Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 89-03102).
Before: Becker, Nygaard and Roth, Circuit Judges.
On Remand from the Supreme Court of the United States June 24, 1994
Submitted On Remand from Supreme Court: August 29, 1994
This case returns to us on remand from the United States Supreme Court. The action was originally brought by James E. Gottshall, a railroad worker, against his employer, Consolidated Rail Corporation (Conrail). Gottshall sought damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (1988), for negligent infliction of emotional distress. Concluding that the FELA provided no remedy for the plaintiff's emotional injuries in this case, the district court granted Conrail's motion for summary judgment. Gottshall v. Consolidated Rail Corp., 773 F. Supp. 778 (E.D. Pa. 1991). This Court, by a divided panel, reversed and remanded, finding the injuries to Gottshall to be both foreseeable and possessed of sufficient indicia of genuineness. Gottshall v. Consolidated Rail Corp., 988 F.2d 355 (3d Cir. 1993).
Following the denial of its petition for rehearing, Conrail filed a writ of certiorari with the United States Supreme Court to obtain review of this case and of the companion case of Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir. 1993). The Supreme Court agreed to hear both cases. By its decision of June 24, 1994, the Court reversed both cases and remanded them to us. Consolidated Rail Corp. v. Gottshall, 129 L. Ed. 2d 427, U.S. , 114 S. Ct. 2396 (1994). The Court instructed us to enter judgment against the plaintiff in Carlisle and to reconsider the negligent infliction of emotional distress claim in Gottshall under the common law zone of danger test. Id. at , 114 S. Ct. at 2411-12. For the reasons that follow, we find that the plaintiff in Gottshall cannot satisfy the strictures of the zone of danger test as articulated by the Supreme Court.
Because the facts of this case have been discussed extensively in earlier opinions, we will be brief. James Gottshall served on a Conrail work crew which was assigned on an oppressively hot August day to replace defective railroad track in a remote location between Watsontown and Strawberryridge, Pennsylvania. Gottshall's work crew included his friend of fifteen years, Richard Johns. The crew was supervised by Michael Norvick. Conrail was under time pressure to prepare for a safety inspection and so the work crew was pushed to complete the task. Conrail provided only one scheduled break, for lunch, and discouraged unscheduled breaks. Conrail did, however, make water available to the men on an as-needed basis.*fn1
About two and one-half hours into the job, while Richard Johns was cutting a rail, he collapsed. Gottshall and the other workers rushed to Johns' assistance. Johns, who had high blood pressure and was overweight, was having trouble with the weather conditions. The crew members tended to him until Norvick ordered them to return to work. Within five minutes Johns collapsed again. This time it was apparent that Johns was seriously afflicted. Gottshall realized that Johns was having a heart attack and, because Gottshall was the only person at the scene certified in cardiopulmonary resuscitation, he began administering CPR to Johns.
Supervisor Norvick also appreciated that Johns now required immediate medical attention. Norvick's initial attempts to radio to the base station for help were unsuccessful because, unbeknownst to Norvick, Conrail had taken the base radio off-line for repairs. Norvick finally drove out in his truck to secure help. He summoned paramedics who arrived at the site some forty minutes after Gottshall had begun CPR. By this time, however, Johns had died. The paramedics ordered the crew to leave the body where it lay, covered by a sheet, until the coroner arrived. Shortly thereafter, Norvick directed the crew to return to work. The crew continued working for several hours. The coroner on his arrival determined that Johns had suffered a heart attack caused in part by the heat, humidity, and strenuous activity.
Gottshall experienced a severe reaction to his involvement in the incident. In the days that followed, the crew returned to the site to work the same long hours under the same sweltering weather conditions.*fn2 Gottshall, however, became increasingly distraught and feared that he too would have a heart attack. After a few days, Gottshall left work and secluded himself in the basement of his home. He was then admitted to a psychiatric hospital where he was diagnosed with major depression ...