Opinion
No. 95-3205
Decided and Filed February 19, 1997 Pursuant to Sixth Circuit Rule 24
Leonard C. Jaques, Judith A. Schornack-Smith (briefed), Michael J. Connor (argued), Jaques Admiralty Law Firm, Detroit, MI, for Plaintiff-Appellant.
Harold W. Henderson (argued and briefed), Thompson, Hine Flory, Cleveland, OH, for Defendant-Appellee.
On Appeal from the United States District Court for the Northern District of Ohio
Before: BOGGS and MOORE, Circuit Judges; and HILLMAN, District Judge.
The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation.
MOORE, J., delivered the opinion of the court, in which HILLMAN, D. J., joined. BOGGS, J. (pp. 14-16), delivered a separate opinion concurring in part and dissenting in part.
Plaintiff-appellant Connie Szymanski ("Mrs. Szymanski") appeals the district court's order granting summary judgment to defendant-appellee Columbia Transportation Company ("Oglebay") in this case. The district court granted summary judgment on the ground that the alleged injuries to Mrs. Szymanski's late husband, Stanley Szymanski ("Mr. Szymanski") were "workplace stress" injuries that are not cognizable under the Jones Act, 46 App. U.S.C. §(s) 688, or general maritime law pursuant to the Supreme Court's decision in Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396 (1994). For the reasons that follow, we reverse the district court's order granting summary judgment and remand the case to the district court.
The defendant in this case was incorrectly designated as "Columbia Transportation Company, a Division of Oglebay-Norton Company." The proper defendant is Oglebay Norton Company.
I. BACKGROUND
Mr. Szymanski worked as a seaman aboard commercial boats owned by Oglebay from 1974 to 1990. The boats upon which Mr. Szymanski served were self-unloading boats, which are unloaded by opening gates at the bottoms of the cargo holds. When the gates are opened, the cargo (generally stone, coal, or taconite pellets) drops onto a conveyor belt. Other conveyor belts transport the cargo to an unloading boom that drops the cargo onto the dock. Two-person teams of conveyormen and gatemen operate and maintain the self-unloading system. Conveyormen supervise gatemen in unloading the cargo, maintain the unloading equipment, and relieve the gatemen during meals and breaks. Gatemen actually operate the unloading gates and assist the conveyormen in maintaining the equipment. Mr. Szymanski had served as both a gateman and a relief conveyorman. He became a permanent conveyorman in 1989.
In March 1990, the beginning of the navigation season, Oglebay assigned Mr. Szymanski to a ship called the "S.S. Courtney Burton." Mr. Szymanski served on that ship through June 1990. Although the equipment on the Courtney Burton was in good condition, Mr. Szymanski was unhappy that he was assigned to that ship and believed that the gateman with whom he was assigned was incompetent at operating the unloading gates.
On July 31, 1990, Mr. Szymanski was transferred to the "S.S. Armco" ship, which Mr. Szymanski considered his "old home." On his first day on the Armco, Mr. Szymanski heard squealing noises from the conveyor rollers for about five hours. After unloading was completed, Mr. Szymanski greased the conveyor rollers and eliminated the squealing noises. Greasing conveyor rollers is a routine aspect of the conveyorman's job. Mr. Szymanski testified in his deposition that the job of a conveyorman generally is a stressful one involving long hours of work, hard physical labor, and mental stress from being responsible for the smooth operation of the unloading equipment.
On August 16, 1990, Mr. Szymanski left the Armco for vacation at about 10 p.m. Early in the morning of August 17, 1990, Mr. Szymanski suffered a heart attack at his home. Mr. Szymanski was 60 years old at the time of his heart attack and had no known history of heart problems, although he did suffer from diabetes and ulcers. In June 1991, after unrelated surgeries, Mr. Szymanski was told that he would be unable to return to work. On October 20, 1994, Mr. Szymanski died.
