Wilson v. Norfolk & Western Railway Co.
718 N.E.2d 172
Ill.
1999
Check Treatment

*1 (No. 85821. WILSON, v. NORFOLK &

RONALD WEST Appellee, COMPANY, ERN RAILWAY Appellant. Rehearing October

Opinion June denied 1999. filed 1999. J., HARRISON, dissenting. *2 Barron, Thompson E. Reitz Ann C. of

Kurt and Coburn, Belleville, of for appellant. Halloran, Jackstadt, Callis, & Papa,

Eric of Jackstadt EC., City, appellee. of Granite for opinion delivered the

JUSTICE BILANDIC court: certified the fol County

The circuit court of Madison interlocutory pursuant for lowing question appeal (155 308): Ill. 2d R. Court Rule 308 Supreme physical plead proof and plaintiff must offer “Whether a or the threat of contact before for infliction of emotional recover the intentional can Employers’ Liability Act].” [Federal under distress this in the affirmative. answer We

FACTS Plaintiff, Wilson, filed this action the circuit Ronald single- His Madison 1995. County April Western his Norfolk & charged employer, complaint count (defendant), with intentional infliction Railway Company Employ- Federal in violation of emotional distress (1994)). (FELA) (45 seq. § Act U.S.C. 51 et Liability ers’ defendant by he was alleged employed Plaintiff January June between as a trainman time he that, during period, Plaintiff claimed 1995. acts one of defendant’s by the intentional injured was managerial agents, employed Will, Mike was de- who complaint charged fendant a trainmaster. The that de- through the fendant the FELA intentional inflic- violated demeaning tion of emotional distress and comments that, Mike Plaintiff as a defen- Will. claimed result of per- FELA, dant’s violation he suffered severe system. manent to his nervous complaint Defendant moved to dismiss the failure argued to state a cause of action. Defendant’s motion that, based on decisions of the Court of Seventh Circuit Appeals, plaintiff had failed to action state cause of alleged because he had not contact or threat of contact to him as result defendant’s acts. circuit court denied defendant’s granted dismiss, motion to but defendant to fur- leave ther address this issue means of a motion for sum- mary judgment. summary

Defendant thereafter filed a motion for judgment reasserting argument made its motion again pointed plaintiffs *3 to dismiss. Defendant out that complaint allege physical did not contact or threat of physical summary judgment contact. The motion for also plaintiff’s deposition testimony. referenced In that testimony, plaintiff any conceded did that he not sustain physical contact or threat of contact as result responded of actions defendant. Plaintiff the to mo- by urging tion the circuit court hold to that such evi- required dence is not to recover for intentional infliction of emotional distress under the FELA.

The circuit court denied defendant’s for sum- motion mary judgment. subsequently Defendant filed a motion or, alternative, for reconsideration in the find- Rule 308 ing. The circuit court denied the motion for reconsidera- certifying question tion, but entered an order the above interlocutory pursuant appeal Rule to 308. appellate accepted The court defendant’s Rule 308 to court answered appellate for leave petition appeal. in that a negative, holding the certified the contact or plead prove physical need plaintiff in order to recover for inten threat of contact of under the FELA. tional infliction emotional distress (Second) of Relying on section 46 of the Restatement Torts, only held that a need appellate plaintiff court has, by extreme and outrageous that the defendant prove conduct, intentionally recklessly or caused severe distress ap In so plaintiff. holding, of precedent declined to follow the expressly pellate of on this Appeals the Seventh Circuit Court issue. 1044. App. Ill. 3d for leave to petition appeal

We defendant’s accepted (177 315), now the appellate 2d R. and we reverse Ill. court.

ANALYSIS in pertinent part, 1 of the FELA provides, Section follows: *** in shall be liable “Every common carrier railroad any suffering injury while he is

damages person *** death employed by such carrier for such or any of part negligence in from resulting whole or officers, agents, employees such carrier ***.” (1994). § U.S.C. 51 inflic- a claim for

We must determine whether cognizable is under this section tion emotional distress subjected to phys- without evidence that the was or the ical contact threat defendant’s acts. purpose for the

The FELA was enacted suf- for railroad workers who remedy a federal providing their negligence result of the injuries fer as a personal Atchison, & employees. Topeka their fellow employer or 561, 94 Ed. 2d Buell, 480 U.S. L. Co. v. Santa Fe *4 (1987). 1410, “Cognizant Ct. 1413 563, 570, 107 S. in death that resulted railroading physical dangers

