ARE CREWMEMBER CLAIMS FOR WORK-RELATED STRESS RECOGNIZED
UNDER MARITIME LAW?
(published August 1996)
Injured crewmembers who file lawsuits against their employers often assert a cause of action for emotional distress. Occasionally, however, a crewmember who has not been personally injured nevertheless files a suit claiming purely emotional distress damages, as when a crewmember alleges injury due solely to work-related stress. This raises the important question of when a crewmember may recover for purely emotional distress damages in the absence of physical injury.
The Fifth Circuit Court of Appeals considered this precise issue in Gaston v. Flowers Transportation, 866 F.2d 816 (5th Cir. 1989), where a seaman who watched his brother being crushed to death between two vessels sought recovery for emotional distress damages under both the Jones Act and the doctrine of unseaworthiness. The Gaston court rejected both claims. As to the claim under the doctrine of unseaworthiness, the court found compelling the established rule that purely emotional injuries are not recoverable by bystanders under the doctrine of unseaworthiness. The question of recoverability for such injuries under the Jones Act was more difficult, as it was one of first impression. In resolving this issue the court examined and relied upon decisions applying the Federal Employers' Liability Act ("FELA"), which governs claims by railroad workers. The Jones Act expressly incorporates the FELA by reference. Based on the FELA authorities, the Fifth Circuit decided the Jones Act, like the doctrine of unseaworthiness, does not permit recovery for negligent infliction of purely emotional distress, at least where there has been no physical injury to the plaintiff. The Gaston holding was subsequently followed in Plaisance v. Texaco, Inc., 966 F.2d 166 (5th Cir. 1992) and Ellenwood v. Exxon Shipping Co., 795 F. Supp.31 (D. Ma. 1992), modified and remanded 984 F.2d 1270 (1st Cir. 1993).
The United States Supreme Court soon thereafter modified and "muddied" the rule articulated in Gaston. In Gottshall v. Consolidated Rail Corp., 114 S. Ct.2396 (1994), the Supreme Court considered two "stress-related" claims: (1) that of Carlisle, who for many years had worked for the railroad as a train dispatcher and who sustained a nervous breakdown and other injuries due to alleged overwork and job-related stress; and (2) that of Gottshall, who alleged depression and post-traumatic stress disorder after witnessing a co-worker's heart attack. Although the Gottshall court acknowledged stress-related claims are generally cognizable under FELA, it articulated only three circumstances which may give rise to a viable claim for purely emotional distress damages: (1) when the plaintiff is at the time of the casualty located in a "zone of danger"; (2) when the plaintiff is a "relative bystander"; and (3) when the plaintiff sustains some "physical impact."
Instances of recovery for emotional distress in cases where a plaintiff witnesses the injury of a close relative, and where a plaintiff himself sustains a "physical impact" (even without physical injury) are well established, and application of these "tests" are relatively straight-forward. Application of the "zone of danger" test, recognized in various permutations by many state courts, is far more problematic. The Supreme Court failed in Gottshall to define what situations might place a plaintiff inside the "zone of danger." On remand in Gottshall v. Conrail Rail Corp., 56 F.3d 530 (3d Cir. 1995), the Third Circuit queried: "does the Supreme Court's zone of danger test require the imminent threat of a physical impact or does it require merely a threat of physical harm?"
State courts have applied the "zone of danger" test in widely divergent manners. For instance, Illinois courts require a "high risk of physical impact, reasonable fear for one's own safety, and physical illness or injury." Rickey v. Chicago Transit Authority, 457 N.E.2d 1 (111.1983). Tennessee courts require a "reasonable foreseeability" that the claimant is in a zone of danger. Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Teen. 1978). Also applying its version of a "zone of danger" rule, Utah courts call for actual physical peril and fear for one's own safety. Boucher v. Dixie Medical Center, et al., 850 P.2d 1179 (Utah 1992). Both Arizona and Colorado courts have developed "zone of danger" tests requiring an "unreasonable risk of bodily harm." See Keck v. Jackson, 593 P.2d 668 (Ariz. 1979) and Towns v. Anderson, 579 P.2d 1163 (solo. 1978). In the District of Columbia, a claimant must merely fear for his own safety, regardless whether physical impact is experienced. Willams v. Baker, 572 A.2d 1062 (D.C. App. 1990). New York courts construe the "zone of danger" test broadly, allowing recovery for emotional distress unaccompanied by impact, provided only that the claimant is "exposed" to an unreasonable risk. See, e.g, Bosun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984).
