Lisa M. Nelson v. Metro-North Commuter Railroad

govern- to the in opposition an affidavit Plaintiff-Appellant, NELSON, M. Lisa motion: ment’s funds the admits government the defendant. accessible not were COMMUTER METRO-NORTH claim, government’s to the Contrary RAILROAD, Defendant- frozen, they were funds the since Appellee. had defendant the to which an asset not No. 99-7762. repeatedly has been Mr. Grant access. of Cor- Department NYS[ ] by the told Appeals, States Court United release the not they would rections Circuit. Second the time as him until funds 12, 2000. Argued Jan. completed. case federal 14, 2000. Dec. Decided question funds in Accordingly, the completion until Grant available originally which prosecution, the federal judgment entry of with concluded only after It was

August as a available funds became

event York the New decision

result funds those to make authorities

prison federal conclusion

available for modification The motion

proceedings. United by the order restitution in the part no played Attorney, who

States shortly account, followed

freezing account and The release

thereafter. funds availability of consequent “material statutory test

meet cir- economic the defendant’s

change defen- might affect

cumstances restitution.” pay ability

dant’s 3664(k). §

U.S.C.

CONCLUSION foregoing,

In accordance sen- of conviction judgment

amended modifying order in the incorporated

tence restitution payment direction affirmed. he returned When trip. during

change it,” her, “You’re worth money, he told Second, on the buttocks. patted then Christmas, was wear- Nelson when around Elkind, Flynn & Maur- Maurer, M. Ira Frosty the picture a with a shirt ing Plaintiff-Appel- NY, Plains, for er, White her, up it, came behind Houle Snowman on lant. shirt, grabbed and her under hands put his her, do going “I’m to breasts, telling Com- her Barnett, Metro-North Carol Sue done I never (Richard that machine. behind York, you N.Y. Railroad, New muter Third, Frosty shirt.” in a a woman Counsel, Metro- to Bernard, General K. of Nelson brief), front comments made Railroad, Houle on Commuter North “Her that the effect her husband and Defendant-Appellee. for enough, good her it to give man doesn’t old CALABRESI, and JACOBS, know, Before You it to her. give going I’mso Judges. KATZMANN, Circuit her because morning crabby she’s Fourth, it to her.” give man doesn’t old CALABRESI, Judge: Circuit the ticket into came Houle finally, and appeals Lisa Nelson kind of com- Plaintiff-appellant same and made the office United States judgment a final ments, slapped from Nelson and then District the Southern The leaving. for District Court before times three buttocks ), (Colleen McMahon, Judge by Bob York witnessed New incidents were two last Metro-North defendant-appellee Metro-North. granting for a Magill, custodian judgment for motion Railroad’s Commuter incident, Magill urged final After claim on Nelson’s of law a matter as did, call- Houle, and she report Nelson distress of emotional su- her Wilhelmy, immediate ing Maureen Liability Employers’ the Federal reported in turn Wilhelmy pervisor. 51-60, §§ “FELA”), (the 45 U.S.C. Act Gormley-O’Con- Maryann harassment We complaint. Nelson’s dismissing and Action Affirmative nor, in Metro-North’s affirm. tele- Gormley-O’Connor Department. account her and listened Nelson phoned I to Ma- harassment; spoke also she account Nelson’s leading to who confirmed gill, events when the descrip- her and by Houle a ticket made was comments Lisa Nelson began, action then inter- incident. She Pough- final tion Metro-North’s employed at agent Houle, and Nelson that he Among who said York, viewed train station. keepsie, New put have might that he and arrivals friends train duties, were she announced other he Nelson, but denied tickets, gave and arm around his sold departures, and Gormley- her. part, sexually harassed the most For had conductors. change to of Metro- copy office, Houle sepa- gave ticket inside the O’Connor she worked poli- prevention harassment with sexual train station North’s within room rate not to enter he him that was window cy and a and told locked door that conduct office, should ticket but sold. tickets through which Gormley-O’Con- the window. business Nelson in late Starting and informed Nelson telephoned then nor and comments sexual unwanted object Houle wnth spoken had that she her Houle, conductor by Kregg touching any harassment. had denied he at the to work reported who Metro-North spo- had Gormley-O’Connor Upset testified Nelson station. Poughkeepsie her com- Houle, feeling harass- ken incidents four there seriously, Nel- taken being not November, plaint Nelson First, in late ment. Police the Metro-North contacted son use her from “bank” Houle lent $100 complaint lodged against Houle. The he touch again Nelson or make more police took the statements of Nelson and sexual comments. Magill, and on December they Nelson contacted the Metro-North Po- arrested charged Houle and him with lice to tell them that she had seen Houle in third-degree abuse, sexual a misdemeanor. the upper level of the station. police The police also obtained pro- order of instructed Houle to stay away from Nelson tection Nelson requiring Houle to stay and not to attempt her, to contact but did 100 feet from away place of business him, arrest they because believed that or employment and away 2500 feet Houle had not intended to violate the or- her home.1 day, The same Metro-North der protection. Nelson also asked suspended work, Houle from and on De- Gormley O’Connor if she could instruct cember Metro-North notified Houle by Houle to to level, come the upper letter was charged he with “[e]onduct to depart enter and the station through a unbecoming a Metro-North employee,” lower-level entrance; Gormley O’Connor and directed that he attend a hearing to refused, saying that under the collective determine his responsibility in the matter. bargaining agreement she could not trans- Before the date of the hearing, however, Houle, fer and that Houle had as much the Dutchess County District Attorney right to be in the station as Nelson did. wrote to Metro North requesting that any hearings administrative be postponed until On June Nelson brought this the criminal case was resolved. Metro- against suit North, Metro alleging negli- North suspended its investigation and al- gent infliction of emotional in distress vio- lowed Houle return to to work on or about lation of the FELA. Nelson contended 3,1996.2 January that, by allowing Houle into upper level of the station, train where she Beginning in sometime late January, worked, even after she had reported the Nelson encountered Houle several times harassment, Metro-North had negligently while she atwas work. On the first occa- placed her in danger of further harass- sion, according to her testimony, she had ment and caused her considerable emo- left the ticket office go to the ladies’ tional distress. sought She million in $1 “just room and about collided” with Houle damages. The district court denied Met- as he was walking away from the snack ro-North’s motion for summary judgment, (which bar room) was near the ladies’ to- proceeded the case to trial. (which ward the tracks were on a lower level, below the main level where Nelson trial, At psychiatrist, Nelson’s Larry Er- worked). Houle said to her something trachter, testified she had experienced like, “It’s not working, is it?” and smiled post-traumatic stress disorder as a result away. walked Subsequently, Nelson of the Houle, harassment and that con- saw Houle on several occasions up- tinuing to see him at work a very “had per level, and “there was always that dramatic impact on her ... in terms of smirk, almost like he knew he was getting exacerbating her symptoms.” According away with something because he was on Ertrachter, Nelson felt that she was in upper level.” Houle never approached Houle, and seeing Houle the ticket window or entered the ticket sometimes nightmares and flash- office while Nelson present; nor did backs to the original harassment. 1. February On original Nelson’s order The record is not clear as to the exact date protection expired, and she obtained a new of Houle's return to work. protection order of through effective May 1 that directed stay Houle away from Nel- place son's employment, but did not con- tain the provision. "100 feet" Cir.1995) case, Air (quoting Transp. Metro- Samuels v. plaintiffs At close (2d Cir.1993)) 12, 14 judgment as a matter of Local moved for North (internal omitted), quotation the mo marks “with granted The district court law. weighing credibility had out of the wit tion, that Nelson failed holding considering meet or otherwise weight the test nesses present evidence sufficient evidence,” Samuels, (quoting Court in Con id. by the established at 14 v. (quoting Maynard, F.2d Simblest Corp. Rail U.S. solidated (2d. Cir.1970))) (internal F.2d 427 427 114 S.Ct. 129 L.Ed.2d omitted). (1994), quotation marks emotion action under the FELA. Under al distress plaintiff can an FELA