373 maiming every year, Congress of thousands of workers remedy a federal that of the ‘human part crafted shifted their doing employees overhead’ business from to Gottshall, R. v. employers.” Corp. Consolidated 512 U.S. 532, 542, 427, 2396, 129 439, L. Ed. 2d 114 S. Ct. 2404 (1994). In order goal, Congress to further this eliminated a number traditional defenses tort liability. Specifi- FELA cally, rule, rejected abolished the servant fellow contributory in negligence comparative negli- favor of gence, from prohibited employers exempting themselves and, from FELA in through contract, amend- later ment, abolished the risk assumption of defense. 45 U.S.C. (1994). §§ 51, 53 through 55 The is a broad remedial statute and is to be liberally construed to accomplish Congress’ objectives. Buell, 562, 94 L. at 571, Ed. 2d Ct. 107 S. not, however, 1413-14. FELA is compen workers’ sation statute. The basis for under liability the statute is the employer’s negligence, merely the fact an is employee injured Gottshall, the job. 543, on 512 atU.S. Ed. L. 2d at 114 S. Ct. at 2404. What consti negligence tutes under the FELA ais federal be decided accordance with the common law it is developed the federal courts. v. Thompson, Urie 163, 174, U.S. 1282, 1294-95, 93 L. Ed. 69 S. Ct. (1949). Further, 1026-27 while the speaks only statute the employer’s it been “negligence,” has held applicable to at least some intentional torts. See Jamison Encar nacion, 635, 641, 1082, 1086, 74 L. Ed. 50 S. Ct. (1930); Co., Lancaster v. & Western Norfolk (7th 1985) 773 F.2d Cir. (holding ap plicability the FELA to at least some intentional torts is any “too well settled to be questioned longer”). case,

In this plaintiff seeks to recover damages the FELA for infliction emotional distress. Plaintiffs claim is based comments alleged demeaning *5 374 agent, him Mike Will. Plaintiff

directed at defendant’s any physical contact or that he did not suffer concedes as a of Will’s actions. threat of result for infliction that an action Plaintiff asserts cognizable FELA under the of emotional distress is long as conduct evidence, as the defendant’s without such outrageous. contends, on the and Defendant was extreme prove plead physi- a must and hand, other to state this or the threat thereof in order cal contact of under the FELA. cause action interpreting a The federal courts decisions the controlling upon Il such the are federal statute “ ap given ‘in the uniform linois order that act be courts ” Corp., Graphic plication.’ Ill. 2d Busch Color 169 (1996), quoting Illinois Central R.R. 325, 335 Bowman v. (1957). the Co., 186, 11 We therefore review Ill. 2d 200 federal law on this issue. case Supreme not

The Court has addressed United States questions precise has, however, It considered this issue. damages concerning recovery the presented the FELA. The Court was distress under Topeka Atchison, Fe Co. v. an & Santa such issue 557, 563, 2d 107 S. Buell, L. Ed. Ct. 480 U.S. (1987). against plaintiff filed FELA claim Buell, In the a alleging employer suffered severe that he his railroad injuries intentional harass- result of as a employees. primary ment fellow and intimidation pos- presented the to Buell Court was whether issue the Railway sibility grievance pursuing the a under labor right bring employee deprives to an of his Labor an Act that the FELA. The Court determined action under the Railway availability remedy Labor Act under the injured necessarily employee deprive an does not damages right pursue under the FELA. a claim for Ed. 107 Ct. at Buell, 94 L. 2d at S. argued in the alternative in Buell 1415. The railroad FELA claim should because plaintiff’s fail “wholly injury” compensable is Although appeals FELA. the court of had reached this is- sue, the Court found that the record was not Supreme sufficiently developed for the Court to this issue address Court properly. The reasoned that whether an employee can for emotional injury “might variety recover rest on of subtle and intricate distinctions related to the nature activity.” character tortious Buell, Ed. 2d at L. 107 S. Ct. at 1417. The Court concluded that the record did not contain the facts necessary determine whether *6 pursue could for injuries his claim under the FELA. The Court Buell therefore did not ad- dress the of wholly injuries whether are under compensable the FELA. in

