OCTOBER TERM, 1993
Syllabus
CONSOLIDATED RAIL CORPORATION
v.
GOTTSHALL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 92-1956. Argued February 28, 1994-Decided June 24, 1994*
In separate suits against petitioner Conrail, their former
employer, respondents Gottshall and Carlisle each asserted a claim
for negligent infliction of emotional distress under the Federal
Employers' Liability Act (FE LA). In
Gottshall, the District
Court granted summary judgment to Conrail. In reversing and
remanding for trial, the Court of Appeals observed that most States
limit recovery for negligent infliction of emotional distress
through the application of one or more common-law tests. The court
declared, however, that there is a fundamental tension between such
restrictive tests and FELA's liberal recovery policy, and stated
that the tests must be discarded when they bar recovery on
"meritorious" FELA claims. The court held that the facts alleged in
support of a FELA claim must provide a threshold assurance that
there is a likelihood of genuine and serious emotional injury, and
concluded that Gottshall had satisfied this threshold "genuineness"
test and adequately alleged the usual FELA elements, including
conduct unreasonable in the face of a foreseeable risk of harm. In
Carlisle, the same court sustained a jury verdict against
Conrail, "uphold[ing] for the first time a claim under the FELA for
negligent infliction of emotional distress arising from
work-related stress." Although it restated its
Gottshall
holding, the court shifted its primary emphasis to the
foreseeability of the alleged injury and held,
inter alia,
that Carlisle had produced sufficient evidence that his nervous
breakdown had been foreseeable to Conrail.
Held:
1. The proper standard for evaluating FELA claims for negligent
infliction of emotional distress must be derived from FELA
principles and relevant common-law doctrine. Pp. 541-549.
(a) This Court's FELA jurisprudence outlines the proper analysis
for determining whether, and to what extent, a new category of
claims should be cognizable under the statute. First, the language,
purposes, and background of the statute, along with the
construction given to the statute by this Court, must be examined.
Second, because FELA
*Together with
Consolidated Rail Corporation v.
Carlisle, also on certiorari to the same court (see this
Court's Rule 12.2).
533
jurisprudence gleans guidance from common-law developments, the
common law's treatment of the asserted right of recovery must be
considered. See,
e. g., Atchison, T. & S. F.
R.
Co. v.
Buell, 480 U. S. 557, 561-562,
568-570. Pp. 541-542.
(b) Through FELA, Congress sought to compensate employee
"injury" resulting from employer "negligence," 45 U. S. C. § 51, by
creating a remedy for the many deaths and maimings that were
occurring on interstate railroads at the time the statute was
enacted in 1908, see
Urie v.
Thompson, 337 U. S. 163, 181. Over
the years, the Court has construed FELA liberally to further this
remedial goal, see,
e. g., Rogers v.
Missouri Pacific R.
Co., 352 U. S.
500, 506. Nevertheless, the federal question of what
constitutes negligence for purposes of FELA turns upon common-law
principles, subject to such modifications as Congress has imported
into those principles in the statute itself. See
Urie,
supra, at 182. Because FELA is silent on the issue of negligent
infliction of emotional distress, common-law principles must playa
significant role in the Court's decision. Pp. 542-544.
(c) Although nearly all States recognize a right to recover for
negligently inflicted emotional distress-that is, mental or
emotional harm (such as fright or anxiety) that is caused by
another's negligence and that is not directly brought about by a
physical injury, but that may manifest itself in physical
symptoms-three major common-law "tests" have been developed to
limit that right: (1) the "physical impact test," which had been
embraced by most of the major industrial States by 1908, but has
since been abandoned in all but a few jurisdictions; (2) the "zone
of danger" test, which had been adopted by several States by 1908
and currently is followed in 14 jurisdictions; and (3) the
"relative bystander" test, which was first enunciated in 1968 and
has since been adopted by nearly half the States. Pp. 544-549.
2. The Court of Appeals applied an erroneous standard for
evaluating FELA claims for negligent infliction of emotional
distress. Pp. 549-558.
(a) The lower court correctly held that such claims are
cognizable under the statute. As part of its duty to use reasonable
care in furnishing employees a safe workplace,
Buell, supra,
at 558, a railroad has a FELA duty to avoid subjecting its workers
to negligently inflicted emotional injury. A right to recover for
such injury was widely recognized when FELA was enacted and is
nearly universally recognized today. Moreover, given the broad
remedial scope this Court has accorded FELA's "injury" term, cf.
Urie, supra, at 181, there is no reason why that term should
not encompass emotional injury. Pp. 549-550.
(b) However, the Court of Appeals' standard for delimiting this
FELA duty is rejected. First, because the merit of this type of
FELA claim cannot be ascertained without reference to the common
law, the
534
534 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
Syllabus
court erred in treating the common-law tests as mere arbitrary
restrictions to be disregarded if they stand in the way of recovery
on "meritorious" FELA claims. Second, the viability of the court's
"genuineness" test is questionable on its own terms, since it
cannot appreciably diminish the possibility of unlimited liability
for
genuine claims of emotional harm, and since it would
force judges to make highly subjective determinations concerning
the authenticity of particular claims. Third, the court's reliance
on foreseeability as a meaningful limitation on liability is
misplaced, since
all consequences of a negligent act, no
matter how far removed, may be foreseen. Finally, the common law
does not support the court's unprecedented
Carlisle 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.
Pp. 550-554.
(c) Instead, this Court adopts the zone of danger test, which
limits recovery for emotional injury to those plaintiffs who either
sustain a physical impact as a result of the defendant's negligence
or are placed in immediate risk of physical impact by that
negligence. This is the only common-law test that exhibits both
significant historical support and continuing vitality sufficient
to inform the Court's determination of the federal question of what
constitutes FELA "negligence" in this context. This test is
consistent with FELA's broad remedial goals and with the statute's
purpose of alleviating the physical dangers of railroading. Even if
respondents are correct that the zone of danger test arbitrarily
excludes some emotional injury claims, that test best reconciles
the concerns motivating the common-law restrictions on recovery for
negligently inflicted emotional distress-the potential for a flood
of trivial suits, the possibility of fraudulent claims that are
difficult to detect, and the specter of unlimited and unpredictable
liability-with this Court's FELA jurisprudence. Pp. 554-557.
3. The question whether Gottshall satisfies the zone of danger
test was not adequately briefed or argued before this Court, and
should be considered by the Court of Appeals on remand. In
Carlisle, however, judgment must be entered for Conrail on
remand, because Carlisle's work-stress-related claim plainly does
not fall within the common law's conception of the zone of danger.
Pp. 557-558.
988 F.2d
355 (first case) and
990 F.2d
90 (second case), reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. SouTER, J., filed a concurring opinion,
post, p.
558. GINSBURG, J., filed a dissenting opinion, in which BLACKMUN
and STEVENS, JJ., joined,
post, p. 559.
535
Ralph G.
Wellington argued the cause for
petitioner in both cases. With him on the briefs were
Nancy
Winkelman, Bruce B. Wilson, and
Lucy S.
L.
Amerman.
William L. Myers, Jr., argued the cause and filed a brief
for respondent Gottshall. J.
Michael Farrell argued the
cause for respondent Carlisle. With him on the brief was
William
L. Bowe.t
JUSTICE THOMAS delivered the opinion of the Court. These cases
require us to determine the proper standard for evaluating claims
for negligent infliction of emotional distress that are brought
under the Federal Employers' Liability Act. Because the standard
adopted by the Court of Appeals is inconsistent with the principles
embodied in the statute and with relevant common-law doctrine, we
reverse the judgments below.
I
Respondents James Gottshall and Alan Carlisle each brought suit
under the Federal Employers' Liability Act (FE LA), 35 Stat. 65, as
amended, 45 U. S. C. §§ 51-60, against their former employer,
petitioner Consolidated Rail Corporation (Conrail). We set forth
the facts of each case in turn.
A
Gottshall was a member of a Conrail work crew assigned to
replace a stretch of defective track on an extremely hot and humid
day. The crew was under time pressure, and so the men were
discouraged from taking scheduled breaks.
tBriefs of
amici curiae urging reversal were filed for
the State of New Jersey et al. by
Fred DeVesa and
Joseph
L. Yannotti; for the Association of American Railroads by
Charles F.
Clarke and
Robert W Blanchette; for
the Product Liability Advisory Council, Inc., by
Robert N
Weiner; and for the Washington Legal Foundation by
Betty Jo
Christian, Charles G.
Cole, David A. Price, Daniel J.
Popeo, and
Paul D. Kamenar.
Norman Hegge filed a brief for the Southeastern
Pennsylvania Transportation Authority as
amicus curiae.
536
536 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
They were, however, allowed to obtain water as needed. Two and
one-half hours into the job, a worker named Richard Johns, a
longtime friend of Gottshall, collapsed. Gottshall and several
others rushed to help Johns, who was pale and sweating profusely.
They were able to revive him by administering a cold compress.
Michael Norvick, the crew supervisor, then ordered the men to stop
assisting Johns and to return to work. Five minutes later,
Gottshall again went to Johns' aid after seeing his friend stand up
and collapse. Realizing that Johns was having a heart attack,
Gottshall began cardiopulmonary resuscitation. He continued the
process for 40 minutes.
Meanwhile, Norvick attempted to summon assistance, but found
that his radio was inoperative; unbeknownst to him, Conrail had
temporarily taken the nearest base station off the air for repairs.