the Gottshall A injury if she recover provides “[e]very The FELA physical impact” or “sustain[ed] either ... common carrier railroad shall “placed immediate in damages any person suffering liable employer’s negli harm” as result injury employed by while he is such carri 547-48, Id. S.Ct. 2396. gence. ... for resulting er death that Nelson had not court found district or in from part negligence whole the of impact by any physical sustained officers, agents, of the Nor, employees or of negligence. the court Metro-North’s § 45 51. such carrier.” U.S.C. Gotts- concluded, in immediate placed was Nelson hall, a in which railroad case worker harm by of Metro-North’s problems experienced psychiatric severe her, keep away to Houle be failure the witnessing death of a fellow to complained after Nelson Metro- cause the and job being worker while on re police, and the “the unrebutted North to working quired sight continue within of demonstrates, there no were evidence body, Supreme the coworker’s Court threats, there no further further of held claims encounters, nowas further there cognizable emotional distress are under touching, ap there were no further Gottshall, 550, FELA. 512 U.S. at See According to the ticket proaches office.” But 114 S.Ct. to curtail what 2396. judgment court as a ly, the district entered might be “unpredict believed otherwise of matter law for Metro-North. liability nearly infinite for defen able dants,” id. 114 at S.Ct. II adopted the “zone of test danger” Court appeal, Nelson contests district On juris in developed many as common law grant judgment, contending that court’s dictions, rejected the broader test that test. she satisfied the Gottshall by had been the Third Circuit. See used As formulated We review a court’s deci id. at 114 S.Ct. 2396. district Court, test grant judgment by danger as a of law “the zone sion matter See, e.g., Int’l Coffey de novo. v. Dobbs limits for emotional Servs., Inc., 170 F.3d 326 (2d Cir. those plaintiffs ^[1] who sustain 1999). doing so, negli view as of a defendant’s And in we the evi a result dence “in light most favorable to the gent conduct, ^[2] who are placed Craft, immediate nonmoving party,” Indu Inc. v. (2d Baroda, 547-48, 114 47 494 Id. at S.Ct. 2396.3

