Stacy v. Rederiet Otto Danielsen, A.S.

Madrid, See, Gomez, e.g., v. Cir.1999) STACY, (9th Plaintiff-Appellant, Brian (remanding for an

993-95 attorneys’ following fees incurred award of the PLRA when the dis- the enactment of court, trial, three month “veri-

trict after a DANIELSEN, A.S.; REDERIET OTTO many prisoners’ complaints,” fied Shipping, K.S. Aries Defendants infir- and found “numerous constitutional -Appellees Webb, mities”); (affirming, attorneys’ an after No. 09-15579. part, award of fees summary granted partial the district court United States of Appeals, jail’s judgment finding overcrowding Ninth Circuit. unconstitutional); Dannenberg, (remanding F.3d at 1075-76 an Submitted March 2010.1 attorneys’ award of fees for a reasonable- jury determination after a found that ness Filed June 2010. rights

the inmate’s constitutional had been

violated).

Accordingly, we conclude the dis- by granting Kimbrough’s

trict court erred attorneys’ precedent

motion for fees. Our Kimbrough cannot

establishes be said attorneys’

to have incurred fees under the

PLRA because he never established an right pursuant

actual violation of a § a may

which fee be awarded under 1988. Siripongs,

See 282 F.3d at 758.

REVERSED. affirmatively ruling directly establish an actual violation in which a could be made [] attorneys’ finding order to recover fees under the the existence of unconstitutional be- Miller, havior!,]” generally PLRA. See Ilick v. the district court found the inmate Hick, (D.Nev.1999). attorneys’ F.Supp.2d was entitled to fees under the PLRA de brought he about an prior Siripongs, parties agreed cided because alteration prison's holding directly behavior. Id. This voluntary dismissal of the claims contained Siripongs. conflicts with our decision Complaint in the inmate’s after certain changes prison. were made id. at See noting parties panel unanimously 1172. After were 1. concludes this case really posture, argument. "never in a such after sum is suitable for decision without oral merits, 34(a)(2). judgment mary R.App. trial on the Fed. P. See HALL,

Before: CYNTHIA HOLCOMB JOHN T. NOONAN and SIDNEY R. THOMAS, Judges. Circuit NOONAN; Opinion by Judge Dissent by Judge HALL.

NOONAN, Judge: Circuit California, fog Reyes, Dense off of Point foggiest point “the on the Pacific coast.” Goodwin, (2008). Reyes Point Visions K. A covey fishing trolling vessels for salm- Afternoon, fog. on in the July Eva Danielsen departs San Francisco M/V cargo loaded with destined for Portland. The Eva Danielsen is 291 feet in length 4,286 and has a weight dead tons. Among the covey fishing vessels is the Marja, operated by owned and Brian Sta- cy. P.M., Marja At 5 the radar of the Danielsen, picks up the Eva one mile Marja away, headed to the on a collision Marja signals course. The the danger to The Eva Danielsen avoids freighter. hitting Marja enough but comes close Stacy to hear engine her and machin- ery and to feel the vessel’s wake. She passes at quarters. close Having passed the Marja, the Eva Dan- ielsen collides with the Buona Madre. F/V destroys The collision fishing vessel results the death of captain, her Paul Alan Wade. This lawsuit followed from these events. PROCEEDINGS Hughes, John J. Law Offices of John J. Stacy brought Brian against this suit Francisco, CA, Hughes, San plain- for the of the Eva Daniel operators owners and

tiff-appellant. sen for the negligent infliction of emotional Tamulski, James J. Emard Danoff Port Stacy alleged freighter distress. that the LLP, Francisco, Tamulski & Paetzold San proceeding at an speed unsafe without CA, the defendants-appellees. lookout, a proper proper equipment, radar proper signals violation of the Inter national Navigation Stacy Rules Act. al leged that this action him in put grave and or great bodily imminent risk of death inferences from them in the light most harm, impacting emotionally him so that plaintiff. favorable to the Id. The suffi- psychiatric ciency he not work and needed governed could by the help. general maritime law of the United States. Inc., Soc’y Chan v. Expeditions, 39 F.3d defendants, motion of the the district On (9th 1398, Cir.1994). 1409 The federal Stacy’s court dismissed first amended com- negligent standard for the infliction of plaint for failure to state a cause of action. provided emotional distress is by Consoli- The court stated: Gottshall, 532, Corp. dated Rail v. 512 U.S. that, very The Court concludes because 2396, 114 S.Ct. 129 L.Ed.2d 427 jurisdictions employ few a zone of dan- (1994). a ger test lacks “witnessed harm” requirement, even if a [negli- maritime applicable Under in the gent infliction of emotional distress jurisdiction States, maritime of the United (NIED) under a brought ] by a tort is committed subject defendant danger theory, zone of the claim must be ing plaintiff to emotional harm within premised plaintiffs having expe- on the by “the zone of created the con a “psychic injury” by rienced “witness- duct of the defendant. Id. In injured ing being seriously another Supreme Court held that “the zone of killed,” Inc., Soc’y Expeditions, [v. Chan recovery test allowed for “those (9th cir.1994) (em- 1398, 1408 ] plaintiffs physical who sustain a impact as omitted), phasis simultaneously while conduct, a result of a negligent defendant’s being physical injury threatened with to placed or who are in immediate risk of him or herself. The Court will thus physical harm that conduct.” Id. The allegation evaluate Plaintiffs NIED went quote on to a law Chan’s, under formulation of the zone of is, review exposition: article’s “That ‘those danger test. within danger physical the zone of im pact fright, can recover for and those out Stacy appeals. ” 548, side of it cannot.’ Id. at 114 S.Ct. ANALYSIS (quoting Pearson, 2396 Richard N. Liabili Jurisdiction is on ty Bystanders based federal maritime Negligently Inflicted jurisdiction Harm, high 447, of torts committed on the Emotional 34 U. Fla. L.Rev. 1333(1). (1982)). § disregard seas. 28 U.S.C. We 489 Stacy’s as erroneous and irrelevant alter- Stacy alleged that he within jurisdictional theory native diversity danger the zone of he suffered citizenship. emotional distress from the fright caused We review de novo the dismissal. the negligent action of the defendants. Barker v. County Nothing Riverside required more was assert Office of Educ., (9th 821, Cir.2009). 824 cause of action cognizable under maritime accept alleged We as true facts and draw law.2 (Mo.2008). proposition