Subsequently, Consolidated R. Corp. Gottshall, 532, 427, 129 L. Ed. (1994), 2d S. Ct. 2396 the Court Supreme “questions addressed left unan- Gottshall, swered” in Buell. In the plaintiffs two consolidated cases sued their railroad under employer the FELA for negligent infliction of emotional distress. The Gottshall Court stated that it must determine “under what circumstances may emotional distress con- stitute ‘injury’ resulting ‘negligence’ from for purposes Gottshall, 542, statute.” 512 U.S. at L. Ed. 2d at 114 S. Ct. at 2403. The Court described “emo- tional distress” this context as mental or emotional harm that is caused by negligence the and another directly that is not by about brought physical injury. Gottshall, 512 U.S. at 544, 129 L. Ed. 2d at 114 S. Ct. at 2402. noting

After that a to right negligently recover for inflicted emotional by distress was recognized many jurisdictions at the time FELA the was enacted and is nearly universally recognized among the today, states the negligent for inflic-

Gottshall Court concludedthat claims cognizableunder the FELA. tion of emotional distress are policy stated, however, that consider- The Court further including potential ations, trivial or fraudulent for very nearly possibility of infinite real claims “the liability plac- unpredictable required defendants,” availability ing that of action. limitations on the cause Gottshall, 441-42, Ed. 545-46, 512 U.S. at 129 L. 2d at adopted Ct. The the common law 114 S. at 2405. Court proper danger defining scope of an test as zone subjecting employer’s duty to avoid its FELA injury. employees negligently inflicted emotional Gottshall, 2d 114 S. 512 U.S. at 129 L. Ed. at explained danger test, as at 2410. The zone of Ct. recovery Court, limits for emotional Gottshall impact plaintiffs as a result who sustain a those placed in conduct, or who are a defendant’s conduct. harm immediate risk 442-43, Gottshall, L. Ed. 547-48, 2d 114 Ct. at 2406. S. danger zone of test best

The Court reasoned with the reconciled the concerns the common law underlying principles First, consid- the FELA. Court in 1908when the the state of the commonlaw ered danger the zone of The Court noted that was enacted. jurisdic- adopted significant number of had been test held Court therefore tions at that time. Gottshall *7 “ appropriate considering ‘in the histori- that, the issue ” that to conclude context,’ it was “reasonable cal duty scope Congress to inflict- avoid intended the ing FELA to be coextensive emotional distress under danger test.” under the zone that established with 555, 447, 2d 114 S. Gottshall, L. Ed. at 512 U.S. at 129 quoting v.Co. 2410; Southwestern at Monessen Ct. Morgan, 349, 359, 2d 108 S. 330, 337, L. Ed. U.S. (1988). 1837, Ct.

Second, the Gottshall Court reasoned that the zone test is danger consistent with “FELA’s central focus on physical perils.” Gottshall, at 129 L. Ed. 2d at 114 S. Ct. at 2410. The Court explained the FELA was intended to provide compensation for the injuries and deaths caused the physical dangers of Court, railroad work. The however, that, acknowledged although may statute have been primarily focused on physical injury, language its simply referred to “injury,” which, as it had already held, could encompass both phys- ical and injury. The Court concluded that al- lowing recovery for negligently inflicted emotional injury as provided under the zone of danger test best harmo- nized these considerations. The Court explained: test, “Under this a worker within the danger zone of

physical impact will be able to injury recover for emotional caused fear of himself, whereas a worker outside the zone will not. employees Railroad thus will be able to recover for injuries physical and emo — tional —caused employers conduct of their imminently threatens them impact. This rule Congress’ will further goal in enacting the statute of alleviating dangers Gottshall, of railroading.” 129 L. 2d Ed. 114 S. Ct. at 2410- 11. The Supreme Court in Gottshall thus established recover, that, in order for negligent infliction of FELA, distress under the a plaintiff must plead and prove physical contact or the threat of physical case, contact. In this defendant asserts that the reason- ing Gottshall applies to a equally claim for intentional infliction of emotional distress. As plaintiff points out, however, the Court in Gottshall expressly noted that it was not addressing separate tort of intentional inflic- tion of emotional Gottshall, distress. n.2, 512 U.S. at 541 n.2, 129 L. Ed. 2d at 439 114 S. Ct. at 2403 n.2. Accord- ingly, the Supreme Court not definitively has answered the presented the case at bar. *8 approach urges that we follow the