In 1993, Mr. Szymanski sued Oglebay pursuant to the Jones Act and general maritime law, alleging that his heart attack was caused by the stress of working with an incompetent gateman on the Courtney Burton, the stress of the squealing rollers on the Armco, and the general stress of the conveyorman's job. The district court granted Oglebay's motion for summary judgment on the basis of the Supreme Court's decision in Gottshall, in which the Court held that a claim for negligent infliction of emotional distress based upon injuries allegedly caused by stressful working conditions was not cognizable under the FELA, unless the plaintiff was within the zone of danger. Mrs. Szymanski, who had been substituted as a party-plaintiff after her husband's death, timely appealed to this court.
Since the claims pertain to Mr. Szymanski, the original plaintiff, we will refer to him as the plaintiff-appellant for convenience.
II. JONES ACT IN GENERAL
We review the district court's decision granting summary judgment de novo, using the same standards as applied by the district court. Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir. 1992). Summary judgment is proper if the evidence submitted shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir. 1994). We consider all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Id.
Mr. Szymanski brought his claim pursuant to the Jones Act, 46 App. U.S.C. §(s) 688(a), which provides that:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.
This section clearly makes statutes establishing rights and remedies for injured railway employees applicable to Jones Act claims.
The major statute that provides rights and remedies for injured railway employees is the Federal Employers' Liability Act (the "FELA"). The FELA, in 45 U.S.C. §(s) 51, provides that:
Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in [interstate] commerce . . . 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
This court has concluded that "[t]he rules that govern the liability of railroads under the FELA serve also to govern the liability of shipowners under the Jones Act." Yehia v. Rouge Steel Corp., 898 F.2d 1178, 1184 (6th Cir. 1990).
To recover damages pursuant to these acts, a plaintiff must show that he was injured while in the scope of his employment; that his employment was in furtherance of his employer's interstate business; that his employer was negligent; and that the employer's negligence played some part in causing the injury for which he seeks compensation. Green v. River Terminal Ry., 763 F.2d 805, 808 (6th Cir. 1985) (FELA). Liability may be imposed only if the harm was reasonably foreseeable by the employer. Id. However, these acts are to be "liberally construed in favor of the injured plaintiff," and the courts' power to direct verdicts is limited. Id. at 806. Under the FELA and therefore the Jones Act, "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." Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506 (1957).
FELA and Jones Act employers have a duty to use reasonable care to furnish their employees with a safe place to work. Yehia v. Rouge Steel Corp., 898 F.2d at 1184 (Jones Act); Ragsdell v. Southern Pacific Transp. Co., 688 F.2d 1281, 1283 (9th Cir. 1982) (FELA). Employers also may be negligent if they assign employees tasks that are beyond their physical capacities. Fletcher v. Union Pacific R.R., 621 F.2d 902, 908-09 (8th Cir. 1980), cert. denied, 449 U.S. 1110 (1981). Injuries may be compensable under the FELA and Jones Act even if they are caused by the cumulative effect of a series of incidents. Id. at 909.
III. HEART ATTACK CLAIMS UNDER THE JONES ACT
In Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2410-11 (1994), the Supreme Court held that negligent infliction of emotional distress claims were cognizable under the FELA, but that recovery is allowed only by plaintiffs who can meet the common-law "zone of danger" test. Id. at 2407-08. According to the Court, "the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Id. at 2406.
The Gottshall opinion also resolved Consolidated Rail Corp. v. Carlisle, which had been consolidated with the Gottshall case for the Court's review. In Carlisle, the plaintiff was a train dispatcher for Conrail and was responsible for ensuring safe and timely movement of passenger and cargo trains. As the Court described Carlisle's complaint:
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.
Id. at 2402. Carlisle sued Conrail for negligent infliction of emotional distress. The Court rejected Carlisle's claim, which it characterized as a claim for negligent infliction of emotional distress arising from work-related stress, and stated that allowing Carlisle's claim "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." Id. at 2409. The Court remanded the case to the Third Circuit with instructions to enter judgment for Conrail, because allowing Carlisle's claim would "take the radical step of reading FELA as compensating for stress arising in the ordinary course of employment," and because the FELA does not permit claims for too much work, as opposed to too dangerous work. Id. at 2411-12.