2. The dissent is based on the S.W.3d 445 The dissent re- danger requires plaintiff the zone of lest though lies on our in Chan decision person, rejecting harm to adopted Judge witness another the witness test as exclusive. plaintiff mine-run cases where the is the di- panel Goodwin wrote for the in Chan: "at rect victim of conduct. psychic injury The zone of issue here is the that comes test, however, danger only witnessing being seriously came to accommo- from another in- bystanders many years jured date after of doctrinal or killed.” 39 F.3d at 1408. The See, Jones, development. e.g., Jarrett v. did not address the case where a has followed this standard. Ninth Circuit has not abandoned Supreme Court Passenger Corp., R.R. v. Nat’l inflicted creat- Rivera of the tort its statement danger. Metro-N. Commut- (9th Cir.2003). 1074, 1082 a zone of F.3d 424, 430, Buckley, 521 U.S. Co. v. er R.R. cites cases which various The dissent (1997) L.Ed.2d 560 danger by courts defined the zone of state (“immediate harm” created physical risk plaintiff being the witness reference to & W. conduct); by the defendant’s Norfolk else. Gottshall of an accident to someone Ayers, Ry. Co. 538 U.S. cases. It did not endorse cited those (2003) (“those L.Ed.2d 261 S.Ct. stated that them. Gottshall explicitly harm, but instant escaped who “placed a in immedi- plaintiff zone included danger physical zone of were ‘within the ”). harm.” physical ate risk of expected, As would be impact’ ligent of emotional distress psychic damage encoun- infliction from direct suffers injury person.” a third Asaro v. Cardinal ter. 595, Hosp., Mem'l 799 S.W.2d 600 Glennon ' distinguish direct and Failure to between added); (Mo.1990) Rickey (emphasis v. see emotional harm undermines derivative 546, Auth., 98 Ill.2d 75 Ill.Dec. Chi. Trarisit 211, passage on a from dissent. The dissent relies 1, (1983) (applying the 457 N.E.2d 5 rejecting the Third Circuit's "fore- Gottshall bystander danger "a who zone of test to is Nothing passage seeability” in this im- test. physical danger” (emphasis the zone of add requirement poses harm” for a "witnessed ed)). claims of direct emotional harm. hypothetical” "not-so scenario The dissent's also relies on two annotations. The dissent thought-provoking. is vivid and It under title, Recovery Under State The bears the first faulty scores the dissent's rationale. The dis Negligent Emotional Dis- Law Infliction of speeding nearly who sent envisions a motorist Witnessing Injury to Another tress Due to "dozens, perhaps collides with hundreds of Physical Bystander Where Must Plaintiff Suffer other vehicles” over a two-hundred mile Impact Danger, 5th or Be in Zone 89 A.L.R. Op. highway. Dis. 1045. At the stretch of (2010) (underline added). Given the title 255 distance, dramatically end of this the motorist annotation, unsurprising that the of this rig. big with a Id. at 1044-45. The collides only cases therein involve “witnessed harms.” "dozens, perhaps hundreds of other vehicles” likely Skyscrapers A book titled New York will against speeding potentially prevail could Taipei not discuss the Sears Tower or 101. danger theory, a zone of as motorist under course, err, We would to conclude that suming they each suffered emotional distress these structures do not exist. The second See, e.g., their own near-collisions. from simply support the dis- annotation does not 1035, Raveling, Cal.App.4th Wooden v. 61 71 position; ample sent's it contains authorities (1998); Cal.Rptr.2d Camper 891 see also v. danger applying zone of test to direct Minor, (Tenn.1996) (not 915 S.W.2d 442 victims, Recoveiy only bystanders. not See danger pri ing the zone of test “arose Negligent Emotion- or Intentional marily from ‘near-miss' automobile accident Infliction of (46 Appx. al Distress Under Jones Act U.S.C.A. cases”). sufficiently The vehicles near the 688) Liability Employers’ § Under Federal or big rig may possibly final with the collision (45 etseq.), §§ Kolb, Act U.S.C.A. 51 123 A.L.R. Fed. bystanders. Cf., e.g., Zea v. recover as alia, (2010) (citing, § inter Hall v. (1994); 583 II.A.3 204 A.D.2d N.Y.S.2d Co., Ry. F.Supp. Cross, S. (Minn. Stadler 295 N.W.2d Norfolk ("A (N.D.Ga.1993) jurisdictions majority 1980). approach, Yet under dissent's rule, danger' now use the ‘zone of which recovery candidate for most obvious —the permits recovery injuries for emotional result- big rig have driver of the no —would all, witnessing physical harm to another against speeding from motorist. After oneself.”)). fearing physical big rig any or from harm to driver of the did not witness fallacy by relying repeats speeding its on dissent collision between the motorist and rig purportedly party; big “formulate the was the two cases that third the driver of conduct, danger including and under ‘zone of test' as 'witnessed direct victim of view, By requirement.” Op. his claim is foreclosed harm' Dis. 1043. the dissent's terms, "neg- those cases addressed Chan. their own tells us how we have maritime Chan Under the Chan formulation of the jurisdiction of a claim for the tortious in- of danger” “zone test —which only is the injury. fliction of emotional It is otherwise one major of the three common law tests Goodwin, Judge not instructive here. defining the plaintiffs class of who can Chan, writing for the stated: “at damages recover for NIED that even ar psychic injury guably applies issue here is comes recovery case— witnessing being seriously damages from another for- NIED is allowed without (em- injured proof or killed.” 39 F.3d at 1408 of any physical impact injury omitted). phasis setting (1) After out its un- the plaintiff, long so as he or she: derstanding (2) of the various peril another, tests the witnessed or harm to issue, tort at the court “it declared: is was also threatened with harm as clear that we need not consequence decide which test to negli defendant’s adopt today to appeal. gence. decide this None of Id. at 1409. I believe we are Chan, recovery these theories allows for emotion- bound and that Stacy has not pres- al distress when the was not stated and cannot state a claim for NIED ent at the accident scene.” Id. 1409. under the Chan “zone of danger” test. Therefore, I respectfully dissent. in

