FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN STACY,
Plaintiff-Appellant, No. 09-15579
D.C. Nos.
v.
4:07-cv-05487-CW
08-cv-03586-CW
REDERIET OTTO DANIELSEN, A.S.;
K.S. ARIES SHIPPING, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted March 10, 20101
San Francisco, California
Filed June 29, 2010
Before: Cynthia Holcomb Hall, John T. Noonan and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Judge Hall
1
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
9405
STACY v. REDERIET OTTO DANIELSEN 9407
COUNSEL
John J. Hughes, Law Offices of John J. Hughes, San Fran-
cisco, California, for the plaintiff-appellant.
9408 STACY v. REDERIET OTTO DANIELSEN
James J. Tamulski, Emard Danoff Port Tamulski & Paetzold
LLP, San Francisco, California, for the defendants-appellees.
OPINION
NOONAN, Circuit Judge:
Dense fog off of Point Reyes, California, “the foggiest
point on the Pacific coast.” K. Goodwin, Point Reyes Visions
(2008). A covey of fishing vessels trolling for salmon in the
fog. Afternoon, July 13, 2007, M/V Eva Danielsen departs
San Francisco loaded with cargo destined for Portland. The
Eva Danielsen is 291 feet in length and has a dead weight of
4,286 tons. Among the covey of fishing vessels is the Marja,
owned and operated by Brian Stacy. At 5 P.M., the radar of
the Marja picks up the Eva Danielsen, one mile away, headed
to the Marja on a collision course. The Marja signals the dan-
ger to the freighter. The Eva Danielsen avoids hitting the
Marja but comes close enough for Stacy to hear her engine
and machinery and to feel the vessel’s wake. She passes at
close quarters.
Having passed the Marja, the Eva Danielsen collides with
the F/V Buona Madre. The collision destroys the fishing ves-
sel and results in the death of her captain, Paul Alan Wade.
This lawsuit followed from these events.
PROCEEDINGS
Brian Stacy brought this suit against the owners and opera-
tors of the Eva Danielsen for the negligent infliction of emo-
tional distress. Stacy alleged that the freighter was proceeding
at an unsafe speed without a proper lookout, proper radar
equipment, or proper signals in violation of the International
Navigation Rules Act. Stacy alleged that this action put him
in grave and imminent risk of death or great bodily harm,
STACY v. REDERIET OTTO DANIELSEN 9409
impacting him emotionally so that he could not work and
needed psychiatric help.
On motion of the defendants, the district court dismissed
Stacy’s first amended complaint for failure to state a cause of
action. The court stated:
The Court concludes that, because very few jurisdic-
tions employ a zone of danger test that lacks a “wit-
nessed harm” requirement, even if a maritime
[negligent infliction of emotional distress (NIED)]
claim may be brought under a zone of danger theory,
the claim must be premised on the plaintiff’s having
experienced a “psychic injury” by “witnessing
another being seriously injured or killed,” Chan [v.
Soc’y Expeditions, Inc., 39 F.3d 1398, 1408 (9th cir.
1994)] (emphasis omitted), while simultaneously
being threatened with physical injury to him or her-
self. The Court will thus evaluate Plaintiff’s allega-
tion of NIED under Chan’s formulation of the zone
of danger test.
Stacy appeals.
ANALYSIS
Jurisdiction is based on federal maritime jurisdiction of
torts committed on the high seas. 28 U.S.C. § 1333(1). We
disregard as erroneous and irrelevant Stacy’s alternative juris-
dictional theory of diversity of citizenship.
We review de novo the dismissal. Barker v. Riverside
County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009).
We accept as true facts alleged and draw inferences from
them in the light most favorable to the plaintiff. Id. The suffi-
ciency of the complaint is governed by the general maritime
law of the United States. Chan v. Soc’y Expeditions, Inc., 39
F.3d 1398, 1409 (9th Cir. 1994). The federal standard for the
9410 STACY v. REDERIET OTTO DANIELSEN
negligent infliction of emotional distress is provided by Con-
solidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-48
(1994).
[1] Under this test, applicable in the maritime jurisdiction
of the United States, a tort is committed by a defendant sub-
jecting a plaintiff to emotional harm within “the zone of dan-
ger” created by the conduct of the defendant. Id. In Gottshall,
the Supreme Court held that “the zone of danger” test allowed
recovery for “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. The
Supreme Court went on to quote a law review article’s expo-
sition: “That is, ‘those within the zone of danger of physical
impact can recover for fright, and those outside of it can-
not.’ ” Id. at 548 (quoting Richard N. Pearson, Liability to
Bystanders for Negligently Inflicted Emotional Harm, 34 U.
Fla. L. Rev. 447, 489 (1982)).
[2] Stacy alleged that he was within the zone of danger and
that he suffered emotional distress from the fright caused by
the negligent action of the defendants. Nothing more was
required to assert a cause of action cognizable under maritime
law.2
(Text continued on page 9412)
2
The dissent is based on the proposition that the zone of danger test
requires a plaintiff to witness harm to another person, rejecting the mine-
run cases where the plaintiff is the direct victim of negligent conduct. The
zone of danger test, however, only came to accommodate bystanders after
many years of doctrinal development. See, e.g., Jarrett v. Jones, 258
S.W.3d 442, 445 (Mo. 2008). The dissent relies on our decision in Chan
as though it adopted the witness test as exclusive. Judge Goodwin wrote
for the panel in Chan: “at issue here is the psychic injury that comes from
witnessing another being seriously injured or killed.” 39 F.3d at 1408. The
panel did not address the case where a plaintiff suffers psychic damage
from a direct encounter.
