Lead Opinion
Plaintiff-appellant Lisa Nelson appeals from a final judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge ), granting defendant-appellee Metro-North Commuter Railroad’s motion for judgment as a matter of law on Nelson’s claim for negligent infliction of emotional distress under the Federal Employers’ Liability Act (the “FELA”), 45 U.S.C. §§ 51-60, and dismissing Nelson’s complaint. We affirm.
I
In 1995, when the events leading to this action began, Lisa Nelson was a ticket agent employed at Metro-North’s Pough-keepsie, New York, train station. Among other duties, she announced train arrivals and departures, sold tickets, and gave change to conductors. For the most part, she worked inside the ticket office, a separate room within the train station with a door that could be locked and a window through which tickets were sold.
Starting in late 1995, Nelson was the object of unwanted sexual comments and touching by Kregg Houle, a conductor for Metro-North who reported to work at the Poughkeepsie station. Nelson testified that there were four incidents of harassment. First, in late November, Nelson lent Houle $100 from her “bank” to use as change during his trip. When he returned the money, he told her, “You’re worth it,” then patted her on the buttocks. Second, around Christmas, when Nelson was wearing a shirt with a picture of Frosty the Snowman on it, Houle came up behind her, put his hands under her shirt, and grabbed her breasts, telling her, “I’m going to do you behind that machine. I never done it to a woman in a Frosty shirt.” Third, Houle made comments in front of Nelson and her husband to the effect that “Her old man doesn’t give it to her good enough, so I’m going to give it to her. You know, she’s crabby in the morning because her old man doesn’t give it to her.” Fourth, and finally, Houle came into the ticket office and made the same kind of comments, and then slapped Nelson on the buttocks three times before leaving. The last two incidents were witnessed by Bob Magill, a custodian for Metro-North.
After the final incident, Magill urged Nelson to report Houle, and she did, calling Maureen Wilhelmy, her immediate supervisor. Wilhelmy in turn reported the harassment to Maryann Gormley-O’Con-nor, in Metro-North’s Affirmative Action Department. Gormley-O’Connor telephoned Nelson and listened to her account of the harassment; she also spoke to Ma-gill, who confirmed Nelson’s account of the comments made by Houle and her description of the final incident. She then interviewed Houle, who said that he and Nelson were friends and that he might have put his arm around Nelson, but denied that he had sexually harassed her. Gormley-O’Connor gave Houle a copy of Metro-North’s sexual harassment prevention policy and told him that he was not to enter the ticket office, but should conduct his business at the window. Gormley-O’Con-nor then telephoned Nelson and informed her that she had spoken wnth Houle and that he had denied any harassment.
Upset that Gormley-O’Connor had spoken with Houle, and feeling that her complaint was not being taken seriously, Nelson contacted the Metro-North Police and
Beginning sometime in late January, Nelson encountered Houle several times while she was at work. On the first occasion, according to her testimony, she had left the ticket office to go to the ladies’ room and “just about collided” with Houle as he was walking away from the snack bar (which was near the ladies’ room) toward the tracks (which were on a lower level, below the main level where Nelson worked). Houle said to her something like, “It’s not working, is it?” and smiled and walked away. Subsequently, Nelson saw Houle on several occasions in the upper level, and “there was always that smirk, almost like he knew he was getting away with something because he was on the upper level.” Houle never approached the ticket window or entered the ticket office while Nelson was present; nor did he touch Nelson again or make any more sexual comments.
Nelson contacted the Metro-North Police to tell them that she had seen Houle in the upper level of the station. The police instructed Houle to stay away from Nelson and not to attempt to contact her, but did not arrest him, because they believed that Houle had not intended to violate the order of protection. Nelson also asked Gormley O’Connor if she could instruct Houle not to come to the upper level, and to enter and depart the station through a lower-level entrance; Gormley O’Connor refused, saying that under the collective bargaining agreement she could not transfer Houle, and that Houle had as much right to be in the station as Nelson did.