Norvick drove off to get help, but by the time he returned with
paramedics, Johns had died. The paramedics covered the body with a
sheet, ordered that it remain undisturbed until the coroner could
examine it, and directed the crew not to leave until the coroner
had arrived. Norvick ordered the men back to work, within sight of
Johns' covered body. The coroner, who arrived several hours later,
reported that Johns had died from a heart attack brought on by the
combined factors of heat, humidity, and heavy exertion.
The entire experience left Gottshall extremely agitated and
distraught. Over the next several days, during which he continued
to work in hot and humid weather conditions, Gottshall began to
feel ill. He became preoccupied with the events surrounding Johns'
death, and worried that he would die under similar circumstances.
Shortly after Johns' funeral, Gottshall was admitted to a
psychiatric institution, where he was diagnosed as suffering from
major depression and posttraumatic stress disorder. During the
three weeks he spent at the institution, Gottshall experienced
nausea, insomnia, cold sweats, and repetitive nightmares
concerning
537
Johns' death. He lost a great deal of weight and suffered from
suicidal preoccupations and anxiety. Gottshall has continued to
receive psychological treatment since his discharge from the
hospital.
Gottshall sued Conrail under FELA for negligent infliction of
emotional distress. He alleged that Conrail's negligence had
created the circumstances under which he had been forced to observe
and participate in the events surrounding Johns' death. The
District Court granted Conrail's motion for summary judgment,
holding that FELA did not provide a remedy for Gottshall's
emotional injuries.
A divided panel of the United States Court of Appeals for the
Third Circuit reversed and remanded for trial.
Gottshall v.
Consolidated Rail Corp., 988 F.2d
355 (1993). The court observed that most States recognize a
common-law cause of action for negligent infliction of emotional
distress, but limit recovery to certain classes of plaintiffs or
categories of claims through the application of one or more tests.
Id., at 361 (discussing "physical impact," "zone of danger,"
and "relative bystander" tests). The Third Circuit suggested that
because "an emotional injury is easier to fake" than a physical
injury, these tests have been "judicially developed to screen
causes of action and send only the meritorious ones to juries."
Ibid.
The court below identified what it considered to be a
fundamental tension between the restrictive attitude of the common
law toward claims for negligent infliction of emotional distress on
the one hand, and the general policy underlying FELA on the other.
According to the Third Circuit, the common law places harsh and
arbitrary limits on recovery for emotional injury, while FELA has
consistently been interpreted to accord liberal relief to railroad
workers injured through the negligence of their employers.
Id., at 367-368 (discussing cases).
In the Third Circuit's view, the only way to reconcile the
apparent tension was to give preference to the liberal recov-
538
538 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
ery policy embodied in FELA over the common law: "[D]octrinal
common law distinctions are to be discarded when they bar recovery
on meritorious FELA claims."
Id., at 369. Determining that
judges could weed out fraudulent emotional injury claims through
careful scrutiny of the facts, the court held that the facts
alleged in support of a claim under FELA for negligent infliction
of emotional distress must "provide a threshold assurance that
there is a likelihood of genuine and serious emotional injury."
Id., at 371. The Third Circuit suggested that a court's
factual inquiry might include consideration of the plaintiff's
claim in light of the present state of the common law.
After reviewing the facts of Gottshall's case, the Third Circuit
concluded that Gottshall had made a sufficient showing that his
injuries were genuine and severe.
Id., at 374. Because his
claim had met the court's threshold "genuineness" test, the court
next considered whether the claim adequately alleged the usual FELA
elements of breach of a duty of care (that is, conduct unreasonable
in the face of a foreseeable risk of harm), injury, and causation.
The panel majority concluded that there were genuine issues of
material fact concerning whether Gottshall's injuries were
foreseeable by Conrail, whether Conrail had acted unreasonably, and
whether Conrail's conduct had caused cognizable injury to
Gottshall. The court therefore remanded for trial.
Id., at
383.
Judge Roth dissented in part because she believed that there was
no triable issue regarding breach of duty. She reasoned that
"outside of the interruption of the communications link, the
allegedly negligent conditions created by Conrail at the time of
Johns' collapse consisted in fact of the members of the work gang
performing the negotiated duties of their jobs under conditions
which may indeed have been difficult but which had occurred in the
past and will probably occur again in the future."
Id., at
385. In her view, these
539
negotiated duties could not support a finding of negligence.
Judge Roth concluded that "Conrail could not reasonably have
foreseen that its negligence in interrupting the work gang's
communication[s] link might cause James Gottshall's severe
emotional reaction to the death of Richard Johns."
Id., at
386.
B
Respondent Carlisle began working as a train dispatcher for
Conrail in 1976. In this position, he was responsible for ensuring
the safe and timely movement of passengers and cargo. Aging
railstock and outdated equipment made Carlisle's job difficult.
Reductions in Conrail's work force required Carlisle to take on
additional duties and to work long hours. Carlisle and his fellow
dispatchers frequently complained about safety concerns, the high
level of stress in their jobs, and poor working conditions. In
1988, Carlisle became trainmaster in the South Philadelphia yards.
With this promotion came added responsibilities that forced him to
work erratic hours. Carlisle began to experience insomnia,
headaches, depression, and weight loss. After an extended period
during which he was required to work 12- to 15-hour shifts for
weeks at a time, Carlisle suffered a nervous breakdown.
Carlisle sued Conrail under FELA for negligent infliction of
emotional distress. He alleged that Conrail had breached its duty
to provide him with a safe workplace by forcing him to work under
unreasonably stressful conditions, and that this breach had
resulted in foreseeable stress-related health problems. At trial,
Carlisle called medical experts who testified that his breakdown
and ensuing severe depression were caused at least in part by the
strain of his job. The jury awarded Carlisle $386,500 in
damages.
The Third Circuit affirmed, "uphold[ing] for the first time a
claim under the FELA for negligent infliction of emotional distress
arising from work-related stress."
Carlisle v.
Con-
540
540 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
solidated Rail Corp., 990 F.2d
90, 97-98 (1993). In rejecting Conrail's argument that Carlisle
had failed to make out a claim under FELA because he had not
alleged any accident or physical injury or impact, the court noted
that in
Gottshall (decided the month before), it had "upheld
recovery under the FELA for negligent infliction of emotional
distress without proof of any physical impact." 990 F. 2d, at 96.
Restating its holding in
Gottshall, the court advised that,
when evaluating a claim under FELA for negligently inflicted
emotional distress, district courts within the Third Circuit
"should engage in an initial review of the factual indicia of the
genuineness of a claim, taking into account broadly used common law
standards, then should apply the traditional negligence elements of
duty, foreseeability, breach, and causation in weighing the merits
of that claim." 990 F. 2d, at 98.
In the case before it, however, the court did not examine
Carlisle's suit in light of any of the various common-law tests for
dealing with negligent infliction of emotional distress claims.
Instead, it shifted its primary emphasis to the foreseeability of
the alleged injury and held that "when it is reasonably foreseeable
that extended exposure to dangerous and stressful working
conditions will cause injury to the worker, the employer may be
held to be liable under the FELA for the employee's resulting
injuries."
Id., at 97. The Third Circuit held that Carlisle
had produced sufficient evidence that his injury had been
foreseeable to Conrail. The court also found sufficient evidence
that Conrail had breached its duty to provide Carlisle with a safe
workplace by making his employment too demanding, and that this
breach had caused Carlisle's injury.
Ibid.
Pursuant to this Court's Rule 12.2, Conrail petitioned for
review of the Third Circuit's decisions in
Gottshall and
Carlisle. We granted certiorari, 510 U. S. 912 (1993), to
resolve a conflict among the Courts of Appeals concerning the
threshold standard that must be met by plaintiffs bringing
541
claims for negligent infliction of emotional distress under
FELA.l
II
In these cases, we address questions left unanswered in
Atchison, T. & S.
F. R. Co. v.
Buell,
480 U. S. 557
(1987). That case involved a FELA complaint filed by a railroad
carman who alleged that the intentional and negligent actions of
his employer had caused him to suffer emotional injuries. We
rejected the railroad's contention that the FELA action should be
barred because the conduct complained of was subject to arbitration
under the terms of the Railway Labor Act, 44 Stat. 577, as amended,
45 U. S. C. § 151
et seq. See 480 U. S., at 564-567. Because
the record was not fully developed, however, we were unable to
reach the railroad's alternative argument that purely emotional
injury was not compensable under FELA. Today, we must resolve one
of the questions reserved in
Buell: whether recovery for
negligent infliction of emotional distress is available under
FELA.2 If we conclude that it is, we must consider the proper scope
of that availability. Our FELA jurisprudence outlines the analysis
we must undertake when deciding whether, and to what extent, this
new category of claims should be cognizable under the statute.
First, as in other cases involving the scope of the statute, we
must look to FELA itself, its purposes and background, and the
construction we have given it over the years. See,
e. g.,
id., at 561-562. Second, because "FELA jurisprudence gleans
guidance from common-law developments," id., at 568, we must
consider the common law's treatment of the right
1 Compare the decisions below with
Ray v.
Consolidated
Rail Corp., 938 F. 2d 704
(CA7 1991), cert. denied, 502
U. S. 1048 (1992);
Elliott v.
Norfolk &
Western R. Co., 910 F.2d
1224 (CA4 1990);
Adams v.
CSX Transp.,
Inc., 899 F.2d
536 (CA6 1990);
Gaston v.
Flowers Transp.,
866 F.2d
816 (CA51989).
2We are not concerned here with the separate tort of intentional
infliction of emotional distress.
542
542 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
of recovery asserted by respondents. See,
e. g., Monessen
Southwestern R. Co. v.