Failure to distinguish between direct and derivative emotional harm
undermines the dissent. The dissent relies on a passage from Gottshall
rejecting the Third Circuit’s “foreseeability” test. Nothing in this passage
STACY v. REDERIET OTTO DANIELSEN 9411
imposes a “witnessed harm” requirement for claims of direct emotional
harm.
The dissent also relies on two annotations. The first bears the title,
Recovery Under State Law for Negligent Infliction of Emotional Distress
Due to Witnessing Injury to Another Where Bystander Plaintiff Must Suf-
fer Physical Impact or Be in Zone of Danger, 89 A.L.R. 5th 255 (2010)
(underline added). Given the title of this annotation, it is unsurprising that
the cases therein only involve “witnessed harms.” A book titled New York
Skyscrapers will likely not discuss the Sears Tower or Taipei 101. We
would err, of course, to conclude that these structures do not exist. The
second annotation simply does not support the dissent’s position; it con-
tains ample authorities applying the zone of danger test to direct victims,
not only bystanders. See Recovery for Negligent or Intentional Infliction
of Emotional Distress Under Jones Act (46 U.S.C.A. Appx. § 688) or
Under Federal Employers’ Liability Act (45 U.S.C.A. §§ 51 et seq.), 123
A.L.R. Fed. 583 § II.A.3 (2010) (citing, inter alia, Hall v. Norfolk S. Ry.
Co., 829 F. Supp. 1571, 1576 (N.D. Ga. 1993) (“A majority of jurisdic-
tions now use the ‘zone of danger’ rule, which permits recovery for emo-
tional injuries resulting from witnessing physical harm to another or from
fearing physical harm to oneself.”)).
The dissent repeats its fallacy by relying on two cases that purportedly
“formulate the ‘zone of danger test’ as including a ‘witnessed harm’
requirement.” Dis. Op. 9424. By their own terms, those cases addressed
“negligent infliction of emotional distress upon injury to a third person.”
Asaro v. Cardinal Glennon Mem’l Hosp., 799 S.W.2d 595, 600 (Mo.
1990) (emphasis added); see Rickey v. Chicago Transit Auth., 457 N.E.2d
1, 5 (Ill. 1983) (applying the zone of danger test to “a bystander who is
in the zone of physical danger” (emphasis added)).
The dissent’s “not-so hypothetical” scenario is vivid and thought-
provoking. It underscores the dissent’s faulty rationale. The dissent envi-
sions a speeding motorist who nearly collides with “dozens, perhaps hun-
dreds of other vehicles” over a two-hundred mile stretch of highway. Dis.
Op. 9428. At the end of this distance, the motorist dramatically collides
with a big rig. Id. at 9427-28. The “dozens, perhaps hundreds of other
vehicles” could potentially prevail against the speeding motorist under a
zone of danger theory, assuming they each suffered emotional distress
from their own near-collisions. See, e.g., Wooden v. Raveling, 71 Cal.
Rptr. 2d 891 (Ct. App. 1998); see also Camper v. Minor, 915 S.W.2d 437,
442 (Tenn. 1996) (noting that the zone of danger test “arose primarily
from ‘near-miss’ automobile accident cases”). The vehicles sufficiently
9412 STACY v. REDERIET OTTO DANIELSEN
[3] The Supreme Court has not abandoned its statement of
the tort inflicted by creating a zone of danger. Metro-N. Com-
muter R.R. Co. v. Buckley, 521 U.S. 424, 430 (1997)
(“immediate risk of physical harm” created by the defendant’s
conduct); Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 146
(2003) (“those who escaped instant physical harm, but were
‘within the zone of danger of physical impact’ ”). As would
be expected, the Ninth Circuit has followed this standard.
Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1082
(9th Cir. 2003).
The dissent cites cases in which various state courts defined
the zone of danger by reference to the plaintiff being the wit-
ness of an accident to someone else. Gottshall cited those
cases. It did not endorse them. Gottshall explicitly stated that
the zone included a plaintiff “placed in immediate risk of
physical harm.”
Chan tells us how we have maritime jurisdiction of a claim
for the tortious infliction of emotional injury. It is otherwise
not instructive here. Judge Goodwin, writing for the panel in
Chan, stated: “at issue here is the psychic injury that comes
from witnessing another being seriously injured or killed.” 39
F.3d at 1408 (emphasis omitted). After setting out its under-
standing of the various tests for the tort at issue, the court
declared: “it is clear that we need not decide which test to
adopt today to decide this appeal. None of these theories
allows recovery for emotional distress when the plaintiff was
not present at the accident scene.” Id. at 1409.
near the final collision with the big rig may possibly recover as bystand-
ers. Cf., e.g., Zea v. Kolb, 613 N.Y.S.2d 88, 88 (App. Div. 1994); Stadler
v. Cross, 295 N.W.2d 552, 554 (Minn. 1980). Yet under the dissent’s
approach, the most obvious candidate for recovery—the driver of the big
rig—would have no claim against the speeding motorist. After all, the
driver of the big rig did not witness any collision between the speeding
motorist and a third party; the driver of the big rig was the direct victim
of negligent conduct, and under the dissent’s view, his claim is foreclosed
by Chan.