Nothing Chan addresses a claim of damages by emotional a person directly I. endangered by a Nothing vessel. in Chan purports reject to refíne or teaching case, First the material facts of this in Supreme Court Gottshall. Nothing alleged in Stacy’s first complaint: amended in Chan is relevant adequacy 13, 2007, On July the afternoon of Stacy Stacy’s complaint. was alone on his 32-foot commercial fish- vessel, Marja, fishing for salmon in reasons, judgment For these of the off Reyes waters Point National Sea- district court is REVERSED and the case just shore outside of the San Francisco is REMANDED for proceedings. further Bay. Stacy trolling had his gear deployed, HALL, Judge, Circuit which restricted dissenting: maneuverability, and was underway a speed of approximately 3 majority’s The rendering dramatic vessels, knots. Other including Wade’s the events that led to the tragic death of Madre, Buona were fishing nearby. Stacy’s fisherman, Brian fellow fog visibility Dense restricted in the area Wade, Paul important omits certain facts. to “near zero.” majority also refuses binding to follow circuit precedent, Society Chan v. Expedi- time, At about the same a 291-foot com- tions, Inc., (9th Cir.1994), 39 F.3d 1398 freighter mercial named Eva Danielsen— a three-judge panel which of this court which was operated by owned and appel- defined the contours of the Francisco, “zone of dan- lees—left San bound for Port- ger” land, test for claims of negligent infliction Oregon. At approximately p.m., 5:00 (“NIED”) of emotional gen- distress under the Eva Danielsen entered the fishing law, eral maritime and grounds, announced formu- traveling at speed, excessive lation of that test which is grounded lookouts, well appropriate without without law, in state common appropriate to the sounding proper signals, keeping without context, maritime watch, and consistent with proper Su- radar and pro- otherwise preme precedent regarding claims ceeding violation of International Navi- of NIED under federal common law. gation govern Id. Rules that vessel traffic in at 1408-09. the area. day as the Eva on the fateful grounds radar, Stacy observed

