GREGORY GOODRICH v. LONG ISLAND RAIL ROAD COMPANY, DONALD RUSSELL, AND JOHN DOE “A,” NAME BEING FICTITIOUS, TRUE NAME UNKNOWN
Docket No. 10-2809-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 15, 2011
FEINBERG, LIVINGSTON, and LOHIER, Circuit Judges.
August Term 2010; Submitted: March 7, 2011
Affirmed.
PHILIP J. DINHOFER, Philip J. Dinhofer, LLC, Rockville Centre, NY, of counsel to Frederic M. Gold, P.C., New York, NY, for Plaintiff-Appellant.
BRIAN K. SALTZ, Esq., for Catherine A. Rinaldi, Vice President/General Counsel & Secretary, The Long Island Rail Road Company, Jamaica, NY, for Defendant-Appellee Long Island Rail Road Company.
DEBRA ANN LIVINGSTON, Circuit Judge:
Plaintiff-Appellant Gregory Goodrich (“Goodrich“) is an employee of Defendant-Appellee The Long Island Rail Road Company (“LIRR“). On March 12, 2010, he brought suit under the Federal Employers’ Liability Act (“FELA“),
In reviewing the district court‘s grant of a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept as true the nonconclusory factual allegations made by Goodrich in his complaint. See Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int‘l N.V., 623 F.3d 61, 63 (2d Cir. 2010).
Goodrich alleges that while he was employed by the LIRR as an electrician at its facility in Hillside Yard, Queens, New York, he suffered severe emotional distress as a result of the actions of defendants the LIRR and two LIRR employees, Donald Russell (“Russell“) and an unnamed individual “John Doe ‘A.‘” At a pretrial cоnference conducted after the LIRR had filed its motion to dismiss in this case, Goodrich further alleged that, at the time the challenged conduct took place, he had been HIV positive for a number of years.1 In August 2009, he had allegedly been out of work with the flu for several days and had submitted a sick leave application in order to be compensated for the days missed while he was ill. While he was away from work, an individual, whom Goodrich believes was Russell, took the sick leave form from Goodrich‘s locker, added the words “And HIV positive” beneath the doctor‘s flu diagnosis, and posted it on a public bulletin board at the LIRR‘s facility. Goodrich alleges that in doing so, Russell was acting within the scope of his employment.
Goodrich filed his complaint in March 2010, asserting subject matter jurisdiction under FELA and alleging an NIED claim and an IIED claim against the LIRR, Russell, and the unknown
The district court concluded that the zone of danger test was applicable to IIED claims brought under FELA, granting LIRR‘s motion to dismiss on that basis. Although the individual defendants did not appear before the district court — according to the LIRR, Russell had not been served with а summons and complaint in this proceeding, while the other individual remained unidentified — the district court dismissed the action as to them as well, on the ground that a FELA action can only be brought against a “common carrier by railroad” and not an individual.
This appeal followed.
DISCUSSION
I. Standard of Review
We review de novo a district court‘s grant of a
II. Applicability of the Zone of Danger Test to IIED Claims Brought Under FELA
The sole question prеsented by this appeal is whether the zone of danger test applies to IIED
Every 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
The Supreme Court has only more recently addressed the question whether FELA, through its use of the phrase “injury or death,” provides for recovery not only for physical but also purely emotional harms. In Buell, confronting for the first time the question whether a purely emotional injury is cognizable under FELA, the Court noted that the question “may not be susceptible to an all-inclusive ‘yes’ or ‘no’ answer.” 480 U.S. at 570. It found the factual record in the case before it
In Gottshall, the Supreme Court returned to the issue, addressing in particular the question whether and to what extent a claim for negligent infliction of emotional distress is cognizable under FELA. See 512 U.S. at 541. The Court structured its analysis into two inquiries. First, it considered “FELA itself, its purposes and background and the construction [the Court has] given it over the years.” Id. Second, “because ‘FELA jurisprudence gleans guidance from common-law developments,‘” the Court considered the common law treatment of the NIED cause of action. See id. at 541-42 (quoting Buell, 480 U.S. at 568).
