No. 90-566
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
LEO F. MARAZZATO, SR., Acting as Personal Representative on Behalf
of the Heirs and Successors in Interest of LEO F. MARAZZATO, JR.,
Plaintiff and Appellant,
-vs-
BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don C. Aldrich, William G. Jungbauer, Patrick R.
Gillespie; Yaeger & Yaeger, Minneapolis, Minnesota.
John W. Larson, Missoula, Montana.
For Respondent:
Randy J. Cox; Boone, Karlberg & Haddon, Missoula,
Montana.
Submitted on briefs: May 31, 1991
Filed:
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Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Leo F. Marazzato, Sr. (Mr. Marazzato), is the
father and personal representative of Leo F. Marazzato, Jr. (the
decedent). Mr. Marazzato brought this Federal Employers' Liability
Act (FELA) action in the District Court for the Fourth Judicial
District, Missoula County, seeking emotional distress damages
suffered by the decedent prior to the decedent's death by suicide,
and for the pecuniary loss the parents suffered after the
decedentlsdeath. The District Court granted Burlington Northern's
Motion for Summary Judgment concluding that Mr. Marazzato had not
established that it was foreseeable by Burlington Northern that its
actions would result in the decedent's suicide. Mr. Marazzato
appeals. We affirm.
The revised dispositive issue is: Did the District Court
correctly conclude that the plaintiff failed to present sufficient
proof to establish that Burlington Northern knew or should have
known that assignment to an unsupervised rubber room could have
resulted in forseeable harm to the decedent?
The decedent worked as a clerk for Burlington Northern from
1976 until his suicide in March, 1988. Under a collective
bargaining agreement, he was a "merger protected" employee which
means that Burlington Northern was obligated to pay his wages even
if it had no work for him to do. Upon sale of Burlington
Northern's southern line to Montana Rail Link, Burlington Northern
had more clerks in Missoula than needed. Beginning March 14, 1988,
the decedent was assigned to an Alternative Work Location (known
2
as a "rubber room1'by employees) in Missoula. Employees who were
assigned to the rubber room were required to report to the room for
work shifts but had no work to do. The employees were free to
read, watch television, play cards, and otherwise entertain
themselves. There were no supervisors available or in attendance
in the rubber room.
On March 22, 1988, the decedent was notified that he was being
transferred to Havre, Montana. He had the option of accepting the
transfer by reporting to work in Havre within 20 days, taking a six
month leave of absence without pay, or resigning and accepting a
separation allowance.
Evidence in the form of affidavits, depositions, and medical
records show that the decedent's mental health deteriorated rapidly
during the month of March. The decedent threatened to commit
suicide several times during the month. On March 27, 1988, his
Mother called the police and the decedent agreed to enter the
hospital under the care of a psychiatrist. He was released the
following day. That same day he received another letter indicating
that it had come to the attention of Burlington Northern that his
"home zone" was in Helena, Montana and that he was being reassigned
to the rubber room in Helena. On March 29, 1988, the decedent
bought a gun at a second-hand shop, drove up to the South Hills
area of Missoula and killed himself.
Mr. Marazzato argues that the decedent's assignment to the
unsupervised rubber room caused his mental and emotional condition
which was the direct and proximate result of Burlington Northern's
negligence in failing to provide the decedent with a safe place to
work in violation of FELA [45 U.S.C. 5 51, et seq.]. The District
Court granted summary judgment to Burlington Northern on the basis
of foreseeability. Mr. Marazzato contends that the District Court
erred because affidavits from expert witnesses sufficiently
established foreseeability of harm to reach the jury in a FELA
case.
Dr. James C. Deming, licensed psychologist from Bozeman,
Montana, and Dr. Marie-Claude Rigaud, licensed psychiatrist from
Aurora, Illinois, presented affidavits after analyzing the medical
records and depositions available in this case. Both experts
concluded that the decedent was suffering from major depression and
dependent personality disorder prior to his death. Dr. Deming also
concluded that decedent's behavior was consistent with llisolation
stressw similar to the reactions found among military personnel
stationed at isolated military stations.