Bank F.3d conduct.” time, jury affirmed a 3. At the ditions. The Third Circuit same overturned case, plaintiff negligent inflic- Car verdict for the on his Third Circuit’s decision in another Su- Corp., tion of distress claim. The lisle v. Consolidated Rail 990 F.2d 90 reversed, case, Cir.1993). plaintiff finding preme that “Carlisle’s In that had Court plainly being claim does not fall breakdown after re work-stress-related suffered nervous conception extremely quired to under con- within common law’s work stressful id.; factual apply Court did not itself zone to different id. The situations. See 558-59, /., it, (Souter, at 114 S.Ct. 2396 con- test to the facts before but danger curring) (noting “develop to consider courts must remanded to Third Circuit a federal common law of under negligence in the first instance whether Gottshall’s FELA, informed reference to the evolv- that test.4 injuries recoverable under law”). ing common applied recently, the Court More “physical impact” prong of zone of B test to a case in which the In the natural sequence inqui large negligently exposed quantities ries, we should consider whether Nelson pipe-fitter working of asbestos while presented enough negligence evidence of Com for Metro-North. Metro-North part summary defendant’s survive R.R. Buckley, muter Co. v. 521 U.S. judgment proceed ques before we to the 427-30, L.Ed.2d 560 S.Ct. whether, tion of defen (1997). Although, date of as of the permitted dant’s conduct recov Nelson to lawsuit, BueMey signs no had shown purely er damages. disease, alleged he emo asbestos-related Although showing of negligence here damages develop tional due to his fear much, arguably may is not insuffi ing such disease the future. See id. at cient, quantum of evidence that suf 427, 117 S.Ct. significantly fices FELA cases is lower Buckley’s exposure held asbestos ordinary than in torts cases. impact” did not a “physical constitute with Co., v. Long Williams Island R.R. meaning in the See id. Gottshall. (2d Cir.1999) (“[A] F.3d relaxed 430-33, 117 S.Ct. 2113. of negligence standard in FELA applies Buckley sig Gottshall and have Circuit.”); Syverson eases in this v. Con nificantly elucidated the contours of em Corp., solidated Rail 19 F.3d 826 (“Under Cir.1994) ployers’ liability negligent however, for infliction FELA, emotional distress under FELA. In ordinary for negligence standards are re particular, important Gottshall took an an employer subject laxed so that to this step by both such recognizing that emo potentially responsible statute is for risks tional distress claims are actionable under that would be too remote to lia support FELA, law.”). by establishing physi and that bility addition, under common In impact cal not a prerequisite bringing is we note that the proposed Restatement (Third) such a claim. But to state a test is not to of Torts takes (generally ac apply it—as recog the Gottshall cepted) position that harm whose “[t]he Gottshall, nized. See 512 114 severity U.S. should be considered ... is not Accordingly, S.Ct. 2396. lower particular federal by harm incurred interpret courts have been left the plaintiff, task but whatever are ren harms ing the test formulated in likely Gottshall and dered by more cond actor’s Buckley (Third) refining application it through uct.”5 Restatement of Torts: danger.” physical zone U.S. at 512 harm.” Gottshall v. Consolidated S.Ct. 2396. It 114 declined to "take the radi- (3d Cir.1995). Corp., Rail step reading compensating cal FELA as for arising ordinary stress in the course of em- unlikely Il negligence is not that because ployment.” Id. liability defined as to so allow even rela- unlikely tively physical enough harms—if oth- remand, 4. On the Third found Circuit that possible—that er are harms test satisfy claim Gottshall’s did not the zone of all, developed, was in an FELA case (1) subjected because he was not purely damages bar emotional (2) physical impact, working physical unless the was on harms dangerous conditions enough not "extreme and its own "immediate.” place as to in immediate risk of [him] rule, dam- (Discus- Rather, emotional under that g § Comment Principles Gen. they if could be recovered 1999). pro- ages will therefore We Draft sion hurt that was by some by also made assumption, ceed negli- defendant’s by the enough evi- itself caused court, there is district injury, emo- And, jury. to a absent go gence. negligence dence even compensable not distress tional C itself ultimately if it manifested Moreover, in the plaintiff. to the harm however, mean, that Nel- This does circumstances, even the latter to create evidence enough has adduced son in- from the emotional that derived whether, Gotts- as to question jury See, e.g., compensable. jury was not in “immediate hall, placed she was Co., 168 Boston R.R. Lynn v. & Spade conduct. by defendant’s harm” (“[Tjhere (1897) 47 N.E. the district Mass. to review adequately order terror, recovery for fright, no not, be we must can did that she decision court’s mind, if alarm, or distress of anxiety, of the Gottshall meaning into the delve unaccompanied are an under- these necessitates task that test —a stand, and, we if this rule injury; at common development standing of the can there also be held that it should think infliction negligent tort of law injuries recovery for such no distress, concerns and the mental solely by such be caused may decision Court’s underlay the Gottshall injury to disturbance, is no there where tort. approach to adopt particular its without.”), overruled person from standard common-law traditional Babineau, Mass. Dziokonski of emo dealing with (1978). N.E.2d 1295 claims, rule still and the distress tional required jurisdictions, in some followed case for Thus, leading Spade, have sustained doctrine, who a woman traditional negligence to the defendant’s impact due who was by a drunk against brushed dam recover emotional she before train, as a result being ejected from See, v. Little Assocs. e.g., OB-GYN ages. led to damages suffered 146, 148-49 663, ton, 386 S.E.2d Ga. 259 injury, was barred from physical Farm Lee v. (1989), by State overruled man the drunk the contact because Co., 82 533 S.E.2d Ga. Ins. 272 Mut. injure her. See physically not itself did Lane Com v. (2000); Central Hammond Conversely, at 89. 47 N.E. Spade, Ctr., 17, 816 P.2d Or. 312 munications recover rule, plaintiffs could impact the (1991). rule was intended 596-97 by physical a caused damages emotional might otherwise feared what courts curtail con no actual there was although injury claims, or fraudulent flood of trivial abe defendant; example, for by caused tact injury causally remote emotional for claims out leaping himself injured who plaintiff a See, e.g., conduct. the defendant’s could recover of a train way Henderson, N.E.2d 579 v. Shuamber associated injury physical (Ind.1991). 455 See, v. Cen e.g., Bullard harm. Inc., 197 F.2d 565 Ry., formulated, Vermont tral originally As case, Cir.1977) FELA (1st in an (holding, injury. a required rule impact injured his employee who railway a Littleton, 149 that at See, 386 S.E.2d e.g., way of jumped out he when necessary for a foot impact (holding fright “recover collision distress train accident”); also 3 see time of the Ham at injury); must be action James, &Jr. Fleming (same). Harper, V. Fowler Mere mond, 597 P.2d at 18.4, at § Torts Law Gray, The S. necessary nor Oscar neither contact (2d ed.1986). rule. impact satisfy the sufficient rule, turning Such brittle as it does 114 S.Ct. 2396 (commenting that solely on the vel non existence see no “[w]e reason ... to allow an em- impact, a great leaves deal to be desired. ployer escape liability for emotional in- hand, On the one under the traditional jury apprehension of physi- rule, the physical injuries most minimal of impact simply cal because fortuity plaintiff suffices to allow a to recover es occur”). impact that the did sentially damages unlimited for emotional Moreover, although impact rule flowing distress from that injury,6 even if sought to narrow scope of liability by the distress is a fear of future illness that reducing the number of fraudulent and See, very unlikely e.g., to occur. Mar speculative brought, claims even courts in Co., Long chica v. R.R. Island jurisdictions following that rule have rec- Cir.1994). Marchica, 1202-03 ognized that the mere existence a physi- case, FELA plaintiff suffered a cal injury does little to decrease the chance puncture wound from a hypodermic needle of fraud or the difficulty of the task faced cleaning up pile while trash jury in deciding whether emotional train station where he Although worked. See, present. Shuamber, distress is e.g., no evidence was introduced that he had (“The 579 N.E.2d at 455 mere fact of a exposed HIV, been and though medical physical injury, minor, however does not tests eventually showed that he had not make mental damages any distress less been, plaintiff was allowed to recover speculative, subject to exaggeration, or damages under the FELA for negligent likely to lead to fictitious claims.... [T]he infliction of emotional distress due to his presence or physical inju- absence fear of developing AIDS (including dam ry nothing does jury’s alleviate the bur- ages for his continuing distress after he den in deciding whether the elements of knew to a certainty virtual that he would mental suffering present.” are (quoting AIDS). id.; not develop see also id. at Cullison Medley, 570 N.E.2d 1207-08.7 (Ind.1991)) (internal quotation marks omit- hand, On the other impact ted)). rule makes no allowance for reasonable fear of These stemming failings from de- have led courts to turn fendant’s negligent away conduct cases in from the impact traditional rule. An which no impact early exception occurred. to the doctrine developed And wisely ruled that such an in cases of intentional infliction of emo approach was dissonant with See, the remedial tional distress. e.g., Price v. Yellow goals of the FELA. Co., 512 U.S. Pine Paper Mill 240 S.W. examples Moreover, 6. Numerous bodily of such trivial brittleness of the See, impacts given. e.g., could be rule, Homans v. together infelicity with the of the term Co., 456, Ry. Boston Elevated 180 Mass. 62 "physical impact,” has often led to the rule’s 737, (1902) (Holmes, C.J.) (a N.E. 737 slight Thus, being misunderstood. some courts being against seat); blow from thrown a Port "impact” have confused with "contact” and Delaware, Co., 405, er v. L & W.R.R. 73 N.J.L. allowed unlimited damages emotional even 860, (1906) (dust 63 A. 860 eyes); in the in the absence physical injury, of long as as Stack, 115, Morton v. 122 Ohio St. 170 N.E. See, some contact existed. e.g., (1930) curiam) (smoke (per 869-70 inha Shein, Deutsch v. (Ky. 597 S.W.2d 146 lation); see Christy also Bros. Circus v. Tur 1980) (while purporting apply to nage, Ga.App. 38 144 S.E. 680 rule, "[cjontact, commenting that however (1928) (in case in a which circus horse evacu slight, trivial, trifling, support or will a cause plaintiff's ated its in lap, holding bowels action,” of concluding x-rays and of the an although touching person's "unlawful body, of a plaintiff's person were sufficient contact to no actual may hurt ensue support a claim damages emotional for stem therefrom, yet, personal since it violates a ming x-rays from fear injure that the would right, physical injury constitutes a per to that fetus). plaintiff's son”), Assocs., overruled OB-GYN 386 S.E.2d at