Using through. passed of his Danielsen mile was within one Eva Danielsen aon collision appeared to be vessel and against Stacy filed his with radio contact established course. He Eva Daniel- operators of the owners and Danielsen, subsequently al- which Eva court, single claim alleging a in federal sen Stacy’s vessel. to avoid its course tered maritime law. general NIED under radar, Stacy watched as Again using that, a result of the events Stacy alleged and vessel his passed Eva Danielsen placed complaint, he “was his described fishing into the rest continued on imminent risk of death or grave and him to fog was too dense fleet. The harm, a result suffered bodily and as great Stacy felt the ship, but actually see great physical, to suffer and continues en- and heard its wake Eva Danielsen’s mental, suffering, pain nervous quarters.” “at close gine passed as it alleges further anxiety.” He stress and avoided the Eva Danielsen Although employ and did required “was that he Buona vessel, it with the Stacy’s collided examine, treat surgeons physicians Stacy alleges that the Buona Ma- Madre. him,” also and that he was and care the time of Marja dre was “near” attending to his usual “prevented from collision, alleged that but he does not thereby earnings lost occupation and has saw, heard, felt, perceived or otherwise he and benefits.” its contemporaneously with the collision Chan, F.3d the dis- Relying on occurrence. that a claim for acknowledged trict court a collision reported Danielsen The Eva law, cognizable under maritime NIED is radio, by and conduct- Guard to Coast appellees’ granted nevertheless but it Following report, this a brief search. ed for Stacy’s complaint to dismiss motion to position north of his Stacy proceeded a claim which relief failure to state in the persons in the assist search finding both the granted. be After could Stacy heard During period, water. this and the “physical impact” test so-called that it was expressing traffic belief radio inapplicable rule” bystander “relative vessel, run down Marja, that was his case, the district court the context of this all Stacy Danielsen. advised by the Eva Stacy might carefully considered whether safe, and that the concerned that he was to state a claim under the “zone be able by freight- Marja not been struck had articulated in Chan. danger” theory was Following report, this the search er. limiting test an- Faithfully applying Stacy fishing. suspended resumed Chan, court in the district by nounced Citing not. concluded that he could court later, days on or It was not until four Chan, 1408, the district court 17, 2007, July Stacy learned about explained: Ma- other that the Buona from fishermen very jurisdictions employ few Daniel- [B]ecause had been run down the Eva dre Wade, test that lacks a “wit sen, danger had died a zone of captain, and that its even if requirement, harm” Stacy learned nessed after the collision. also collision, brought maritime claim [NIED] after the had been alive Wade theory, danger Stacy had under zone in the water near where floating hav plaintiffs on the premised must be fishing. There is no indication been injury” experienced “psychic any allega- ing Nor is there Stacy knew Wade. seriously in being another “witnessing Stacy knew the Buona Madre tion killed,” simultaneously fishing jured or while the vessels in the among was Gaudet, being injury threatened with Sear-Land Services v. 414 U.S. him or herself. 585 n. 94 S.Ct. 39 L.Ed.2d 9 (1974) and Cook v. Ross Island Sand & court granted Stacy district leave to Co., (9th Gravel Cir. complaint, Stacy amend his but declined. 1980), the district court in Chan dismissed Accordingly, the district court dismissed all claims, of the emotional distress con- prejudice. his with

cluding that the pain mental and anguish II. injured party’s of an family is not compen- sable in an action general under maritime Chan, In a three-judge panel of this law. 39 F.3d at 1408. court called upon to decide whether a damages claim for cognizable NIED is B. law, so, general and,

under maritime if determine the “threshold standard” for While Chan case was pending on such under common claims federal law. 39 appeal, Court decided Con at 1408-09. A brief synopsis F.3d Corp. solidated Rail 512 U.S. holding facts and of Chan is called for 532, 129 L.Ed.2d 427 here, majority suggests as the the “zone of (1994), and for the first time recognized a adopted by in that federal common law claim for NIED —in dictum, mere inap- case was or is somehow that case for a subject railroad worker posite in the factual circumstances of this Employers’ Act, the Federal Liability case. (“FELA”). Gottshall, §§ U.S.C. 51-60 U.S. However, S.Ct. 2396. A. because it was concerned that recognition Chan, two members of the fam- Chan poses of such very claims “the possi real ily, Benny Samantha, father and daughter bility nearly infinite and unpredictable injured were during a cruise on a ship liability defendants,” the Supreme chartered the father’s employer, Soci- major evaluated the three theories ety Expeditions. 39 F.3d at 1401-02. On limit the of plaintiffs class who can day cruise, the second Benny of the and recover damages for NIED under state among Samantha were a group passen- of i.e., common “physical the impact” law— gers being ship by ferried from the an test, the “zone of danger” and the inflatable raft to a coral atoll when the raft bystander” “relative 546-49, test. Id. at turned broadside to a capsized. wave and 114 S.Ct. 2396. After a lengthy discussion Benny Id. at 1402. and Samantha were of the evolution of the NIED tort and the surf, thrown into the and pilot the policy underpinnings of the three common raft passenger and another died the tests, law the Supreme adopted Court the capsizing. Benny Id. sustained severe “zone of danger” test for NIED claims injuries, brain and head as well as other 547-548, brought pursuant to FELA. Id. at physical injuries, and Samantha sustained S.Ct. 2396. both physical injuries. and emotional Id. by As articulated Supreme the

The Court in Chans filed a against the Gottshall, recovery damages of owners of the for NIED ship Society and Expedi- tions, is available under including the “zone of seeking damages claims plaintiffs to “those general emotional distress under who sustain a physical mari- Samantha, impact time law on behalf of her two as result of a negli- defendant’s siblings conduct, who were not with family gent the on or who placed are in immedi- cruise, mother, the and her physical Victoria. Cit- ate risk of by harm that conduct.” adopting ... the doc- explained that is was Under “zone of