STACY v. REDERIET OTTO DANIELSEN 9413
[4] Nothing in Chan addresses a claim of emotional dam-
ages by a person directly endangered by a vessel. Nothing in
Chan purports to refine or reject the teaching of the Supreme
Court in Gottshall. Nothing in Chan is relevant to the ade-
quacy of Stacy’s complaint.
For these reasons, the judgment of the district court is
REVERSED and the case is REMANDED for further pro-
ceedings.
HALL, Circuit Judge, dissenting:
The majority’s dramatic rendering of the events that led to
the tragic death of plaintiff Brian Stacy’s fellow fisherman,
Paul Wade, omits certain important facts. The majority also
refuses to follow binding circuit precedent, Chan v. Society
Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994), in which a
three-judge panel of this court defined the contours of the
“zone of danger” test for claims of negligent infliction of
emotional distress (“NIED”) under general maritime law, and
announced a formulation of that test which is well grounded
in state common law, appropriate to the maritime context, and
consistent with Supreme Court precedent regarding claims of
NIED under federal common law. Id. at 1408-09.
Under the Chan formulation of the “zone of danger”
test—which is the only one of the three major common law
tests defining the class of plaintiffs who can recover damages
for NIED that even arguably applies in this case—recovery of
damages for NIED is allowed without proof of any physical
impact or injury to the plaintiff, so long as he or she: (1) wit-
nessed peril or harm to another, and (2) was also threatened
with physical harm as a consequence of the defendant’s negli-
gence. Id. at 1409. I believe we are bound by Chan, and that
Stacy has not stated and cannot state a claim for NIED under
9414 STACY v. REDERIET OTTO DANIELSEN
the Chan “zone of danger” test. Therefore, I respectfully dis-
sent.
I.
First the material facts of this case, as alleged in Stacy’s
first amended complaint: On the afternoon of July 13, 2007,
Stacy was alone on his 32-foot commercial fishing vessel, the
Marja, fishing for salmon in the waters off Point Reyes
National Seashore just outside of the San Francisco Bay.
Stacy had his trolling gear deployed, which restricted maneu-
verability, and was underway at a speed of approximately 3
knots. Other vessels, including Wade’s Buona Madre, were
fishing nearby. Dense fog restricted visibility in the area to
“near zero.”
At about the same time, a 291-foot commercial freighter
named Eva Danielsen—which was owned and operated by
appellees—left San Francisco, bound for Portland, Oregon. At
approximately 5:00 p.m., the Eva Danielsen entered the fish-
ing grounds, traveling at excessive speed, without appropriate
lookouts, without sounding proper signals, without keeping
proper radar watch, and otherwise proceeding in violation of
International Navigation Rules that govern vessel traffic in the
area.
Using radar, Stacy observed that the Eva Danielsen was
within one mile of his vessel and appeared to be on a collision
course. He established radio contact with the Eva Danielsen,
which subsequently altered its course to avoid Stacy’s vessel.
Again using radar, Stacy watched as the Eva Danielsen
passed by his vessel and continued on into the rest of the fish-
ing fleet. The fog was too dense for him to actually see the
ship, but Stacy felt the Eva Danielsen’s wake and heard its
engine as it passed “at close quarters.”
Although the Eva Danielsen avoided Stacy’s vessel, it col-
lided with the Buona Madre. Stacy alleges that the Buona
STACY v. REDERIET OTTO DANIELSEN 9415
Madre was “near” the Marja at the time of the collision, but
he does not alleged that he saw, heard, felt, or otherwise per-
ceived the collision contemporaneously with its occurrence.
The Eva Danielsen reported a collision to the Coast Guard
by radio, and conducted a brief search. Following this report,
Stacy proceeded north of his position to assist in the search
for persons in the water. During this period, Stacy heard radio
traffic expressing a belief that it was his vessel, the Marja,
that was run down by the Eva Danielsen. Stacy advised all
concerned that he was safe, and that the Marja had not been
struck by the freighter. Following this report, the search was
suspended and Stacy resumed fishing.
It was not until four days later, on or about July 17, 2007,
that Stacy learned from other fishermen that the Buona Madre
had been run down by the Eva Danielsen, and that its captain,
Wade, had died after the collision. Stacy also learned that
Wade had been alive after the collision, floating in the water
near where Stacy had been fishing. There is no indication that
Stacy knew Wade. Nor is there any allegation that Stacy knew
the Buona Madre was among the vessels in the fishing
grounds on the fateful day as the Eva Danielsen passed
through.