109 mental distress and of ineness seriousness to re- (allowing plaintiff (Tex.Civ.App.1922) case,” rather than to limit damages particular in and emotional for cover experienced require- fright right through of to a result sustained brought home physi- plaintiff experience husband that the when ment on-the-job an danger unconscious of bloody and within the zone impact or be cal accident). And, negligent of even cases at 519. physical impact. Id. of distress, com- of emotional infliction Supreme Court’s decision Prior to the the last has, course of over the law mon charged with de federal courts a less toward increasingly moved century, under the negligence law of veloping the recovery. demanding standard of faced with the task choos FELA noted, Thus, Court as the Gottshall and very different com ing among these the “zone adopted have jurisdictions many Gottshall, the Third paradigms. In peting test, plaintiffs which danger” of to im declined follow Circuit by defen injury of at risk placed test, danger, bystander zone of pact, can recover conduct negligent dant’s approach similar opted instead for and See Gotts distress. resultant ques It made the threshold Hawaii’s. 9,n. 114 S.Ct. hall, & at 547-48 512 U.S. the factual circum that of whether tion cases). number of large And a (citing 2396 of indicia provided sufficient stances “by of a apply now variant states injury for of the emotional genuineness emo recovery for that allows test stander” sought. See Gottshall recovery was which witnessing the tional distress Corp., Rail Consolidated v. (who party usual of a third or death injury Cir.1993). If threshold re 371 relative) if the even a close ly be must met, genuineness of quirement injury. herself at risk not plaintiff was light examined was then to be claim n. 114 S.Ct. & id. at 548-49 with the concepts, negligence traditional cases).8 (citing foreseeability plain emphasis on (Hawaii and two Finally, at least states The stan injury. id. at 374-75. tiffs Montana) test under yet employ broader Third Circuit thus by the proposed dard infliction liability for negligent which of a requirement with the dispensed both “a reason- when distress exists key that is to the constituted, man, would normally able require test and with zone the mental cope with adequately unable proximity relational and ments the circumstances engendered by stress test. bystander the core of form State, P.2d v. Rodrigues the case.” pro- test rejecting “genuineness” Country (1970); High see Sacco Circuit, deciding by the Third posed Inc., Press, P.2d Mont. Indep. danger” the “zone of adopt instead (1995). court Rodrigues 411, 424-26 that the tests reasoned by other adopted the tests stated identifying law developed common “guarantee were intended jurisdictions of emotional dis- valid and seriousness the genuineness designed claims were distress, that, tress ac- of emotional claim” claims, but also to out fraudulent filter approach cordingly, preferable “the nearly infinite “unpredictable genu- limit to test the standards adopt general been limit- Dillon has since rule of regard the 920. The case in this 8. seminal The in which the to situations ed in California Supreme Court in of the California decision (2) 72, (1) 728, closely the victim related to plaintiff Cal.Rptr. 69 Legg, 68 Cal.2d v. Dillon perceives which, present at the accident (1968), allowing a in P.2d 912 441 occurs, (3) time it injury at the re- victim's distress mother to recover Thing death, distress. serious emotional held suffers witnessing child’s sulting 865, 644, Chusa, Cal.Rptr. 257 v. La 48 Cal.3d risk of liability not on the should turn that (1989) (footnotes omit- P.2d 829-30 771 plaintiff, but on physical injury to the ted). id. at harm. See foreseeability of emotional 110 risk of