Defendant Appeals The on this issue. Circuit Court of Seventh plaintiff cases, held that a has, in several Seventh Circuit physical physical prove threat of contact or the must inflic for intentional establish a claim contact order to In under the FELA. Lancaster emotional distress tion of (7th 1985), F.2d807 Cir. Co., & Western Norfolk against employer brought plaintiff railroad a claim his the at the hands FELA on his mistreatment under the based plaintiff supervisors. The was both threatened of several supervisors. physically These different assaulted plaintiff’s mental condition caused the incidents diagnosed plaintiff point was the where the deteriorate to schizophrenic. the Circuit held that The Seventh harms of action for tortious FELA not create a cause does any physical brought contact or that lack about acts particular, physical held, court In the contact. threat of any FELA for under the there is claim no. lacking.” [is] dimension Lan “where the tort Reviewing evidence, the court the caster, 773 F.2dat 813. plaintiffs precipitated the which noted that the incidents battery psychosis assault, each constituted injury. Accordingly, personal each of because infliction of or the threat involved these torts pursue plaintiff the these claims under could thereof, F.2d at 815. Lancaster, FELA. holding its Lancaster Circuit reaffirmed

The Seventh (7th 848 F.2d Ass'n, R.R. in Hammond v. Terminal 1988). brought plaintiff an action in Hammond Cir. against charging employer the FELA

his railroad deliberately inflicting defendant with charged plaintiff that the defen him. The distress on causing purpose him inappropriately and for the dant, charged with violation distress, job held that The Hammond duties. his plaintiffs clearly Lancaster hold- barred

claim was ing is limited to tortious conduct involv- ing unwanted contact or threats of such contact. Hammond, 848 F.2d at 97-98.

Finally, Ray v. Consolidated Corp., R. 938 F.2d 704 (7th 1991), Cir. the Seventh Circuit was again presented *9 with a claim for under the FELA. The plaintiff Ray alleged supervisor his negligently and intentionally caused him to suffer emotional injury by threatening, harassing, and intimidating him. The court of appeals affirmed the dismissal of the plaintiffs complaint, reiterating holdings Lancaster Hammond that injury must result from contact or the threat of for the plaintiff to re- cover under the FELA. The court specifically rejected the plaintiffs contention that it should reconsider those de- cisions in light of the Supreme Court’s comments Buell. The Seventh Circuit stated that it remained un- persuaded that it must recognize emotional injury under the FELA where there is no showing of physical contact or threat of physical Ray, contact. 938 F.2d at 705.

The Sixth Circuit Court of Appeals has used similar reasoning reject a claim for intentional infliction of emotional distress under the FELA. In Adkins v. Sea (6th board System R.R., 821 F.2d 340 1987), Cir. plaintiff brought a claim under the FELA against his for mer railroad employer alleging that its agents deliber ately conspired to have the terminated, plaintiff causing him to suffer emotional distress. The Sixth Circuit determined that the plaintiffs claim was not compensa ble under the FELA. Citing its own prior precedent and Lancaster, the court held that the FELA is not applicable to intentional torts “any that lack physical dimension.” Adkins, 821 F.2d at 341-42.

Plaintiff claims that the approach taken Circuit, Seventh and by the Sixth Adkins, Circuit in is but one view among conflicting federal authorities. held that that other federal courts have

