Pikop v. Burlington Northern Railroad

KELLEY, Justice

(dissenting):

Because I conclude the claims of Pikop and Gulati for intentional infliction of emotional distress solely arose out of their employment with the Burlington Northern and that the Federal Employers’ Liability Act provides those employees with their exclusive remedy, I respectfully dissent.

The Federal Employers’ Liability Act governs the recovery of damages for injuries or death by employees, or their dependent families, from employer carriers. Although the literal wording of the statute limits the carrier's liability to compensation for injuries or death caused by “negligence” of employees, 45 U.S.C. § 51 (1982), the act is demonstrative of the underlying supposition that safety of the physical and mental health of railroad employees is encouraged by the economic incentive of placing liability upon the employer. Thus, notwithstanding the statutory language speaks in terms of “negligence,” the United States Supreme Court has permitted injured employees to recover from employers even though the act or acts giving rise to the injury were “intentional.” See, e.g., Jamison v. Encarnacion, 281 U.S. 635 , 50 S.Ct. 440 , 74 L.Ed. 1082 (1930) where the court held that assaults committed by railroad employees against fellow employees in the course of the railroad employment were compensable in suits against the carrier. See generally, Note, Respondent Superior and the Intentional Tort: A Short Discourse on How to Make Assault and Battery A Part of the Job, 45 U.Cin.L. Rev. 235 (1976). See also, Annot., 8 A.L.R.3d 442 (1966).

The Court of Appeals for the Ninth Circuit in Buell v. Atchison, Topeka & Santa Fe Railway Co., 771 F.2d 1320 (9th Cir.1985), held that an employee’s allegation that he had sustained emotional injury caused by intentional acts of railroad employees stated a claim under the FELA. In

Lancaster v. Norfolk & Western Railway Co., 773 F.2d 807, 818 (7th Cir.1985), the court recognized employee recovery under the FELA for intentional tort if the evidence established either that the intentional act (or acts) was done in furtherance of the railroad’s objectives or that the company negligently hired, supervised, or failed to fire the employee who committed the tort.

Since the claimed injuries clearly and exclusively arose out of their employment by the Burlington Northern, the FELA provides to these plaintiffs the exclusive remedy for those claimed injuries. Even if that act afforded no remedy to these claims, the act is all comprehensive. See, e.g. New York Central Railroad Co. v. Winfield, 244 U.S. 147 , 37 S.Ct. 546 , 61 L.Ed. 1045 (1917). The purpose of Congress in enacting the Federal Employers’ Liability Act, and the federal courts in construing it, is clearly to provide a uniform and exclusive compensatory program to govern claims made by employees against employing railroads for damages arising out of the employment relationship.

Accordingly, I would hold that the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1982) pre-empts an employee’s claim of damage against a railroad employer when the claim arises from intentional infliction of emotional distress if the acts giving rise to the claim are committed solely and exclusively during the course of the employment relationship.

Therefore, I would affirm the district court in Pikop v. Burlington Northern Railroad, and would answer the certified question in Gulati v. Burlington Northern Railroad Co. in the affirmative.