Lead Opinion
Opinion by Judge NOONAN; Dissent by Judge HALL.
Dense fog off of Point Reyes, California, “the foggiest point on the Pacific coast.” K. Goodwin, Point Reyes Visions (2008). A covey of fishing vessels trolling for salmon in the fog. Afternoon, July 13, 2007, M/V Eva Danielsen departs San Francisco loaded with cargo destined for Portland. The Eva Danielsen is 291 feet in length and has a dead weight of 4,286 tons. Among the covey of fishing vessels is the Marja, owned and operated by Brian Stacy. At 5 P.M., the radar of the Marja picks up the Eva Danielsen, one mile away, headed to the Marja on a collision course. The Marja signals the danger to the freighter. The Eva Danielsen avoids hitting the Marja but comes close enough for Stacy to hear her engine and machinery and to feel the vessel’s wake. She passes at close quarters.
Having passed the Marja, the Eva Danielsen collides with the F/V Buona Madre. The collision destroys the fishing vessel and results in the death of her captain, Paul Alan Wade. This lawsuit followed from these events.
PROCEEDINGS
Brian Stacy brought this suit against the owners and operators of the Eva Danielsen for the negligent infliction of emotional distress. Stacy alleged that the freighter was proceeding at an unsafe speed without a proper lookout, proper radar equipment, or proper signals in violation of the International Navigation Rules Act. Stacy alleged that this action put him in grave and
On motion of the defendants, the district court dismissed Stacy’s first amended complaint for failure to state a cause of action. The court stated:
The Court concludes that, because very few jurisdictions employ a zone of danger test that lacks a “witnessed harm” requirement, even if a maritime [negligent infliction of emotional distress (NIED) ] claim may be brought under a zone of danger theory, the claim must be premised on the plaintiffs having experienced a “psychic injury” by “witnessing another being seriously injured or killed,” Chan [v. Soc’y Expeditions, Inc.,39 F.3d 1398 , 1408 (9th cir.1994) ] (emphasis omitted), while simultaneously being threatened with physical injury to him or herself. The Court will thus evaluate Plaintiffs allegation of NIED under Chan’s, formulation of the zone of danger test.
Stacy appeals.
ANALYSIS
Jurisdiction is based on federal maritime jurisdiction of torts committed on the high seas. 28 U.S.C. § 1333(1). We disregard as erroneous and irrelevant Stacy’s alternative jurisdictional theory of diversity of citizenship.
We review de novo the dismissal. Barker v. Riverside County Office of Educ.,
Under this test, applicable in the maritime jurisdiction of the United States, a tort is committed by a defendant subjecting a plaintiff to emotional harm within “the zone of danger” created by the conduct of the defendant. Id. In Gottshall, the Supreme Court held that “the zone of danger” test allowed recovery for “those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.” Id. The Supreme Court went on to quote a law review article’s exposition: “That is, ‘those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.’ ” Id. at 548,
Stacy alleged that he was within the zone of danger and that he suffered emotional distress from the fright caused by the negligent action of the defendants. Nothing more was required to assert a cause of action cognizable under maritime law.
The dissent cites cases in which various state courts defined the zone of danger by reference to the plaintiff being the witness of an accident to someone else. Gottshall cited those cases. It did not endorse them. Gottshall explicitly stated that the zone included a plaintiff “placed in immediate risk of physical harm.”
Nothing in Chan addresses a claim of emotional damages by a person directly endangered by a vessel. Nothing in Chan purports to refíne or reject the teaching of the Supreme Court in Gottshall. Nothing in Chan is relevant to the adequacy of Stacy’s complaint.
For these reasons, the judgment of the district court is REVERSED and the case is REMANDED for further proceedings.
Notes
. The dissent is based on the proposition that the zone of danger lest requires a plaintiff to witness harm to another person, rejecting the mine-run cases where the plaintiff is the direct victim of negligent conduct. The zone of danger test, however, only came to accommodate bystanders after many years of doctrinal development. See, e.g., Jarrett v. Jones,
' Failure to distinguish between direct and derivative emotional harm undermines the dissent. The dissent relies on a passage from Gottshall rejecting the Third Circuit's "foreseeability” test. Nothing in this passage imposes a "witnessed harm” requirement for claims of direct emotional harm.
