted i.e., the Jones Act or the Death statutes” — terms, Act, by its and the High Seas High Act. id. at 1459. Seas history, by limit recoverable Jones its could, incompetent anWhile workman pecuniary damages wrongful death suits matter, general ship cause a to be losses, such as loss non-pecuniary not losses unseaworthy, “unseaworthiness” that leads held, ain society. therefore The Court type of “emotional claim distress” case, in this passage cited rejected above that we have unseawor place in our with would inconsistent [i]t be compensa that entitles a seaman to thiness we to sanc- were the constitutional scheme incompetent employee still tion. The must judicial- in a expansive more remedies tion some kind of direct either cause liability in which ly cause of action created plaintiff injury, place or the zone Congress has allowed is without fault than injury. danger of such an negli- resulting from cases of death affixing liability Although standards no that there is gence. must conclude (the requires negli- Act general may differ Jones society in for loss of has a relaxed standard of causa- gence, but death of wrongful for the maritime action tion, unseaworthiness claims rest on while Act Jones seaman. clearly makes statutes establish- proxi- This section liability require traditional but strict injured railway cause), ing rights and remedies liability must be due to mate standard, employees applicable to Jones Act claims. injury. compensable Under either injury as a result compensable no there was major provides rights and The statute that Szymanski’s consequences of emotional of the injured railway employees is remedies for distress. (the Liability Employers’ Act the Federal

“FELA”). FELA, § in 45 The U.S.C. provides that: IV Every ... common carrier railroad judgment of the district court is there- damages any person shall be liable in

fore AFFIRMED. suffering injury employed he is while commerce ... [interstate] such carrier resulting in whole for such or death DISSENT part negligence any from the MOORE, Judge, dissenting. Circuit officers, agents, employees of such car- rier, any byor reason of defect or insuffi- Szymanski’s majority transforms stan- cars, negligence, in ciency, due to its its Act negligence claim under the Jones dard track, machinery, engines, appliances, into and his unseaworthiness claim some- wharves, roadbed, works, boats, or other they thing not — equipment. majori- distress claims. Once the emotional majority ty’s magic performed, has been liability govern the of rail “The rules that Szymanski’s quickly moves to dismiss govern under the FELA serve also to roads holding of Consolidated Rail based on liability shipowners under the Corp. v. Corp., Rouge Act.” Yehia Steel (1994). Because I 129 L.Ed.2d 427 Cir.1990); see also American majority applied has believe that Miller, 443, 456, 114 Dredging Co. v. Szymanski’s wrong governing standard to 981, 127 L.Ed.2d 285 respectfully dissent. pursuant damages To recover to these

acts, that he was in- must show IN I. ACT GENERAL JONES jured scope employment; while *7 employment that his furtherance pursuant brought his claim to business; employer’s interstate that his his Act, 688(a), § 46 App. the Jones U.S.C. negligent; and that the em- employer was provides that: which negligence played part some in caus- ployer’s inju- ing injury compensa- he seeks Any personal who shall suffer the for which seaman may, Ry., v. Terminal ry employment in the course of his at tion. Green River (6th Cir.1985) (FELA). 805, election, Liability maintain an action for dam- 808 law, ages right by jury, may imposed if the harm was reason- at the of trial be with employer. Id. How- ably foreseeable and such action all statutes the Unit- ever, “liberally to be construed modifying extending ed or the com- these acts are States injured plaintiff,” right remedy per- in favor of the and mon-law cases power is limited. injury railway employees shall courts’ to direct verdicts sonal to any the FELA and therefore apply; seaman Id. at 806. Under ease death jury any “the test of a case is personal as a result of such the Jones justify simply proofs with reason personal representative seaman whether the of such negligence employer that may damages maintain action for at law the conclusion any slightest, pro- by jury, played part, even the right with the of trial and in such damages ducing the or death for which action all statutes of the United States sought.” Rogers v. Missouri conferring regulating right of action are Pacific 443, R.R., 1 77 railway employees S.Ct. for death the case of 493 applicable. shall be