The Court that “best trine, it is the one plaintiff may though that test because recover even focus on “central harmonizes” statute’s contact, physical long is no so as there “encourage intent physical perils,” its (1) or harm peril witnesses improve safety measures in employers to (2) to another and is also threatened “pro- claims” and to order to avoid [such] consequence with harm as injuries and death compensation for vide negligence. the defendant’s physical dangers of railroad caused Plaisance, (citing at 1409 966 F.2d 39 F.3d work,” goals,” with and its “broad remedial Corp. and Nelsen v. Research countervailing concerns about policy (D.Hawai’i Haw., F.Supp. Univ. of suits, trivial for a flood of potential “the 1992)). Finally, panel the Chan described claims that are possibility fraudulent “bystander proximity” it called the what detect, judges juries to and difficult test for NIED follows: unpre- and specter and the unlimited proximity bystander permits rule liability.” dictable Id. at recovery, even if is not in the one zone 2396. (1) danger, provided complainant:

C. acci- physically is near the scene of the (2) dent; the acci- personally observes Gottshall, Following the lead of (3) dent; closely related held panel that a claim for NIED is Chan victim. under maritime cognizable general law. But, contrary at 1408-09. to the Legg, at 1410 (citing Dillon assertion, all majority’s is not Cal.Rptr. 441 P.2d 912 Cal.2d panel Declaring “[w]e Chan decided. (1968)). next must decide the threshold standard tests, outlining After the three Chan met by plaintiffs bringing that must be panel decided it did not need to select mari- general claims for under [NIED]” limiting of the common tests for one law law, time the Chan looked to state controlling arising NIED to be all cases law, common instructed in the maritime context—as the Gottshall proceeded to dis- Court had done in FELA context— limiting the same re- cuss three theories none because of those theories would allow covery for NIED identified the Su- recovery by the two Chan children who preme Court Gottshall. 39 F.3d at physically on the present were not cruise 1409-10. Samantha, parents their and be- with describing theo most restrictive alleged the facts as to cause Samantha ry, “physical injury impact” the the to would allow her recover under all three panel plaintiff Chan stated that it allows the theories. at 1410. of 39 F.3d What damages to recover emotional distress majority the in suggesting overlooks if “only accompanying he or she suffers an danger” theory “zone of articulated in injury or at 1409 physical contact.” Id. dictum, however, is mere is that Chan Texaco, Inc., v. (citing Plaisance panel apparently that case believed it in (5th 1004, Cir.1991), 1009 on other aff'd necessary legal to define contours (5th Cir.1992),

grounds, 966 F.2d cert. 166 claim of NIED of of a under each denied, 604, 506 U.S. 113 121 S.Ct. theories, applied by three the district (1992)). Turning L.Ed.2d 540 to the next NIED court as to Victoria Chan’s claim theory, most restrictive the Chan her affording after a chance to amend her danger” articulated “zone of doctrine light in panel’s as follows: decision. Thus, Court, danger” I the “zone of test recited Id. believe Gottshall binding prece- in articulated Chan has follows: circuit, provides in dential force Perhaps based on the realization that “a case, for this and we are rule of decision near miss be as frightening as a it. v. ignore not free to See Miller Gam- hit,” danger direct the zone of test limits Cir.2003) (en (9th mie, recovery injury for emotional to those banc).1 plaintiffs who a physical impact sustain as a result defendant’s III. conduct, or placed who are in immedi- however, majority implies, that the physical ate risk harm that con- panel’s Chan formulation of the “zone of is, That duct. “those within the zone of danger” test is inconsistent with the test danger physical can impact recover by the in adopted Supreme Court Gotts- fright, and those outside of it can- subsequently applied by hall and not.” arising Court to NIED claims in FELA 547-48, 114 cases, very (quoting U.S. S.Ct. 2396 albeit different factual con- Pearson, Liability Bystanders R.R. Neg texts. See Metro-N. Commuter Co. 424, 430, ligently Buckley, U.S. S.Ct. Emotional Harm —A Inflicted (1997) (no right 138 L.Ed.2d 560 to Comment on the Nature Arbitrary Rules, (1982)) damages recover for “fear of cancer” un- 34 U.Fla.L.Rev. 488-89 added). danger” der “zone of test for NIED based (emphasis Based a more exposure Gottshall, on mere without evi- however, asbestos careful reading of I i.e., any “physical impact,” dence of believe is reasonable to conclude that the plaintiff developed has asbestos-related Chan test is consistent with disease); Ry. Ayers, & Co. v. W. least in plaintiff cases which the alleges Norfolk 135, 146, 538 U.S. 155 a “stand-alone” for NIED —such as (2003) (recovery un- L.Ed.2d 261 allowed Stacy alleges the one on a threat —based der “zone of test for NIED where of “immediate traumatic harm” which does been diagnosed has with as- any not result in actual impact or bestosis, damages for “fear of cancer” injury. Ayers, See 538 U.S. at alleged part pain (Gottshall are and suffer- Buckley S.Ct. 1210 describe existing associated with asbestos-relat- types two of claim for negligently inflicted disease). explain, ed For I will I reasons emotional distress: “stand-alone” claims disagree. provoked by any physical not impact or injury, recovery for which sharply cir