Oglebay argues that the district court correctly granted its summary judgment motions because Mr. Szymanski's claims are merely work-related stress claims and are foreclosed by the Carlisle portion of the Gottshall decision. Mr. Szymanski argues that his claims are for physical injury, and that Carlisle only foreclosed claims for negligent infliction of emotional distress based on work-related stress where an employee was not within the zone of danger of physical impact.
We hold that the Carlisle portion of the Gottshall decision does not control the disposition of this case because Mr. Szymanski does not seek recovery for negligent infliction of emotional distress. The language and reasoning employed in the Carlisle portion of the Gottshall decision limit its effect to cases where the plaintiffs claim negligent infliction of emotional distress. Wholly apart from the "potential for fraudulent and trivial claims," the Court stated that "[a] more significant problem is the prospect that allowing such suits can lead to unpredictable and nearly infinite liability for defendants." Id. at 2408. Moreover, the Court was concerned that allowing a claim for negligent infliction of emotional distress caused by work-related stress would "dramatically expand employers' FELA liability to cover the stresses and strains of everyday employment" and "would tend to make railroads the insurers of the emotional well-being and mental health of their employees." Id. at 2409. In choosing the zone of danger test to limit claims of negligent infliction of emotional distress to those employees within the zone of danger of physical impact, the Court emphasized the "FELA's central focus on physical perils." Id. at 2410. The "zone of danger" test itself, of course, was devised as a limit on claims for negligently inflicted emotional distress. Id. at 2406.
Mr. Szymanski's claimed injury, by contrast, is a physical one — a heart attack — and he does not claim negligent infliction of emotional distress. Heart attacks generally can be compensable injuries under the FELA and the Jones Act as long as the statutory requirements are satisfied. Most of the cases allowing plaintiffs to seek compensation involved heart attacks that occurred either during or shortly after strenuous physical labor or because of adverse physical conditions in the workplace. See, e.g., Harbin v. Burlington Northern R.R., 921 F.2d 129, 131-32 (7th Cir. 1990) (summary judgment against plaintiff inappropriate where heart attack caused by heavy physical exertion in area with very poor air quality); Smith v. Ithaca Corp., 612 F.2d 215, 220 (5th Cir. 1980) (upholding district court finding that benzene contamination aboard ship caused heart attack that was compensable under the Jones Act).
Several courts have held that heart problems caused by extraordinary non-physical stress are potentially compensable under the FELA and similar legislation. For example, the Ninth Circuit upheld a recovery for a heart attack caused by the stress the employee suffered after an apparently false accusation by the employer. Pierce v. Southern Pacific Transp. Co., 823 F.2d 1366, 1372 n. 2 (9th Cir. 1987). The Missouri Court of Appeals also allowed recovery for aggravation of an employee's heart disease caused by racial harassment by his supervisor. Stewart v. Alton Southern Ry., 849 S.W.2d 119, 124-25 (Mo.App. 1993). The First Circuit left until another day the question of whether a heart attack caused by harassment was compensable under the FELA, because in that case the defendant had no notice of the harassment. Robert v. Consolidated Rail Corp., 832 F.2d 3, 6-7 (1st Cir. 1987) (heart attack caused by harassment not compensable when Conrail not informed of harassment).
This court has allowed recovery both for a plaintiff's back injury and his heart attack suffered more than five years after the initial back injury. Steele v. Louisville Nashville R.R., 506 F.2d 315, 318-19 (6th Cir. 1974). The Steele heart attack allegedly was caused by the "personal frustration, the economic frustration and the duress of unemployment" caused by the back injury. Id. at 318. The panel did state, however, that the back injury alone would have supported the amount of damages awarded. Id. Although these cases were decided before Gottshall, we believe that their holdings remain valid. Gottshall focused on whether and when emotional distress claims could be compensated pursuant to the FELA, and determined that emotional distress claims would be compensable only when the plaintiff was in the zone of danger of physical impact. The Court noted the FELA's focus on physical injury, and did not purport to void rulings that had permitted recovery for physical injuries.