The dissent also relies on two annotations. The first bears the title, Recovery Under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Must Suffer Physical Impact or Be in Zone of Danger,
The dissent repeats its fallacy by relying on two cases that purportedly “formulate the ‘zone of danger test' as including a 'witnessed harm' requirement.” Dis. Op. 1043. By their own terms, those cases addressed "negligent infliction of emotional distress upon injury to a third person.” Asaro v. Cardinal Glennon Mem'l Hosp.,
The dissent's "not-so hypothetical” scenario is vivid and thought-provoking. It underscores the dissent's faulty rationale. The dissent envisions a speeding motorist who nearly collides with "dozens, perhaps hundreds of other vehicles” over a two-hundred mile stretch of highway. Dis. Op. 1045. At the end of this distance, the motorist dramatically collides with a big rig. Id. at 1044-45. The "dozens, perhaps hundreds of other vehicles” could potentially prevail against the speeding motorist under a zone of danger theory, assuming they each suffered emotional distress from their own near-collisions. See, e.g., Wooden v. Raveling,
Dissenting Opinion
dissenting:
The majority’s dramatic rendering of the events that led to the tragic death of plaintiff Brian Stacy’s fellow fisherman, Paul Wade, omits certain important facts. The majority also refuses to follow binding circuit precedent, Chan v. Society Expeditions, Inc.,
Under the Chan formulation of the “zone of danger” test — which is the only one of the three major common law tests defining the class of plaintiffs who can recover damages for NIED that even arguably applies in this case — recovery of damages for- NIED is allowed without proof of any physical impact or injury to the plaintiff, so long as he or she: (1) witnessed peril or harm to another, and (2) was also threatened with physical harm as a consequence of the defendant’s negligence. Id. at 1409. I believe we are bound by Chan, and that Stacy has not stated and cannot state a claim for NIED under the Chan “zone of danger” test. Therefore, I respectfully dissent.
I.
First the material facts of this case, as alleged in Stacy’s first amended complaint: On the afternoon of July 13, 2007, Stacy was alone on his 32-foot commercial fishing vessel, the Marja, fishing for salmon in the waters off Point Reyes National Seashore just outside of the San Francisco Bay. Stacy had his trolling gear deployed, which restricted maneuverability, and was underway at a speed of approximately 3 knots. Other vessels, including Wade’s Buona Madre, were fishing nearby. Dense fog restricted visibility in the area to “near zero.”
At about the same time, a 291-foot commercial freighter named Eva Danielsen— which was owned and operated by appellees — left San Francisco, bound for Portland, Oregon. At approximately 5:00 p.m., the Eva Danielsen entered the fishing grounds, traveling at excessive speed, without appropriate lookouts, without sounding proper signals, without keeping proper radar watch, and otherwise proceeding in violation of International Navigation Rules that govern vessel traffic in the area.
Although the Eva Danielsen avoided Stacy’s vessel, it collided with the Buona Madre. Stacy alleges that the Buona Madre was “near” the Marja at the time of the collision, but he does not alleged that he saw, heard, felt, or otherwise perceived the collision contemporaneously with its occurrence.
The Eva Danielsen reported a collision to the Coast Guard by radio, and conducted a brief search. Following this report, Stacy proceeded north of his position to assist in the search for persons in the water. During this period, Stacy heard radio traffic expressing a belief that it was his vessel, the Marja, that was run down by the Eva Danielsen. Stacy advised all concerned that he was safe, and that the Marja had not been struck by the freighter. Following this report, the search was suspended and Stacy resumed fishing.
It was not until four days later, on or about July 17, 2007, that Stacy learned from other fishermen that the Buona Madre had been run down by the Eva Daniel-sen, and that its captain, Wade, had died after the collision. Stacy also learned that Wade had been alive after the collision, floating in the water near where Stacy had been fishing. There is no indication that Stacy knew Wade. Nor is there any allegation that Stacy knew the Buona Madre was among the vessels in the fishing grounds on the fateful day as the Eva Danielsen passed through.
Stacy filed his complaint against the owners and operators of the Eva Daniel-sen in federal court, alleging a single claim for NIED under general maritime law. Stacy alleged that, as a result of the events described in his complaint, he “was placed in grave and imminent risk of death or great bodily harm, and as a result suffered and continues to suffer great physical, mental, and nervous pain and suffering, stress and anxiety.” He further alleges that he “was required to and did employ physicians and surgeons to examine, treat and care for him,” and that he was also “prevented from attending to his usual occupation and thereby has lost earnings and benefits.”
