Lead Opinion
delivered the opinion of the Court.
These cases require us to determine the proper standard for evaluating claims for negligent infliction of emotional distress that are brought under the Federal Employers’ Liability Act. Because the standard adopted by the Court of Appeals is inconsistent with the principles embodied in the statute and with relevant common-law doctrine, we reverse the judgments below.
I
Respondents James Gottshall and Alan Carlisle each brought suit under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60, against their former employer, petitioner Consolidated Rail Corporation (Conrail). We set forth the facts of each case in turn.
A
Gottshall was a member of a Conrail work crew assigned to replace a stretch of defective track on an extremely hot and humid day. The crew was under time pressure, and so the men were discouraged from taking scheduled breaks.
Meanwhile, Norvick attempted to summon assistance, but found that his radio was inoperative; unbeknownst to him, Conrail had temporarily taken the nearest base station off the air for repairs. Norvick drove off to get help, but by the time he returned with paramedics, Johns had died. The paramedics covered the body with a sheet, ordered that it remain undisturbed until the coroner could examine it, and directed the crew not to leave until the coroner had arrived. Norvick ordered the men back to work, within sight of Johns’ covered body. The coroner, who arrived several hours later, reported that Johns had died from a heart attack brought on by the combined factors of heat, humidity, and heavy exertion.
The entire experience left Gottshall extremely agitated and distraught. Over the next several days, during which he continued to work in hot and humid weather conditions, Gottshall began to feel ill. He became preoccupied with the events surrounding Johns’ death, and worried that he would die under similar circumstances. Shortly after Johns’ funeral, Gottshall was admitted to a psychiatric institution, where he was diagnosed as suffering from major depression and posttraumatic stress disorder. During the three weeks he spent at the institution, Gottshall experienced nausea, insomnia, cold sweats, and repetitive nightmares concerning
Gottshall sued Conrail under FELA for negligent infliction of emotional distress. He alleged that Conrail’s negligence had created the circumstances under which he had been forced to observe and participate in the events surrounding Johns’ death. The District Court granted Conrail’s motion for summary judgment, holding that FELA did not provide a remedy for Gottshall’s emotional injuries.
A divided panel of the United States Court of Appeals for the Third Circuit reversed and remanded for trial. Gottshall v. Consolidated Rail Corp.,
The court below identified what it considered to be a fundamental tension between the restrictive attitude of the common law toward claims for negligent infliction of emotional distress on the one hand, and the general policy underlying FELA on the other. According to the Third Circuit, the common law places harsh and arbitrary limits on recovery for emotional injury, while FELA has consistently been interpreted to accord liberal relief to railroad workers injured through the negligence of their employers. Id., at 367-368 (discussing cases).
In the Third Circuit’s view, the only way to reconcile the apparent tension was to give preference to the liberal recov
After reviewing the facts of Gottshall’s case, the Third Circuit concluded that Gottshall had made a sufficient showing that his injuries were genuine and severe. Id., at 374. Because his claim had met the court’s threshold “genuineness” test, the court next considered whether the claim adequately alleged the usual FELA elements of breach of a duty of care (that is, conduct unreasonable in the face of a foreseeable risk of harm), injury, and causation. The panel majority concluded that there were genuine issues of material fact concerning whether Gottshall’s injuries were foreseeable by Conrail, whether Conrail had acted unreasonably, and whether Conrail’s conduct had caused cognizable injury to Gottshall. The court therefore remanded for trial. Id., at 383.
Judge Roth dissented in part because she believed that there was no triable issue regarding breach of duty. She reasoned that “outside of the interruption of the communications link, the allegedly negligent conditions created by Conrail at the time of Johns’ collapse consisted in fact of the members of the work gang performing the negotiated duties of their jobs under conditions which may indeed have been difficult but which had occurred in the past and will probably occur again in the future.” Id., at 385. In her view, these
B
Respondent Carlisle began working as a train dispatcher for Conrail in 1976. In this position, he was responsible for ensuring the safe and timely movement of passengers and cargo. Aging railstock and outdated equipment made Car-lisle’s job difficult. Reductions in Conrail’s work force required Carlisle to take on additional duties and to work long hours. Carlisle and his fellow dispatchers frequently complained about safety concerns, the high level of stress in their jobs, and poor working conditions. In 1988, Carlisle became trainmaster in the South Philadelphia yards. With this promotion came added responsibilities that forced him to work erratic hours. Carlisle began to experience insomnia, headaches, depression, and weight loss. After an extended period during which he was required to work 12- to 15-hour shifts for weeks at a time, Carlisle suffered a nervous breakdown.