Morgan, 486 U. S. 330, 336-339
(1988) (disallowing prejudgment interest under FELA in large part
because such interest was unavailable at common law when FELA was
enacted);
Buell, supra, at 568-570. Cf.
Urie v.
Thompson, 337
U. S. 163, 174 (1949);
Kernan v.
American Dredging
Co., 355 U. S.
426, 432 (1958).
A
We turn first to the statute. Section 1 of FELA provides that
"[e]very common carrier by railroad ... shall be liable in damages
to any person suffering injury while he is employed by such carrier
... for such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier." 45 U. S. C. § 51. Our task today is determining under
what circumstances emotional distress may constitute "injury"
resulting from "negligence" for purposes of the statute. As we
previously have recognized when considering § 51, when Congress
enacted FELA in 1908, its "attention was focused primarily upon
injuries and death resulting from accidents on interstate
railroads."
Urie, supra, at 181. Cognizant of the physical
dangers of railroading that resulted in the death or maiming of
thousands of workers every year, Congress crafted a federal remedy
that shifted part of the "'human overhead'" of doing business from
employees to their employers.
Tiller v.
Atlantic Coast
Line R. Co., 318
U. S. 54, 58 (1943). See also
Wilkerson v.
McCarthy, 336
U. S. 53, 68 (1949) (Douglas, J., concurring) (FELA "was
designed to put on the railroad industry some of the cost for the
legs, eyes, arms, and lives which it consumed in its operations").
In order to further FELA's humanitarian purposes, Congress did away
with several common-law tort defenses that had effectively barred
recovery by injured workers. Specifically, the statute abolished
the fellow servant rule, rejected the doctrine of contributory
negligence in favor of that of comparative negli-
543
gence, and prohibited employers from exempting themselves from
FELA through contract; a 1939 amendment abolished the assumption of
risk defense. See 45 U. S. C. §§ 51,53-55.
We have liberally construed FELA to further Congress' remedial
goal. For example, we held in
Rogers v.
Missouri Pacific
R. Co., 352 U. S.
500 (1957), that a relaxed standard of causation applies under
FELA. We stated that "[u]nder this statute the test of a jury case
is simply whether the proofs justify with reason the conclusion
that employer negligence played any part, even the slightest, in
producing the injury or death for which damages are sought."
Id., at 506. In
Kernan, supra, we extended the reach
of the principle of negligence
per se to cover injuries
suffered by employees as a result of their employers' statutory
violations, even if the injuries sustained were not of a type that
the relevant statute sought to prevent. See id., at 432-436. And in
Urie, supra, we held that occupational diseases such as
silicosis constitute compensable physical injuries under FELA,
thereby rejecting the argument that the statute covered only
injuries and deaths caused by accidents. See id., at 181.
That FELA is to be liberally construed, however, does not mean
that it is a workers' compensation statute. We have insisted that
FELA "does not make the employer the insurer of the safety of his
employees while they are on duty. The basis of his liability is his
negligence, not the fact that injuries occur."
Ellis v.
Union Pacific R. Co., 329 U. S. 649, 653
(1947). Accord,
Inman v.
Baltimore &
Ohio R.
Co., 361 U. S.
138, 140 (1959);
Wilkerson, supra, at 61. And while
"[w]hat constitutes negligence for the statute's purposes is a
federal question,"
Urie, 337 U. S., at 174, we have made
clear that this federal question generally turns on principles of
common law: "[T]he Federal Employers' Liability Act is founded on
common-law concepts of negligence and injury, subject to such
qualifications as Congress has imported into those terms," id., at
182. Those qualifications, discussed above,
544
544 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
are the modification or abrogation of several common-law
defenses to liability, including contributory negligence and
assumption of risk. See 45 U. S. C. §§ 51, 53-55. Only to the
extent of these explicit statutory alterations is FELA "an avowed
departure from the rules of the common law."
Sinkler v.
Missouri Pacific R. Co., 356 U. S. 326, 329
(1958). Thus, although common-law principles are not necessarily
dispositive of questions arising under FELA, unless they are
expressly rejected in the text of the statute, they are entitled to
great weight in our analysis. Cf.
Buell, 480 U. S., at 568.
Because FELA is silent on the issue of negligent infliction of
emotional distress, common-law principles must playa significant
role in our decision.
B
We turn, therefore, to consider the right of recovery pursued by
respondents in light of the common law. Cf.
M onessen,
supra, at 336-339;
Buell, 480 U. S., at 568-570. The
term "negligent infliction of emotional distress" is largely
self-explanatory, but a definitional point should be clarified at
the outset. The injury we contemplate when considering negligent
infliction of emotional distress is mental or emotional injury, cf.
id., at 568, apart from the tort law concepts of pain and
suffering. Although pain and suffering technically are mental
harms, these terms traditionally "have been used to describe
sensations stemming directly from a physical injury or condition."
Pearson, Liability to Bystanders for Negligently Inflicted
Emotional Harm-A Comment on the Nature of Arbitrary Rules, 34 U.
Fla. L. Rev. 477, 485, n. 45 (1982). The injury we deal with here
is mental or emotional harm (such as fright or anxiety) that is
caused by the negligence of another and that is not directly
brought about by a physical injury, but that may manifest itself in
physical symptoms.
Nearly all of the States have recognized a right to recover for
negligent infliction of emotional distress, as we have de-
545
fined it.3 No jurisdiction, however, allows recovery for all
emotional harms, no matter how intangible or trivial, that might be
causally linked to the negligence of another. Indeed, significant
limitations, taking the form of "tests" or "rules," are placed by
the common law on the right to recover for negligently inflicted
emotional distress, and have been since the right was first
recognized late in the last century.
Behind these limitations lie a variety of policy considerations,
many of them based on the fundamental differences between emotional
and physical injuries. "Because the etiology of emotional
disturbance is usually not as readily apparent as that of a broken
bone following an automobile accident, courts have been concerned
... that recognition of a cause of action for [emotional] injury
when not related to any physical trauma may inundate judicial
resources with a flood of relatively trivial claims, many of which
may be imagined or falsified, and that liability may be imposed for
highly remote consequences of a negligent act."
Maloney v.
Conroy, 208 Conn. 392, 397-398, 545 A. 2d 1059, 1061 (1988).
The last concern has been particularly significant. Emotional
injuries may occur far removed in time and space from the negligent
conduct that triggered them. Moreover, in contrast to the situation
with physical injury, there are no necessary finite limits on the
number of persons who might suffer emotional injury as a result of
a given negligent act.4 The
3 There are a few exceptions. Negligent infliction of emotional
distress is not actionable in Alabama. See
Allen v.
Walker, 569 So. 2d 350 (Ala. 1990). It is unclear whether
such a claim is cognizable in Arkansas. Compare
Mechanics Lumber
Co. v.
Smith, 296 Ark. 285, 752 S. W. 2d 763 (1988),
with
M. B. M. Co. v.
Counce, 268 Ark. 269, 596 S. W.
2d 681 (1980).
4 See Pearson, Liability to Bystanders for Negligently Inflicted
Emotional Harm-A Comment on the Nature of Arbitrary Rules, 34 U.
Fla. L. Rev. 477, 507 (1982) ("The geographic risk of physical
impact caused by the defendant's negligence in most cases is quite
limited, which accordingly limits the number of people subjected to
that risk. There is no similar finite range of risk for emotional
harm").
546
546 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
incidence and severity of emotional injuries are also more
difficult to predict than those of typical physical injuries
because they depend on psychological factors that ordinarily are
not apparent to potential tortfeasors.
For all of these reasons, courts have realized that recognition
of a cause of action for negligent infliction of emotional distress
holds out the very real possibility of nearly infinite and
unpredictable liability for defendants. Courts therefore have
placed substantial limitations on the class of plaintiffs that may
recover for emotional injuries and on the injuries that may be
compensable. See,
e. g., Thing v.
La Chusa, 48 Cal.
3d 644, 654, 771 P. 2d 814, 819 (1989) ("[P]olicy considerations
mandatee] that infinite liability be avoided by restrictions that
... narrow the class of potential plaintiffs");
Tobin v.
Grossman, 24 N. Y. 2d 609, 616, 249 N. E. 2d 419, 423
(1969).5 Some courts phrase the limitations in terms of proximate
causation; that is, only certain plaintiffs or injuries are
reasonably foreseeable. Other courts speak of the limitations in
terms of duty; the defendant owes only a certain class of
plaintiffs a duty to avoid inflicting emotional harm. See,
e.
g., Pearson,
supra, at 489, n. 72 (discussing
Palsgraf v.
Long Island R. Co., 248 N. Y. 339, 162 N.
E. 99 (1928)). These formulations are functionally equivalent. We
shall refer to the common-law limitations as outlining the duty of
defendants with regard to negligent infliction of emotional
distress.
Three major limiting tests for evaluating claims alleging
negligent infliction of emotional distress have developed in the
common law. The first of these has come to be known
5 See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts § 54, p. 366 (5th ed. 1984) ("It
would be an entirely unreasonable burden on all human activity if
the defendant who has endangered one person were to be compelled to
pay for the lacerated feelings of every other person disturbed by
reason of it, including every bystander shocked at an accident, and
every distant relative of the person injured, as well as all his
friends").
547
as the "physical impact" test. It originated a century ago in
some of the first cases recognizing recovery for negligently
inflicted emotional distress. At the time Congress enacted FELA in
1908, most of the major industrial States had embraced this test.
See Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260,
263-264, and n. 25 (1921).6 Under the physical impact test, a
plaintiff seeking damages for emotional injury stemming from a
negligent act must have contemporaneously sustained a physical
impact (no matter how slight) or injury due to the defendant's
conduct. Most jurisdictions have abandoned this test, but at least
five States continue to adhere to it.7
The second test has come to be referred to as the "zone of
danger" test. It came into use at roughly the same time as the
physical impact test, and had been adopted by several jurisdictions
at the time FELA was enacted. See Throckmorton,
supra, at
264-265, and n. 28.8 See also Bohlen, Right to Recover for Injury
Resulting from Negligence Without Impact, 50 Am. L. Reg. 141, and
nn. 3-5 (1902). Perhaps based on the realization that "a near miss
may be as frightening as a direct hit," Pearson, U. Fla. L. Rev.,
at 488, the zone of danger test limits recovery for emotional
injury to those plaintiffs who sustain a physical impact as a
result
6 See,
e. g., Spade v.
Lynn &
B. R.
Co., 168 Mass. 285, 47 N. E. 88 (1897);
Mitchell v.
Rochester R. Co., 151 N. Y. 107, 45 N. E. 354 (1896);
Ewing v.
Pittsburgh, c., C. &
St. L. R.
Co., 147 Pa. 40, 23 A. 340 (1892).
7 See
OB-GYN Assocs. of Albany v.
Littleton, 259
Ga. 663, 386 S. E. 2d 146 (1989);
Shuamber v.
Henderson, 579 N. E. 2d 452 (Ind. 1991);
Anderson v.
Scheffler, 242 Kan. 857, 752 P. 2d 667 (1988);
Deutsch v.
Shein, 597 S. W. 2d 141 (Ky. 1980);
Hammond v.
Central Lane Communications Center, 312
Ore. 17,816 P. 2d 593 (1991).
8See,
e. g., Simone v.
Rhode Island Co., 28 R. I.
186,66 A. 202 (1907);
Kimberly v.
Howland, 143 N. C.
398, 55 S. E. 778 (1906);
Gulf, C. & S. F.
R. Co.
v.
Hayter, 93 Tex. 239, 54 S. W. 944 (1900);
Mack v.
South-Bound R. Co., 52 S. C. 323, 29 S. E. 905 (1898);
Purcell v.
St. Paul City R. Co., 48 Minn. 134, 50 N.
W. 1034 (1892). See also
Pankopf v.
Hinkley, 141 Wis.
146, 123 N. W. 625 (1909);
Stewart v.
Arkansas Southern
R. Co., 112 La. 764, 36 So. 676 (1904);
Watson v.
Dilts, 116 Iowa 249, 89 N. W. 1068 (1902).
548
548 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
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."
Id., at 489. The
zone of danger test currently is followed in 14 jurisdictions.9
The third prominent limiting test is the "relative bystander"
test, which was first enunciated in
Dillon v.
Legg,
68 Cal. 2d 728, 441 P. 2d 912 (1968). In
Dillon, the
California Supreme Court rejected the zone of danger test and
suggested that the availability of recovery should turn, for the
most part, on whether the defendant could reasonably have foreseen
the emotional injury to the plaintiff. The court offered three
factors to be considered as bearing on the question of reasonable
foreseeability:
"(1) Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon
plaintiff from the sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others
after its occurrence. (3) Whether plaintiff and the victim were
closely related, as contrasted with an absence of any relationship
or the presence of only a distant relationship." Id., at
740-741, 441 P. 2d, at 920.
9 See
Keck v.
Jackson, 122 Ariz. 114, 593 P. 2d
668 (1979);
Towns v.
Anderson, 195 Colo. 517, 579 P. 2d 1163 (1978);
Robb v.
Pennsylvania R. Co., 58 Del. 454, 210 A. 2d
709 (1965);
Williams v.
Baker, 572 A. 2d 1062 (D. C.
App. 1990);
Rickey v.
Chicago Transit Authority, 98
Ill. 2d 546, 457 N. E. 2d 1 (1983);
Resavage v.
Davies, 199 Md. 479, 86 A. 2d 879 (1952);
Stadler v.
Cross, 295 N. W. 2d 552 (Minn. 1980);
Asaro v.
Cardinal Glennon Memorial Hosp., 799 S. W. 2d 595 (Mo.
1990);
Bovsun v.
Sanperi, 61 N. Y. 2d 219, 461 N. E.
2d 843 (1984);
Whetham v.
Bismarck Hosp., 197 N. W.
2d 678 (N. D. 1972);
Shelton v.
Russell Pipe &
Foundry Co., 570 S. W. 2d 861 (Tenn. 1978);
Boucher
v.
Dixie Medical Center, A Div. of IHC Hosps., Inc., 850 P.
2d 1179 (Utah 1992);
Jobin v.
McQuillen, 158 Vt. 322,
609 A. 2d 990 (1992);
Garrett v.
New Berlin, 122 Wis.
2d 223, 362 N. W. 2d 137 (1985).
549
The courts of nearly half the States now allow bystanders
outside of the zone of danger to obtain recovery in certain
circumstances for emotional distress brought on by witnessing the
injury or death of a third party (who typically must be a close
relative of the bystander) that is caused by the defendant's
negligence.lO Most of these jurisdictions have adopted the Dillon
factors either verbatim or with variations and additions, and have
held some or all of these factors to be substantive limitations on
recovery.ll
III A
Having laid out the relevant legal framework, we turn to the
questions presented. As an initial matter, we agree
10 See
Croft v.
Wicker, 737 P. 2d 789 (Alaska
1987);
Thing v.
La Chusa, 48 Cal. 3d 644, 771 P. 2d
814 (1989);
Champion v.
Gray, 478 So. 2d 17 (Fla.
1985); Fineran v.
Pickett, 465 N. W. 2d 662 (Iowa
1991);
Lejeune v.
Rayne Branch Hosp., 556 So. 2d 559
(La. 1990);
Cameron v.
Pepin, 610 A. 2d 279 (Me.
1992);
Stockdale v.
Bird &
Son, Inc., 399
Mass. 249, 503 N. E. 2d 951
(1987); Nugent v.
Bauermeister, 195 Mich. App. 158, 489 N. W. 2d 148 (1992),
appeal denied, 442 Mich. 929, 503 N. W. 2d 904 (1993);
Entex,
Inc. v.
McGuire, 414 So. 2d 437 (Miss. 1982);
Maguire v.
State, 254 Mont. 178, 835 P. 2d 755
(1992);
James v.
Lieb, 221 Neb. 47, 375 N. W. 2d 109
(1985);
Buck v.
Greyhound Lines, Inc., 105 Nev. 756,
783 P. 2d 437 (1989);
Wilder v.
Keene, 131 N. H. 599,
557 A. 2d 636 (1989);
Frame v.
Kothari, 115 N. J.
638, 560 A. 2d 675 (1989);
Folz v.
State, 110 N. M.
457, 797 P. 2d 246 (1990);
Johnson v.
Ruark Obstetrics
and Gynecology Assocs., 327 N. C. 283, 395 S. E. 2d 85 (1990);
Paugh v.
Hanks, 6 Ohio St. 3d 72, 451 N. E. 2d 759
(1983); Sinn v.
Burd, 486 Pa. 146, 404 A. 2d 672
(1979);
Reilly v.
United States, 547 A. 2d 894 (R. I.
1988);
Kinard v.
Augusta Sash &
Door Co.,
286 S. C. 579,336 S. E. 2d 465 (1985);
Boyles v.
Kerr, 855 S. W. 2d 593 (Tex.
1993); Gain v.
Carroll Mill Co., 114 Wash. 2d 254, 787 P. 2d 553 (1990);
Heldreth v.
Marrs, 188 W. Va. 481, 425 S. E. 2d 157
(1992);
Contreras v.
Carbon County School Dist. No.1,
843 P. 2d 589 (Wyo. 1992).
11 Many jurisdictions that follow the zone of danger or relative
bystander tests also require that a plaintiff demonstrate a
"physical manifestation" of an alleged emotional injury, that is, a
physical injury or effect that is the direct result of the
emotional injury, in order to recover. See,
e. g.,
Garvis v.
Employers Mut. Casualty Co., 497 N. W. 2d
254 (Minn. 1993).
550
550 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
with the Third Circuit that claims for damages for negligent
infliction of emotional distress are cognizable under FELA. A
combination of many of the factors discussed above makes this
conclusion an easy one. A right to recover for negligently
inflicted emotional distress was recognized in some form by many
American jurisdictions at the time FELA was enacted, see nn. 6 and
8,
supra, and this right is nearly universally recognized
among the States today. See
supra, at 546-549. Moreover, we
have accorded broad scope to the statutory term "injury" in the
past in light of FELA's remedial purposes. Cf.
Urie, 337 U.
S., at 181. We see no reason why emotional injury should not be
held to be encompassed within that term, especially given that
"severe emotional injuries can be just as debilitating as physical
injuries."
Gottshall, 988 F. 2d, at 361. We therefore hold
that, as part of its "duty to use reasonable care in furnishing its
employees with a safe place to work,"
Buell, 480 U. S., at
558, a railroad has a duty under FELA to avoid subjecting its
workers to negligently inflicted emotional injury. This latter
duty, however, is not self-defining. Respondents defend the Third
Circuit's definition of the duty we recognize today; Conrail offers
its own proposed delineation. We consider the proposals in
turn.