Our survey of the caselaw indicates that physical injuries, such as heart attacks, are compensable under the FELA and the Jones Act when they are negligently caused by physical stress or by extraordinary non-physical stress. Heart attacks caused by ordinary non-physical workplace stress are not compensable, because such plaintiffs will be unable to prove that their employers were negligent in providing a workplace with ordinary workplace stress. An employer breaches no duty by failing to prevent ordinary workplace stress. To hold an employer liable for the results of ordinary workplace stress would surely make that employer an insurer of its employees' health, a result that we do not believe Congress would intend and that we do not suggest.
In this case, however, the district court erred in believing that Gottshall precludes the possibility of recovery for a heart attack negligently caused by physical stress or extraordinary non-physical stress. Upon remand, the district court should analyze whether summary judgment is appropriate on Mr. Szymanski's claim using this standard, i.e., the district court should determine whether Mr. Szymanski can show a genuine issue that his heart attack at least in part was negligently caused by physical conditions in the workplace or by extraordinary workplace stress. The district court must determine whether there is a genuine issue that Oglebay negligently subjected Mr. Szymanski to extraordinary workplace stress by assigning him to work with a gateman that Oglebay knew was incompetent, or whether the stress complained of by Mr. Szymanski was within the realm of ordinary workplace stress for a conveyorman and hence not compensable under the Jones Act.
IV. THE UNSEAWORTHINESS CLAIM
The district court also held that summary judgment was proper on Mr. Szymanski's unseaworthiness claim because summary judgment was proper on Mr. Szymanski's Jones Act claim. The district court stated that an injured seaman has one claim with separate remedies, relying on Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). However, the district court read Fitzgerald too broadly. Fitzgerald held that a seaman who joined a Jones Act claim, upon which he was entitled to a jury trial, and a maritime claim for maintenance and cure, upon which he was not, was entitled to a jury trial on both claims. The decision was based upon the difficulties inherent in trying part of a case to a jury and part to a judge where the claims are integrally related and based on a single event. Fitzgerald did not eliminate the separate unseaworthiness cause of action, as the Supreme Court has made clear in two subsequent opinions. In 1971, the Court stated:
A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute or under general maritime law.
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971) (footnotes omitted). The Court cited the Jones Act as an example of a separate claim against a shipowner that was created by statute. Id. at 498 n. 10. In a 1990 opinion, the Court stated that "[the Jones Act] does not disturb seamen's general maritime claims for injuries resulting from unseaworthiness." Miles v. Apex Marine Corp., 498 U.S. 19, 29 (1990). While the remedies available pursuant to a seaman's unseaworthiness cause of action are generally no broader than those available under the Jones Act, the causes of action themselves have different elements and must be analyzed separately. See Miles, 498 U.S. at 32-33 ("It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. . . . Today we restore a uniform rule [regarding damages for loss of society] applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law").
This court recently explained that Jones Act causes of action and unseaworthiness causes of action are separate claims comprised of different elements. Cook v. American Steamship Co., 53 F.3d 733, 740-41 (6th Cir. 1995). We explained that the Jones Act cause of action was based on the shipowner's negligence, while the unseaworthiness cause of action has no negligence element. Rather, the shipowner's absolute and nondelegable duty is to "furnish a vessel and appurtenances reasonably fit for their intended use." Id. at 741 (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). Thus, in an unseaworthiness cause of action, a plaintiff must prove that the ship was not fit for its intended use and that the unseaworthiness was a proximate cause, in the traditional tort sense, of the plaintiff's injury. To prove proximate cause, the "plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Miller v. American President Lines Ltd., 989 F.2d 1450, 1463 (6th Cir.) (quotation omitted), cert. denied, 114 S. Ct. 304 (1993). The proximate cause standard required to prove an unseaworthiness claim is more strict than the relaxed causation standard required to present a Jones Act claim to a jury. Id.
An incompetent crew member could make a vessel unseaworthy. See Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 727 n. 4 (1967) (unseaworthiness may result when a member of the crew is not competent to meet the tasks arising on a voyage). Thus, we reverse the district court's order granting summary judgment to Oglebay. On remand, the district court should determine, while viewing the evidence including Mr. Szymanski's evidence that the gateman on the Courtney Burton was incompetent in the light most favorable to him, whether Mr. Szymanski has produced evidence sufficient to present a genuine issue of material fact on his unseaworthiness claim.