Carlisle sued Conrail under FELA for negligent infliction of emotional distress. He alleged that Conrail had breached its duty to provide him with a safe workplace by forcing him to work under unreasonably stressful conditions, and that this breach had resulted in foreseeable stress-related health problems. At trial, Carlisle called medical experts who testified that his breakdown and ensuing severe depression were caused at least in part by the strain of his job. The jury awarded Carlisle $386,500 in damages.
The Third Circuit affirmed, “uphold[ing] for the first time a claim under the FELA for negligent infliction of emotional distress arising from work-related stress.” Carlisle v. Con
In the case before it, however, the court did not examine Carlisle’s suit in light of any of the various common-law tests for dealing with negligent infliction of emotional distress claims. Instead, it shifted its primary emphasis to the foreseeability of the alleged injury and held that “when it is reasonably foreseeable that extended exposure to dangerous and stressful working conditions will cause injury to the worker, the employer may be held to be liable under the FELA for the employee’s resulting injuries.” Id., at 97. The Third Circuit held that Carlisle had produced sufficient evidence that his injury had been foreseeable to Conrail. The court also found sufficient evidence that Conrail had breached its duty to provide Carlisle with a safe workplace by making his employment too demanding, and that this breach had caused Carlisle’s injury. Ibid.
Pursuant to this Court’s Rule 12.2, Conrail petitioned for review of the Third Circuit’s decisions in Gottshall and Car-lisle. We granted certiorari,
II
In these cases, we address questions left unanswered in Atchison, T & S. F. R. Co. v. Buell,
First, as in other cases involving the scope of the statute, we must look to FELA itself, its purposes and background, and the construction we have given it over the years. See, e. g., id., at 561-562. Second, because “FELA jurisprudence gleans guidance from common-law developments,” id., at 568, we must consider the common law’s treatment of the right
A
We turn first to the statute. Section 1 of 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... 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. Our task today is determining under what circumstances emotional distress may constitute “injury” resulting from “negligence” for purposes of the statute. As we previously have recognized when considering §51, when Congress enacted FELA in 1908, its “attention was focused primarily upon injuries and death resulting from accidents on interstate railroads.” Urie, supra, at 181. Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the “ ‘human overhead’ ” of doing business from employees to their employers. Tiller v. Atlantic Coast Line R. Co.,
We have liberally construed FELA to further Congress’ remedial goal. For example, we held in Rogers v. Missouri Pacific R. Co.,
That FELA is to be liberally construed, however, does not mean that it is a workers’ compensation statute. We have insisted that FELA “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.” Ellis v. Union Pacific R. Co.,
B
We turn, therefore, to consider the right of recovery pursued by respondents in light of the common law. Cf. Monessen, supra, at 336-339; Buell,
Nearly all of the States have recognized a right to recover for negligent infliction of emotional distress, as we have de
Behind these limitations lie a variety of policy considerations, many of them based on the fundamental differences between emotional and physical injuries. “Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned . . . that recognition of a cause of action for [emotional] injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act.” Maloney v. Conroy,
. For all of these reasons, courts have realized that recognition of a cause of action for negligent infliction of emotional distress holds out the very real possibility of nearly infinite and unpredictable liability for defendants. Courts therefore have placed substantial limitations on the class of plaintiffs that may recover for emotional injuries and on the injuries that may be compensable. See, e. g., Thing v. La Chusa,
Three major limiting tests for evaluating claims alleging negligent infliction of emotional distress have developed in the common law. The first of these has come to be known
The second test has come to be referred to as the “zone of danger” test. It came into use at roughly the same time as the physical impact test, and had been adopted by several jurisdictions at the time FELA was enacted. See Throckmorton, supra, at 264-265, and n. 28.