B
When setting out its view of the proper scope of recovery for
negligently inflicted emotional distress under FELA, the Third
Circuit explicitly refused to adopt any of the commonlaw tests
described above; indeed, the court in
Gottshall went so far
as to state that "doctrinal common law distinctions are to be
discarded when they bar recovery on meritorious FELA claims." 988
F. 2d, at 369. Instead, the court developed its own test, under
which "[t]he issue is whether the factual circumstances ... provide
a threshold assurance that there is a likelihood of genuine and
serious emotional injury."
Id., at 371. If this threshold
test is satisfied, the claim should be evaluated in light of
traditional tort concepts
551
such as breach of duty, injury, and causation, with the focus
resting on the foreseeability of the plaintiff's injury.
Id., at 374-375. In
Gottshall, the Third Circuit did
at least consider the plaintiff's claim in light of the common law
of negligent infliction of emotional distress as part of its
factual "genuineness" inquiry. By the time the court next applied
the
Gottshall genuineness test, however, the common-law
aspect of its analysis had completely disappeared; Carlisle's
stress-related claim was not evaluated under any of the common-law
tests. In
Carlisle, the Third Circuit refined its test to
two questions-whether there was convincing evidence of the
genuineness of the emotional injury claim (with "genuine" meaning
authentic and serious), and if there was, whether the injury was
foreseeable. If these questions could be answered affirmatively by
the court, there was "no bar to recovery under the FELA." 990 F.
2d, at 98.
The Third Circuit's standard is fatally flawed in a number of
respects. First, as discussed above, because negligent infliction
of emotional distress is not explicitly addressed in the statute,
the common-law background of this right of recovery must play a
vital role in giving content to the scope of an employer's duty
under FELA to avoid inflicting emotional injury. Cf.
Monessen, 486 U. S., at 336-339;
Buell, supra, at
568-570; Urie, supra, at 182. By treating the common-law
tests as mere arbitrary restrictions to be disregarded if they
stand in the way of recovery on "meritorious" FELA claims, the
Third Circuit put the cart before the horse: The common law must
inform the availability of a right to recover under FELA for
negligently inflicted emotional distress, so the "merit" of a FELA
claim of this type cannot be ascertained without reference to the
common law.
Perhaps the court below believed that its focus on the perceived
genuineness of the claimed emotional injury adequately addressed
the concerns of the common-law courts in dealing with emotional
injury claims. But the potential for fraudulent and trivial
claims-the concern identified by the
552
552 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
Third Circuit-is only one of the difficulties created by
allowing actions for negligently inflicted emotional distress. A
more significant problem is the prospect that allowing such suits
can lead to unpredictable and nearly infinite liability for
defendants. The common law consistently has sought to place limits
on this potential liability by restricting the class of plaintiffs
who may recover and the types of harm for which plaintiffs may
recover. This concern underlying the common-law tests has nothing
to do with the potential for fraudulent claims; on the contrary, it
is based upon the recognized possibility of
genuine claims
from the essentially infinite number of persons, in an infinite
variety of situations, who might suffer real emotional harm as a
result of a single instance of negligent conduct.
Second, we question the viability of the genuineness test on its
own terms. The Third Circuit recognized that "there must be some
finite limit to the railway's potential liability" for emotional
injury claims under FELA, and suggested that liability could be
restricted through application of the genuineness test.
Gottshall, supra, at 379. But as just explained, testing for
the "genuineness" of an injury alone cannot appreciably diminish
the possibility of infinite liability. Such a fact-specific test,
moreover, would be bound to lead to haphazard results. Judges would
be forced to make highly subjective determinations concerning the
authenticity of claims for emotional injury, which are far less
susceptible to objective medical proof than are their physical
counterparts. To the extent the genuineness test could limit
potential liability, it could do so only inconsistently. Employers
such as Conrail would be given no standard against which to
regulate their conduct under such an ad hoc approach. In the
context of claims for intangible harms brought under a negligence
statute, we find such an arbitrary result unacceptable. Cf.
Stadler v.
Cross, 295 N. W. 2d 552, 554 (Minn.
1980).
Third, to the extent the Third Circuit relied on the concept of
foreseeability as a meaningful limitation on liability, we
553
believe that reliance to be misplaced. If one takes a broad
enough view, all consequences of a negligent act, no matter how far
removed in time or space, may be foreseen. Conditioning liability
on foreseeability, therefore, is hardly a condition at all. "Every
injury has ramifying consequences, like the ripplings of the
waters, without end. The problem for the law is to limit the legal
consequences of wrongs to a controllable degree." Tobin, 24 N. Y.
2d, at 619, 249 N. E. 2d, at 424. See also Thing, 48 Cal. 3d, at
668, 771 P. 2d, at 830 ("[T]here are clear judicial days on which a
court can foresee forever and thus determine liability but none on
which that foresight alone provides a socially and judicially
acceptable limit on recovery").
This is true as a practical matter in the FELA context as well,
even though the statute limits recovery to railroad workers. 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.12
12 The Third Circuit did require that the emotional injury be
"reasonably" foreseeable, see
Carlisle v.
Consolidated
Rail Corp., 990 F.2d
90,97 (1993), but under the circumstances, that qualifier seems
to add little. Suffice it to say that if Gottshall's emotional
injury stemming from Johns' death was reasonably foreseeable to
Conrail, nearly any injury could also be reasonably
foreseeable.
554
554 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
Finally, the Third Circuit in
Carlisle erred in upholding
"a claim under the FELA for negligent infliction of emotional
distress arising from work-related stress." 990 F. 2d, at 9798. We
find no support in the common law for this unprecedented 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.
Indeed, the Third Circuit's ruling would tend to make railroads the
insurers of the emotional well-being and mental health of their
employees. We have made clear, however, that FELA is not an
insurance statute. See,
e. g.,
Ellis, 329 U. S., at
653. For the foregoing reasons, we reject the Third Circuit's
approach.
C
Conrail suggests that we adopt the common-law zone of danger
test as delimiting the proper scope of an employer's duty under
FELA to avoid subjecting its employees to negligently inflicted
emotional injury. We agree that the zone of danger test best
reconciles the concerns of the common law with the principles
underlying our FELA jurisprudence.
As we did in
Monessen, we begin with the state of the
common law in 1908, when FELA was enacted. In determining in
Monessen whether prejudgment interest was available under
FELA, we recognized that the common law in 1908 did not allow such
interest in personal injury and wrongful-death suits. Because in
enacting FELA, "Congress expressly dispensed with other common-law
doctrines of that era, such as the defense of contributory
negligence," but "did not deal at all with the equally well
established doctrine barring the recovery of prejudgment interest,"
we concluded that Congress intended to leave the common-law rule
intact. 486 U. S., at 337-338. In contrast, the right to recover
for negligently inflicted emotional distress was well established
in many jurisdictions in 1908. Although at that time, "the weight
of American authority" favored the physi-
555
cal impact test, Throckmorton, 34 Harv. L. Rev., at 264, the
zone of danger test had been adopted by a significant number of
jurisdictions. See n. 8,
supra. Moreover, because it was
recognized as being a progressive rule of liability that was less
restrictive than the physical impact test, the zone of danger test
would have been more consistent than the physical impact test with
FELA's broad remedial goals. See
Waube v.
Warrington,
216 Wis. 603, 608, 258 N. W. 497, 499 (1935) (discussing early
emotional injury cases and referring to zone of danger test as "the
liberal rule"). Considering the question "in the appropriate
historical context,"
Monessen, supra, at 337, then, it is
reasonable to conclude that Congress intended the scope of the duty
to avoid inflicting emotional distress under FELA to be coextensive
with that established under the zone of danger test. That is, an
emotional injury constitutes "injury" resulting from the employer's
"negligence" for purposes of FELA only if it would be compensable
under the terms of the zone of danger test. See 45 U. S. C. § 51.
Cf.
Urie, 337 U. S., at 182.
Current usage only confirms this historical pedigree. The zone
of danger test presently is followed by 14 jurisdictions. It
therefore remains to this day a well-established "common-law
concep[t] of negligence,"
ibid., that is suitable to inform
our determination of the federal question of what constitutes
negligence for purposes of FELA. Cf.
Buell, 480 U. S., at
568-570;
Kernan, 355 U. S., at 432.
The zone of danger test also is consistent with FELA's central
focus on physical perils. We have recognized that FELA was intended
to provide compensation for the injuries and deaths caused by the
physical dangers of railroad work by allowing employees or their
estates to assert damages claims. Cf.
Urie, supra, at 181.
By imposing liability, FELA presumably also was meant to encourage
employers to improve safety measures in order to avoid those
claims. Cf.
Wilkerson, 336 U. S., at 68 (Douglas, J.,
concurring). As the Seventh Circuit has observed, FELA was (and is)
aimed
556
556 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
at ensuring "the security of the person from physical invasions
or menaces."
Lancaster v.
Norfolk &
Western R.
Co., 773 F.2d
807, 813 (1985), cert. denied, 480 U. S. 945 (1987). But while
the statute may have been primarily focused on physical injury, it
refers simply to "injury," which may encompass both physical and
emotional injury. We believe that allowing recovery for negligently
inflicted emotional injury as provided for under the zone of danger
test best harmonizes these considerations. Under this test, a
worker within the zone of danger of physical impact will be able to
recover for emotional injury caused by fear of physical injury to
himself, whereas a worker outside the zone will not. Railroad
employees thus will be able to recover for injuriesphysical and
emotional-caused by the negligent conduct of their employers that
threatens them imminently with physical impact. This rule will
further Congress' goal in enacting the statute of alleviating the
physical dangers of railroading.