Dr. Rigaud observed that the decedent had been under the
effect of a multitude of moderate to severe job stressors for some
time before his assignment to the rubber room. Those earlier
stressors included two imposed job transfers which involved change,
deprivation of the support of significant others, perception of
inadequate preparation and training to do the job safely and
effectively, and poor fit between the individual and his
environment. His responses to those stressors were expressed
fears, depression, and feelings of loneliness and emptiness, as
well as insecurity and job dissatisfaction. The organization
changes within the company added new stressors such as uncertainty
about his employment future. Confinement in the rubber room
without identified objectives or well-defined expectations as to
what was to be achieved resulted in boredom and lack of meaningful
purpose which created additional stressors. Based on these
observations, Dr. Rigaud came to the following conclusions:
(1) The conditions of [decedent's] employment at
[Burlington Northern] constituted major traumata which
led to a progressive emotional deterioration, and
eventually to his latest episode of agitated suicidal
depression.
(2) Additionally, acute stressors which came to bear
after his discharge fromthe hospital further exacerbated
an already precarious condition and led to more
psychological distress, acute despair, confusion,
impaired reality testing and judgment.
(3) [Decedent] killed himself as a result of an
irresistible impulse brought about by his emotional
condition described above.
(4) [Burlington Northern] should have been able to
foresee the potentially detrimental impact that such
stressful working conditions would have had on their
employees. At the least, the company should have
assigned a supervisory personnel who could have observed
and monitored such effects as they were becoming evident.
Mr. Marazzato asserts these expert conclusions were sufficient to
establish foreseeability in a FELA case.
Under FELA, the test of whether a case should go to a jury is
simply whether the evidence justifies 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 Pac. R.R. (1957), 352 U.S. 500, 506. Mr. Marazzato
cites Rosers for the proposition that FELA is liberally construed
to require only a slight amount of foreseeability to get a FELA
case to a jury. The ~oqersCourt went on to say "[ilt does not
matter that, from the evidence, the jury may also with reason, on
grounds of probability, attribute the result to other causes,
including the employee's contributory negligence." Rosers, 352
U.S. at 506. It is obvious from this statement that the Rosers
case was addressing the issues of multiple causes and contributory
negligence after it had been established that the employer was
negligent. Also see Gallick v. Baltimore & Ohio R.R. (1963), 372
U.S. 108, 116; Barilla v. Atchison, Topeka & Santa Fe Ry. (D.Ariz.
The plaintiff has the burden of proving that defendant's
negligence was the proximate cause in whole or in part of
plaintiff's [death]. Barilla, 635 F.Supp. at 1059. Reasonable
foreseeability of harm is an essential ingredient of FELA
negligence. Gallick, 372 U.S. at 117.
Mr. Marazzato has failed to provide any proof that Burlington
Northern knew or should have known that assignment of the decedent
to an unsupervised rubber room created a reasonable possibility of
harm. Affidavits of medical experts that establish a medical
theory do not demonstrate knowledge on the part of Burlington
Northern. We agree with the conclusion of the District Court that
FELA
... requires some proof before being submitted to the
jury; here there is no suggestion of any kind in any of
the evidence submitted to the Court that would give rise
to a finding of foreseeability with respect to a suicide
arising from the use of the [rubber room], by any of the
employees, or by this specific employee.
We hold that the District Court did not err in concluding that Mr.
Marazzato failed to establish reasonable foreseeability of harm
absent sufficient facts constitute notice Burlington
Northern.
Mr. Marazzato argues that he was prevented from establishing
Burlington Northern's knowledge of the effects of rubber rooms on
the employees because the District Court granted Burlington
Northern's Motion for a Protective Order during discovery. There
is no basis for Mr. Marazzato's contention. While it is true that
the District Court did grant Burlington Northern protection as to
several interrogatories, the District Court denied the motion as
to Interrogatory No. 30 which stated:
Please identify each and every paper, study, report and
memoranda outlining the actual, possible or anticipated
mental or emotional impact or the use of "rubber roomsgr
on employees such as plaintiff's decedent which
Burlington Northern has in its possession or has access
to.
Through Interrogatory No. 30, Mr. Marazzato had access to all
documents in Burlington Northern's possession that could have
established Burlington Northern's knowledge. Mr. Marazzato failed
to prove that Burlington Northern should have foreseen harm to the
decedent.
We hold that the District Court correctly concluded that the
plaintiff failed to present sufficient proof to establish that
Burlington Northern knew or should have known that assignment to
an unsupervised rubber room could have resulted in foreseeable harm
to the decedent.
Affirmed.
I /
\
Chief Justice
Justices
Justice Terry N. Trieweiler specially concurring.
I concur in the result achieved by the majority's opinion.