The third prominent limiting test is the “relative bystander” test, which was first enunciated in Dillon v. Legg,
“(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id., at 740-741,441 P. 2d, at 920 .
HI
A
Having laid out the relevant legal framework, we turn to the questions presented. As an initial matter, we agree
B
When setting out its view of the proper scope of recovery for negligently inflicted emotional distress under FELA, the Third Circuit explicitly refused to adopt any of the common-law tests described above; indeed, the court in Gottskall went so far as to state that “doctrinal common law distinctions are to be discarded when they bar recovery on meritorious FELA claims.”
The Third Circuit’s standard is fatally flawed in a number of respects. First, as discussed above, because negligent infliction of emotional distress is not explicitly addressed in the statute, 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. Cf. Monessen,
Perhaps the court below believed that its focus on the perceived genuineness of the claimed emotional injury adequately addressed the concerns of the common-law courts in dealing with emotional injury claims. But the potential for fraudulent and trivial claims — the concern identified by the
Second, we question the viability of the genuineness test on its own terms. The Third Circuit recognized that “there must be some finite limit to the railway’s potential liability” for emotional injury claims under FELA, and suggested that liability could be restricted through application of the genuineness test. Gottshall, supra, at 379. But as just explained, testing for the “genuineness” of an injury alone cannot appreciably diminish the possibility of infinite liability. Such a fact-specific test, moreover, would be bound to lead to haphazard results. Judges would be forced to make highly subjective determinations concerning the authenticity of claims for emotional injury, which are far less susceptible to objective medical proof than are their physical counterparts. To the extent the genuineness test could limit potential liability, it could do so only inconsistently. Employers such as Conrail would be given no standard against which to regulate their conduct under such an ad hoc approach. In the context of claims for intangible harms brought under a negligence statute, we find such an arbitrary result unacceptable. Cf. Stadler v. Cross,
Third, to the extent the Third Circuit relied on the concept of foreseeability as a meaningful limitation on liability, we
This is true as a practical matter in the FELA context as well, even though the statute limits recovery to railroad workers. If emotional injury to Gottshall was foreseeable to Conrail, such injury to the other seven members of his work crew was also foreseeable. Because one need not witness an accident to suffer emotional injury therefrom, however, the potential liability would not necessarily have to end there; any Conrail employees who heard or read about the events surrounding Johns’ death could also foreseeably have suffered emotional injury as a result. Of course, not all of these workers would have been as traumatized by the tragedy as was Gottshall, but many could have been. Under the Third Circuit’s standard, Conrail thus could face the potential of unpredictable liability to a large number of employees far removed from the scene of the allegedly negligent conduct that led to Johns’ death.
C
Conrail suggests that we adopt the common-law zone of danger test as delimiting the proper scope of an employer’s duty under FELA to avoid subjecting its employees to negligently inflicted emotional injury. We agree that the zone of danger test best reconciles the concerns of the common law with the principles underlying our FELA jurisprudence.
As we did in Monessen, we begin with the state of the common law in 1908, when FELA was enacted. In determining in Monessen whether prejudgment interest was available under FELA, we recognized that the common law in 1908 did not allow such interest in personal injury and wrongful-death suits. Because in enacting FELA, “Congress expressly dispensed with other common-law doctrines of that era, such as the defense of contributory negligence,” but “did not deal at all with the equally well established doctrine barring the recovery of prejudgment interest,” we concluded that Congress intended to leave the common-law rule intact.