The physical impact test, of course, would achieve many of the
same ends as the zone of danger test. We see no reason, however, to
allow an employer to escape liability for emotional injury caused
by the apprehension of physical impact simply because of the
fortuity that the impact did not occur. And the physical impact
test has considerably less support in the current state of the
common law than the zone of danger test. See
supra, at
546-549.
As for the relative bystander test, we conclude that it is an
inappropriate rule in the FELA context. As an initial matter, it
was not developed until 60 years after FELA's enactment, and
therefore lacks historical support. Cf.
Monessen, supra.
Moreover, in most jurisdictions that adhere to it, this test limits
recovery to persons who witness the severe injury or death of a
close family member. Only railroad employees (and their estates)
may bring FELA claims, however, and presumably it would be a rare
occurrence for a worker to witness during the course of his
employment the injury or death of a close family member. In
557
any event, we discern from FELA and its emphasis on protecting
employees from physical harms no basis to extend recovery to
bystanders outside the zone of danger. Cf.
Gaston v.
Flowers Transp., 866 F.2d
816, 820-821 (CA5 1989).
Respondents decry the zone of danger test as arbitrarily
excluding valid claims for emotional injury. But "[c]haracterizing
a rule limiting liability as 'unprincipled' or 'arbitrary' is often
the result of overemphasizing the policy considerations favoring
imposition of liability, while at the same time failing to
acknowledge any countervailing policies and the necessary
compromise between competing and inconsistent policies informing
the rule."
Cameron v.
Pepin, 610 A. 2d 279,283 (Me.
1992). Our FELA cases require that we look to the common law when
considering the right to recover asserted by respondents, and the
common law restricts recovery for negligent infliction of emotional
distress on several policy grounds: the potential for a flood of
trivial suits, the possibility of fraudulent claims that are
difficult for judges and juries to detect, and the specter of
unlimited and unpredictable liability. Although some of these
grounds have been criticized by commentators, they all continue to
give caution to courts. We believe the concerns that underlie the
common-law tests, and particularly the fear of unlimited liability,
to be well founded.
Perhaps the zone of danger test is "arbitrary" in the sense that
it does not allow recovery for all emotional distress. But it is
fully consistent with our understanding of the statute. And for the
reasons discussed above, we conclude that the policy considerations
of the common law as they are embodied in the zone of danger test
best accord with the concerns that have motivated our FELA
jurisprudence.
IV
Because the Third Circuit applied an erroneous standard for
evaluating claims for negligent infliction of emotional
558
558 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
SOUTER,~,concurring
distress brought under FELA, we reverse the judgments below. In
Gottshall, we remand for reconsideration under the zone of
danger test announced today. Gottshall asserts before this Court
that he would in fact meet the requirements of the zone of danger
test, while Conrail disagrees. The question was not adequately
briefed or argued before us, however, and we believe it best to
allow the Third Circuit to consider the question in the first
instance in light of relevant common-law precedent.
In
Carlisle, however, we remand with instructions to
enter judgment for Conrail. Carlisle's work-stress-related claim
plainly does not fall within the common law's conception of the
zone of danger, and Carlisle makes no argument that it does.
Without any support in the common law for such a claim, we will not
take the radical step of reading FELA as compensating for stress
arising in the ordinary course of employment. In short, the core of
Carlisle's complaint was that he "had been given too much-not too
dangerous-work to do. That is not our idea of an FELA claim."
Lancaster, supra, at 813.
The judgments of the Court of Appeals are reversed, and the
cases are remanded for further proceedings consistent with this
opinion.
So ordered.
JUSTICE SOUTER, concurring.
I join the Court's opinion holding that claims for negligent
infliction of emotional distress are cognizable under the Federal
Employers' Liability Act (FELA), and that the zone of danger test
is the appropriate rule for determining liability for such claims.
I write separately to make explicit what I believe the Court's duty
to be in interpreting FELA. That duty is to develop a federal
common law of negligence under FELA, informed by reference to the
evolving common law. See
Atchison, T. & S.
F. R.
Co. v.
Buell, 480 U. S. 557, 568570
(1987). As we have explained:
559
"[I]nstead of a detailed statute codifying common-law
principles, Congress saw fit to enact a statute of the most general
terms, thus leaving in large measure to the courts the duty of
fashioning remedies for injured employees in a manner analogous to
the development of tort remedies at common law. But it is clear
that the general congressional intent was to provide liberal
recovery for injured workers ... and it is also clear that Congress
intended the creation of no static remedy, but one which would be
developed and enlarged to meet changing conditions and changing
concepts of industry's duty toward its workers." Kernan v.
American Dredging Co., 355 U. S. 426, 432
(1958).
Because I believe the Court's decision today to be a faithful
exercise of that duty, and because there can be no question that
adoption of the zone of danger test is well within the discretion
left to the federal courts under FELA, I join in its opinion.
JUSTICE GINSBURG, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, dissenting.
The Federal Employers' Liability Act (FELA or Act), 45 U. S. C.
§ 51
et seq., instructs interstate railroads "'to use
reasonable care in furnishing [their] employees with a safe place
to work.'"
Ante, at 550, quoting
Atchison, T. &
S.
F. R. Co. v.
Buell, 480 U. S. 557, 558
(1987). As the Court today recognizes, the FELA-imposed obligation
encompasses "a duty ... to avoid subjecting [railroad] workers to
negligently inflicted emotional injury."
Ante, at 550.
The Court limits the scope of the railroad's liability, however,
by selecting one of the various "tests" state courts have applied
to restrict recovery by members of the public for negligently
inflicted emotional distress. The Court derives its limitation
largely from a concern, often expressed in state court opinions,
about the prospect of "infinite liability" to an "infinite number
of persons." See
ante, at 552. This
560
560 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
concern should not control in the context of the FELA, as I see
it, for the class of potential plaintiffs under the FELA is not the
public at large; the Act covers only railroad workers who sustain
injuries on the job. In view of the broad language of the Act,l and
this Court's repeated reminders that the FELA is to be liberally
construed, I cannot regard as faithful to the legislation and our
case law under it the restrictive test announced in the Court's
opinion.
I
The FELA was designed to provide a federal "statutory negligence
action ... significantly different from the ordinary common-law
negligence action."
Rogers v.
Missouri Pacific R.
Co., 352 U. S.
500, 509-510 (1957). An "avowed departure" from prevailing
common-law rules,
Sinkler v.
Missouri Pacific R. Co.,
356 U. S. 326,
329 (1958), the Act advanced twin purposes: "to eliminate a number
of traditional defenses to tort liability and to facilitate
recovery in meritorious cases."
Buell, supra, at 561.2
"Congress intended the creation of no static remedy, but one which
would be developed and enlarged to meet changing conditions and
changing concepts of industry's duty toward its workers."
Kernan v.
American Dredging Co., 355 U. S. 426, 432
(1958). Relying upon "the breadth of the statutory language, [and]
the Act's humanitarian purposes," this Court has accorded the FELA
a notably "liberal construction in order to accom-
1 Section 1 of the FELA provides, in relevant part, that
"[e]very common carrier by railroad ... shall be liable in damages
to any person suffering injury while he is employed by such carrier
... [when such injury results] in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier." 45 U. S. C. § 51.
2 The FELA, as enacted in 1908, abolished the employer's "fellow
servant" defense and provided that an employee's negligence would
not bar, but only reduce, recovery; the Act further prohibited
employers from exempting themselves contractually from statutory
liability. §§ 51, 53, 55. As amended in 1939, the Act also
abolished the employer's assumption of risk defense. § 54.
561
plish [Congress'] objects."
Urie v.
Thompson,
337 U. S. 163,
180 (1949); see
Buell, supra, at 562.
In particular, the Court has given full scope to the key
statutory term "injury." The Act prescribes that "[e]very common
carrier by railroad ... shall be liable in damages to any person
suffering injury while he is employed by such carrier." 45 U. S. C.
§ 51. That prescription, this Court observed, is "not restrictive
as to ... the particular kind of injury."
Urie, 337 U. S.,
at 181. "[W]hen the statute was enacted," it is true, "Congress'
attention was focused primarily upon ... accidents on interstate
railroads," for "these were the major causes of injury and death
resulting from railroad operations."
Ibid. But "accidental
injuries were not the only ones likely to occur," and Congress
chose "allinclusive wording."
Ibid. "To read into [language
as broad as could be framed] a restriction [tied] to ... the
particular sorts of harms inflicted," the Court recognized, "would
be contradictory to the wording, the remedial and humanitarian
purpose, and the constant and established course of liberal
construction of the Act followed by this Court."
Id., at
181-182.
II
Seven years ago, in
Atchison, T. & S.
F. R.
Co. v.
Buell, 480 U. S. 557 (1987), the
Court left unresolved the question whether emotional injury is
compensable under the FELA, because the record in that case did not
adequately present the issue.
Id., at 560-561,570-571. In
his unanimous opinion for the Court, JUSTICE STEVENS explained why
the question could not be resolved on a fact-thin record:
"[W]hether 'emotional injury' is cognizable under the FELA is
not necessarily an abstract point of law or a pure question of
statutory construction that might be answerable without exacting
scrutiny of the facts of the case. Assuming, as we have, that FELA
jurisprudence gleans guidance from common-law developments, see
562
562 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
Urie v. Thompson, 337 U. S., at 174, whether one
can recover for emotional injury might rest on a variety of subtle
and intricate distinctions related to the nature of the injury and
the character of the tortious activity." Id., at 568.