A. test; cumscribed the zone-of-danger Ignoring in-depth reasoning Jus- and claims for emotional brought distress majority opinion tice by physical injury, Gotts- on for which pain Thomas’s hall, majority quotes only pre- suffering recovery here has traditionally been liminary permitted). statement of the “zone of whether,

1. I do not believe we must decide road worker covered FELA —would have case, appropriate satisfy- an a claim of NIED inju- occasion to witness the death or serious "bystander proximity” the or "relative member, ry family aof close whether or not bystander” recognized also be person danger.” was within the “zone of shows, maritime context. As the Chan case 1401-02; Gottshall, 39 F.3d at 512 U.S. cf. "unlikely” person is not at all that a involved 548-49, 556, at 114 S.Ct. 2396. opposed in a maritime accident —as to a rail- Gottshall, First, injury If to are the facts of on emotional Gottshall was there Conrail, Supreme injury “foreseeable” to such of which the the basis viable claim for NIED the other seven members of his work potentially found a Gottshall, but not crew was also foreseeable. Because one plaintiffs, of the for one other, alleged Gottshall need not witness an accident to suffer for the Carlisle. therefrom, however, post-traumatic injury stress dis- emotional that he suffered seeing being potential liability and would not neces- order as result there; sarily any in the events sur- have to end Conrail participate forced to collapse employees and death of his who heard or read about the rounding co-worker, Johns, surrounding Richard events could friend and Johns’ death close together foreseeably on a have they working while were also suffered emotional site, course, job injury on an not all of railroad crew at a secluded as result. Of day, humid at an unrea- workers would have been as trau- extremely hot and these any means of sonably pace, tragedy fast without matized as was summoning emergency many medical services but could have been. Under standard, apparent after suffered an heat-re- Third thus Johns Circuit’s Conrail potential unpredictable lated heart attack. Id. at could face the liability large employees S.Ct. 2396. to a number of alleg- removed scene far from Carlisle, hand, alleged on the other edly negligent conduct that led to Johns’ job- NIED claim for based on his own death. working a train related stress from Thus, U.S. S.Ct. 2396.2 trainmaster, dispatcher, and later as a who explicitly while not that a rail- requiring responsible ensuring the safe and road worker had to have timely “witnessed” his passengers cargo movement of and bring co-worker’s death order to a claim very working under difficult conditions— NIED, passage suggests including aging railstock and outdated Supreme recovery limit equipment, and reductions the work Court intended to to, most, required force that him to on take addi- those members of the work extremely tional and to long, working duties work crew who were under the same conditions, erratic hours —which him to experi- caused were at the scene when Johns insomnia, headaches, depression, died, ence inju- and suffered serious emotional loss, weight eventually a and nervous ries as a of the negligent result conduct of breakdown. Id. at 114 S.Ct. 2396. employer their that caused Johns’s death. There are several rejecting also annotations more flexible and ex- compile pansive “foreseeability” the numerous state and federal test the Third Cir- NIED, applied support cuit cases on the district evaluate Gottshall’s and NIED, specifically nearly Carlisle’s claims for court’s observation that “in all of discussing the need to limit the class of the cases the cited [Gottshall ] Court plaintiffs eligible recovery damages, using danger”] [“zone following plaintiffs sought Court made the to recover for NIED on regarding they observations Gottshall’s claim: had basis witnessed another rejected everyday employment.” 2. The Gottshall court Carlisle’s claim and strains of great analysis, finding 2396; without a deal of no U.S. at id. at support in the common law for the Third (concluding S.Ct. 2396 that Carlisle’s work- holding, impose "which Circuit’s would "plainly stress-related does not fall duty creating to avoid a stressful work envi- conception within the common law’s ronment, thereby dramatically expand danger”). zone of employers' liability FELA cover the stresses