598 was re employers dispatcher a train for Conrail and Act have

FELA and Jones timely ensuring move sponsible care furnish their for safe and duty reasonable to to use passenger cargo ment of trains. Carlisle place a safe to work. Yehia employees with (Jones of emo Rouge Corp., negligent F.2d at 1184 Conrail for v. Steel sued stressful, Act); Transp. long, Ragsdell Southern Pac. tional distress based on v. Cir.1982) (FELA). (9th F.2d and erratic hours he worked which Carlisle they if Employers may negligent eventually suffering be claimed resulted in his beyond employees that assign tasks are at breakdown. Id. S.Ct. nervous Pac. capacities. rejected Fletcher Union Carlisle’s 2396. The Court R.R., Cir.1980), 908-09 negli F.2d for it claim characterized denied, 101 S.Ct. arising cert. gent infliction of emotional distress (1981). Injuries may stress, be com- L.Ed.2d 839 that from work-related and stated pensable the FELA Jones Act under allowing- impose a claim “would Carlisle’s they if the cumulative even caused duty creating work envi to avoid a stressful Id. ronment, of a of incidents. at 909. dramatically effect series thereby expand liability employers’ FELA cover THE THE IMPACT GOTTSHALL II. OF everyday employ stresses and strains of DECISION ment.” at 2396. Id. S.Ct. case to the Third Court remanded the Circuit Corp. Rail Consolidated judgment with instructions to enter for Con 2396, 129 rail, allowing claim because Carlisle’s would (1994), Supreme Court held L.Ed.2d 427 reading step “take the radical FELA as negligent infliction of emotional distress compensating arising for stress the ordi FELA, cognizable under but claims were nary employment,” course of and because plaintiffs recovery only by is allowed permit FELA not for too much does claims “zone of dan who can meet the common-law work, dangerous Id. opposed too work. 554-57, ger” test. 114 S.Ct. 2396. S.Ct. 2396. Court, According “the zone recovery injury to test limits for emotional majority, hold that the Unlike would plaintiffs physical impact those who sustain portion Carlisle decision Gottshall negligent as a result con defendant’s disposition does control the of this case duct, placed in or who are immediate risk Syzmanski because does not seek conduct.” Id. harm that negligent infliction of emotional distress. reasoning language employed recovery for Gottshall addressed “whether portion of lim- Carlisle the Gottshall decision negligent infliction of emotional distress is plaintiffs holding it its cases where Id. at available under FELA.” infliction of dis- emotional injury [the Court] “The contem- Wholly apart “potential tress. from plate[d] considering negligent infliction when claims,” fraudulent and trivial the Court stat- of emotional distress is mental or emotional *8 significant problem ed that more “[a] is injury, apart concepts from the tort law of prospect allowing that such suits can lead to pain suffering.” at 114 Id. S.Ct. unpredictable nearly liability infinite noted, As 2396. the Court we “[t]he Id. defendants.” at 114 S.Ct. 2396. deal with here is mental or emotional harm Moreover, al- the Court was concerned that (such anxiety) fright by or that is caused lowing negligent a claim for infliction emo- negligence of another and that is by tional distress caused stress work-related directly .brought by physical injury, about expand “dramatically employers’ would may, physical but manifest itself in liability FELA to cover the stresses and symptoms.” Id. everyday employment” strains of and “would opinion The Gottshall resolved Consol tend make railroads insurers of the Carlisle, Corp. idated Rail well-being which had been emotional mental health employees.” consolidated with the Gottshall case for the at 114 2396. Id. S.Ct. Carlisle, plaintiff Court’s review. In choosing danger In test limit zone