"[T]he question whether one can recover for emotional injury may
not be susceptible to an all-inclusive 'yes' or 'no' answer. As in
other areas of law, broad pronouncements in this area may have to
bow to the precise application of developing legal principles to
the particular facts at hand." Id., at 570.
In deciding the cases now under review, the Court of Appeals
endeavored to "'field the
Buell pitch.'''
988 F.2d
355, 365 (CA3 1993), quoting
Plaisance v.
Texaco,
Inc., 937 F.2d
1004, 1009 (CA5 1991).
A
In respondent Gottshall's case, the Court of Appeals first
described the various rules state courts have applied to common-law
actions for negligent infliction of emotional distress. 988 F. 2d,
at 361-362. That court emphasized, however, that "[d]etermining
FELA liability is distinctly a federal question."
Id., at
362. State common-law decisions, the Court of Appeals observed, "do
not necessarily etch the contours of the federal right,"
ibid., for the common law that courts develop to fill the
FELA's interstices is "federal" in character. See id., at 367.
In addition to the FELA's express abolition of traditional
employer defenses, the Court of Appeals next noted, this Court's
decisions interpreting the FELA served as pathmarkers. The Court of
Appeals referred to decisions that had relaxed "the strict
requirements of causation in common law,"
id., at 368,
citing
Rogers, 352 U. S., at 506, broadened the conception
of negligence
per se, see 988 F. 2d, at 368, citing
Kernan, 355 U. S., at 437-439, and generously con-
563
strued the FELA's injury requirement, 988 F. 2d, at 368, citing
Urie, 337 U. S., at 181-182. The FELA, the Court of Appeals
concluded:
"imposes upon carriers a higher standard of conduct and has
eliminated many of the refined distinctions and restrictions that
common law imposed to bar recovery (even on meritorious claims).
FELA liability and common law liability are thus different." 988 F.
2d, at 369.
Accordingly, the Court of Appeals "refused to designate a
particular common law test as
the test" applicable in FELA
cases.
Id., at 365. Instead, the court looked to the
purposes of those tests: to distinguish "the meritorious [claim]
from the feigned and frivolous," id., at 369, and to assure that
liability for negligently inflicted emotional distress does not
expand "into the 'fantastic realm of infinite liability.'"
Id., at 372, quoting
Amaya v.
Home Ice, Fuel
&
Supply Co., 59 Cal. 2d 295, 315, 379 P. 2d 513, 525
(1963); see also 988 F. 2d, at 381-382.
FELA jurisprudence, the Court of Appeals reasoned, has evolved
not through a "rules first" approach, but in the traditional,
fact-bound, case-by-case common-law way. See id., at 371. The court
therefore undertook to determine "whether the factual circumstances
[in Gottshall's case] provide a threshold assurance that there is a
likelihood of genuine and serious emotional injury."
Ibid.
"[O]ne consideration" in that inquiry, the court said, "is whether
plaintiff has a 'solid basis in the present state of common law to
permit him to recover.'"
Ibid., quoting
Outten v.
National Railroad Passenger Corp., 928
F.2d 74, 79 (CA3 1991).
Gottshall's claim, the Court of Appeals held, presented the
requisite "threshold assurance." His emotional distress, diagnosed
by three doctors as major depression and posttraumatic stress
disorder, 988 F. 2d, at 374, was unquestionably genuine and severe:
He was institutionalized for three weeks, followed by continuing
outpatient care; he lost 40 pounds; and he suffered from "suicidal
preoccupations, anxi-
564
564 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
GINSBURG, J., dissenting
ety, sleep onset insomnia, cold sweats, ... nausea, physical
weakness, repetitive nightmares and a fear of leaving home."
Ibid.; see also
id., at 373 (noting that Conrail
"wisely declined" to attack Gottshall's claim as fraudulent).
Gottshall's afflictions, the Court of Appeals observed, satisfied
the "physical manifestation" limitation that some States, and the
Second Restatement of Torts, place on emotional distress recovery.
See id., at 373-374 (citing cases); Restatement (Second) of Torts §
436A (1965) (no liability for emotional distress without "bodily
harm or other compensable damage");
ibid., Comment
c
("[L]ong continued nausea or headaches may amount to physical
illness, which is bodily harm; ... long continued mental
disturbance ... may be classified by the courts as illness" and
thus be compensable). Cf.
Buell, 480 U. S., at 570, n. 22
(suggesting a distinction between claims for "pure emotional
injury" and those involving "physical symptoms in addition to ...
severe psychological illness").
The Court of Appeals also inspected the facts under the
"bystande[r]" test, versions of which have been adopted by nearly
half the States. See
ante, at 549. While acknowledging that
Gottshall did not satisfy the more restrictive versions of the
"bystander" test, the court observed that several States have
allowed recovery even where, as here, the plaintiff and the victim
of physical injury were unrelated by blood or marriage. See 988 F.
2d, at 371 (citing cases). Further, the court noted, given "the
reality of the railway industry," rarely will one "se[e] another
family member injured while working in the railroad yard."
Id., at 372. A strict version of the bystander rule,
therefore, would operate not to limit recovery to the most
meritorious cases, but almost to preclude bystander recovery
altogether.
To adapt the bystander rule to the FELA context, the court
looked to the reasons for limiting bystander recovery: to avoid
compensating plaintiffs with fraudulent or trivial claims, and to
prevent liability from becoming "an intolerable
565
burden upon society."
Id., at 369,372. The court held
that neither concern barred recovery in Gottshall's case. The
genuineness of Gottshall's claim appeared not just in the
manifestations of his distress, the court said, but also in the
extraordinarily close, 15-year friendship between Gottshall and
Johns, the decedent.
Id., at 371. Liability to bystanders,
the court concluded, would be far less burdensome in the FELA
context, where only close co-workers are potential plaintiffs, than
in the context of a common-law rule applicable to society as a
whole.
Id., at 372. In this regard, the Court of Appeals
again recalled, this Court has constantly admonished lower courts
that "recovery [under the FELA] should be liberally granted,"
ibid., "so that the remedial and humanitarian goals of the
statute can be fully implemented," id., at 373.
Satisfied that Gottshall had crossed the "genuine and severe"
injury threshold, the Court of Appeals inquired whether he had a
triable case on breach of duty and causation.
Id., at 374.
Here, the court emphasized that Gottshall's distress was
attributable not to "the ordinary stress of the job," id., at 375,
but instead, to Conrail's decision to send a crew of men, most of
them 50 to 60 years old and many of them overweight, out into 97
-degree heat at high noon, in a remote, sun-baked location,
requiring them to replace heavy steel rails at an extraordinarily
fast pace without breaks, and without maintaining radio contact or
taking any other precautions to protect the men's safety, id., at
376-377.
The Court of Appeals stated, further, that even if Conrail could
be said to have acted reasonably up to the time of Johns' death,
"its conduct after the death raises an issue of whether it breached
a legal duty."
Id., at 378. The Conrail supervisor required
the crew to return to work immediately after Johns' corpse was laid
by the side of the road, covered but still in view.
Ibid.
The next day, Gottshall alleged, the supervisor "reprimanded him
for administering CPR to Johns," id., at 359, then pushed the crew
even harder under
566
566 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
the same conditions, requiring a full day, plus three or four
hours of overtime, id., at 378. These circumstances, the Court of
Appeals concluded, "created not only physical hazards, but
constituted emotional hazards which can equally debilitate and scar
an employee, particularly one who had just witnessed a friend die
under the same conditions."
Id., at 378.
B
Upholding a jury verdict for plaintiff in
Carlisle, the
Court of Appeals "reaffirm[ed]" its
Gottshall holding that
"no single common law standard" governs in "weighing the
genuineness of emotional injury claims." Instead, the court
said:
"[C]ourts ... should engage in an initial review of the factual
indicia of the genuineness of a claim, taking into account broadly
used common law standards, then should apply the traditional
negligence elements of duty, foreseeability, breach, and causation
in weighing the merits of that claim." 990 F.2d
90, 98 (CA3 1993).
The Court of Appeals held that the evidence submitted to the
jury amply established the claim's genuineness. Carlisle testified
that, after Conrail's 1984 reduction in force, the pressure on
train dispatchers in Philadelphia, already substantial, increased
dramatically. As the person chiefly responsible for ensuring the
safety of "trains carrying passengers, freight and hazardous
materials," Carlisle became "increasingly anxious" over the sharp
reduction in staff, together with the outdated equipment and
"Conrail's repeated instructions to ignore safety concerns, such as
malfunctioning equipment or poor maintenance."
Id., at 92.
When Carlisle was compelled to work 12- to 15-hour shifts for 15
consecutive days, the resulting additional pressures, and the
difficulty of working for "an abusive, alcoholic supervisor," led,
according to Carlisle's expert witness, to the nervous breakdown he
suffered.
Ibid.
567
Other evidence confirmed Carlisle's testimony. Depositions taken
from "Carlisle's co-workers and subordinates" averred that "their
jobs as dispatchers and supervisors in the Philadelphia Conrail
offices had caused them to suffer cardiac arrests, nervous
breakdowns, and a variety of emotional problems such as depression,
paranoia and insomnia."
Ibid. An official report prepared by
the Federal Railway Administration "criticized the outdated
equipment and hazardous working conditions at Conrail's
Philadelphia dispatching office."
Id., at 93. Furthermore,
the Court of Appeals pointed out, Carlisle's emotional injury was
"accompanied by obvious physical manifestations": "insomnia,
fatigue, headaches, ... sleepwalking and substantial weight-loss."
