dissenting.
I respectfully dissent. Because the evidence is undisputed that Everett experienced no physical impact from nor was he in any immediate physical danger from the partial derailment onto level pavement a football field away from him, the trial court erred in denying summary judgment to Norfolk Southern. Accordingly, I would reverse.
Interpreting FELA, the United States Supreme Court has held that a plaintiff may pursue a cause of action for negligent infliction of mental distress based on the “zone of danger” test. Consolidated Rail Corp. v. Gottshall.22
[T]he 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 outside of it cannot.
(Punctuation omitted.) Id. at 547-548 (II) (B).
The majority concedes that the first prong of the test is not met inasmuch as there was no physical impact to Everett. Where the majority errs is determining, as a matter of law, that Everett was in “immediate risk of physical harm” by the event. Consolidated Rail Corp. v. Gottshall, supra, 512 U. S. at 548 (II) (B). Even if the event *427occurred temporally very close to the plaintiff, this aspect requires “at the very least” that the risk of physical harm to the plaintiff must have been “more than minimal.” Nelson v. Metro-North Commuter R.23 Interpreting Minnesota’s zone of danger test (one of the states cited by Consolidated Rail Corp. v. Gottshall as following the same zone of danger test — see supra, 512 U. S. at 548, n. 9), the Minnesota Supreme Court stated that it must be “abundantly clear that plaintiff was in grave personal peril for some specifically defined period of time.” K. A. C. v. Benson. 24 The reviewing court makes this determination based not on the subjective beliefs of the plaintiff, but on the objective facts shown by the evidence. Id. (“[w]hether plaintiff is within a zone of danger is an objective inquiry”). See James v. Lieb25 (“[u]nder the zone-of-danger rule the courts . . . can objectively determine whether plaintiffs were within the zone of danger”) (punctuation omitted).
Here, Everett was sitting safely in his locomotive car, was in no danger of derailing, and was never closer than 300 feet, i.e., a football field, to the slow derailment of three cars onto level pavement (and no closer than 450 feet from the Ford building). He was in no immediate risk of physical harm; indeed he was not even close enough to see what was happening ahead of him and was mystified by the events. He could only speculate as to what had occurred, and the slow-moving train was quickly stopped by the automatic brakes and by his activating the emergency brakes. “Because all of the . . . incidents — the derailments and accidents caused by [the negligent conduct] — occurred far away from plaintiff, he was never in the zone of danger.” Dziegelewski v. Consolidated Rail Corp.26 Despite his subjective beliefs about possible fires, explosions, and collapsing buildings had the train not stopped, the train in fact did stop, and he was never in any actual grave personal peril or “immediate risk of physical harm.” Consolidated Rail Corp. v. Gottshall, supra, 512 U. S. at 548 (II) (B). See Dziegelewski v. Consolidated Rail Corp., supra, 1995 U. S. Dist. LEXIS 1700, *8 (the mere potential for worse physical consequences if plaintiff had fallen asleep at the wheel — which he did not — did not place plaintiff in the zone of danger). Here, Everett never came close to the building, and he was never at immediate risk of physical harm from an actual or even a potential building collapse. It is the objective risk of physical harm resulting *428from what actually happened, rather than reasonable fears of what could have happened, that establishes the “zone of danger” as it is not a “zone of reasonable fear” test. The risks to Everett were at most minimal and therefore never put him in the zone of danger. See Nelson v. Metro-North Commuter R., supra, 235 F3d at 113 (II) (D).
Decided July 7, 2009 Reconsideration denied July 29, 2009 Weissman, Nowack, Curry & Wilco, William C. Thompson, for appellant.Another case involving an engineer sitting safely in the locomotive of a slowly-moving train case is instructive. In Bloom v. Consolidated Rail Corp.,27 the locomotive engineer sued to recover for his emotional damages caused when his train, which he was operating, struck and killed a pedestrian. Even though the engineer in his locomotive was near the point of impact, the court held that he was not placed in immediate risk of physical harm by the impact with the pedestrian. Id. This case supports the finding that engineers, who sit safely in their locomotive car at the time the accident occurs, cannot be said to have been in any zone of danger unless there is an immediate risk of physical harm.
The United States Supreme Court’s decision in Consolidated Rail Corp. v. Gottshall points out that the purpose of the strictures of the “zone of danger” test is to minimize fraudulent and trivial claims and to limit “the prospect that allowing such suits can lead to unpredictable and nearly infinite liability for defendants.” Consolidated Rail Corp. v. Gottshall, supra, 512 U. S. at 551-552 (III) (B). The majority’s holding that Everett here was in more than minimal danger of physical harm is inconsistent with this purpose and Bloom v. Consolidated Rail Corp., supra.
Because the evidence — construed in Everett’s favor — shows that Everett meets neither aspect of the zone of danger test, his action against Norfolk for negligent infliction of mental distress under FELA should fail. Accordingly, I would reverse the trial court’s ruling that denies Norfolk’s motion for summary judgment. For these reasons, I respectfully dissent.
I am authorized to state that Presiding Judge Andrews joins in this dissent. *429Warshauer, Poe & Thornton, Michael J. Warshauer, Lyle G. Washauer, for appellee.Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 554 (III) (C) (114 SC 2396, 129 LE2d 427) (1994).
Nelson v. Metro-North Commuter R., 235 F3d 101, 113 (II) (D) (2d Cir. 2000).
K. A. C. v. Benson, 527 NW2d 553, 558 (a) (Minn. 1995).
James v. Lieb, 375 NW2d 109, 112 (Neb. 1985).
Dziegelewski v. Consolidated Rail Corp., 1995 U. S. Dist. LEXIS 1700, *9 (S.D. N.Y. 1995).
Bloom v. Consolidated Rail Corp., 41 F3d 911, 917 (II) (D) (2) (3rd Cir. 1994).