599 generally compen- attacks can be infliction of emotional dis- Act. Heart negligent claims of injuries FELA sable under and the Jones employees the zone of to those tress long statutory requirements Act as as the empha- physical impact, the Court allowing are satisfied. Most of the eases physical focus on sized the “FELA’s central compensation plaintiffs to seek involved perils.” Id. at S.Ct. 2396. course, during either itself, heart attacks that occurred danger” “zone of test shortly physical or be- after strenuous labor negligently as a limit on claims for devised physical cause of adverse conditions at inflicted emotional distress. See, Burlington workplace. e.g., Harbin v. R.R., 921 F.2d 131-32 Northern summary, in contrast to Gottshall and Cir.1990) (summary judgment against plain- Carlisle, Szymanski’s claimed is a inappropriate tiff where heart attack caused pain physical one—chest ex- by heavy very physical exertion in area with part inability take haustion due to the quality); Corp., 612 poor air Smith v. Ithaca rounds, conveyorman time to eat or make his (5th Cir.1980) (upholding F.2d dis- eventually resulted a heart attack. finding trict court that benzene contamina- 71, 80, (Szymanski Dep.); See J.A. at ship tion aboard caused heart attack that was Winkler). (Report of Dr. J.A. at 145 Helen Act). compensable under the Jones Additionally, the reason the Court addressed prob- courts have held that heart Several negligent infliction emotional the issue by extraordinary non-physical caused lems claims in is Gotts- distress Gottshall because potentially compensable under the stress alleged negligent hall and Carlisle example, legislation. FELA and similar For of emotional distress claims.1 See upheld recovery for a the Ninth Circuit (Gottshall), at by employ- attack caused the stress the heart (Carlisle). Szymanski, again by con- apparently suffered after an false accusa- ee trast, negligent never asserted a infliction of by employer. Pierce v. South- tion See majority distress claim. The emotional Transp. n. ern Pac. however, quick, to dismiss his case because it (9th Cir.1987). Ap- Court of Missouri that he failed to meet the “zone of holds aggravation peals also allowed danger” only applicable test2 which is employee’s by of an heart disease caused negligent infliction of emotional distress supervisor. his racial harassment claims. Ry., Stewart v. Alton & Southern 849 S.W.2d (Mo.Ct.App.1993). post- 124-25 In a III. HEART ATTACK CLAIMS Ap- Gottshall decision the Missouri Court THE UNDER JONES ACT rejected peals application of Gottshall upholding plaintiffs FELA claim that I now turn to what believe is the main coronary artery gastritis were presented, whether can re- disease issue negligence in caused the railroad’s main- cover for his heart attack under the Jones radiation, gases given explo- an majority's off as a result of 1. The reliance on Metro-North Com- sion, Buckley, explosion ship 117 S.Ct. muter R.R. like.” on a and the An (1997), misplaced. L.Ed.2d 560 is also only blinding resulted in the of a worker based Buckley a claim of inflic- also involved light deafening of a worker based on a flash of of emotional distress. See id. 521 U.S. tion noise, overwhelming on the does not involve Indeed, -, any impact by "object” yet surely would be Buckley had suffered no direct harm. importantly, More covered under the Jones Act. -, 117 S.Ct. at 2118. See id. 521 U.S. pointed our as has been out one of sister circuits, unclear in Gottshall as to the Court was Szymanski’s *9 address whether claim I do not (in danger turns the "whether the zone of test danger I could survive the zone of test because physical impact) of actual on risk of absence applicable not in this would hold that the test is physical physical impact harm.” or risk of majority proclaims that the zone The instance. Corp., Rail Bloom Consolidated danger requires impact by "either actual a of test Cir.1994). (3d concerning scope Issues being danger physical object the zone of for or danger open of test remain for reso- of the zone Slip Op. impact.” Maj. such an er, at 594. Howev- " they properly present- are 'Physi- lution in a case where majority adds in footnote 1 that includes, course, things object’ ed. such cal Congress would intend I not believe er do 'sleeping facilities an taining proper suggest. not Bailey v. that I do schedule. ratic work Norfolk (Mo.Ct. Ry., 942 S.W.2d & Western case, however, court the district In this Circuit left until an App.1997). The First believing precludes that Gottshall erred a question of heart day the whether other recovery a attack possibility of for heart by compensa- harassment was attack caused by ex- physical stress or negligently caused FELA, that case under because ble re- traordinary I would non-physical stress. of the harass had no notice the defendant analyze court can so that the district mand Rail Robert v. Consolidated ment. See summary judgment appropriate is whether (1st Cir.1987) (Heart Corp., F.2d 6-7 standard, using this Szymanski’s claim on by compensa- harassment not attack caused i.e., court should determine the district not informed harass when Conrail ble .Szymanski genuine a issue can show whether ment). in part was his heart attack at least that by physical conditions negligently caused recovery both for a has allowed This court extraordinary by workplace workplace or injury and his heart attack plaintiffs back The must determine stress. district court years the initial more than five suffered after genuine Ogle- is a issue that whether there injury. v. Louisville & Nashville back Steele subjected Cir.1974). negligently Szymanski to ex- bay R.R., F.2d 318-19 by assigning traordinary workplace stress allegedly was The heart attack caused Steele gateman Oglebay that him to work with frustration, the economic by “personal incompetent, whether the stress knew was unemployment” and the duress of frustration Szymanski by was complained of injury. at 318. The by the back caused ordinary workplace stress for however, realm state, the back that did compensable un- conveyorman and hence not supported the amount of alone have would der the Jones Act. Id’Although these damages cases awarded. Gottshall, I believe that