With respect to the first inquiry, the Court noted that the statutory purpose of FELA is clear: “when Congress enacted FELA in 1908, its ‘attention was focused primarily upon injuries and death resulting from accidents on interstate railroads.‘” Id. at 542 (quoting Urie, 337 U.S. at 181). Under these circumstances, “[c]ognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year,” id., Congress sought through FELA to “d[o] away with several common-law tort defenses that had effectively barred recovery by injured workers,” thereby allowing injured workers to bring claims against their railroad employers more easily, id.
The Court then proceeded to the second inquiry, the relevant common law treatment of NIED claims, noting that “although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statutе, they are entitled to great weight in our analysis.” Id. at 544. As an initial matter, it held that NIED claims could be brought under FELA, given the wide recognition of the claim in some form by many American jurisdictions at the time FELA was passed, its near-universal recognition by the States at present,
Having recognized NIED claims as cognizable under FELA, the Court next adopted the zone of danger test to define the scope of the duty FELA places on employers to avoid imposing emotional distress оn their employees. Assessing three common-law tests for limiting liability for NIED claims, the Court made clear that it was adopting the test that “best reconciles the concerns of the common law with the principles underlying our FELA jurisprudence.” Id. at 554. The zone of danger test, the Court said, was “well established” when FELA was passed in 1908, id., is still presently in use in many states, id. at 555, and is “consistent with FELA‘s central focus on physical perils,” id. “Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.” Id. at 556. In rejecting the alternative “relative bystander” test now widely used by many American jurisdictions, the Court noted that the test developed several decades after FELA‘s enactment, such that it “lacks historical support,” id., and that in any event the Court “discern[ed] from FELA and its emphasis on protecting employees from physical harms no basis to extend recovery to bystanders outside the zone of danger,” id. at 556-57. Thus, under the zone of danger test adopted in Gottshall, recovery under FELA for an NIED claim is limited to “those plaintiffs who sustain a physical impact as a rеsult of a defendant‘s negligent conduct, or who are placed in immediate risk of a physical harm by that conduct.” Id. at 547-48.
The zone of danger test was refined in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997). In Buckley, the Supreme Court had to decide whether a railroad employee‘s exposure to asbestos, resulting in alleged emotional distress but no symptoms of illness at the time of the suit, constituted a “physical impact” meeting the requirements of the Gottshall zone of danger
After Gottshall and Buckley, we examined in Higgins whether an IIED claim is cognizable under FELA and concluded that it was, reasoning that “[b]ecause intentional torts are recognized under FELA and claims for solely emotional injury are also recognized, . . . claims of intentional infliction of emotional distress can be brought under FELA.” 318 F.3d at 425 (internal citations
Concurring in the result, then-Judge Sоtomayor concluded that the zone of danger test did apply and would have decided the case on that basis. In doing so, she noted that while the Supreme Court in Gottshall considered an NIED claim, its discussion extended broadly to the types of injuries compensable under FELA. See id. at 430 (Sotomayor, J., concurring in the judgment). Analyzing the Court‘s decisions in Gottshall and Buckley, Judge Sotomayor reasoned that, while the common law‘s focus on the extreme or outrageous nature of a defendant‘s conduct may adequately guarantee that a claim of emotional distress is genuine, “this approach takes the focus away from the core concern of FELA as described in both Gottshall and Buckley: that employees must suffer some kind of physical harm, impact, or invasion before they may recover under the Act.” Id. at 431-32.