On June 16, 1998, Nelson brought this suit against Metro North, alleging negligent infliction of emotional distress in violation of the FELA. Nelson contended that, by allowing Houle into the upper level of the train station, where she worked, even after she had reported the harassment, Metro-North had negligently placed her in danger of further harassment and caused her considerable emotional distress. She sought $1 million in damages. The district court denied Metro-North’s motion for summary judgment, and the case proceeded to trial.
At trial, Nelson’s psychiatrist, Larry Er-trachter, testified that she had experienced post-traumatic stress disorder as a result of the harassment by Houle, and that continuing to see him at work “had a very dramatic impact on her ... in terms of exacerbating her symptoms.” According to Ertrachter, Nelson felt that she was in danger from Houle, and seeing Houle sometimes caused nightmares and flashbacks to the original harassment.
II
On appeal, Nelson contests the district court’s grant of judgment, contending that she satisfied the Gottshall test.
We review a district court’s decision to grant judgment as a matter of law de novo. See, e.g., Coffey v. Dobbs Int’l Servs., Inc.,
A
The 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. In Gotts-hall, a case in which a railroad worker experienced severe psychiatric problems after witnessing the death of a fellow worker while on the job and being required to continue working within sight of the coworker’s body, the Supreme Court held that claims for negligent infliction of emotional distress are cognizable under the FELA. See Gottshall,
More recently, the Court applied the “physical impact” prong of the zone of danger test to a case in which the plaintiff was negligently exposed to large quantities of asbestos while working as a pipe-fitter for Metro-North. See Metro-North Commuter R.R. Co. v. Buckley,
Gottshall and Buckley have significantly elucidated the contours of employers’ liability for negligent infliction of emotional distress under the FELA. In particular, Gottshall took an important step both by recognizing that such emotional distress claims are actionable under the FELA, and by establishing that physical impact is not a prerequisite to bringing such a claim. But to state a test is not to apply it—as the Gottshall Court recognized. See Gottshall,
B
In the natural sequence of inquiries, we should consider whether Nelson presented enough evidence of negligence on defendant’s part to survive summary judgment before we proceed to the question of whether, under Gottshall, defendant’s conduct permitted Nelson to recover for her purely emotional damages. Although the showing of negligence here is not much, and arguably may be insufficient, the quantum of evidence that suffices in FELA cases is significantly lower than in ordinary torts cases. See Williams v. Long Island R.R. Co.,
C
This does not mean, however, that Nelson has adduced enough evidence to create a jury question as to whether, under Gotts-hall, she was placed in “immediate risk of physical harm” by defendant’s conduct. In order adequately to review the district court’s decision that she did not, we must delve into the meaning of the Gottshall test — a task that necessitates an understanding of the development at common law of the tort of negligent infliction of emotional distress, and the concerns that underlay the Gottshall Court’s decision to adopt its particular approach to that tort.