Stacy filed his complaint against the owners and operators
of the Eva Danielsen in federal court, alleging a single claim
for NIED under general maritime law. Stacy alleged that, as
a result of the events described in his complaint, he “was
placed in grave and imminent risk of death or great bodily
harm, and as a result suffered and continues to suffer great
physical, mental, and nervous pain and suffering, stress and
anxiety.” He further alleges that he “was required to and did
employ physicians and surgeons to examine, treat and care for
him,” and that he was also “prevented from attending to his
usual occupation and thereby has lost earnings and benefits.”
Relying on Chan, 39 F.3d 1398, the district court acknowl-
edged that a claim for NIED is cognizable under maritime
9416 STACY v. REDERIET OTTO DANIELSEN
law, but it nevertheless granted the appellees’ motion to dis-
miss Stacy’s complaint for failure to state a claim upon which
relief could be granted. After finding both the so-called
“physical impact” test and the “relative bystander rule” inap-
plicable in the context of this case, the district court carefully
considered whether Stacy might be able to state a claim under
the “zone of danger” theory as articulated in Chan. Faithfully
applying the limiting test announced by this court in Chan,
the district court concluded that he could not. Citing Chan, 39
F.3d at 1408, the district court explained:
[B]ecause very few jurisdictions employ a zone of
danger test that lacks a “witnessed harm” require-
ment, even if a maritime [NIED] claim may be
brought under a zone of danger theory, the claim
must be premised on the plaintiff’s having experi-
enced a “psychic injury” by “witnessing another
being seriously injured or killed,” while simulta-
neously being threatened with physical injury to him
or herself.
The district court granted Stacy leave to amend his com-
plaint, but Stacy declined. Accordingly, the district court dis-
missed his complaint with prejudice.
II.
In Chan, a three-judge panel of this court was called upon
to decide whether a claim for damages for NIED is cognizable
under general maritime law, and, if so, to determine the
“threshold standard” for such claims under federal common
law. 39 F.3d at 1408-09. A brief synopsis of the facts and
holding of Chan is called for here, as the majority suggests
the “zone of danger” test adopted by the panel in that case
was mere dictum, or is somehow inapposite in the factual cir-
cumstances of this case.
STACY v. REDERIET OTTO DANIELSEN 9417
A.
In Chan, two members of the Chan family, father Benny
and daughter Samantha, were injured during a cruise on a ship
chartered by the father’s employer, Society Expeditions. 39
F.3d at 1401-02. On the second day of the cruise, Benny and
Samantha were among a group of passengers being ferried
from the ship by an inflatable raft to a coral atoll when the raft
turned broadside to a wave and capsized. Id. at 1402. Benny
and Samantha were thrown into the surf, and the pilot of the
raft and another passenger died in the capsizing. Id. Benny
sustained severe brain and head injuries, as well as other
physical injuries, and Samantha sustained both physical and
emotional injuries. Id.
The Chans filed a complaint against the owners of the ship
and Society Expeditions, including claims seeking damages
for emotional distress under general maritime law on behalf
of Samantha, her two siblings who were not with the family
on the cruise, and her mother, Victoria. Citing Sea-Land Ser-
vice v. Gaudet, 414 U.S. 573, 585 n. 17 (1974) and Cook v.
Ross Island Sand & Gravel Co., 626 F.2d 746, 752 (9th
Cir.1980), the district court in Chan dismissed all of the emo-
tional distress claims, concluding that the mental pain and
anguish of an injured party’s family is not compensable in an
action under general maritime law. 39 F.3d at 1408.
B.
While the Chan case was pending on appeal, the Supreme
Court decided Consolidated Rail Corp. v. Gottshall, 512 U.S.
532 (1994), and for the first time recognized a federal com-
mon law claim for NIED—in that case for a railroad worker
subject to the Federal Employers’ Liability Act, 45 U.S.C.
§§ 51-60 (“FELA”). Gottshall, 512 U.S. at 549-50. However,
because it was concerned that recognition of such claims
poses “the very real possibility of nearly infinite and unpre-
dictable liability for defendants,” the Supreme Court evalu-
9418 STACY v. REDERIET OTTO DANIELSEN
ated the three major theories that limit the class of plaintiffs
who can recover damages for NIED under state common law
—i.e., the “physical impact” test, the “zone of danger” test,
and the “relative bystander” test. Id. at 546-49. After a
lengthy discussion of the evolution of the NIED tort and the
policy underpinnings of the three common law tests, the
Supreme Court adopted the “zone of danger” test for NIED
claims brought pursuant to FELA. Id. at 547-548.
As articulated by the Supreme Court in Gottshall, recovery
of damages for NIED is available under the “zone of danger”
test 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.” The
Court explained that is was adopting that test because it is the
one that “best harmonizes” the statute’s “central focus on
physical perils,” its intent to “encourage employers to
improve safety measures in order to avoid [such] claims” and
to “provide compensation for injuries and death caused by the
physical dangers of railroad work,” and its “broad remedial
goals,” with the countervailing policy concerns about “the
potential for a flood of trivial suits, the possibility of fraudu-
lent claims that are difficult for judges and juries to detect,
and the specter of unlimited and unpredictable liability.” Id.
at 555-56.
C.
Following the lead of Gottshall, the Chan panel held that
a claim for NIED is cognizable under general maritime law.