1043 See, e.g., Recovery should have injured.”3 his person be realized that conduct in Negligent Under State Law plain volved an unreasonable risk to the for Infliction (2) Witnessing tiff, Emotional Distress Due to plaintiff that was at present of Injury Bystander injury producing, to Another Where an sudden scene of event, (3) Physical or Impact Must and that plaintiff was the zone Suffer Plaintiff i.e., Danger, Be in Zone danger, placed 89 255 of in a A.L.R. 5th reasonable fear of Inten- (2010); Recovery Negligent or injury of to her physical per his or own son”) Rickey, Distress added); tional Emotional (emphasis 98 Ill.2d of Infliction (46 556, 211, Under Jones Act Appx. 75 Ill.Dec. 457 U.S.C.A. N.E.2d 1 688) (“[U]nder Lia- rule,] Employers’ or Under Federal § a danger by [the zone of (45 bility Act §§ 51 123 is in a seq.), physical danger U.S.C.A. et stander who zone of (2010). Indeed, who, A.L.R. of and because of the negli Fed. 583 some defendant’s Gottshall gence, has the cases cited reasonable fear his own given a explicitly safety right formulate the “zone of of action for re- injury resulting test as “witnessed harm” or illness from emotional including This quirement i.e., requirement require distress. rule does not — See, harm plaintiff bystander physical impact to another. suffer a or witnessed Mem’l act, e.g., Asaro v. Cardinal Glennon injury negligent the time of but 595, (Mo.1990) Hosp., require 799 599-600 it does that he have been in S.W.2d must proximity such to the accident in which (holding plaintiff that “a states a cause victim physically injured the direct was infliction action for of emotional only to a was a him of upon injury person high physi distress third there risk to (1) added).4 impact.”) (emphasis cal showing: light defendant point injuries witnessing 3. The district court’s observation on this tional suffered while de- husband); quite was Most of the cited accurate. cases fendant's assault on her Stewart v. Co., 764, recovery allowing Court as Gottshall Southern La. Arkansas R. 112 36 So. (1904) (defendant’s damage under a negligence for NIED "zone of 676 caused the physical injuries to the test involved actual pregnant plaintiff which train on rode to be- family plaintiff, harm to a or witnessed close decoupled, causing passengers come fellow member, See 512 U.S. at both. bloody injuries injuring plaintiff's suffer and 9, (citing, Co., 547-48 & S.Ct. inter back); n. 114 2396 City v. R. Purcell St. Paul 48 Minn. alia, Jackson, 114, P.2d 134, Keck v. 122 Ariz. (1892) 593 (plaintiff 50 N.W. 1034 suffered (1979) daughter (plaintiff 668 auto witnessed miscarriage and from convulsions shock of as a her mobile collision result of which near collision of streetcar on which she was inju 146, mother died she suffered serious Pankopf riding); Hinkley, v. Wis. 141 123 Anderson, ries); (1909) (defendant v. 195 Colo. 579 Towns negligently N.W. drove (brother, (1978) standing just P.2d 1163 off carriage his into automobile horse-drawn house, porch emo front suffered serious plaintiff's riding, causing pregnant which was injuries watching gas explosion tional from fright resulting shock her to suffer severe inside); Rickey Chicago his sister remained v. miscarriage, court in a which the considered Authority, Transit 98 Ill.2d her); 75 Ill.Dec. injuries” "physical Garrett v. New (1983) (eight-year-old Berlin, 457 N.E.2d 122 Wis.2d 362 N.W.2d 137 injuries suffered emotional while (1985) (plaintiff sister could recover for emo- nearly watching younger choking brother injuries witnessing suffered tional from her clothing got caught death after his in an esca being by police brother run over car involved Henderson, lator); v. Shuamber 579 N.E.2d chase)). (Ind.1991) (mother daughter, both injured, only majority sup- physically brought whom were action 4. The case cited port “ample ap- injuries for emotional suffered claim that authorities result its accident); victims, watching ply[ danger son in car Watson the zone of to direct ] killed Dilts, (1902) bystanders” only v. N.W. not is a court deci- 116 Iowa district Co., sion, (plaintiff Ry. F.Supp. wife allowed to recover emo- Hall S. Norfolk the Eva Danielsen on his radar body of common law au- detected this sizeable later, days conclude that the Chan until when he learned the thority, I would four danger” of the “zone of panel’s formulation run freighter had the Buona Madre down that prove the requiring Wade, him to and killed caused suffer se- another,” peril he “witnessed harm or vere emotional distress. holding both the and the consistent with sure, by Stacy presented To be the facts

spirit of Gottshall. tragic compelling, might are and which explain majority’s effort to extend the B. danger” present “zone of test to the con- course, not, Stacy apparent- Of does perfectly text. It is understandable that cannot, ly allege that he witnessed the Stacy well as all of the other fisher- —as collision that led to Wade’s death. He in fishing fog men who were dense when in alleges nevertheless that he was steaming through the Eva Danielsen came by appellees’ “zone of created 13, 2007, July fishing grounds their on conduct, negligent I have no doubt especially those who assisted with the (al- Stacy adequately pleaded that has operation after the search Eva Danielsen though, obviously, yet proven) has not Madre, Stacy collided with the Buona as appellees negligently operating were might he great psychic claims suffer did' — passed through Eva Danielsen as it fact, upon learning, trauma after the However, fishing grounds fog. in dense one of their fellow fishermen died after allege addition to his failure to that he being tossed into the ocean as a result of a deadly “peril witnessed the or harm” to freighter. They might collision with the Wade, Chan, required by at guilt” also have suffered “survivor’s 1409, Stacy’s pleading falters because he Wade, having failed to rescue who was adequately allege has failed that he allegedly, although unbeknownst to them “fright” any suffered or “shock” or other time, floating still alive and type of severe emotional distress as a re- they fishing. water near where had been sult of appellees’ conduct while But, again, appears Stacy had no Indeed, danger.” he was the “zone of way knowing days that until later. Sta- assertion, contrary majority’s to the cy might guilt well have suffered additional Stacy allege that does not he suffered post-collision from the fact that the search “fright” or “shock” at all—neither as the off report was called result of his Eva approached Marja Danielsen on a boat, Marja, he and his were safe and course, passed Marja collision nor as it sound and had not with collided the Eva “at quarters,” close nor when he heard Danielsen, ship reported. as the latter had reports that it run had down boat Nevertheless, all assuming even of this to fleet, fishing eventually nor when he true, Stacy alleged has not that he learned that it had run down the Buona Rather, fright suffered or shock or severe emotion- captain. Madre and killed its Sta- cy only al as a vaguely any claims that the entire distress result of “immediate events, from the course moment he traumatic harm” caused or threatened (N.D.Ga.1993), slip op. provides major- see test as formulated Hall n.2, to, surely ity only cling which cannot override the more the thinnest of reeds to as it Chan, directly recent decision of this Court in or this is drawn from the decision of the interpretation Supreme court's Court's Third Circuit in Gottshall Consol. Rail (3d Cir.1993), Corp., decision in 512 U.S. which 129 L.Ed.2d was also decid- was reversed Court in which Gotts- Indeed, ed after Hall. the "zone hall. pick-up the reaches its destination the Eva Danielsen before miss” with his “near big rig, in a Tracy, side-swipes causing it danger” creat- in the “zone of while he was jackknife and collide with another vehi- negligent conduct—such by appellees’ ed cle, ultimately of entangling dozens other if he had witnessed have resulted might in fiery pileup. automobiles a The next contrary, Stacy ac- To the Wade’s death. the morning, San Francisco Chronicle re- that after he notified knowledges in ports people that 3 were killed fellow fishermen Guard and his Coast accident, seriously and 20 more were in- sound, Marja were safe and he he and the jured. usual, and re- to business as returned fishing.