The traditional common-law standard for dealing with negligent infliction of emotional distress claims, and the rule still followed in some jurisdictions, required that a plaintiff have sustained a physical impact due to the defendant’s negligence before she could recover emotional damages. See, e.g., OB-GYN Assocs. v. Littleton,
As originally formulated, the physical impact rule required a physical injury. See, e.g., Littleton,
Thus, in Spade, the leading case for the traditional impact doctrine, a woman who was brushed against by a drunk who was being ejected from a train, and as a result suffered emotional damages that led to physical injury, was barred from recovery because the contact with the drunk man did not itself physically injure her. See Spade,
On the other hand, the physical impact rule makes no allowance for reasonable fear of physical injury stemming from defendant’s negligent conduct in cases in which no impact on the plaintiff occurred. And Gottshall wisely ruled that such an approach was dissonant with the remedial goals of the FELA. See Gottshall,
Moreover, although the impact rule sought to narrow the scope of liability by reducing the number of fraudulent and speculative claims brought, even courts in jurisdictions following that rule have recognized that the mere existence of a physical injury does little to decrease the chance of fraud or the difficulty of the task faced by a jury in deciding whether emotional distress is present. See, e.g., Shuamber,
These failings have led courts to turn away from the traditional impact rule. An early exception to the doctrine developed in cases of intentional infliction of emotional distress. See, e.g., Price v. Yellow Pine Paper Mill Co.,
Thus, as the Gottshall Court noted, many jurisdictions have adopted the “zone of danger” test, under which plaintiffs placed at risk of physical injury by defendant’s negligent conduct can recover for resultant emotional distress. See Gottshall,
Finally, at least two states (Hawaii and Montana) employ a yet broader test under which liability for negligent infliction of emotional distress exists when “a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” Rodrigues v. State,
Prior to the Supreme Court’s decision in Gottshall, federal courts charged with developing the law of negligence under the FELA were faced with the task of choosing among these very different and competing paradigms. In Gottshall, the Third Circuit declined to follow a physical impact, zone of danger, or bystander test, and opted instead for an approach similar to Hawaii’s. It made the threshold question that of whether the factual circumstances provided sufficient indicia of the genuineness of the emotional injury for which recovery was sought. See Gottshall v. Consolidated Rail Corp.,
In rejecting the “genuineness” test proposed by the Third Circuit, and deciding instead to adopt the “zone of danger” test, the Supreme Court reasoned that the tests developed at common law for identifying valid negligent infliction of emotional distress claims were designed not only to filter out fraudulent claims, but also to limit the “unpredictable and nearly infinite
The Gottshall Court did not explicitly define either “physical impact” or “immediate risk of physical harm.” In its subsequent decision in Buckley, the Court clarified the meaning of “physical impact” under Gottshall, holding that exposure to a carcinogenic substance that caused no harm other than increasing the plaintiffs risk of cancer in the future was not a physical impact. See Buckley,
D
Where physical impact does not occur, an FELA plaintiff can still recover emotional damages by showing that she was “placed in immediate risk of physical harm.” Gottshall,
In this respect it should be obvious that if defendant’s conduct creates no risk
Taken out of context, and assuming it to be the only requirement imposed in Gottshall, “immediate” might be read to create a purely temporal prerequisite for liability. The existence of a temporally close risk of physical harm, under this view, would then be both necessary and sufficient to sustain a finding of liability for purely emotional damages. This reading would, of course, deny recovery under either prong of the Gottshall test to plaintiffs who suffer emotional distress due to the prospect of future physical injury from their employers’ negligence, however likely such future injury may be. But, under this reading, the plaintiff before us—and others who face even a minimal, but temporally close physical risk—might very well survive summary judgment. For the risk of physical harm to which Nelson was exposed, though very small, is one that might well have materialized very soon after an encounter with Houle.
We do not believe that this is what the Supreme Court meant. We believe that such an interpretation of the Gottshall test would be incompatible both with the well-established principle—recognized and relied upon by the Gottshall Court—that the FELA is to be construed to further its remedial purpose, see Gottshall,
Under such a solely temporal reading of Gottshall, liability would exist, for example, in cases involving tampering with popular over-the-counter remedies. In such cases, were the “immediacy” requirement deemed to be a purely temporal one, everyone who had taken the particular drugs could recover for fear of poisoning, even though the likelihood of such poisoning was extremely small. For the physical harm, if it occurred, would almost certainly happen quicldy. Yet it was just this kind of expansive liability that the Gottshall Court sought to avoid. Moreover, placing such a temporal restriction on recovery for purely emotional injury that is tied to a risk of physical harm might also be incongruous in light of the realities of the modern-day workplace, where exposure to toxic substances that create injury or disease in the future is a major cause of work-related illness and death. For all these reasons, a purely temporal test is to be disfavored.