39 F.3d at 1408-09. But, contrary to the majority’s assertion,
that is not all the Chan panel decided. Declaring that “[w]e
next must decide the threshold standard that must be met by
plaintiffs bringing claims for [NIED]” under general maritime
law, the Chan panel looked to state common law, as
instructed by the Supreme Court in Gottshall, and proceeded
to discuss the same three theories limiting recovery for NIED
STACY v. REDERIET OTTO DANIELSEN 9419
identified by the Supreme Court in Gottshall. 39 F.3d at 1409-
10.
In describing the most restrictive theory, the “physical
injury or impact” test, the Chan panel stated that it allows a
plaintiff to recover emotional distress damages “only if he or
she suffers an accompanying physical injury or contact.” Id.
at 1409 (citing Plaisance v. Texaco, Inc., 937 F.2d 1004, 1009
(5th Cir.1991), aff’d on other grounds, 966 F.2d 166 (5th
Cir.1992), cert. denied, 506 U.S. 1001 (1992)). Turning to the
next most restrictive theory, the Chan panel articulated the
“zone of danger” doctrine as follows:
Under . . . the “zone of danger” doctrine, plaintiff
may recover even though there is no physical con-
tact, so long as the plaintiff (1) witnesses peril or
harm to another and (2) is also threatened with phys-
ical harm as a consequence of the defendant’s negli-
gence.
39 F.3d at 1409 (citing Plaisance, 966 F.2d at 168, and Nel-
sen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837 (D.
Hawaii 1992)). Finally, the Chan panel described what it cal-
led the “bystander proximity” test for NIED as follows:
The bystander proximity rule permits recovery, even
if one is not in the zone of danger, provided the com-
plainant: (1) is physically near the scene of the acci-
dent; (2) personally observes the accident; and (3) is
closely related to the victim.
39 F.3d at 1410 (citing Dillon v. Legg, 68 Cal.2d 728 (1968)).
After outlining the three tests, the Chan panel decided that
it did not need to select one of the common law limiting tests
for NIED to be controlling in all cases arising in the maritime
context—as the Gottshall Court had done in the FELA
context—because none of those theories would allow recov-
9420 STACY v. REDERIET OTTO DANIELSEN
ery by the two Chan children who were not physically present
on the cruise with their parents and Samantha, and because
the facts alleged as to Samantha would allow her to recover
under all three of the theories. 39 F.3d at 1410. What the
majority overlooks in suggesting that the “zone of danger”
theory articulated in Chan is mere dictum, however, is that the
panel in that case apparently believed it was necessary to
define the legal contours of a claim of NIED under each of the
three theories, to be applied by the district court as to Victoria
Chan’s NIED claim after affording her a chance to amend her
complaint in light of the panel’s decision. Id. Thus, I believe
the “zone of danger” test articulated in Chan has binding pre-
cedential force in this circuit, provides the rule of decision for
this case, and we are not free to ignore it. See Miller v. Gam-
mie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).1
III.
The majority implies, however, that the Chan panel’s for-
mulation of the “zone of danger” test is inconsistent with the
test adopted by the Supreme Court in Gottshall and subse-
quently applied by the Court to NIED claims arising in FELA
cases, albeit in very different factual contexts. See Metro-N.
Commuter R.R. Co. v. Buckley, 521 U.S. 424, 430 (1997) (no
right to recover damages for “fear of cancer” under “zone of
danger” test for NIED based on mere exposure to asbestos
without evidence of any “physical impact,” i.e., that the plain-
tiff has developed asbestos-related disease); Norfolk & W. Ry.
Co. v. Ayers, 538 U.S. 135, 146 (2003) (recovery allowed
under “zone of danger” test for NIED where the plaintiff has
1
I do not believe we must decide whether, in an appropriate case, a
claim of NIED satisfying the “bystander proximity” or “relative bystand-
er” test may also be recognized in the maritime context. As the Chan case
shows, it is not at all “unlikely” that a person involved in a maritime
accident—as opposed to a railroad worker covered by FELA—would have
occasion to witness the death or serious injury of a close family member,
whether or not that person was within the “zone of danger.” 39 F.3d at
1401-02; cf. Gottshall, 512 U.S. at 548-49, 556.
STACY v. REDERIET OTTO DANIELSEN 9421
been diagnosed with asbestosis, and damages for “fear of can-
cer” are alleged as part of the pain and suffering associated
with existing asbestos-related disease). For reasons I will
explain, I disagree.
A.
Ignoring the in-depth reasoning in Justice Thomas’s major-
ity opinion in Gottshall, the majority here quotes only a pre-
liminary statement of the “zone of danger” test recited by the
Gottshall Court, as follows:
Perhaps based on the realization that “a near miss
may be as frightening as a direct hit,” 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. That is, “those within the zone of danger of
physical impact can recover for fright, and those out-
side of it cannot.”