However, I would arrive at the same conclusion for different
reasons.
Plaintiff sought two separate types of damages in the District
Court. He sought damages for the decedent's emotional distress,
which he alleged was negligently caused prior to decedent's death,
and he sought damages which resulted because of decedent's death.
Both claims were dismissed based on lack of foreseeability.
However, plaintiff raised two issues on appeal:
1. Whether an FELA claimant may recover damages for
emotional injuries which are negligently inflicted, even though
there is no physical injury or threat of physical harm; and
2. Whether he had offered sufficient evidence on the issue
of foreseeability to overcome defendant's motion for summary
judgment .
Because plaintiff's action was broughtpursuantto the Federal
Employers' Liability Act, the conduct which gives rise to a cause
of action and the nature of damages recoverable are controlled by
federal statutes and case law.
The only case law cited by either of the parties which appears
to clearly allow recovery for negligent infliction of emotional
distress is Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771
F.2d 1320, 1324. However, Buell was reversed by the United States
supreme Court in Atchison, Topeka & Santa Fe Ry. Co. v. Buell ( 198 7) , 480 u .s.
557, 107 S.Ct. 1410, 94 L.Ed.2d 563. Plaintiff has cited this
Court to no federal decisional law since reversal of the Buell
decision, which clearly allows recovery for the negligent
infliction of emotional distress absent infliction of physical harm
to the plaintiff.
Montana has allowed recovery for negligent infliction of
emotional distress under limited circumstances which are not
present in this case. Versland v. Caron Transport (1983), 206 Mont. 313,
322-23, 671 P.2d 583, 588. However, we have been reluctant to
extend the cause of action beyond those circumstances described in
Versland. Dayv. MontanaPowerCo. (1990), 242 Mont. 195, 789 P.2d 1224.
While there may be sound public policy arguments for extending
the circumstances under which a cause of action for negligent
infliction of emotional distress may be presented, I do not believe
that the railroad workplace is the place to begin, absent some
authority from the federal decisions or statutes.
I would affirm the District Court's judgment dismissing that
part of plaintiff's claim which relates to the decedent's suicide
based on the following general rule set forth in a e g v. Massey
(1989), 239 Mont. 469, 781 P.2d 277:
The general rule, as relied upon by the ~istrictCourt,
in the area of civil liability for suicide is that
ll[n]egligence actions for the suicide of another will
generally not lie since the act or suicide is considered
a deliberate intervening act exonerating the defendant
from legal responsibility . . . I' 41 ALR 4th, 353.
Prosser and Keeton on Torts f 44 at 280-81 (4th ed.
1971); McPeake v Cannon E q i e P C (1989), 381 Pa.Super.
. sur, . .
227, 553 A.2d 439; McLaughlin v S l i a (1983), 123 N.H.
. ulvn
335, 461 A.2d 123. We expressly adopt this rule.
K i g 239 Mont. at 472-73, 781 P.2d at 279.
re,
The plaintiffs sought to survive summary judgment by coming
within the following exception to the general rule:
a. [Wlhere the defendant's tortious act
causes a mental condition in the decedent that
proximately results in an uncontrollable
impulse to commit suicide or that prevents the
decedent from realizing the nature of his act
....
meg, 239 Mont. at 471, 781 P.2d at 278.
However, there was no substantial evidence in this record that
decedent took his life because of a mental condition caused by
defendant's tortious act. The tortious act alleged by plaintiff was
defendant's failure to supervise the work site to which plaintiff's
decedent was confined. However, there was no evidence that that lack
of supervision contributed in any way to the mental condition which
resulted in decedent's suicide. In fact, the evidence, including
decedent's medical records and the history reconstructed by the
plaintiff's own consultants, indicates that the mental condition
which led to decedent's suicide was caused by notice to him that he
was being transferred to a new location where he would be apart from
his parents and without friends.
Furthermore, decedent s suicide did not occur at the work place.
It occurred in a remote area near Missoula after he had been
discharged from the care of professional psychologists or
psychiatrists. Had there been indications of despondency or
depression while at work which could have been detected by closer
supervision, nothing more could have been expected from defendant
than a referral to the health care professionals who ultimately saw
and treated decedent shortly before his suicide. Therefore, I would
conclude that decedent's suicide was a deliberate intervening act
exonerating defendant fromlegal responsibility for decedent's death,
and on that basis affirm the District Court.