were decided before THE CLAIM holdings valid. Gottshall fo- IV. UNSEAWORTHINESS their remain dis- cused whether and when emotional on The district court held that compensated pursuant tress claims could be proper Szymanski’s unsea- judgment was on FELA, that emotional and determined summary judgment worthiness claim because compensable claims be distress would Szymanski’s proper Jones Act claim. on zone when the injured an sea- district court stated that The physical impact. noted Court remedies, separate man has one claim with injury, physical on and did not FELA’s focus Lines relying Fitzgerald United States permitted purport rulings to void that had injuries. physical recog- majority properly survey of that nizes that claim under the Jones Act This the caselaw indicates attacks, injuries, an unseaworthiness claim are distinct claims physical as heart are such majority, separate have elements. The compensable the FELA and Jones that under however, they negligently that cannot state Act caused holds when extraordinary because the non-phys- claim unseaworthiness stress recovery, majority’s he for which seeks ical Heart attacks caused ordi- stress. view, negligent dis- nary workplace not infliction of emotional non-physical stress are tress, compensable under the compensable, plaintiffs such be which is because will again majority Act. Once mischar- prove employers were unable to that negli- Szymanski’s workplace with ordi- acterizes claim one of providing Be- gent of emotional distress. nary workplace employer An stress. breach- Szymanski’s ordinary should duty by failing prevent cause believe no es inju- analyzed under a traditional workplace employer To hold lia- be stress. an standard, ry majority’s ordinary I dissent from workplace for the results ble Szymanski’s surely employer make affirmance the dismissal' stress would health, claim. employees’ a result that unseaworthiness insurer of its *10 Supreme “[the Court has stated theAs V. CONCLUSION general does not disturb seamen’s Act] majority analyzed Szyman- Because the injuries resulting from claims for maritime using legal stan- improper claims ski’s Apex Marine Miles v. unseaworthiness.” dard, respectfully dissent. 317, Corp., 498 U.S. 111 S.Ct. (1990). Although the remedies L.Ed.2d 275 pursuant to a unseawor

available seaman’s generally of action are no

thiness cause those under the Jones

broader than available causes of action themselves have analyzed sep be

different elements must

arately. 317. See id. upon An claim is based unseaworthiness Laura B. POLLOCK Jr. and Samuel nondelegable shipowner’s absolute and Pollock, Plaintiffs-Appellants, appurtenances a vessel duty to “furnish v. reasonably fit for intended use.” Cook POLLOCK, Barber, H. T. Oliver Sandra Steamship American 53 F.3d Glidewell, (6th Cir.1995) (quoting and Luann C. Defendants- v. Trawler Mitchell Appellees. Racer, Inc., 539, 550, 926, 4 80 S.Ct. (1960)). Thus, in an unseawor L.Ed.2d 941 No. 97-5803. action, prove must

thiness cause Appeals, United States Court of not fit use ship that the was for its intended Sixth Circuit. proxi the unseaworthiness was a sense, cause, in the mate traditional tort April Argued 1998. injury. prove proximate plaintiff’s To Sept. Decided cause, un- “plaintiff prove must that the played part seaworthy substantial condition Rehearing Suggestion Rehearing causing bringing actually about or En Banc Denied Oct. injury and that the either a direct reasonably probable consequence result or a Miller v. Ameri

of the unseaworthiness.” Ltd., Lines

can President Cir.1993) omitted), (quotation cert.

denied,

L.Ed.2d 252 incompetent crew could make

An member unseaworthy. vessel See Waldron Inc., Lines,

Moore-McGormack (1967)

727 n.

(unseaworthiness may result when a member competent meet the

of the crew is not Thus, arising voyage). I would on a

tasks granting district court’s order

reverse the remand, judgment Oglebay. On should whether

the district court determine produced has evidence sufficient on genuine of material fact present issue viewing the while

his unseaworthiness

evidence, including Szymanski’s evidence Courtney Burton gateman light most favorable incompetent,

to him.