512 U.S. at 547-48 (quoting Pearson, Liability to Bystanders
for Negligently Inflicted Emotional Harm — A Comment on
the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 488-89
(1982)) (emphasis added). Based upon a more careful reading
of Gottshall, however, I believe it is reasonable to conclude
that the Chan test is consistent with Gottshall, at least in cases
in which the plaintiff alleges a “stand-alone” claim for NIED
—such as the one Stacy alleges—based on a threat of “imme-
diate traumatic harm” which does not result in any actual
physical impact or injury. See Ayers, 538 U.S. at 147-48 (Got-
tshall and Buckley describe two types of claim for negligently
inflicted emotional distress: “stand-alone” claims not pro-
voked by any physical impact or injury, for which recovery
is sharply circumscribed by the zone-of-danger test; and
claims for emotional distress brought on by a physical injury,
9422 STACY v. REDERIET OTTO DANIELSEN
for which pain and suffering recovery has been traditionally
permitted).
First, there are the facts of Gottshall, on the basis of which
the Supreme Court found a potentially viable claim for NIED
for one of the plaintiffs, Gottshall, but not for the other, Car-
lisle. Gottshall alleged that he suffered post-traumatic stress
disorder as a result of seeing and being forced to participate
in the events surrounding the collapse and death of his close
friend and co-worker, Richard Johns, while they were work-
ing together on a railroad crew at a secluded job site, on an
extremely hot and humid day, at an unreasonably fast pace,
without any means of summoning emergency medical ser-
vices after Johns suffered an apparent heat-related heart
attack. Id. at 535-37.
Carlisle, on the other hand, alleged a claim for NIED based
on his own job-related stress from working as a train dis-
patcher, and later as a trainmaster, who was responsible for
ensuring the safe and timely movement of passengers and
cargo under very difficult working conditions—including
aging railstock and outdated equipment, and reductions in the
work force that required him to take on additional duties and
to work extremely long, erratic hours—which caused him to
experience insomnia, headaches, depression, weight loss, and
eventually a nervous breakdown. Id. at 539.
In rejecting the more flexible and expansive “foreseeabili-
ty” test the Third Circuit applied to evaluate Gottshall’s and
Carlisle’s claims for NIED, and specifically discussing the
need to limit the class of plaintiffs eligible for recovery of
damages, the Supreme Court made the following observations
regarding Gottshall’s claim:
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
STACY v. REDERIET OTTO DANIELSEN 9423
injury therefrom, however, the potential liability
would not necessarily have to end there; any Conrail
employees who heard or read about the events sur-
rounding 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, Con-
rail thus could face the potential of unpredictable lia-
bility to a large number of employees far removed
from the scene of the allegedly negligent conduct
that led to Johns’ death.
512 U.S. at 553.2 Thus, while not explicitly requiring that a
railroad worker had to have “witnessed” his co-worker’s
death in order to bring a claim for NIED, this passage sug-
gests that the Supreme Court intended to limit recovery to, at
most, those members of the work crew who were working
under the same conditions, were at the scene when Johns died,
and suffered serious emotional injuries as a result of the negli-
gent conduct of their employer that caused Johns’s death.
There are also several annotations that compile the numer-
ous state and federal cases on NIED, and support the district
court’s observation that “in nearly all of the cases the [Gott-
shall] Court cited as using the [“zone of danger”] test, the
plaintiffs sought to recover for NIED on the basis that they
had witnessed another person be injured.”3 See, e.g., Recovery
2
The Gottshall court rejected Carlisle’s claim without a great deal of
analysis, finding no support in the common law for the Third Circuit’s
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.” 512 U.S. at
554; id. at 558 (concluding that Carlisle’s work-stress-related claim
“plainly does not fall within the common law’s conception of the zone of
danger”).
3
The district court’s observation on this point was quite accurate. Most
of the cases cited by the Gottshall Court as allowing recovery damage for
9424 STACY v. REDERIET OTTO DANIELSEN
Under State Law for Negligent Infliction of Emotional Dis-
tress Due to Witnessing Injury to Another Where Bystander
Plaintiff Must Suffer Physical Impact or Be in Zone of Dan-
ger, 89 A.L.R. 5th 255 (2010); Recovery for Negligent or
Intentional Infliction of Emotional Distress Under Jones Act
(46 U.S.C.A. Appx. § 688) or Under Federal Employers’ Lia-
bility Act (45 U.S.C.A. §§ 51 et seq.), 123 A.L.R. Fed. 583
(2010). Indeed, some of the cases cited by the Gottshall Court
explicitly formulate the “zone of danger” test as including a
“witnessed harm” requirement—i.e., a requirement that the
plaintiff witnessed harm to another. See, e.g., Asaro v. Cardi-
nal Glennon Mem’l Hosp., 799 S.W.2d 595, 599-600 (Mo.
1990) (holding that “a plaintiff states a cause of action for
NIED under a “zone of danger” test involved actual physical injuries to
the plaintiff, or witnessed harm to a close family member, or both. See
Gottshall, 512 U.S. at 547-48 & n.9 (citing, inter alia, Keck v. Jackson,
122 Ariz. 114 (1979) (plaintiff daughter witnessed automobile collision as
a result of which her mother died and she suffered serious injuries); Towns
v. Anderson, 195 Colo. 517 (1978) (brother, standing just off front porch
of house, suffered serious emotional injuries from watching gas explosion
as his sister remained inside); Rickey v. Chicago Transit Authority, 98
Ill.2d 546 (1983) (eight-year-old plaintiff suffered emotional injuries
while watching younger brother choking nearly to death after his clothing
got caught in an escalator); Shuamber v. Henderson, 579 N.E.2d 452
(Ind.1991) (mother and daughter, both of whom were physically injured,
brought action for emotional injuries suffered as a result of watching son
killed in car accident); Watson v. Dilts, 116 Iowa 249 (1902) (plaintiff
wife was allowed to recover for emotional injuries suffered while witness-
ing defendant’s assault on her husband); Stewart v. Arkansas Southern R.