Plaintiff asserts infliction of emotional distress is a claim for intentional any showing phys- cognizable under the without long physical contact, as ical contact or the threat of outrageous plaintiff abuse shows unconscionable support assertion, In this defendant. in Adams v. CSX Circuit’s decision cites the Sixth (6th 1990), Transportation, Inc., F.2d 536 Cir Appeals’ decision in Netto v. Circuit Court of the Fifth 1989). (5th Amtrak, Cir. 863 F.2d position. support plaintiffs In Ad- not Adams does presented the issue of was ams, the Sixth Circuit negligent infliction of of action for whether cause cognizable FELA. The under the emotional distress was previously specifically held, in that it had noted Adkins, intentional infliction of that a claim for cognizable FELA because the not under the distress was applicable lack intentional torts that statute was “any physical Adams, at 539. The 899 F.2d dimension.” *10 decide that it need not court went on to conclude Adams negligent infliction a cause of action for whether because, even exists under the emotional distress plaintiff es- had failed to establish did, if it the therein including tort, “unconscionable that sential elements of by employer. Adams, F.2d at 539. 899 abuse” the Similarly, to decide Netto, Fifth Circuit declined in the may plaintiff FELA for the recover under whether sought plaintiff injuries.” “purely in Netto intentional and the FELA for to recover under noting the that distress. After infliction of emotional open Supreme of the had left Court in Buell injuries compensability FELA, the under the of such opportunity ] court elected Netto “resistt ” by possibly opened ‘explor[e] Netto, Buell.’ the frontier Moody quoting Maine Central 1213-14, 863 F.2d 1987). (1st The court 693, 694 Cir. Co., 823 F.2d R.R. a plaintiff not decide whether it need determined injuries purely recover may in that case had failed to es- the plaintiff FELA because claim, unconsciona- an essential element of tablish Netto, 863 by conduct the defendant. outrageous ble hold- Thus, court’s actual given F.2d at 1214. the Netto argu- Netto supports it is whether ing, questionable here plaintiff. ment advanced cases, Plaintiff also cites to two federal district (E.D. F. Corp., Supp. Kraus v. Consolidated R. Co., & 1989), Pa. and Harris v. Western Norfolk (W.D. 1989), in of his assertion support F. Va. Supp. on Har- that the federal case law is conflict this issue. Al- ris, however, not support plaintiff’s position. does the district court in that case determined that though an essential element of “unconscionable abuse” would be a claim for intentional infliction of emotional distress FELA, under the the court also stated that it agreed holding of the Sixth Circuit Adkins that claims for infliction of emotional distress are not Harris, covered the FELA. 720 F. at 568. The Supp. Kraus, argu- other district court case cited plaintiff, ably supports plaintiffs theory simply here. Kraus held sufficiently that the therein had not outra- pled geous conduct to sustain a claim for intentional infliction Kraus, emotional distress under the FELA. 723 F. Supp. at 1088.

Our of the federal on review case law this issue thus reveals that the decisions of the lower federal courts are consistent, if perfectly actually conflicting. not Given issue, Supreme spoken that the Court has not this we of the Seventh Circuit. We precedent elect to follow find the Circuit to be reasonable analysis Seventh acknowledges The Seventh Circuit’s logical. approach *11 the FELA does not to intentional expressly apply torts, cautiously and therefore extends the statute’s Lancaster, reach into that area. See 773 F.2d at 813. The precedent reasonably Seventh Circuit’s is also on based primary purpose protect the fact that a of the FELA is to against physical dangers. railroad Lancaster, workers 773 F.2d at 813. holding

Moreover,the Seventh Circuit’s on this issue Supreme analysis is consistent with the Court’s Although Gottshall. Gottshall did not consider a claim for distress, intentional infliction of emotional the rea soning employed by supports the Gottshall Court approach. earlier, Seventh Circuit’s As discussed one rea Supreme adopted danger son the Court the zone of test in Gottshall was because it is consistent with the FELA’s physical perils.” noting “central focus After that the injuries provide compensation FELA was intended to dangers and deaths caused of railroad danger work, the Court held that zone test goal allowing furthered this railroad re workers to injuries cover for emotional caused employers im conduct of their that “threatens them minently physical impact.” Gottshall, 555-56, 447-48, 129 L. Ed. 2d at S. Ct. at 2410-11. requirement Circuit’s that a Seventh estab lish contact or the threat thereof to state a claim for intentional infliction of emotional distress under the reasoning. fact, FELA is consistent with this In approval Gottshall Court cited with the Lancaster court’s “ ensuring conclusion that the at is aimed ‘the se curity person from invasions or men ” Gottshall, 555-56, aces.’ 129 L. Ed. 2d at quoting 447-48, Lancaster, 114 Ct. at 773 F.2dat S. Supp. Harris-Scaggs Co., 2 813; see also v. Soo-LineR. F. (E.D. 1998) (applying zone of 2d 1179 danger Wis. Gottshall negligent and intentional test to claims for both distress); Cavanaugh Burling infliction of emotional (D. Supp. Co., ton 941 F. 883 Minn. Northern R.R. *12 1996) (holding, post-Gottshall decision, that in a applicable of intentional infliction FELA is not to claims dimension). lacking physical a of emotional distress sitting in Further, note that federal district courts we obligated precedent of the to follow the Illinois are Appeals. Consequently,were we Circuit Court of Seventh contrary adopt Circuit on rule to that of the Seventh a appellate case, issue, court did in this the vi this ability of a for intentional infliction of emotional claim the ac distress under the could turn whether court. The reason that tion was filed in federal or state controlling on Illinois federal decisions are considered interpreting a federal as the state courts statute such given ap FELA is so that the statute will be uniform plication. Graphic Corp., Busch v. Color 169 Ill. 2d See (1996).Adhering approach of the Seventh uniformity promotes goal Circuit on this this issue contrary avoids anomalous situation two being depending results on where the case is obtainable Accordingly, precedent filed Illinois. we follow the that, the Seventh Circuit and hold in order to recover for intentional infliction of emotional distress under the plaintiff plead prove physical FELA, a must or the threat of a contact as result defendant’s acts.

