dissenting.
I respectfully dissent. Under FELA, the zone of danger question is always a legal issue for resolution by the trial court, not the jury.9 This is true irrespective of whether certain facts about a railroad injury are in dispute.10
Earlier in this case, the trial court properly addressed and denied Norfolk Southern’s motion for summary judgment based on the record at the time of the motion, which denial was affirmed by this Court in Norfolk I.11 Later, at the close of trial, Norfolk Southern moved for a directed verdict on the zone of danger issue based on the evidence adduced at trial, and the trial court appropriately and correctly denied that motion. As explained below, the trial court properly resolved the zone of danger question, and, in the absence of other error,121 would affirm the trial court’s judgment entered on the jury’s verdict.
1. Norfolk Southern argues that the trial court erred when it granted Everett’s motion in limine prohibiting it from arguing to the *354jury that Everett was outside of the zone of danger.13 I find no error.
FELA provides that a common carrier engaged in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such 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.”14 Negligence under FELA is a question of federal law, which generally turns on common law principles of negligence and injury.15
“A FELA plaintiff must prove the traditional common law elements of negligence — duty, breach, damages, causation, and foreseeability.”16
Duty is an essential element of negligence, and the determination of any question of duty — ... whether the law imposed upon the defendant the obligation to protect the plaintiff against the consequences which occurred — is a question of law, and is not for the jury. Thus, while a jury does indeed determine whether a defendant has breached a duty, the question of whether a duty exists in the first place remains with the court.17
As described in Gottshall, the zone of danger test delineates the scope of a railroad’s “duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.”18 Thus, the scope *355of a railroad’s duty under FELA, as delineated by Gottshall’s zone of danger test and as applied in subsequent federal cases following its precedent, remains a legal question for resolution by the court.19
In light of this framework, I disagree with the majority’s conclusion that the trial court “improperly took from the jury the question of whether the facts supported, by a preponderance of the evidence, that Everett was within the zone of danger such that his claim for the negligent infliction of emotional distress is cognizable under FELA.” The zone of danger analysis defines the legal duty owed to Everett, and determining the limits of this duty was a legal question reserved solely for the trial court. That there could be factual disputes material to resolving the zone of danger question does not change the rule that the trial court must ultimately decide the legal question of whether Everett was within the zone of danger. In the case before us, the trial court properly made the decision no less than three times, the final time at the close of the evidence at trial.
As astutely noted by the trial court, our opinion in Norfolk I was inartfully worded and confusing on this issue.20 Nevertheless, this Court determined in Norfolk I that “because of the nature of the incident here, a three-car train derailment and two-car building collision, . . . Everett met his burden under Gottshall”]21 thus, we held that “[b]ecause the trial court correctly concluded that Everett was within the zone of danger caused by the derailment, we affirm.”22 The summary judgment standard of review did not impede resolution of the legal question at the summary judgment stage because there was no genuine dispute of material fact.23 The trial *356court’s summary judgment order we affirmed in Norfolk I reveals a clear ruling by the trial court adjudicating the merits of the zone of danger issue — not a ruling identifying a factual dispute precluding summary judgment:
On the question of whether the Plaintiff was in immediate risk of physical harm, or, as the Defendant has framed the question, whether the Plaintiff has demonstrated “a reasonable apprehension of physical harm,” the [trial c]ourt concludes that the Plaintiff has shown that he was in such immediate risk of physical harm and that his apprehension of physical harm was reasonable.24
Thus, the trial court’s order resolved the issue, and resolution of potentially dispositive legal questions is routinely done by way of a defendant’s motion for summary judgment.25 Norfolk I affirmed that disposition, and it should be viewed no differently, despite our recitations of the summary judgment standard for addressing factual issues.
Furthermore, at trial Norfolk Southern moved for a directed verdict at the close of the evidence and again argued that the evidence — as adduced at trial — demonstrated that Everett was not within the zone of danger. To the extent that the trial evidence shed new light on the zone of danger issue, Norfolk Southern might have made a meritorious argument warranting the grant of a directed verdict. But here, the evidence before and during trial was essentially consistent, i.e., Everett was driving a six-car train, three cars derailed, and two collided with a building. There was, at trial, a variation in the witnesses’ estimates of the length of each car, so there was some difference in the estimate of the distance between Everett and the building collision, but this difference was not sufficient to alter the trial court’s conclusion, nor ours in this appeal. Thus, the trial court again properly considered Norfolk Southern’s argument based on the trial evidence and correctly denied the motion, leaving nothing for resolution by the jury on the zone of danger issue.