Co., 112 La. 764 (1904) (defendant’s negligence caused the train on which
pregnant plaintiff rode to become decoupled, causing fellow passengers to
suffer bloody injuries and injuring plaintiff’s back); Purcell v. St. Paul
City R. Co., 48 Minn. 134 (1892) (plaintiff suffered convulsions and mis-
carriage from shock of near collision of streetcar on which she was rid-
ing); Pankopf v. Hinkley, 141 Wis. 146 (1909) (defendant negligently
drove his automobile into horse-drawn carriage in which pregnant plain-
tiff’s was riding, causing her to suffer severe fright and shock resulting in
a miscarriage, which the court considered “physical injuries” to her ); Gar-
rett v. New Berlin, 122 Wis.2d 223 (1985) (plaintiff sister could recover
for emotional injuries suffered from witnessing her brother being run over
by police car involved in chase)).
STACY v. REDERIET OTTO DANIELSEN 9425
negligent infliction of emotional distress upon injury to a third
person only upon a showing: (1) that the defendant should
have realized that his conduct involved an unreasonable risk
to the plaintiff, (2) that plaintiff was present at the scene of
an injury producing, sudden event, (3) and that plaintiff was
in the zone of danger, i.e., placed in a reasonable fear of phys-
ical injury to his or her own person”) (emphasis added);
Rickey, 98 Ill.2d at 556 (“[U]nder [the zone of danger rule,]
a bystander who is in a zone of physical danger and who,
because of the defendant’s negligence, has reasonable fear for
his own safety is given a right of action for physical injury or
illness resulting from emotional distress. This rule does not
require that the bystander suffer a physical impact or injury at
the time of the negligent act, but it does require that he must
have been in such proximity to the accident in which the
direct victim was physically injured that there was a high risk
to him of physical impact.”) (emphasis added)).4 In light of
this sizeable body of common law authority, I would conclude
that the Chan panel’s formulation of the “zone of danger”
test, requiring the plaintiff to prove that he “witnessed harm
or peril to another,” is consistent with both the holding and
the spirit of Gottshall.
B.
Of course, Stacy does not, and apparently cannot, allege
that he witnessed the collision that led to Wade’s death. He
4
The only case cited by the majority in support of its claim that “ample
authorities apply[ ] the zone of danger test to direct victims, not only
bystanders” is a district court decision, Hall v. Norfolk S. Ry. Co., 829
F.Supp. 1571, 1576 (N.D. Ga. 1993), see slip op. at 9411 n.2, which surely
cannot override the more recent decision of this Court in Chan, or this
court’s interpretation of the Supreme Court’s decision in Gottshall, 512
U.S. 532, which was also decided after Hall. Indeed, the “zone of danger”
test as formulated by Hall provides the majority only the thinnest of reeds
to cling to, as it is drawn directly from the decision of the Third Circuit
in Gottshall v. Consol. Rail Corp., 988 F.2d 355, 361 (3d Cir.1993), which
was reversed by the Supreme Court in Gottshall.
9426 STACY v. REDERIET OTTO DANIELSEN
nevertheless alleges that he was in the “zone of danger” cre-
ated by appellees’ negligent conduct, and I have no doubt that
Stacy has adequately pleaded (although, obviously, has not
yet proven) that appellees were negligently operating the Eva
Danielsen as it passed through the fishing grounds in dense
fog. However, in addition to his failure to allege that he wit-
nessed the deadly “peril or harm” to Wade, as required by
Chan, 39 F.3d at 1409, Stacy’s pleading falters because he
has failed adequately to allege that he suffered “fright” or
“shock” or any other type of severe emotional distress as a
result of appellees’ negligent conduct while he was in the
“zone of danger.” Indeed, and contrary to the majority’s
assertion, Stacy does not allege that he suffered “fright” or
“shock” at all—neither as the Eva Danielsen approached the
Marja on a collision course, nor as it passed the Marja “at
close quarters,” nor when he heard reports that it had run
down a boat in the fishing fleet, nor when he eventually
learned that it had run down the Buona Madre and killed its
captain. Rather, Stacy only vaguely claims that the entire
course of events, from the moment he detected the Eva Dan-
ielsen on his radar until four days later, when he learned the
freighter had run down the Buona Madre and killed Wade,
caused him to suffer severe emotional distress.