liability” allowing result from future disease and which contact persons might “who recovery to all causes emotional distress because the harm a result of a suffer real emotional as may worker learns that become ill he conduct.” single negligent instance period Id. Buckley substantial of time.” Gottshall, at 114 2396. 512 U.S. S.Ct. thus restated the traditional rule that an requirement that a And it concluded physical impact, event cannot constitute a physical actual afford- or threatened harm contact, it even if entails unless it has a limiting liability ed the means of best physically harmful body; effect in rendering relatively predictable. it See id. Buckley’s case, exposure to asbestos Moreover, 114 S.Ct. yet might had not well caused—and never Court zone of test to danger found the be cause^—any physical such effect. See id. at most with FELA’s central fo- “consistent 427,117 S.Ct. 2113. physical perils.” cus on 114 Id. at added). Accordingly, S.Ct. (emphasis 2396 D that, FELA, plaintiffs held under the physical occur, Where does not physical impact “who sustain a a result as an FELA plaintiff can recover still emo- conduct, of a negligent defendant’s or who damages by showing tional that she was placed are in immediate risk of in “placed immediate risk of conduct,” by could recover for Gottshall, harm.” U.S. at 547-48, Id. at distress. although 2396. And Buckley S.Ct. held S.Ct. 2396.9 that the in that case did not sus- explic did “physical tain a impact,” Court did not itly “physical impact” define either or “im address the meaning of “immediate risk of of physical mediate risk harm.” In its harm,” possible or even its appli- subsequent in Buckley, decision the Court cability Buckley’s It simply case. re- meaning impact” clarified the of “physical ruling versed Second Circuit’s Gottshall, holding exposure to a contact with the carcinogen im- constituted carcinogenic substance that caused no pact, proceed- and remanded for further harm other than increasing plaintiffs ings holding. consistent with that cancer future was not a Buckley, 521 U.S. at 117 S.Ct. 2113. physical impact. See Buckley, 521 U.S. at Because the apply Court did not 432, 117 ‘physi S.Ct. 2113. “[T]he words the “immediate risk of harm” ” reasoned, cal impact,’ the Court “do not to the prong facts of either Gottshall or every encompass form of ‘physical contact.’ Buckley, the meaning key term And, particular, they do not include a “immediate risk” has remained unclear. contact that amounts to no more than an exposure—an exposure, respect that be this be it should obvious us, fore to a poses substance that that if defendant’s conduct creates no risk opinion, 9. Later in appeared phrases the Court restated the the Court use inter- slightly language: test in different changeably, an ]” "threat[ ]" of "imminentf test, impact” Under "physical worker within the zone of is not same as an "im- danger physical impact See, will able to e.g., mediate harm.” recover for emotional fear Corp., Bloom Consolidated Rail himself, physical injury whereas a (3d Cir.1994). Observing that the worker outside the zone will not. Railroad tension,” phrases "seemingly two employees will be thus able to recover for queried Bloom court "whether zone of injuries—physical and emotional—caused test turns ... on risk im- employers conduct of their pact (emphasis or risk of harm." Id. imminently physi- threatens them added). impact. cal course, statement, This reflects the old U.S. at 114 S.Ct. 2396. "impact” and confusion between "contact.” applying Faced with the Gottshall at supra note 7. that, suggested although least one court has