Nevertheless, even if the majority is correct that , “neither the trial court nor this Court determined as a matter of law that Norfolk Southern owed Everett a legal duty under the zone of danger test,” that did not convert the issue into a jury question.26 The zone of danger issue, as always, remained for the trial court. Thus, a new *357trial is not necessary, and on remand the trial court could explicitly (and again) resolve the issue and enter a judgment accordingly.
Because the zone of danger issue was a legal question for the trial court, and because the trial court appropriately addressed and resolved the question at each stage of litigation, I respectfully disagree with the majority’s conclusion that Norfolk Southern was entitled to present argument to the jury that Everett was not within the zone of danger. Therefore, in my view, the trial court correctly prohibited Norfolk Southern from making such an argument.
It is, however, necessary to evaluate whether the scope of the motion in limine was in some way overly broad or improperly limited Norfolk Southern’s ability to litigate the remaining issues: breach of duty, causation, and damages. The question of breach was conceded by Norfolk Southern, so the focus of the trial was appropriately limited to causation and damages. The trial court’s order granting the motion in limine did not exclude any evidence. Instead, it simply prohibited Norfolk Southern from arguing that Everett was not in the zone of danger.27 A review of the record shows that Norfolk was allowed to elicit and examine the material facts surrounding the derailment, and it was allowed to argue that Everett’s actual risk of injury was too trivial to have caused him emotional harm. The trial court even gave a jury charge stating that FELA only authorizes recovery for injuries resulting “from a reasonable apprehension on [the plaintiffs] part that he was at risk of imminent physical harm.”28 Under these circumstances, the grant of the motion in limine was not so broad as to have harmed Norfolk Southern.
2. Norfolk Southern also contends that the trial court erred when it denied its motion for directed verdict on the zone of danger issue. Normally, the denial of a motion for a directed verdict on evidentiary grounds is reviewed on appeal under the “any evidence” standard.29 But Norfolk Southern’s argument was premised on the *358legal determination that Everett was in the zone of danger, so we apply the de novo standard.30
Decided December 1, 2011 Reconsideration denied December 16, 2011 Weissman, Nowack, Curry & Wilco, William C. Thompson, for appellant. Michael J. Warshauer, Douglas C. Dumont, Lyle G. Warshauer, for appellee.Norfolk Southern supported its motion by reviewing the factual circumstances as presented at trial and emphasizing any favorable discrepancies. Based on the trial evidence, Norfolk Southern again argued that Everett was outside the zone of danger. The trial evidence and renewed argument was not sufficiently different to persuade us to change our conclusion from Norfolk I, i.e., that Norfolk Southern had a duty of care to Everett under the circumstances of this train derailment and building collision.
In light of the trial court’s appropriate rulings on the zone of danger question, I would affirm the judgment entered on the jury’s verdict.
I am authorized to state that Presiding Judge Miller and Judge McFadden join in this dissent.
See Smith v. Union Pacific R. Co., 236 F3d 1168, 1170 (I) (10th Cir. 2000); Nelson v. Metro-North Commuter R., 235 F3d 101, 113 (II) (D), n. 12 (2d Cir. 2000); K. A. C. v. Benson, 527 NW2d 553, 558 (a) (Minn. 1995); Bloom v. Consolidated Rail Corp., 41 F3d 911, 913 (I) (3d Cir. 1994).
In the present case, there essentially was no dispute about the actual circumstances of the derailment in which Everett was involved. Thus, procedurally, once presented with the facts (first on summary judgment and again on motion for directed verdict), it was up to the trial court to determine if Everett was within the zone of danger, i.e., whether Norfolk Southern owed Everett a duty. But if, for example, the circumstances of a railroad injury are in material dispute, such as the engineer claims to have been located on the same track (track A) as an explosion/derailment, but the railroad presents evidence that the engineer was actually located safely on track B, then this factual dispute — track A versus track B — would need to be resolved by the jury. Nevertheless, the court would decide whether or not the engineer was within the zone of danger of the derailment if he is found to have been located on track A by the jury. Procedurally, if the jury finds that the engineer was located on track B, a directed verdict in favor of the railroad is proper because the engineer was outside the zone of danger and was owed no duty by the railroad. If the jury finds the engineer was located on track A, the court having already decided that a legal duty exists in this scenario, then the jury would proceed to resolving the remaining elements of the tort claim, e.g., breach, causation, and damages. See, e.g., State Farm Fire & Cas. Co. v. Owen, 729 S2d 834, 840 (Ala. 1998).
Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420 (682 SE2d 621) (2009).
The majority does not address the remaining enumerations.
My review of the record leads me to conclude that the motion in limine ruling was confined to deciding what argument Norfolk Southern could present to the jury, and it did not meaningfully limit the evidence presented at trial. Everett’s motion in limine sought only to
prohibit Norfolk Southern from arguing that Plaintiff Everett was not within the “zone of danger” when the train he was on derailed, that Everett’s apprehension of physical harm as a result of the derailment was unreasonable!,] or that he was not exposed to an immediate risk of physical harm as a result of the derailment and ensuing collision.
The trial court’s order granted Everett’s motion on the ground that the zone of danger issue is not “subject to jury determination . . . and there does not appear to be [a] disputed issue of fact underlying this question in any event.” While Norfolk Southern argues that this ruling limited its ability to present its defense at trial, the motion in limine did not materially limit the evidence adduced at trial, and Norfolk Southern proffers no evidence that was improperly excluded.
45 USC § 51.
See Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 543 (114 SC 2396, 129 LE2d 427) (1994).
Stevens v. Bangor & Aroostook R. Co., 97 F3d 594, 598 (II) (1st Cir. 1996). Foreseeability has never been an issue in this case.
(Emphasis supplied.) Fulk v. Rlinois Central R. Co., 22 F3d 120,125 (II) (7th Cir. 1994). See also Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 567 (713 SE2d 835) (2011) (“The existence of a legal duty is a question of law for the court.”); Smith, 236 F3d at 1170 (FELA case); Nelson, 235 F3d at 113, n. 12 (FELA case); K. A. C„ 527 NW2d at 558 (a) (FELA case).
Gottshall, 512 U. S. at 550 (III) (A).
See, e.g., Smith, 236 F3d at 1170 (I); Nelson, 235 F3d at 113 (II) (D), n. 12. Gentry v. Norfolk Southern R. Co., 1997 Tenn. App. LEXIS 505 (Term. Ct. App. July 22, 1997), relied upon by the majority as an example of a jury resolving the zone of danger question, is inapposite. That case addressed a scenario where the injured employee suffered a fatal heart attack while investigating a train derailment as part of his employment with the railroad’s police department. His claim alleged that the railroad was negligent in failing to diagnose his heart disease, in failing to warn him of his condition, and in continuing to place him in a stressful work environment. In that case, the jury instruction at issue focused on the Supreme Court’s refusal to allow recovery under FELA solely for stress in the ordinary course of employment. The viability vel non of stress-related claims is not relevant to the claim presented here. Similarly inapposite is City of Mobile v. Taylor, 938 S2d 407 (Ala. Civ. App. 2005), which was a non-FELA case.
Cutting through the bewildering legal thicket created by our emphasis of the summary judgment standard in Norfolk I, the trial court keenly observed in its 'order granting the motion in limine that the zone of danger issue was not one for the jury.
Norfolk I, 299 Ga. App. at 424.
Id. at 420.
See, e.g., Rasnick, 289 Ga. at 566-567 (resolving as a matter of law the scope of an alleged tortfeasor’s legal duty while adjudicating the defendant’s motion for summary judgment).
(Citation omitted.)
See, e.g., Rasnick, 289 Ga. at 567 (1).
Even Norfolk Southern in its brief characterizes the zone of danger issue as a legal *357question for the trial court. It argues: “Everett still had to establish at trial that he was in the ‘zone of danger;’ the trial court had to make that legal decision based on the evidence present at trial; and this Court reviews such a decision as reviewing an error of law.” (Emphasis supplied.) Thus, neither party is arguing that the zone of danger question is for the jury.
Indeed, after ruling on the directed verdict motion on the zone of danger issue, the trial court explicitly stated “I still think you can argue everything you just argued. [‘]There shouldn’t be any award. [Everett] didn’t know about [the derailment or building collision]. . . . [Everett] sat there for 30 minutes. This is a cumulative thing. We don’t think it caused his mental illness.]’] I just don’t think you can argue that he was not in the' zone of danger.” Consistent with this, Norfolk Southern argued to the jury that Everett lacked any apprehension of harm based on the relative safety of his position on the engine 500 feet away from the building collision.
(Emphasis supplied.) To the extent that this instruction was functionally a zone of danger charge, any resulting error benefitted Norfolk Southern and was harmless.
See F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).
See Bloom, 41 F3d at 913 (I).