sumed majority probably and I would agree directly that the motorists who were

C. (includ- in such an horrific involved crash a concluding Stacy has stated In course, ing, big-rig), of the driver of the granted, I which relief upon who those witnessed first-hand the a much majority conceives of believe the carnage and destruction caused danger” of test than expansive more “zone pick-up driver of the truck as it occurred recognized to date the Su- suffering any has been without direct im- Court, court, juris- any or other preme injury, could state a claim for pact that test. A not- adopted against any that has NIED that driver and other diction crash, a many scenario to which caused the un- so-hypothetical actors who relate, closely any is landlubber can and which der formulation of “zone of dan- majority’s ger” reading to the facts of this maritime test. Under of analogous case, danger” of easily problem.5 Gottshall “zone howev- illustrates er, hundreds, every one of the fog perhaps tule on Interstate Imagine this: Dense thousands, passen- of motorists and their Valley in It’s the Central California. gers “frightened” by who were “near miss- evening, anytime between No- Sunday pick-up sped es” with the truck as it errat- March, any year. Moderate vember and ically past them on that 200-mile stretch of big-rig flowing. traffic is Clusters learning or who were alarmed freight with and automobiles trucks loaded fiery reports wreck from news the next Northern are re- carrying Californians day, could also state claim for NIED— turning long home from a weekend they whether or not witnessed the accident large pick-up A truck loaded Southland. and, indeed, possibly even if there was no hay roars onto the 1-5 with bales collision at all.6 hour, going per 90 miles Buttonwillow in and out of the two northbound weaving demonstrates, hypothetical As this re- lanes, narrowly avoiding danger” collisions with covery for NIED under “zone dozens, vehi- perhaps theory involving hundreds of other least cases seri- —at later, just “injury producing, sudden event”—will cles. two hundred miles ous Almost token, following loosely every person hypothetical is based the same aboard the fish- 5. The have occurred with when Eva Daniel- on actual events which vessels in the fleet regularity and State through fishing grounds some on Interstate 5 sen steamed Valley Central eventually Route 99 in California's speed, and ran down the unsafe Madre, years. http://en.wikipedia.org/wiki/ See recent would have a viable claim Buona (visited 2010). Tule_fog June seriously upset by NIED if he or she was evening they or not events of —whether the collision in which Wade was witnessed majority candidly acknowledges that 6. The its killed, they no learned of his and matter when would have this incredi- "zone of slip op. By n.2. death. bly broad reach. See at 1036 broadly depend large part on how defined, geo- both in

“zone of view, my

graphic temporal terms. expansive majority gives reach the not danger”

the “zone of is consistent with

Gottshall. See U.S. theory that who (rejecting workers

were “far removed from the scene” of the negligent conduct that led to a

allegedly death could recover

co-worker’s

NIED). The Chan formulation of the hand,

“zone of on the other and the ma-

consistent with both Gottshall

jority recognizing of cases a claim of theory. It is

NIED under also the

law of this circuit until such time as an en

banc of this court or the it, disapproves

Court and I believe we are Miller,

bound to follow it. 335 F.3d at

893.

IV. allegations Stacy’s

Because the first complaint satisfy

amended not do

“zone of NIED as stated Chan, I judgment would affirm the

the district court dismissing his failure to state a claim which granted.

relief America,

UNITED STATES

Plaintiff-Appellee, AVILA-ANGUIANO,

Marcial

Defendant-Appellant.

No. 09-10160. Appeals,

United States

Ninth Circuit.

Argued April and Submitted 2010. July

Filed 2010.

Case Details

Case Name: Stacy v. Rederiet Otto Danielsen, A.S.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 29, 2010

Citation: 609 F.3d 1033

Docket Number: 09-15579

Court Abbreviation: 9th Cir.