Relying on Chan,
[B]ecause very few jurisdictions employ a zone of danger test that lacks a “witnessed harm” requirement, even if a maritime [NIED] claim may be brought under a zone of danger theory, the claim must be premised on the plaintiffs having experienced a “psychic injury” by “witnessing another being seriously injured or killed,” while simultaneously*1039 being threatened with physical injury to him or herself.
The district court granted Stacy leave to amend his complaint, but Stacy declined. Accordingly, the district court dismissed his complaint with prejudice.
II.
In Chan, a three-judge panel of this court was called upon to decide whether a claim for damages for NIED is cognizable under general maritime law, and, if so, to determine the “threshold standard” for such claims under federal common law.
A.
In Chan, two members of the Chan family, father Benny and daughter Samantha, were injured during a cruise on a ship chartered by the father’s employer, Society Expeditions.
The Chans filed a complaint against the owners of the ship and Society Expeditions, including claims seeking damages for emotional distress under general maritime law on behalf of Samantha, her two siblings who were not with the family on the cruise, and her mother, Victoria. Citing Sear-Land Services v. Gaudet,
B.
While the Chan case was pending on appeal, the Supreme Court decided Consolidated Rail Corp. v. Gottshall,
As articulated by the Supreme Court in Gottshall, recovery of damages for NIED is available under the “zone of danger” test to “those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.”
C.
Following the lead of Gottshall, the Chan panel held that a claim for NIED is cognizable under general maritime law.
In describing the most restrictive theory, the “physical injury or impact” test, the Chan panel stated that it allows a plaintiff to recover emotional distress damages “only if he or she suffers an accompanying physical injury or contact.” Id. at 1409 (citing Plaisance v. Texaco, Inc.,
Under ... the “zone of danger” doctrine, plaintiff may recover even though there is no physical contact, so long as the plaintiff (1) witnesses peril or harm to another and (2) is also threatened with physical harm as a consequence of the defendant’s negligence.
The bystander proximity rule permits recovery, even if one is not in the zone of danger, provided the complainant: (1) is physically near the scene of the accident; (2) personally observes the accident; and (3) is closely related to the victim.
After outlining the three tests, the Chan panel decided that it did not need to select one of the common law limiting tests for NIED to be controlling in all cases arising in the maritime context — as the Gottshall Court had done in the FELA context— because none of those theories would allow recovery by the two Chan children who were not physically present on the cruise with their parents and Samantha, and because the facts alleged as to Samantha would allow her to recover under all three of the theories.
III.
The majority implies, however, that the Chan panel’s formulation of the “zone of danger” test is inconsistent with the test adopted by the Supreme Court in Gottshall and subsequently applied by the Court to NIED claims arising in FELA cases, albeit in very different factual contexts. See Metro-N. Commuter R.R. Co. v. Buckley,
A.
Ignoring the in-depth reasoning in Justice Thomas’s majority opinion in Gottshall, the majority here quotes only a preliminary statement of the “zone of danger” test recited by the Gottshall Court, as follows:
Perhaps based on the realization that “a near miss may be as frightening as a direct hit,” the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, “those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.”
Carlisle, on the other hand, alleged a claim for NIED based on his own job-related stress from working as a train dispatcher, and later as a trainmaster, who was responsible for ensuring the safe and timely movement of passengers and cargo under very difficult working conditions— including aging railstock and outdated equipment, and reductions in the work force that required him to take on additional duties and to work extremely long, erratic hours — which caused him to experience insomnia, headaches, depression, weight loss, and eventually a nervous breakdown. Id. at 539,
In rejecting the more flexible and expansive “foreseeability” test the Third Circuit applied to evaluate Gottshall’s and Carlisle’s claims for NIED, and specifically discussing the need to limit the class of plaintiffs eligible for recovery of damages, the Supreme Court made the following observations regarding Gottshall’s claim:
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.
There are also several annotations that compile the numerous state and federal cases on NIED, and support the district court’s observation that “in nearly all of the cases the [Gottshall ] Court cited as using the [“zone of danger”] test, the plaintiffs sought to recover for NIED on the basis that they had witnessed another
B.