HI whatsoever, FELA Court—that the is to be construed the Gottshall physical of harm For, if purpose, there to further its remedial see Gotts cannot be met. requirement all, then, hall, 2396; harm at at At physical no risk of U.S. S.Ct. chison, course, Ry. there could be no immediate & Fe Co. v. Topeka of Santa Buell, there would harm. And n. physical risk of 480 U.S. 561-62 & immediacy to (1987), no need discuss then be S.Ct. 94 L.Ed.2d 563 and with passed. if the Gottshall test was see Gottshall’s to stem unbounded and desire case, however, Gottshall, we cannot af- the instant recovery. uncertain (“A court on this basis. That 552, 114 firm the district signif more U.S. S.Ct. 2396 is, say was no of cannot that there risk we problem icant prospect allowing is to Nelson. The physical harm whatsoever lead to unpredictable such suits can harm physical fact that the risk of was nearly liability infinite for defendants.... minimal, that, small, the fact indeed like recog ... is upon This concern based itself, might harm well that risk of possibility genuine nized of claims from support finding a of not have sufficed persons, infinite of essentially number it does not mean that was non- negligence, situations, variety in an of who infinite And, possibility of once existent. harm as might suffer real emotional exists, necessary, physical harm it becomes single result of a instance of Gottshall, to whether that determine under conduct.”). then only risk “immediate.” For is re- is solely temporal reading Under such a of covery permitted. Gottshall, exist, liability would for exam- context, involving pop- of with assuming ple, tampering Taken out cases imposed it in ular In such requirement to be the over-the-counter remedies. cases, be read to might “immediacy” requirement “immediate” one, purely temporal prerequisite purely create a ev- temporal deemed to be a temporally The existence of liability. eryone drugs taken particular who had harm, under risk of this poisoning, close for fear of even could recover view, necessary and would then be both likelihood though poisoning of such finding liability sufficient to sustain a extremely was small. For reading This purely damages. occurred, harm, certainly if almost it would course, would, recovery deny under ei it happen just Yet this kind quicldy. prong plain ther Gottshall test expansive liability that the Gottshall suffer emotional distress due to Moreover, tiffs who avoid. sought placing Court injury prospect future temporal such restriction likely however employers’ negligence, their injury that is tied purely emotional But, injury may such be. future incon- also be might reading, before us—and this of the mod- gruous light realities minimal, who face even a but tem others ern-day exposure to tox- workplace, where risk—might porally very close create or disease ic substances that summary judgment. For the well survive major of work- in the is a cause future Nelson harm to which all related and death. For these illness small, exposed, though very is one that reasons, temporal test purely very have might well materialized soon disfavored. an encounter Houle. But, did the term if not use Gottshall temporal exclusively in an do “immediate” We not believe sense, Two other what did mean? meant. We be then what “imme- readings of possible interpretation lieve “imminence” exist. diacy” requirement incompatible both Gottshall test would be however, them, difficul- Each has some principle—recog with the well-established ty- relied the Gottshall upon nized and

