Connie Szymanski, Administratrix of the Estate of Stanley Szymanski v. Columbia Transportation Company, a Division of Oglebay-Norton Co.

DISSENT

MOORE, Circuit Judge,

dissenting.

The majority transforms Szymanski’s standard negligence claim under the Jones Act and his unseaworthiness claim into something they are not — negligent infliction of emotional distress claims. Once the majority’s magic has been performed, the majority quickly moves to dismiss Szymanski’s claim based on the holding of Consolidated Rail Corp. v. Gottshall, 512 U.S. 582, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Because I believe that the majority has applied the wrong governing standard to Szymanski’s claim, I respectfully dissent.

I. JONES ACT IN GENERAL

Szymanski brought his claim pursuant to the Jones Act, 46 App. U.S.C. § 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 ease 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. § 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.

“The 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); see also American Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994).

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, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

*598FELA 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 Pac. 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 Pac. R.R., 621 F.2d 902, 908-09 (8th Cir.1980), cert. denied, 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981). Injuries may be com-pensable under the FELA and Jones Act even if they are caused by the cumulative effect of a series of incidents. Id. at 909.

II. THE IMPACT OF THE GOTTSHALL DECISION

In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 550, 114 S.Ct. 2396, 129 L.Ed.2d 427 (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 554-57, 114 S.Ct. 2396. 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 547-48, 114 S.Ct. 2396.

Gottshall addressed “whether recovery for negligent infliction of emotional distress is available under FELA.” Id. at 541, 114 S.Ct. 2396. “The injury [the Court] contemplate[d] when considering negligent infliction of emotional distress is mental or emotional injury, apart from the tort law concepts of pain and suffering.” Id. at 544, 114 S.Ct. 2396. As the Court noted, “[t]he injury we deal with here is mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly .brought about by a physical injury, but that may, manifest itself in physical symptoms.” Id.

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. Carlisle sued Conrail for negligent infliction of emotional distress based on the long, stressful, and erratic hours he worked which Carlisle claimed eventually resulted in his suffering a nervous breakdown. Id. at 539, 114 S.Ct. 2396. 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 554, 114 S.Ct. 2396. 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 558, 114 S.Ct. 2396.

Unlike the majority, I would hold that the Carlisle portion of the Gottshall decision does not control the disposition of this case because Syzmanski 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 holding 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 552, 114 S.Ct. 2396. 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 554, 114 S.Ct. 2396. In choosing the zone of danger test to limit *599claims 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 555, 114 S.Ct. 2396. The “zone of danger” test itself, of course, was devised as a limit on claims for negligently inflicted emotional distress. Id. at 546-47, 114 S.Ct. 2396.

In summary, in contrast to Gottshall and Carlisle, Szymanski’s claimed injury is a physical one — chest pain and physical exhaustion due in part to the inability to take time to eat or make his conveyorman rounds, which eventually resulted in a heart attack. See J.A. at 71, 80, 109 (Szymanski Dep.); J.A. at 145 (Report of Dr. Helen Winkler). Additionally, the reason the Court addressed the issue of negligent infliction of emotional distress claims in Gottshall is because Gotts-hall and Carlisle alleged negligent infliction of emotional distress claims.1 See Gottshall, 512 U.S. at 537 (Gottshall), 539, 114 S.Ct. 2396 (Carlisle). Szymanski, again by contrast, never asserted a negligent infliction of emotional distress claim. The majority is quick, however, to dismiss his case because it holds that he failed to meet the “zone of danger” test2 which is only applicable to negligent infliction of emotional distress claims.