Current usage only confirms this historical pedigree. The zone of danger test presently is followed by 14 jurisdictions. It therefore remains to this day a well-established “common-law concep[t] of negligence,” ibid., that is suitable to inform our determination of the federal question of what constitutes negligence for purposes of FELA. Cf. Buell,
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. Cf. Urie, supra, at 181. By imposing liability, FELA presumably also was meant to encourage employers to improve safety measures in order to avoid those claims. Cf. Wilkerson,
The physical impact test, of course, would achieve many of the same ends as the zone of danger test. We see no reason, however, to allow an employer to escape liability for emotional injury caused by the apprehension of physical impact simply because of the fortuity that the impact did not occur. And the physical impact test has considerably less support in the current state of the common law than the zone of danger test. See supra, at 546-549.
As for the relative bystander test, we conclude that it is an inappropriate rule in the FELA context. As an initial matter, it was not developed until 60 years after FELA’s enactment, and therefore lacks historical support. Cf. Monessen, supra. Moreover, in most jurisdictions that adhere to it, this test limits recovery to persons who witness the severe injury or death of a close family member. Only railroad employees (and their estates) may bring FELA claims, however, and presumably it would be a rare occurrence for a worker to witness during the course of his employment the injury or death of a close family member. In
Respondents decry the zone of danger test as arbitrarily excluding valid claims for emotional injury. But “[characterizing a rule limiting liability as ‘unprincipled’ or ‘arbitrary’ is often the result of overemphasizing the policy considerations favoring imposition of liability, while at the same time failing to acknowledge any countervailing policies and the necessary compromise between competing and inconsistent policies informing the rule.” Cameron v. Pepin,
Perhaps the zone of danger test is “arbitrary” in the sense that it does not allow recovery for all emotional distress. But it is fully consistent with our understanding of the statute. And for the reasons discussed above, we conclude 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.
IV
Because the Third Circuit applied an erroneous standard for evaluating claims for negligent infliction of emotional
In Carlisle, however, we remand with instructions to enter judgment for Conrail. Carlisle’s work-stress-related claim plainly does not fall within the common law’s conception of the zone of danger, and Carlisle makes no argument that it does. Without any support in the common law for such a claim, we will not take the radical step of reading FELA as compensating for stress arising in the ordinary course of employment. In short, the core of Carlisle’s complaint was that he “had been given too much — not too dangerous — work to do. That is not our idea of an FELA claim.” Lancaster, supra, at 813.
The judgments of the Court of Appeals are reversed, and the cases are remanded for further proceedings consistent with this opinion.
So ordered.
Notes
Compare the decisions below with Ray v. Consolidated Rail Corp.,
We are not concerned here with the separate tort of intentional infliction of emotional distress.
There are a few exceptions. Negligent infliction of emotional distress is not actionable in Alabama. See Allen v. Walker,
See Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L. Rev. 477, 507 (1982) (“The geographic risk of physical impact caused by the defendant’s negligence in most cases is quite limited, which accordingly limits the number of people subjected to that risk. There is no similar finite range of risk for emotional harm”).
See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §54, p. 366 (5th ed. 1984) (“It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends”).
See, e. g., Spade v. Lynn & B. R. Co.,
See OB-GYN Assocs. of Albany v. Littleton,
See, e. g., Simone v. Rhode Island Co., 28 R. I. 186,
See Keck v. Jackson,
See Croft v. Wicker,
Many jurisdictions that follow the zone of danger or relative bystander tests also require that a plaintiff demonstrate a “physical manifestation” of an alleged emotional injury, that is, a physical injury or effect that is the direct result of the emotional injury, in order to recover. See, e. g., Garvis v. Employers Mut. Casualty Co.,
The Third Circuit did require that the emotional injury be “reasonably” foreseeable, see Carlisle v. Consolidated Rail Corp.,
Concurrence Opinion
concurring.
I join the Court’s opinion holding that claims for negligent infliction of emotional distress are cognizable under the Federal Employers’ Liability Act (FELA), and that the zone of danger test is the appropriate rule for determining liability for such claims. I write separately to make explicit what I believe the Court’s duty to be in interpreting FELA. That duty is to develop a federal common law of negligence under FELA, informed by reference to the evolving common law. See Atchison, T. & S. F. R. Co. v. Buell,
*559 “[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. But it is clear that the general congressional intent was to provide liberal recovery for injured workers . . . and it is also clear that Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry’s duty toward its workers.” Kernan v. American Dredging Co.,355 U. S. 426 , 432 (1958).