First, it possible immediacy not, fact, is does nent” do in need only to connote solely temporal immediacy, temporal mean but that closeness. temporal immediacy, though a necessary Take the phrase common “immediate condition, not a sufficient is condition for family.” clearly It does only not reflect recovery for emotional harms. Under this temporal or, indeed, relationship, even the

reading, recover, in order to a plaintiff absence half-brother, of A intervenors. would have to temporal show both imme- forty years I, who is might very older than diacy, and that the risk of part my well be “immediate” family, as significant. was also The difficulty might, circumstances, in appropriate some- Gottshall, reading however, generations removed, this one several is that as a grandparent or Supreme Court, great-grandparent. IAnd expressly while not could readily consider such a grandparent precluding possibility pre- additional to be in my family, “immediate” but still requisites, gave no indication that it meant cousin, not so deem a notwithstanding the to add requirements other immediacy than fact that the cousin during was born or imminence before permitting recovery. period of time separating my the birth of And without such requirements, additional grandfather myself. words, In other if “immediate” only meant temporally the term in family “immediate” relation- close, temporal then proximity would be ship indicates weight, the importance, both necessary and recovery sufficient for and the closeness the relationship, as to of purely damages. which temporal matters and intervening A second possible reading play part, of Gottshall causes is and probably impor- one, that when tant the Court but are necessarily used the term “imme- relevant harm,” diate factors. risk of it did not solely mean temporal immediacy, but rath- we, moreover, Were to look at the dictio er, that it using the term to connote a nary definitions of the two words “immedi consideration degree of some temporal “imminent,” ate” and by Supreme used closeness, degree some spatial proximi- Gottshall, Court see 512 U.S. ty, and degree sig- of likelihood 2396; S.Ct. id. at 114 S.Ct. nificance similar, harm. we From would find a per- and consid erable, spective, question amount of flexibility. whether a “Immediate” is described with little reference to time “immediate harm” and much more emphasis on the existence becomes a complex one involving a number vel non of intervening causes. “Immi factors, of different of which temporality nent,” instead, temporality, connotes but is one, and likelihood of harm anoth- also rendered in terms that focus on the er. Under risk, such a the lower the general significance danger, of a i.e. “hang the more temporally possible close the ing threateningly over one’s head.” Web be, harm must and vice versa. ster’s Third New Dictionary International But even harms that are tempo- (1993). 1129, 1130 rally highly proximate may fail justify Significantly, Circuit, the Third upon recovery if the likelihood of their occurring hearing Supreme Gottshall after the Court is small enough. acted, seems to have adopted this not sole- The difficulty with this reading is that ly temporal For, view of immediacy. the words “immediate” and “imminent” remand, it considered beyond factors tem- seem to sound predominantly in temporali- poral proximity in performing the imme- ty. A broader reading of these terms is diacy analysis by mandated not, however, precluded either the Su- so, Court. After doing distinguished preme opinion Gottshall or circuit court denied on the ordinary usage of the terms themselves. said, ground, the defendant’s is, That the words “immediate” “immi- conduct was not dangerous “extreme and follows, that case, It on not. was risk son’s in immediate place [him] toas enough plaintiff this of reading v. Con either Gottshall harm.” See physical of we Accordingly, of law.11 as a matter loses F.3d Corp., Rail solidated any stand not, not and do take of hence question the need Cir.1995). By focusing appropriate is the reading today on which work environment was plaintiff whether argued not before Third The matter was dangerous,” one. and “extreme was terms, or, before clearly, us, precise therefore, such implicitly, but Circuit whether answer to court. The more to Gotts- there is district acknowledged that and, spatially temporality. perhaps truly significant mere immediacy than halVs harm, which, if it of physical risk close than this, less we would be all Despite until some about, not occur would came this, more that not admit if we did candid negli- after defendant’s time considerable immediacy/immi- nuanced, of the reading nonetheless, acts, could, give rise gent reading of like requirement, nence damages, is emotional recovery purely requirements add would that Gottshall not be It should obvious one.12 an not closeness, some presents temporal of and is actually up comes until it decided something into read Both difficulties. argued. fully briefed and Yet, truer is either language. Gottshall’s a read- intent than physical manifest harm to Gottshall’s the risk of Because recovery allow would that ease that a result of exposed of ing Nelson was which dam- purely and unlimited more than was no conduct defendant’s harm, when the because, even read- ages, minimal, under either and close, minimal.10 was temporally though here, a risk offered ing of Gottshall Gottshall result, confident that we are has plaintiff As this meet the two the other of one or purely intended of out a case made not discussed. that we have meaning broader damages. * * * is all that conclusion And that us. case before court is to decide needed of district judgment that, when even require readings both For AFFIRMED. close, the risk of very temporally separate ain concurs Judge JACOBS be, very at the must plaintiff harm And, opinion. in Nel- least, minimal. more than previously person who had workplace aof re- Supreme more Court's Importantly, the