As an initial matter, we agree with the concurring opinion in Higgins that Gottshall and Buckley are highly relevant to the zone of danger test‘s applicability in the IIED context, even though both decisions dealt with NIED claims. As the concurrence in Higgins notes, the Supreme Court in Gottshall focused its analysis on the nature of the injury, stating that “[t]he injury we deal with here is mental or emotional harm (such as fright or anxiety) that is сaused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.” Higgins, 318 F.3d at 430-31 (Sotomayor, J., concurring in the judgment) (quoting Gottshall, 512 U.S. at 544); see also Smith v. Union Pacific R.R. Co., 236 F.3d 1168, 1171 (10th Cir. 2000) (“A close reading of [Gottshall] reveals that the Court focused on whether
We also agree with the concurrence in Higgins that, in analyzing the question here, we properly begin with the understanding that FELA‘s “core concern,” see Higgins, 318 F.3d at 431 (Sotomayor, J., concurring in the judgment), is physical harm, impact, or invasion. As the Supreme Court noted approvingly in Gottshall, the Seventh Circuit has observed that “FELA was (and is) aimed at ensuring ‘the security of the person from physical invasions or menaces.‘” Gottshall, 512 U.S. at 555-56 (emphasis added) (quoting Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 813 (7th Cir. 1985)). The Seventh Circuit went on to hold in the same case that even in the intentional tort context, “FELA does not create a cause of action for tortious harms brought about by acts that lack any physical contact or threat of physical contact,” Lancaster, 773 F.2d at 813; see also Ray v. Consol. Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991) (reaffirming Lancaster). Indeed, our understanding of FELA is shared by all our sister Circuits that have expressly considered the extent to which claims based on emotional distress may be brought under the Act. See Adkins v. Seaboard Sys. R.R., 821 F.2d 340, 341-42 (6th Cir. 1987) (per curiam) (“Although Buell notes that the FELA has been held to apply to some intentional torts, the FELA has not been applied to any
It is true that the common law does not currently impose a zone of danger test on IIED claims. The Restatement (Second) of Torts defines the tort in these terms: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Restatement (Second) of Torts § 46(1) (1965). This approach has been followed by most, if not all, American jurisdictions, see Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 45, Reporter‘s Note, cmt. a (Tentative Draft No. 5, 2007) (collecting cases), albeit not without reservation in some cases, see, e.g., Supervalu, Inc. v. Johnson, 276 Va. 356, 370 (2008) (“[T]he tort of intentional infliction of emotional distress is ‘not favored’ in the law, because there are inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury.“). Courts have noted that the Restatement‘s “extreme and outrageous” conduct requirement “serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff‘s claim of severe emotional distress is genuine.” Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 121 (1993); see also Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 45, cmt. a (Tentative Draft No. 5, 2007) (“Courts have played an especially critical role in cabining [the IIED tort] by requiring ‘extreme and outrageous’ conduct and ‘severe’ emotional disturbance. A great deal of conduct may
Our inquiry does not end with the present day state of the common law on this question, however. Under Gottshall, we are also compelled to “[c]onsider[] the question ‘in the appropriate historical context,‘” 512 U.S. at 555 (quoting Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 337 (1988)), requiring here an assessment of the treatment of claims for IIED at common law at the time of FELA‘s passage in 1908, cf. id. at 556 (noting that the “relative bystander” test fоr NIED claims “was not developed until 60 years after FELA‘s enactment, and therefore lacks historical support“).
We find highly significant – though not dispositive per se, see Nelson v. Metro-North Commuter R.R., 235 F.3d 101, 107-10 (2d Cir. 2000) – that the tort of IIED or outrage was in a nascent stage at the time of FELA‘s passage. The Restatement (First) of Torts, published in 1934, stated categorically that “conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability (a) for emotional distress resulting therefrom or (b) for bodily harm unexpectably resulting from such disturbance.” Id. § 46.3 As Prоfessor William Prosser, arguing in 1939 for the recognition of a new tort of “intentional infliction of mental suffering,” described the situation:
[T]he law has been reluctant, and very slow indeed, to accept the interest in peace of mind as entitled to independent legal protection. This has been true even where the invasion has been an intentional one. It is not until comparatively recent years that there has been anything like a general admission that the infliction of mental distress, standing alone, may ever serve as the basis of an action. In this respect the law is clearly in a process of growth, the ultimate limits of which must be as yet only a matter of conjecture.