Because I believe the Court’s decision today to be a faithful exercise of that duty, and because there can be no question that adoption of the zone of danger test is well within the discretion left to the federal courts under FELA, I join in its opinion.
Dissenting Opinion
The Federal Employers’ Liability Act (FELA or Act), 45 U. S. C. § 51 et seq., instructs interstate railroads “ ‘to use reasonable care in furnishing [their] employees with a safe place to work.’ ” Ante, at 550, quoting Atchison, T. & S. F. R. Co. v. Buell,
The Court limits the scope of the railroad’s liability, however, by selecting one of the various “tests” state courts have applied to restrict recovery by members of the public for negligently inflicted emotional distress. The Court derives its limitation largely from a concern, often expressed in state court opinions, about the prospect of “infinite liability” to an “infinite number of persons.” See ante, at 552. This
I
The FELA was designed to provide a federal “statutory negligence action . . . significantly different from the ordinary common-law negligence action.” Rogers v. Missouri Pacific R. Co.,
In particular, the Court has given full scope to the key statutory term "injury." The Act prescribes that "[e]very common carrier by railroad.. . shall be liable in damages to any person suffering injury while he is employed by such carrier." 45 U. S. C. § 51. That prescription, this Court observed, is "not restrictive as to . . . the particular kind of injury~" Uric,
II
Seven years ago, in Atchison, T. & S. F. R. Co. v. Buell,
“[W]hether ‘emotional injury’ is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see*562 Urie v. Thompson,337 U. S., at 174 , 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.” Id., at 568.
“[T]he 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 pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand.” Id., at 570.
In deciding the cases now under review, the Court of Appeals endeavored to “ ‘field the Buell pitch.’ ”
A
In respondent Gottshall’s case, the Court of Appeals first described the various rules state courts have applied to common-law actions for negligent infliction of emotional distress.
In addition to the FELA’s express abolition of traditional employer defenses, the Court of Appeals next noted, this Court’s decisions interpreting the FELA served as path-markers. The Court of Appeals referred to decisions that had relaxed “the strict requirements of causation in common law,” id., at 368, citing Rogers,
“imposes upon carriers a higher standard of conduct and has eliminated many of the refined distinctions and restrictions that common law imposed to bar recovery (even on meritorious claims). FELA liability and common law liability are thus different.”988 F. 2d, at 369 .
Accordingly, the Court of Appeals “refused to designate a particular common law test as the test” applicable in FELA cases. Id., at 365. Instead, the court looked to the purposes of those tests: to distinguish “the meritorious [claim] from the feigned and frivolous,” id., at 369, and to assure that liability for negligently inflicted emotional distress does not expand “into the ‘fantastic realm of infinite liability.’” Id., at 372, quoting Amaya v. Home Ice, Fuel & Supply Co.,
FELA jurisprudence, the Court of Appeals reasoned, has evolved not through a “rules first” approach, but in the traditional, fact-bound, case-by-case common-law way. See id., at 371. The court therefore undertook to determine “whether the factual circumstances [in Gottshall’s case] provide a threshold assurance that there is a likelihood of genuine and serious emotional injury.” Ibid. “[O]ne consideration” in that inquiry, the court said, “is whether plaintiff has a ‘solid basis in the present state of common law to permit him to recover.’” Ibid., quoting Outten v. National Railroad Passenger Corp.,
Gottshall’s claim, the Court of Appeals held, presented the requisite “threshold assurance.” His emotional distress, diagnosed by three doctors as major depression and posttraumatic stress disorder,
The Court of Appeals also inspected the facts under the “bystande[r]” test, versions of which have been adopted by nearly half the States. See ante, at 549. While acknowledging that Gottshall did not satisfy the more restrictive versions of the “bystander” test, the court observed that several States have allowed recovery even where, as here, the plaintiff and the victim of physical injury were unrelated by blood or marriage. See
To adapt the bystander rule to the FELA context, the court looked to the reasons for limiting bystander recovery: to avoid compensating plaintiffs with fraudulent or trivial claims, and to prevent liability from becoming “an intolerable
Satisfied that Gottshall had crossed the “genuine and severe” injury threshold, the Court of Appeals inquired whether he had a triable case on breach of duty and causation. Id., at 374. Here, the court emphasized that Gottshall’s distress was attributable not to “the ordinary stress of the job,” id., at 375, but instead, to Conrail’s decision to send a crew of men, most of them 50 to 60 years old and many of them overweight, out into 97-degree heat at high noon, in a remote, sun-baked location, requiring them to replace heavy steel rails at an extraordinarily fast pace without breaks, and without maintaining radio contact or taking any other precautions to protect the men’s safety, id., at 376-377.