Of course, Stacy does not, and apparently cannot, allege that he witnessed the collision that led to Wade’s death. He nevertheless alleges that he was in the “zone of danger” created by appellees’ negligent conduct, and I have no doubt that Stacy has adequately pleaded (although, obviously, has not yet proven) that appellees were negligently operating the Eva Danielsen as it passed through the fishing grounds in dense fog. However, in addition to his failure to allege that he witnessed the deadly “peril or harm” to Wade, as required by Chan,
To be sure, the facts presented by Stacy are tragic and compelling, which might explain the majority’s effort to extend the “zone of danger” test to the present context. It is perfectly understandable that Stacy — as well as all of the other fishermen who were fishing in dense fog when the Eva Danielsen came steaming through their fishing grounds on July 13, 2007, especially those who assisted with the search operation after the Eva Danielsen collided with the Buona Madre, as Stacy claims he did' — might suffer great psychic trauma upon learning, after the fact, that one of their fellow fishermen died after being tossed into the ocean as a result of a collision with the freighter. They might also have suffered “survivor’s guilt” for having failed to rescue Wade, who was allegedly, although unbeknownst to them at the time, still alive and floating in the water near where they had been fishing. But, again, it appears that Stacy had no way of knowing that until days later. Stacy might well have suffered additional guilt from the fact that the post-collision search was called off as a result of his report that he and his boat, the Marja, were safe and sound and had not collided with the Eva Danielsen, as the latter ship had reported. Nevertheless, even assuming all of this to be true, Stacy has not alleged that he suffered fright or shock or severe emotional distress as a result of any “immediate traumatic harm” caused or threatened by
C.
In concluding that Stacy has stated a claim upon which relief may be granted, I believe the majority conceives of a much more expansive “zone of danger” test than has been recognized to date by the Supreme Court, this court, or any other jurisdiction that has adopted that test. A not-so-hypothetical scenario to which many a landlubber can relate, and which is closely analogous to the facts of this maritime case, easily illustrates the problem.
The majority and I probably would agree that the motorists who were directly involved in such an horrific crash (including, of course, the driver of the big-rig), and those who witnessed first-hand the carnage and destruction caused by the driver of the pick-up truck as it occurred without suffering any direct physical impact or injury, could state a claim for NIED against that driver and any other negligent actors who caused the crash, under any formulation of the “zone of danger” test. Under the majority’s reading of the Gottshall “zone of danger” test, however, every one of the hundreds, perhaps thousands, of motorists and their passengers who were “frightened” by “near misses” with the pick-up truck as it sped erratically past them on that 200-mile stretch of 1-5, or who were alarmed upon learning of the fiery wreck from news reports the next day, could also state a claim for NIED— whether or not they witnessed the accident and, indeed, possibly even if there was no collision at all.
As this hypothetical demonstrates, recovery for NIED under a “zone of danger” theory — at least in cases involving a serious “injury producing, sudden event” — will
IV.
Because the allegations of Stacy’s first amended complaint do not satisfy the “zone of danger” test for NIED as stated in Chan, I would affirm the judgment of the district court dismissing his complaint for failure to state a claim upon which relief may be granted.
. I do not believe we must decide whether, in an appropriate case, a claim of NIED satisfying the "bystander proximity” or "relative bystander” test may also be recognized in the maritime context. As the Chan case shows, it is not at all "unlikely” that a person involved in a maritime accident — as opposed to a railroad worker covered by FELA — would have occasion to witness the death or serious injury of a close family member, whether or not that person was within the “zone of danger.”
. The Gottshall court rejected Carlisle’s claim without a great deal of analysis, finding no support in the common law for the Third Circuit’s holding, "which would impose a duty to avoid creating a stressful work environment, and thereby dramatically expand employers' FELA liability to cover the stresses and strains of everyday employment.”
. The district court’s observation on this point was quite accurate. Most of the cases cited by the Gottshall Court as allowing recovery damage for NIED under a "zone of danger” test involved actual physical injuries to the plaintiff, or witnessed harm to a close family member, or both. See Gottshall,
. The only case cited by the majority in support of its claim that “ample authorities apply[ ] the zone of danger test to direct victims, not only bystanders” is a district court decision, Hall v. Norfolk S. Ry. Co., 829 F.Supp.
. The following hypothetical is loosely based on actual events which have occurred with some regularity on Interstate 5 and State Route 99 in California's Central Valley in recent years. See http://en.wikipedia.org/wiki/ Tule_fog (visited June 1, 2010).
. The majority candidly acknowledges that its "zone of danger” test would have this incredibly broad reach. See slip op. at 1036 n.2. By the same token, every person aboard the fishing vessels in the fleet when the Eva Daniel-sen steamed through the fishing grounds at unsafe speed, and eventually ran down the Buona Madre, would have a viable claim for NIED if he or she was seriously upset by the events of that evening — whether or not they witnessed the collision in which Wade was killed, and no matter when they learned of his death.