V. CONCLUSION
Because the district court analyzed Mr. Szymanski's claims using an improper legal standard, we REVERSE the district court's order granting summary judgment to Oglebay, and REMAND the case to the district court for further proceedings in accordance with this opinion.
Although the question is certainly not free from doubt, I believe that the district court correctly discerned the contours of the Supreme Court's holding in Gottshall and Carlisle concerning the FELA claim, and I would affirm that decision. The contours of the Supreme Court's ruling are somewhat difficult to perceive, because those cases were brought based on "negligent infliction of emotional distress," even though there were certainly physical manifestations of injury. This is particularly true with respect to Carlisle, who suffered "insomnia, headaches, depression, and weight loss" before his final nervous breakdown. 114 S. Ct. 2396, 2402. I find it hard to believe that the Supreme Court would have come to a different conclusion had the lawyers in those cases simply pled, as they have in this case, a physical injury based on negligence. See Dennis v. Consolidated Rail Corp., 1994 WL 494453, *13 (E.D. Pa. 1994), cf. Kraus v. Consolidated Rail Corp., 723 F. Supp. 1073, 1090 (E.D. Pa. 1989), appeal dismissed, 899 F.2d 1360 (3d Cir. 1990).
I take the Court at its word that, as our court indicates at page 7, "the FELA does not permit claims for too much work, as opposed to too dangerous work. Id. at 2411-12." Indeed, the court quotes with approval at page 8 the Supreme Court's reasons for denying liability in those cases, because affirming the suits would "dramatically expand employers' FELA liability to cover the stresses and strains of everyday employment" and "would tend to make railroads the insurers of the emotional well-being and mental health of their employees." Id. at 2409. Taking these two sets of statements together, and given the significant nature of the stress in Carlisle's case, especially, I think that our Court's holding today makes railroads the insurers of the physical health of their employees, even when caused simply by "too much work." As stated by the Supreme Court, Carlisle's work as dispatcher was made difficult by "[a]ging railstock and outdated equipment"; Carlisle and others "complained about . . . the high level of stress . . . and poor working conditions"; and Carlisle was "forced . . . to work erratic hours . . . [and] 12-to 15-hour shifts for weeks at a time. . . ." Id. at 2402. If the Supreme Court of the United States can find that such conditions are merely "too much work" and not actionable, rather than "too dangerous work," the claims in this case seem to fall well short of those conditions. As our court mildly observes at page 3, Szymanski "believed that the gateman with whom he was assigned was incompetent" (he was apparently known to Szymanski and fellow workers as "the bum"), requiring Szymanski to do more of their joint work and to keep a close eye on him, though there is no claim that this brought him within any unusual zone of physical danger. The only additional allegation is that when transferred to a different ship, away from "the bum," the conveyor rollers squeaked for about five hours until Szymanski, as part of his job, greased the rollers.
Finally, it should be noted that as opposed to Carlisle's excessive work leading right up to the time of his injuries, Szymanski's service with the alleged incompetent concluded well over a month before his heart attack, that he had been transferred to a ship that he liked, that the roller incident occurred more than two weeks before the heart attack, and the Szymanski had actually left on vacation prior to his initial heart attack.
Under these conditions, I believe that overturning the district court's opinion does not honor the Supreme Court precedent. Simply labeling what happened here as extraordinary non-physical stress, without any standards as to how Szymanski suffered something more extraordinary than did Carlisle, or as to why Carlisle should be limited to a particular pleading of negligent infliction of emotional distress when physical manifestations were apparent there as well, does not justify permitting liability here.
I therefore dissent from Part III of the court's decision, resolving the Jones Act/FELA claim. I concur in the court's decision in Part IV concerning the common law unseaworthiness claim, which, as noted by the court, operates under a "proximate cause" standard that "is more strict than the relaxed causation standard required to present a Jones Act claim to a jury."