Id., at 97, n. 11, 92. The court specifically noted: "We do
not face and do not decide the issue of whether purely emotional
injury, caused by extended exposure to stressful, dangerous working
conditions, would be compensable under the FELA."
Id., at
97, n. 11.
Satisfied that the jury could indeed find Carlisle's injury
genuine, and continuing to follow the path it had marked in
Gottshall, the court next examined the negligence elements
of Carlisle's claim. Emphasizing that "Conrail had ample notice of
the stressful and dangerous conditions under which Carlisle was
forced to work," including actual notice of physical and emotional
injuries sustained by Carlisle's co-workers, 990 F. 2d, at 97, the
Court of Appeals affirmed the District Court's denial of Conrail's
motions for judgment
n.o.v. or in the alternative for a new
trial. Carlisle's "extended exposure to dangerous and stressful
working conditions," the court concluded, constituted a breach of
Conrail's duty to provide a safe workplace, and the breach caused
Carlisle's injuries.
Id., at 97-98.
III
The Court initially "agree[s] with the Third Circuit that claims
for damages for negligent infliction of emotional distress are
cognizable under FELA."
Ante, at 549-550.
568
568 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
GINSBURG, J., dissenting
This conclusion, "an easy one" for the Court,
ante, at
550, is informed by prior decisions giving full scope to the FELA's
term "injury." The Court had explained in
Urie that an
occupational disease incurred in the course of employmentsilicosis
in that particular case-is as much "injury ... as scalding from a
boiler's explosion." 337 U. S., at 187. Rejecting a reading of the
statute that would confine coverage to "accidental injury" of the
kind that particularly prompted the 1908 Congress to enact the
FELA, the Court said of the occupational disease at issue:
"[W]hen the employer's negligence impairs or destroys an
employee's health by requiring him to work under conditions likely
to bring about such harmful consequences, the injury to the
employee is just as great when it follows, often inevitably, from a
carrier's negligent course pursued over an extended period of time
as when it comes with the suddenness of lightning." Id., at
186-187.
Similarly, as the Court recognizes today, "'severe emotional
injuries can be just as debilitating as physical injuries,'" hence
there is "no reason why emotional injury should not be held to be
encompassed within thee] term ['injury']."
Ante, at 550,
quoting
Gottshall, 988 F. 2d, at 361.
In my view, the Court of Appeals correctly determined that
Gottshall's submissions should survive Conrail's motion for summary
judgment, and that the jury's verdict in favor of Carlisle should
stand. Both workers suffered severe injury on the job, and
plausibly tied their afflictions to Conrail's negligence. Both
experienced not just emotional, but also physical, distress:
Gottshall lost 40 pounds and suffered from insomnia, physical
weakness, and cold sweats, while Carlisle experienced "insomnia,
fatigue, headaches, ... sleepwalking and substantial weight-loss."
Id., at 374; 990 F. 2d, at 92, 97, n. 11. The Court
emphasizes the "significant role" that "common-law principles must
play."
Ante, at 544. Notably
569
in that regard, both Gottshall and Carlisle satisfy the
"physical manifestation" test endorsed by the Restatement of Torts.
See
supra, at 564, 567; see also W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts 364 (5th
ed. 1984) ("the great majority of courts have now repudiated the
requirement of 'impact,' regarding as sufficient the requirement
that the mental distress be certified by some physical injury,
illness or other objective physical manifestation"); id., at 364,
n. 55 (citing cases). Thus, without gainsaying that "FELA
jurisprudence gleans guidance from common-law developments,"
Buell, 480 U. S., at 568, one can readily conclude that both
Gottshall and Carlisle have made sufficient showings of "injuries"
compensable under the FELA.3
Notwithstanding its recognition that the word "injury," as used
in the FELA, "may encompass both physical and emotional injury,"
the Court elects to render compensable only emotional distress
stemming from a worker's placement in the "zone of danger."
Ante, at 556. In other words, to recover for emotional
distress, the railroad employee must show that negligence
attributable to his employer threatened him "imminently with
physical impact."
Ibid. Based on the "zone" test, the Court
reverses the judgment for Carlisle outright and remands Gottshall's
case for reconsideration under that standard.
Ante, at
557-558.
The Court offers three justifications for its adoption of the
"zone of danger" test. First, the Court suggests that the "zone"
test is most firmly rooted in "the common law." The Court mentions
that several jurisdictions had adopted the zone of danger test by
1908,
ante, at 546,547, n. 8 (citing cases from eight
States), and that the test "currently is followed in 14
jurisdictions."
Ante, at 548. But that very exposition
3 The
Gottshall and
Carl isle cases do not call
for decision of the question whether physical manifestations would
be
necessary for recovery in every case.
570
570 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
GINSBURG, J., dissenting
tells us that the "zone" test never held sway in a majority of
States.
Moreover, the Court never decides firmly on the point of
reference, present or historical, from which to evaluate the
relative support the different common-law rules have enjoyed. If
the Court regarded as decisive the degree of support a rule
currently enjoys among state courts, the Court would allow
bystander recovery, permitted in some form in "nearly half the
States."
Ante, at 549. But cf.
ante, at 556
(bystander rule "was not developed until 60 years after FELA's
enactment, and therefore lacks historical support"). If, on the
other hand, the Court decided that historical support carried the
day, then the impact rule, preferred by most jurisdictions in 1908,
would be the Court's choice. But cf. ibid. (preferring the zone of
danger test to the impact rule, because,
inter alia, the
latter "has considerably less support in the current state of the
common law" than the former).
The Court further maintains that the zone of danger test is
preferable because it is "consistent with FELA's central focus on
physical perils."
Ante, at 555. But, as already underscored,
see
supra, at 561, the FELA's language "is as broad as could
be framed .... On its face, every injury suffered [on the job] by
any employee ... by reason of the carrier's negligence was made
compensable."
Urie, 337 U. S., at 181. And the FELA's
strikingly broad language, characteristically, "has been construed
even more broadly," in line with Congress' dominant remedial
objective.
Buell, 480 U. S., at 562;
Urie, supra, at
181 ("[N]othing in either the language or the legislative history
discloses expressly any intent to exclude from the Act's coverage
any injury resulting 'in whole or in part from the negligence' of
the carrier").
The Court's principal reason for restricting the FELA's coverage
of emotional distress claims is its fear of "infinite liability" to
an "infinite number of persons." See
ante, at 552; see also
ante, at 557 (referring to "the specter of unlimited and
unpredictable liability," and stating that "the fear of unlimited
liability ... [is] well founded"). The universe
571
of potential FELA plaintiffs, however, is hardly "infinite." The
statute does not govern the public at large. Only persons
"suffering injury ... while employed" by a railroad may recover
under the FELA, and to do so, the complainant must show that the
injury resulted from the railroad's negligence. 45 U. s. C. § 51.
The Court expresses concern that the approach Gottshall and
Carlisle advocate would require "[j]udges ... to make highly
subjective determinations concerning the authenticity of claims for
emotional injury, which are far less susceptible to objective
medical proof than are their physical counterparts."
Ante,
at 552. One solution to this problem-a solution the Court does not
explore-would be to require such "objective medical proof" and to
exclude, as too insubstantial to count as "injury," claims lacking
this proof.
IV
While recognizing today that emotional distress may qualify as
an "injury" compensable under the FELA, the Court rejects the Court
of Appeals' thoughtfully developed and comprehensively explained
approach as "inconsistent with the principles embodied in the
statute and with relevant common-law doctrine."
Ante, at
535. The Court's formulation, requiring consistency with both the
FELA and "common-law doctrine," is odd, for there is no unitary
common law governing claims for negligent infliction of emotional
distress.4 The "common law" of emotional distress
4 Throughout its opinion, the Court invokes "the common law" in
the singular. See,
e. g.,
ante, at 551 ("The common
law must inform the availability of a right to recover under FE
LA");
ante, at 552 ("The common law consistently has sought
to place limits on ... potential liability");
ante, at 554
("[T]he common law in 1908 did not allow [prejudgment] interest");
ante, at 557 ("[T]he common law restricts recovery");
ante, at 558 ("Carlisle's ... claim plainly does not fall
within the common law's conception of the zone of danger"). But see
Southern Pacific Co. v.
Jensen, 244 U. S. 205, 222 (1917)
(Holmes, J., dissenting) ("The common law is not a brooding
omnipresence in the sky but the articulate voice of some sovereign
or quasi-sovereign that can be identified .... It always is the law
of some State .... ").
572
572 CONSOLIDATED RAIL CORPORATION
v. GOTTSHALL
exists not in the singular, but emphatically in the plural; and
while the rule the Court has selected is consistent with one
common-law rule that some States have adopted, it is inevitably
inconsistent with others.
Most critically, the Court selects a common-law rule perhaps
appropriate were the task to choose a law governing the generality
of federal tort claims. The "zone" rule the Court selects, however,
seems to me inappropriate for a federal statute designed to govern
the discrete category of on-the-job injuries sustained by railroad
workers. In that domain our charge from Congress is to fashion
remedies constantly "liberal," and appropriately "enlarged to meet
changing conditions and changing concepts of industry's duty toward
its workers."
Kernan v.
American Dredging Co., 355 U.
S., at 432. The Court's choice does not fit that bill. Instead of
the restrictive "zone" test that leaves severely harmed workers
remediless, however negligent their employers, the appropriate FELA
claim threshold should be keyed to the genuineness and gravity of
the worker's injury.
In my view, the Court of Appeals developed the appropriate FELA
common-law approach and correctly applied that approach in these
cases. I would therefore affirm the Court of Appeals'
judgments.
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