Reflective of the still undetermined contours of this emerging cause of action, when the tort of intentional infliction of emotional distress was first added to the Restatement in a 1948 Supplement to the Restаtement (First) of Torts, the provision simply stated that “[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable . . . for such emotional distress.” Restatement (First) of Torts, § 46 (Supp. 1948). It was not until the Restatement (Second) of Torts, published in 1965, that the cause of action assumed the form in which it was widely adopted and persists at present, its scope cabined only by the requirements that
We of course give “great weight” to common law principles in deciding claims brought under FELA, unless they are expressly rejected in the text of the statute. See Gottshall, 512 U.S. at 544. At the same time, they are “not necessarily dispositive of questions arising under FELA,” id., and we must “reconcile[] the concerns of the common law with the principles underlying our FELA jurisprudence,” id. at 554. At present, the common law in almost all American jurisdictions has largely settled on the formulation of the IIED tort put forward by the Restatement in 1965, using the outrageousness of the conduct and the severity of the injury to аddress concerns regarding the triviality or authenticity of claims that may be brought under its heading. Nevertheless, we agree with then-Judge Sotomayor in Higgins that this approach “takes the focus away from the core concern of FELA as described in both Gottshall and Buckley: that employees must suffer some kind of physical harm, impact, or invasion before they may recover under the Act.” Higgins, 318 F.3d at 431-32 (Sotomayor, J., concurring in the judgment).
Neither FELA‘s terms nor any court decision of which we are aware supports expanding the injuries for which recovery is available under FELA to include those ocсurring outside a zone of physical danger. The IIED claim is a tort unbounded by any connection to the dangers originally prompting Congress to protect railroad workers through enactment of FELA — a tort, in the words of the New York Court of Appeals, “as limitless as the human capacity for cruelty.” Howell, 81 N.Y.2d at 122. In contrast, as the Supreme Court has stated, “an emotional injury constitutes ‘injury’ resulting from the employer‘s ‘negligence’ for purposes of FELA only if it would be compensable under the terms of the zone of danger test.” Gottshall, 512 U.S. at 555. The fact that an “injury” of this typе results from an intentional act for which the employer is responsible rather
Goodrich contends that applying the zone of danger test in the IIED context will have the effect either of precluding recovery for otherwise meritorious IIED claims — perhaps limiting the successful claims to those most like the traditional tort оf assault — or of channeling many such IIED actions into NIED claims instead, where the common law does not require that the underlying conduct of which a plaintiff complains be extreme or outrageous.4 Neither contention alters our conclusion here. As then-Judge Sotomayor noted in Higgins, the fact that recognizing the applicability of the zone of danger test to this type of claim may preclude the bringing of some otherwise meritorious IIED claims under the aegis of FELA does not address, much less answer, the question whether the zone of danger test is applicable: “While I recognize that this may preclude recovery for purely emotional harm even where the conduct alleged is extreme and outrageous, this is not a sufficient basis . . . to conclude that the zone of danger test does not apply.” Higgins, 318 F.3d at 432 n.5 (Sotomayor, J., concurring in the judgment). To the extent that some IIED claims may be brought as NIED claims due to the “extreme and outrageous” conduct requirement applicable to IIED claims, moreover, this is a result of the Court‘s decision in Higgins, not the decision today. The question whether a FELA plaintiff who satisfies the zone of danger test and asserts an IIED claim must also satisfy the “extreme and outrageous” conduct requirement is simply
III. Leave to Amend
Goodrich argues that, even if we conclude that the zone of danger test applies to the claim at issue in this case, the judgment here should nevertheless be vacated and he should be granted leave to file and serve an amended complaint. Under
CONCLUSION
For all of the foregoing reasons, the judgment of the district court is therefore AFFIRMED.