In the recent leading case Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994), based on Gottshall's "relative bystander" exception to the rule barring claims for purely emotional distress, the Ninth Circuit Court of Appeals allowed claims for emotional distress by a woman who witnessed her husband's injury. The Fifth Circuit, before Gottshall was decided, and relying on the "physical impact" exception discussed in Gottshall, held that a seaman who inhaled fumes from a fire, suffered bruises and felt the heat of the fire had sustained sufficient physical injury to support an emotional distress claim. Gough v. Natural Gas Pipeline Co. of America, 996 F.2d763 (5th Cir.1993). Several other species of the"zone of danger" test exist in various jurisdictions.
Nonetheless, crewmember cases based on work-related stress alone, when no injury or danger of physical harm was present to cause the stress, have uniformly been rejected. In Gotshall, the Supreme Court expressly stated:
[A] work-stress-related claim plainly does not fall within the common law's conception of the zone of danger, and [plaintiff] 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 [plaintiff's] complaint was that he had been given too much - not too dangerous - work to do. This is not our idea of a FELA claim.
Gottshall, supra, at 2411-2412 (emphasis added).
In Szymanskiv. Columbia Transportation Ca, 1995 A.M.C. 1182 (N.D. Ohio 1995), plaintiff seaman brought suit against his employer claiming negligence under the Jones Act and unseaworthiness under the general maritime law, because he allegedly sustained a heart attack from inordinately arduous labor aggravated by an incompetent co-worker. Id. The shipowner sought summary judgment, asserting plaintiff's injuries were solely stress-induced emotional injuries manifestedthrough the physical symptom of a heart attack, and thus not recoverable under the Jones Act. Plaintiff argued his heart attack was caused, at least in part, by his 16 years of hard physical labor, and was not a mere manifestation of an emotional, stress-related injury. Id, at 1185. The district court concluded that even assuming plaintiff's injuries were induced by his years of hard physical labor, the Gotshall decision was controlling and required the granting of summary judgment. The court also held that because summary judgment was appropriate on plaintiff's Jones Act claim, it was also appropriate on plaintiff's unseaworthiness claim. Id.
Yballa v. Sea-Land Services, Inc., et al, 1996 A.M.C. 283 (D. Haw. 1995) reached a similar result. Plaintiff filed suit against Sea-Land claiming he collapsed due to "stress [and] excessive abuse by his superior officer." Id at 284. Sea-Land filed a motion for partial summary judgment on the ground plaintiffs claim under the Jones Act failed to raise a genuine issue because there was no evidence plaintiff was within any "zone of danger"; and his unseaworthiness claim failed in tandem with the Jones Act claim as a matter of law. Id. Plaintiff disagreed claiming that under the Jones Act, excessive, mandated overtime work together with abuse and harassment by his superior officers and crewmembers constituted recoverable negligence. Id. at 290. The court examined plaintiff's claim under each of the three recognized threshold standards, concluding plaintiff could not recover under any. Id The court also relied on Barlette v. Consolidated Rail Corp., 1994 WL 721342, at **1, 3 (W.D.N.Y. 1994), 1994 U.S. Dist. LEXIS 18621 (W.D.N.Y. 1994) [holding fear of imminent physical altercation does not satisfy the "zone of danger" test where supervisor subjected plaintiff to harassment and threatened termination of his employment]; and Capriotti v. Consolidated Rail Corp., 878 F. Supp.. 429, 433 (N.D.N.Y. 1995) [where employer who allegedly instructed plaintiff "to work long hours and under stressful conditions," thereby aggravating his heart condition did not thereby create a "zone of danger"].
In sum, cases involving claims for distress accompanied by a traumatic event, physical peril or some degree of "danger," have been treated inconsistently by courts throughout the country and the law is unsettled whether compensation should be permitted. However, in seamen cases based solely on job related stress, in the absence of a simultaneous physical impact or injury, or some accompanying danger of injury, compensation has been routinely denied. Claims for job-related stress have even been denied, when the result of the stress is a physical manifestation, such as a heart attack or other ailment.