III. HEART ATTACK CLAIMS UNDER THE JONES ACT

I now turn to what I believe is the main issue presented, whether Szymanski can recover for his heart attack under the Jones Act. Heart attacks generally can be compen-sable injuries under the FELA and the Jones Act as long as the statutory requirements are satisfied. Most of the eases 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. See Pierce v. Southern Pac. 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. See Stewart v. Alton & Southern Ry., 849 S.W.2d 119, 124-25 (Mo.Ct.App.1993). In a post-Gottshall decision the Missouri Court of Appeals rejected the application of Gottshall in upholding a plaintiffs FELA claim that his coronary artery disease and gastritis were caused by the railroad’s negligence in main*600taining proper 'sleeping facilities and an erratic work schedule. See Bailey v. Norfolk & Western Ry., 942 S.W.2d 404, 411 (Mo.Ct.App.1997). The First Circuit left until another day the question of whether a heart attack caused by harassment was compensa-ble under the FELA, because in that case the defendant had no notice of the harassment. See Robert v. Consolidated Rail Corp., 832 F.2d 3, 6-7 (1st Cir.1987) (Heart attack caused by harassment not compensa-ble when Conrail not informed of harassment).

This court has allowed recovery both for a plaintiffs 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, I 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.

This 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 I do not believe Congress would intend and that I 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. I would remand so that the district court can analyze whether summary judgment is appropriate on Szymanski’s claim using this standard, i.e., the district court should determine whether .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 Ogle-bay negligently subjected 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 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 Szymanski’s unseaworthiness claim because summary judgment was proper on 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, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). The majority properly recognizes that a claim under the Jones Act and an unseaworthiness claim are distinct claims that have separate elements. The majority, however, holds that Szymanski cannot state a claim for unseaworthiness because the injury for which he seeks recovery, in the majority’s view, is negligent infliction of emotional distress, which is not compensable under the Jones Act. Once again the majority mischar-acterizes Szymanski’s claim as one of negligent infliction of emotional distress. Because I believe that Szymanski’s claim should be analyzed under a traditional physical injury standard, I dissent from the majority’s affirmance of the dismissal' of Szymanski’s unseaworthiness claim.

*601As the Supreme Court has stated “[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, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Although 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 id. at 32-33, 111 S.Ct. 317.

An unseaworthiness claim is based upon the shipowner’s absolute and nondelegable duty to “furnish a vessel and appurtenances reasonably fit for their intended use.” Cook v. American Steamship Co., 53 F.3d 733, 741 (6th Cir.1995) (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (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 un-seaworthy 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.1993) (quotation omitted), cert. denied, 510 U.S. 915, 114 S.Ct. 304, 126 L.Ed.2d 252 (1993).

An incompetent crew member could make a vessel unseaworthy. See Waldron v. Moore-McGormack Lines, Inc., 386 U.S. 724, 727 n. 4, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967) (unseaworthiness may result when a member of the crew is not competent to meet the tasks arising on a voyage). Thus, I would reverse the district court’s order granting summary judgment to Oglebay. On remand, the district court should determine whether Szymanski has produced evidence sufficient to present a genuine issue of material fact on his unseaworthiness claim, while viewing the evidence, including Szymanski’s evidence that the gateman on the Courtney Burton was incompetent, in the light most favorable to him.

V. CONCLUSION

Because the majority analyzed Szyman-ski’s claims using an improper legal standard, I respectfully dissent.

. The majority's reliance on Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997), is also misplaced. Buckley also involved a claim of negligent infliction of emotional distress. See id. 521 U.S. at -, 117 S.Ct. at 2116. Indeed, the plaintiff in Buckley had suffered no direct physical harm. See id. 521 U.S. at -, 117 S.Ct. at 2118.

. I do not address whether Szymanski’s claim could survive the zone of danger test because I would hold that the test is not applicable in this instance. The majority proclaims that the zone of danger test requires "either actual impact by a physical object or being in the zone of danger for such an impact.” Maj. Slip Op. at 594. However, the majority adds in footnote 1 that " 'Physical object’ includes, of course, such things as radiation, gases given off as a result of an explosion, and the like.” An explosion on a ship that resulted in the blinding of a worker based only on a flash of light or deafening of a worker based only on the overwhelming noise, does not involve any impact by an "object” yet surely would be covered under the Jones Act. More importantly, as has been pointed out by one of our sister circuits, the Court was unclear in Gottshall as to "whether the zone of danger test turns (in the absence of actual physical impact) on risk of physical impact or risk of physical harm.” Bloom v. Consolidated Rail Corp., 41 F.3d 911, 914 (3d Cir.1994). Issues concerning the scope of the zone of danger test remain open for resolution in a case where they are properly presented.