To be sure, the facts presented by Stacy are tragic and com-
pelling, which might explain the majority’s effort to extend
the “zone of danger” test to the present context. It is perfectly
understandable that Stacy—as well as all of the other fisher-
men who were fishing in dense fog when the Eva Danielsen
came steaming through their fishing grounds on July 13,
2007, especially those who assisted with the search operation
after the Eva Danielsen collided with the Buona Madre, as
Stacy claims he did—might suffer great psychic trauma upon
learning, after the fact, that one of their fellow fishermen died
after being tossed into the ocean as a result of a collision with
the freighter. They might also have suffered “survivor’s guilt”
for having failed to rescue Wade, who was allegedly,
although unbeknownst to them at the time, still alive and
STACY v. REDERIET OTTO DANIELSEN 9427
floating in the water near where they had been fishing. But,
again, it appears that Stacy had no way of knowing that until
days later. Stacy might well have suffered additional guilt
from the fact that the post-collision search was called off as
a result of his report that he and his boat, the Marja, were safe
and sound and had not collided with the Eva Danielsen, as the
latter ship had reported. Nevertheless, even assuming all of
this to be true, Stacy has not alleged that he suffered fright or
shock or severe emotional distress as a result of any “immedi-
ate traumatic harm” caused or threatened by his “near miss”
with the Eva Danielsen while he was in the “zone of danger”
created by appellees’ negligent conduct—such as might have
resulted if he had witnessed Wade’s death. To the contrary,
Stacy acknowledges that after he notified the Coast Guard and
his fellow fishermen that he and the Marja were safe and
sound, he returned to business as usual, and resumed fishing.
C.
In concluding that Stacy has stated a claim upon which
relief may be granted, I believe the majority conceives of a
much more expansive “zone of danger” test than has been rec-
ognized to date by the Supreme Court, this court, or any other
jurisdiction that has adopted that test. A not-so-hypothetical
scenario to which many a landlubber can relate, and which is
closely analogous to the facts of this maritime case, easily
illustrates the problem.5 Imagine this: Dense tule fog on Inter-
state 5 in the Central Valley of California. It’s a Sunday eve-
ning, anytime between November and March, any year.
Moderate traffic is flowing. Clusters of big-rig trucks loaded
with freight and automobiles carrying Northern Californians
are returning home from a long weekend in the Southland. A
large pick-up truck loaded with bales of hay roars onto the I-
5
The following hypothetical is loosely based on actual events which
have occurred with some regularity on Interstate 5 and State Route 99 in
California’s Central Valley in recent years. See http://en.wikipedia.org/
wiki/Tule_fog (visited June 1, 2010).
9428 STACY v. REDERIET OTTO DANIELSEN
5 at Buttonwillow going 90 miles per hour, weaving in and
out of the two northbound lanes, narrowly avoiding collisions
with dozens, perhaps hundreds of other vehicles. Almost two
hundred miles later, just before the pick-up reaches its desti-
nation in Tracy, it side-swipes a big rig, causing it to jack-
knife and collide with another vehicle, ultimately entangling
dozens of other automobiles in a fiery pileup. The next morn-
ing, the San Francisco Chronicle reports that 3 people were
killed in the accident, and 20 more were seriously injured.
The majority and I probably would agree that the motorists
who were directly involved in such an horrific crash (includ-
ing, of course, the driver of the big-rig), and those who wit-
nessed first-hand the carnage and destruction caused by the
driver of the pick-up truck as it occurred without suffering
any direct physical impact or injury, could state a claim for
NIED against that driver and any other negligent actors who
caused the crash, under any formulation of the “zone of dan-
ger” test. Under the majority’s reading of the Gottshall “zone
of danger” test, however, every one of the hundreds, perhaps
thousands, of motorists and their passengers who were
“frightened” by “near misses” with the pick-up truck as it
sped erratically past them on that 200-mile stretch of I-5, or
who were alarmed upon learning of the fiery wreck from
news reports the next day, could also state a claim for NIED
—whether or not they witnessed the accident and, indeed,
possibly even if there was no collision at all.6
As this hypothetical demonstrates, recovery for NIED
under a “zone of danger” theory—at least in cases involving
6
The majority candidly acknowledges that its “zone of danger” test
would have this incredibly broad reach. See slip op. at 9411 n.2. By the
same token, every person aboard the fishing vessels in the fleet when the
Eva Danielsen steamed through the fishing grounds at unsafe speed, and
eventually ran down the Buona Madre, would have a viable claim for
NIED if he or she was seriously upset by the events of that evening—
whether or not they witnessed the collision in which Wade was killed, and
no matter when they learned of his death.
STACY v. REDERIET OTTO DANIELSEN 9429
a serious “injury producing, sudden event”—will depend in
large part on how broadly the “zone of danger” is defined,
both in geographic and temporal terms. In my view, the
expansive reach the majority gives to the “zone of danger” is
not consistent with Gottshall. See 512 U.S. at 553 (rejecting
theory that workers who were “far removed from the scene”
of the allegedly negligent conduct that led to a co-worker’s
death could recover for NIED). The Chan formulation of the
“zone of danger” test, on the other hand, is consistent with
both Gottshall and the majority of cases recognizing a claim
of NIED under that theory. It is also the law of this circuit
until such time as an en banc panel of this court or the
Supreme Court disapproves it, and I believe we are bound to
follow it. Miller, 335 F.3d at 893.
IV.
Because the allegations of Stacy’s first amended complaint
do not satisfy the “zone of danger” test for NIED as stated in
Chan, I would affirm the judgment of the district court dis-
missing his complaint for failure to state a claim upon which
relief may be granted.