The Court of Appeals stated, further, that even if Conrail could be said to have acted reasonably up to the time of Johns’ death, “its conduct after the death raises an issue of whether it breached a legal duty.” Id., at 378. The Conrail supervisor required the crew to return to work immediately after Johns’ corpse was laid by the side of the road, covered but still in view. Ibid. The next day, Gottshall alleged, the supervisor “reprimanded him for administering CPR to Johns,” id., at 359, then pushed the crew even harder under
B
Upholding a jury verdict for plaintiff in Carlisle, the Court of Appeals “reaffirmed]” its Gottshall holding that “no single common law standard” governs in “weighing the genuineness of emotional injury claims.” Instead, the court said:
“[C]ourts . . . should engage in an initial review of the factual indicia of the genuineness of a claim, taking into account broadly used common law standards, then should apply the traditional negligence elements of duty, foreseeability, breach, and causation in weighing the merits of that claim.”990 F. 2d 90 , 98 (CA3 1993).
The Court of Appeals held that the evidence submitted to the jury amply established the claim’s genuineness. Carlisle testified that, after Conrail’s 1984 reduction in force, the pressure on train dispatchers in Philadelphia, already substantial, increased dramatically. As the person chiefly responsible for ensuring the safety of “trains carrying passengers, freight and hazardous materials,” Carlisle became “increasingly anxious” over the sharp reduction in staff, together with the outdated equipment and “Conrail’s repeated instructions to ignore safety concerns, such as malfunctioning equipment or poor maintenance.” Id., at 92. When Carlisle was compelled to work 12- to 15-hour shifts for 15 consecutive days, the resulting additional pressures, and the difficulty of working for “an abusive, alcoholic supervisor,” led, according to Carlisle’s expert witness, to the nervous breakdown he suffered. Ibid.
Satisfied that the jury could indeed find Carlisle’s injury genuine, and continuing to follow the path it had marked in Gottshall, the court next examined the negligence elements of Carlisle’s claim. Emphasizing that “Conrail had ample notice of the stressful and dangerous conditions under which Carlisle was forced to work,” including actual notice of physical and emotional injuries sustained by Carlisle’s co-workers,
Ill
The Court initially “agree[s] with the Third Circuit that claims for damages for negligent infliction of emotional distress are cognizable under FELA.” Ante, at 549-550.
“[W]hen the employer’s negligence impairs or destroys an employee’s health by requiring him to work under conditions likely to bring about such harmful consequences, the injury to the employee is just as great when it follows, often inevitably, from a carrier’s negligent course pursued over an extended period of time as when it comes with the suddenness of lightning.” Id., at 186-187.
Similarly, as the Court recognizes today, “ ‘severe emotional injuries can be just as debilitating as physical injuries,’” hence there is “no reason why emotional injury should not be held to be encompassed within th[e] term [‘injury’].” Ante, at 550, quoting Gottshall,
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.” Id., at 374;
Notwithstanding its recognition that the word “injury,” as used in the FELA, “may encompass both physical and emotional injury,” the Court elects to render compensable only emotional distress stemming from a worker’s placement in the “zone of danger.” Ante, at 556. In other words, to recover for emotional distress, the railroad employee must show that negligence attributable to his employer threatened him “imminently with physical impact.” Ibid. Based on the “zone” test, the Court reverses the judgment for Carlisle outright and remands Gottshall’s case for reconsideration under that standard. Ante, at 557-558.