But, if Gottshall did not use the term “immediate” in an exclusively temporal sense, then what did it mean? Two other possible readings of the Gottshall “immediacy” or “imminence” requirement exist. Each of them, however, has some difficulty-
A second possible reading of Gottshall is that when the Court used the term “immediate risk of physical harm,” it did not mean solely temporal immediacy, but rather, that it was using the term to connote a consideration of some degree of temporal closeness, some degree of spatial proximity, and some degree of likelihood and significance of physical harm. From this perspective, the question of whether a plaintiff is in “immediate risk of physical harm” becomes a complex one involving a number of different factors, of which temporality is one, and likelihood of physical harm another. Under such a test, the lower the risk, the more temporally close the possible physical harm must be, and vice versa. But even physical harms that are temporally highly proximate may fail to justify recovery if the likelihood of their occurring is small enough.
The difficulty with this reading is that the words “immediate” and “imminent” seem to sound predominantly in temporality. A broader reading of these terms is not, however, precluded either by the Supreme Court opinion in Gottshall or by ordinary usage of the terms themselves. That is, the words “immediate” and “imminent” do not, in fact, need to connote only temporal closeness.
Take the common phrase “immediate family.” It clearly does not reflect only a temporal relationship, or, indeed, even the absence of intervenors. A half-brother, who is forty years older than I, might very well be part of my “immediate” family, as might, in appropriate circumstances, someone several generations removed, such as a grandparent or great-grandparent. And I could readily consider such a grandparent to be in my “immediate” family, but still not so deem a cousin, notwithstanding the fact that the cousin was born during the period of time separating the birth of my grandfather and myself. In other words, the term “immediate” in a family relationship indicates the weight, the importance, and the closeness of the relationship, as to which temporal matters and intervening causes play a part, and probably an important one, but are not necessarily the only relevant factors.
Were we, moreover, to look at the dictionary definitions of the two words “immediate” and “imminent,” used by the Supreme Court in Gottshall, see Gottshall,
Significantly, the Third Circuit, upon hearing Gottshall after the Supreme Court acted, seems to have adopted this not solely temporal view of immediacy. For, on remand, it considered factors beyond temporal proximity in performing the immediacy analysis mandated by the Supreme Court. After doing so, the distinguished circuit court denied recovery on the ground, as it said, that the defendant’s conduct was not “extreme and dangerous
Despite all this, we would be less than candid if we did not admit that this, more nuanced, reading of the immediacy/imminence requirement, like the reading of Gottshall that would add requirements to that of temporal closeness, presents some difficulties. Both read something into Gottshall’s language. Yet, either is truer to Gottshall’s manifest intent than a reading of that ease that would allow recovery for unlimited and purely emotional damages, even when the risk of physical harm, though temporally close, was minimal.
And that conclusion is all that is needed to decide the case before us. For both readings require that, even when temporally very close, the risk of physical harm to the plaintiff must be, at the very least, more than minimal. And, in Nelson’s case, it was not. It follows, that on either reading of Gottshall, this plaintiff loses as a matter of law.
Because the risk of physical harm to which Nelson was exposed as a result of defendant’s conduct was no more than minimal, and because, under either reading of Gottshall offered here, such a risk meet the Gottshall test, this plaintiff has not made out a case for recovery of purely emotional damages.
* * *
The judgment of the district court is AFFIRMED.
Notes
. On February 1, Nelson’s original order of protection expired, and she obtained a new order of protection effective through May 1 that directed Houle to stay away from Nelson's place of employment, but did not contain the "100 feet" provision.
. The record is not clear as to the exact date of Houle's return to work.
. At the same time, Gottshall overturned the Third Circuit’s decision in another case, Carlisle v. Consolidated Rail Corp.,
. On remand, the Third Circuit found that Gottshall’s claim did not satisfy the zone of danger test, because (1) he was not subjected to any physical impact, and (2) his working conditions were not "extreme and dangerous enough as to place [him] in immediate risk of physical harm.” Gottshall v. Consolidated Rail Corp.,
. Il is not unlikely that because negligence is defined so as to allow liability for even relatively unlikely physical harms—if enough other harms are possible—that the Gottshall test was developed, in an FELA case after all, to bar recovery for purely emotional damages unless the risk of the physical harms was on its own "immediate.”