10. sexually probability did in all issue, Buckley, touched her does discussion of cent immediate, though temporally pose readings. All these preclude either not minimal, safety, if since to Nelson's risk not did Buckley held was pre- again it would harass contact, Houle question open the and it left require Yet, running into her. sumably after right be recovery for risk be whether there con- close, Houle’s nature of given the innocuous but suffi- temporally was not which him, has Nelson reported Nelson duct after weighty. ciently proximity created Houle’s not shown that enough weighty to meet placed in risk to her that that she Nelson contends immediate risk requirement of Metro- the Gottshall significant risk harm harm, proposed read- upper under either keep out of Houle failure to North’s reported ing. she after the train station level such a undisputed facts belie But the him. that, unlike the respect, we note this testimony 12.In showed own Nelson's claim. negligence or there is question of whether office the ticket approached never Houle not, weightiness inquiry into Metro- reported him and again she exposed, plaintiff alone, which physical risk to and to leave her instructed him North cases, would, performed FELA even in encounters ceased. The the harassment See, e.g., by juries. primarily courts after Houle’s arrest the two between Bloom, (deciding, as a matter at 916 by Nelson's protection, entry of the order of law, placed in “was neither account, result of Houle's not the own threat- nor out, immediate the fact that result seeking her but the impact.”). imminently with ened presence in workplace. The they shared JACOBS, Judge (1997), (concurring): Circuit reversed opinion of this Court in which hadwe held I agree with the result appeal that a railroad worker who inhaled asbes- analysis all that is needed to tos-containing insulation dust could main- support separately that result. I write tain a FELA action “physical under the emphasize that adopt the Court does not a impact” prong danger zone of test. “immediate,” definition of other than to Buckley v. Metro-North Commuter that, hold under definition considered R.R., (2d Cir.1996). 1345-46 conceivable, Nelson does not recover. We had “physical impact” reasoned that that, I agree majority with the opinion included contact with a toxic substance regardless of how one defines the term “causes measurable increase harm,” “immediate risk of Nelson plaintiff] possibility developing [the as- has not immediacy. Maj. demonstrated future, bestos-related disease” in the so atOp. 113. But the majority opinion in long as the contact would “cause fear in a dicta posits then and evaluates several def- (em- person.” reasonable Id. at 1344-45 initions, rating some higher candidates added). phasis Supreme The re- view, than In my others. immediacy of versed, holding ‘physical impact’ “the risk denotes the absence of mediate inter- to which Gotshall referred not in- does vals of place time or or other circumstance simple clude a physical contact with a sub- (possibly cause); i.e., including something stance might cause at a disease happened that would have plaintiff substantially later time-where that sub- physical harm then and there if she had stance, circumstance, or related threatens been a step closer or a moment sooner or no harm other than the disease-related My later. reading of immediacy Buckley, risk.” U.S. 117 S.Ct. is informed Court’s use of immediacy requirement aas limit on majority The opinion in sug- this case litigable claims. See 512 U.S. at gests that a court accomplish under S.Ct. 2396. Gottshall immediacy the “immediate harm” conceived terms of zone of danger. prong of the Gottshall danger zone of test Zonal danger bespeaks risk at a delimited what the Supreme Court held cannot be place and time. An extinct volcano is not done “physical impact” under prong of danger zone, point nor ais remote from Maybe test. good that is a But idea. case, active one. this nothing hap- this appeal present does not an occasion pened; Houle did not menace or attack the for such ruling, and the plaintiff. discussion The discussion of immediacy in (and bears on question is conceded majority opinion is particu- therefore a be) dicta. larly disembodied form of dicta.1 This anticipates dicta issues

strategic significance. In Metro-North

Commuter Railroad v. Buckley, U.S. 117 S.Ct. 138 L.Ed.2d 560 majority

1. The opinion for some reason recover for consequence as a places grandparents within the "immediate” witnessing serious injury done to a level, family. on suppose, On one depends I plaintiff's member of family”); "immediate grandparents. definition "im Conkling, Trombetta 82 N.Y.2d law, however, family” mediate terms is cast in 678, 678, (1993) N.Y.S.2d 626 N.E.2d 653 generations. of two consecutive ("[W]hile was, doubt, plaintiff without within (7th 1999) Dictionary Black's Law ed. the zone of when truck defendants' ("A person's children, parents, spouse, aunt, killed the claim for the siblings.”). question This is a that has ramifi suffering See, of emotional properly distress was e.g., Dorfman, cations. Baker v. 2000 WL 2000) *4 Sept.1, Cir. dismissed because (holding is not within that, law, New York a plaintiff can family’.”). deceased's 'immediate

Case Details

Case Name: Lisa M. Nelson v. Metro-North Commuter Railroad

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 14, 2000

Citation: 235 F.3d 101

Docket Number: 1999

Court Abbreviation: 2d Cir.