Plaintiff nevertheless contends that should take a we different course Illinois common law. Plaintiff based on argues that, law, under Illinois common tort infliction of emotional distress does not require proof contact or the threat of correctly points that, Plaintiff out in order to contact. state a claim for intentional infliction of emotional law, al- distress under Illinois common lege must (1) that: the defendant’s facts which establish (2) outrageous; extreme and the defendant conduct was intended conduct should inflict severe either that his high prob distress, knew there was a ability that his conduct would cause severe emotional (3) distress; and the defendant’s conduct in fact caused City, severe emotional distress. Doe v. Calumet 161 Ill. 2d (1994). 374, 392 Recitation of the elements of the Illinois common law tort of intentional infliction of emotional plaintiff’s position. distress, however, does not aid plaintiff may Whether state a cause of action for intentional infliction of emotional distress Illinois common law does not answer the of whether he may state that cause action under the FELA. We are construing law, not here scope common rather, Illinois but doing, guided and, of the FELA in so we must be *13 spoken federal decisional law. The Seventh Circuit has unequivocally and, on the issue for the reasons stated precedent. above, we elect to follow that The common deciding law of the state in which a court a FELA claim dispositive Thompson, sits is not of the action. See Urie v. 163, 174, 1282, 1295, 93 L. Ed. 69 Ct. S. (1949) (holding negligence 1026-27 that what constitutes under the FELA is to be decided based on. federal varying law, decisional fering conceptions “not in accordance the dif negligence applicable under state laws”). By way comparison, and local Supreme in Gottshall, expressly danger

Court noted that the zone of negligent test for infliction of emotional distress claims many jurisdictions. was not the rule in Gottshall, 512 548-49, U.S. at 129 L. Ed. 2d at S. Ct. at 2407. ap Nonetheless, the Court held that that test must be plied infliction of emotional claims distress purposes under the FELA it because best effectuated the Gottshall, of the statute. 129 L. Ed. 2d viability Accordingly, 114 S. Ct. at 2410. of a always claim under will not coincide with the viability the claim under state law.

CONCLUSION foregoing reasons, For the we answer the certified appel- judgment in the affirmative. to the is remanded and the cause late court is reversed proceedings with this consistent for further circuit court opinion. reversed; judgment court

Appellate remanded. cause dissenting: HARRISON, JUSTICE appellate in its reasons stated For the opinion, need I hold that a would well-reasoned plead prove physical or threat of contact intentional infliction of in order to recover for contact Imposing physical the FELA. emotional distress under requirement has where emotional distress been comport intentionally does not inflicted is nonsensical. It accepted in the United States. with the view of the law contrary importantly, remedial More it is to the broad purposes of the FELA. support

Although decisions the Seventh Circuit’s intellectually analysis majority’s opinion, is that court’s binding legally In the And it is not us. untenable. only thing Circuit’s end, the that commends the Seventh consistency help with the it will us achieve view is that my view,however, there is no virtue federal courts. In consistently wrong. litigants making That the law Circuit’s courts must the Seventh lower federal suffer *14 litigants rulings rulings those is no reason to inflict good good their sense or fortune to have who have the in the courts of Illinois. cases heard properly mo- the railroad’s The circuit court denied judgment summary judgment. order, and the tion for Its appellate upholding order, af- should be firmed.