The Court offers three justifications for its adoption of the “zone of danger” test. First, the Court suggests that the “zone” test is most firmly rooted in “the common law.” The Court mentions that several jurisdictions had adopted the zone of danger test by 1908, ante, at 546,547, n. 8 (citing cases from eight States), and that the test “currently is followed in 14 jurisdictions.” Ante, at 548. But that very exposition
Moreover, the Court never decides firmly on the point of reference, present or historical, from which to evaluate the relative support the different common-law rules have enjoyed. If the Court regarded as decisive the degree of support a rule currently enjoys among state courts, the Court would allow bystander recovery, permitted in some form in “nearly half the States.” Ante, at 549. But cf. ante, at 556 (bystander rule “was not developed until 60 years after FELA’s enactment, and therefore lacks historical support”). If, on the other hand, the Court decided that historical support carried the day, then the impact rule, preferred by most jurisdictions in 1908, would be the Court’s choice. But cf. ibid, (preferring the zone of danger test to the impact rule, because, inter alia, the latter “has considerably less support in the current state of the common law” than the former).
The Court further maintains that the zone of danger test is preferable because it is “consistent with FELA’s central focus on physical perils.” Ante, at 555. But, as already underscored, see supra, at 561, the FELA’s language “is as broad as could be framed____ On its face, every injury suffered [on the job] by any employee ... by reason of the carrier’s negligence was made compensable.” Urie,
The Court’s principal reason for restricting the FELA’s coverage of emotional distress claims is its fear of “infinite liability” to an “infinite number of persons.” See ante, at 552; see also ante, at 557 (referring to “the specter of unlimited and unpredictable liability,” and stating that “the fear of unlimited liability . . . [is] well founded”). The universe
IV
While recognizing today that emotional distress may qualify as an “injury” compensable under the FELA, the Court rejects the Court of Appeals’ thoughtfully developed and comprehensively explained approach as “inconsistent with the principles embodied in the statute and with relevant common-law doctrine.” Ante, at 535. The Court’s formulation, requiring consistency with both the FELA and “common-law doctrine,” is odd, for there is no unitary common law governing claims for negligent infliction of emotional distress.
Most critically, the Court selects a common-law rule perhaps appropriate were the task to choose a law governing the generality of federal tort claims. The “zone” rule the Court selects, however, seems to me inappropriate for a federal statute designed to govern the discrete category of on-the-job injuries sustained by railroad workers. In that domain our charge from Congress is to fashion remedies constantly “liberal,” and appropriately “enlarged to meet changing conditions and changing concepts of industry’s duty toward its workers.” Kernan v. American Dredging Co.,
In my view, the Court of Appeals developed the appropriate FELA common-law approach and correctly applied that approach in these cases. I would therefore affirm the Court of Appeals’ judgments.
Section 1 of the FELA provides, in relevant part, that “[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier . . . [when such injury results] in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U. S. C. § 51.
The FELA, as enacted in 1908, abolished the employer's "fellow servant” defense and provided that an employee’s negligence would not bar, but only reduce, recovery; the Act further prohibited employers from exempting themselves contractually from statutory liability. §§51, 53, 55. As amended in 1939, the Act also abolished the employer’s assumption of risk defense. § 54.
The Gottshall and Carlisle cases do not call for decision of the question whether physical manifestations would be necessary for recovery in every case.
Throughout its opinion, the Court invokes “the common law” in the singular. See, e. g., ante, at 551 (“The common law must inform the availability of a right to recover under FELA”); ante, at 552 (“The common law consistently has sought to place limits on... potential liability”); ante, at 554 (“[T]he common law in 1908 did not allow [prejudgment] interest”); ante, at 557 (“[T]he common law restricts recovery”); ante, at 558 (“Car-lisle’s . . . claim plainly does not fall within the common law’s conception of the zone of danger”). But see Southern Pacific Co. v. Jensen,