. Numerous examples of such trivial bodily impacts could be given. See, e.g., Homans v. Boston Elevated Ry. Co.,
. Moreover, the brittleness of the impact rule, together with the infelicity of the term "physical impact,” has often led to the rule’s being misunderstood. Thus, some courts have confused "impact” with "contact” and allowed unlimited emotional damages even in the absence of physical injury, as long as some physical contact existed. See, e.g., Deutsch v. Shein,
. The seminal case in this regard was the decision of the California Supreme Court in Dillon v. Legg,
. Later in the opinion, the Court restated the test in slightly different language:
Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries—physical and emotional—caused by the negligent conduct of their employers that threatens them imminently with physical impact.
Gottshall,
Faced with applying the Gottshall test, at least one court has suggested that, although the Court appeared to use the phrases interchangeably, an "imminentf ]” "threat[ ]" of "physical impact” is not the same as an "immediate risk of physical harm.” See, e.g., Bloom v. Consolidated Rail Corp.,
This statement, of course, reflects the old confusion between "impact” and "contact.” See supra note 7.
. Importantly, the Supreme Court's more recent discussion of the issue, in Buckley, does not preclude either of these readings. All Buckley held was that physical impact did not require contact, and it left open the question of whether there could be recovery for risk which was not temporally close, but sufficiently weighty.
. Nelson contends that she was placed in significant risk of physical harm by Metro-North’s failure to keep Houle out of the upper level of the train station after she reported him. But the undisputed facts belie such a claim. Nelson's own testimony showed that Houle never approached the ticket office again after she reported him and Metro-North instructed him to leave her alone, and that the harassment ceased. The encounters between the two after Houle’s arrest and the entry of the order of protection, by Nelson's own account, were not the result of Houle's seeking her out, but the result of the fact that they shared a workplace. The presence in the workplace of a person who had previously touched her sexually in all probability did pose some temporally immediate, though minimal, risk to Nelson's safety, since if Houle were to harass her again it would presumably be right after running into her. Yet, given the innocuous nature of Houle’s conduct after Nelson reported him, Nelson has not shown that Houle’s proximity created a risk to her that was weighty enough to meet the Gottshall requirement of immediate risk of physical harm, under either proposed reading.
.In this respect, we note that, unlike the question of whether there is negligence or not, the inquiry into the weightiness of the physical risk to which a plaintiff is exposed, would, even in FELA cases, be performed by courts and not primarily by juries. See, e.g., Bloom,
Concurrence Opinion
I agree with the result in this appeal and with all the analysis that is needed to support that result. I write separately to emphasize that the Court does not adopt a definition of “immediate,” other than to hold that, under any definition considered or conceivable, Nelson does not recover.
I agree with the majority opinion that, regardless of how one defines the term “immediate risk of physical harm,” Nelson has not demonstrated immediacy. Maj. Op. at 113. But the majority opinion in dicta then posits and evaluates several definitions, rating some candidates higher than others. In my view, immediacy of risk denotes the absence of mediate intervals of time or place or other circumstance (possibly including cause); i.e., something happened that would have caused plaintiff physical harm then and there if she had been a step closer or a moment sooner or later. My reading of Gottshall immediacy is informed by the Supreme Court’s use of the immediacy requirement as a limit on litigable claims. See Gottshall,
This dicta anticipates issues of some strategic significance. In Metro-North Commuter Railroad v. Buckley,
The majority opinion in this case suggests that a court could accomplish under the “immediate risk of physical harm” prong of the Gottshall zone of danger test what the Supreme Court held cannot be done under the “physical impact” prong of the test. Maybe that is a good idea. But this appeal does not present an occasion for such a ruling, and the discussion that bears on this question is (and is conceded to be) dicta.
. The majority opinion for some reason places grandparents within the "immediate” family. On one level, I suppose, that depends on the grandparents. The definition of "immediate family” in law, however, is cast in terms of two consecutive generations. See Black's Law Dictionary 620 (7th ed. 1999) ("A person's parents, spouse, children, and siblings.”). This is a question that has ramifications. See, e.g., Baker v. Dorfman,