Amicus Curiae Brief — Consolidated Rail Corporation v. Gottshall

No. 92-1956

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1993

CONSOLIDATED Rart CORPORATION,

Petitioner,

v.

James E. GorrsHaALt and ALAN CARLISLE,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Daniel J. Popeo Betty Jo Christian

Paul D. Kamenar Counsel of Record

WASHINGTON LEGAL Charles G. Cole

FOUNDATION David A. Price

2009 Massachusetts Ave.,. NW STEPTOE & JOHNSON

Washington, D.C. 20036 1330 Connecticut Ave., NW

(202) 588-0302 Washington, D.C. 20036

(202) 429-3000

Date: November 24, 1993

No. 92-1956

—_—————_————_————

SUPREME COURT ‘OF THE UNITED STATES

Octoser Term, 1993

CONSOLIDATED Ram CorporArION,

Petitioner,

v.

James E. GorrsHat and Avan CARLISLE,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

OF THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Pursuant to Rule 36.3 of the rules of this Court, the

Washington Legal Foundation respectfully moves this Court for

leave to file the attached brief amicus curiae in rt of the

itioner. The petitioner has consented to the filing of this

rief; however, the respondents have refused to provide consent.

The Washington Legal Foundation (WLF) is a non-profit

public interest law and policy center with more than 100,000

members and supported nationwide. WLF seeks to promote and

rotect the free enterprise system and the economic and civil

iberties of individuals and businesses. In particular, WLF has

devoted substantial resources to curbing abusive litigation

practices, excessive punitive damage awards, excessive

attorneys’ fees, and unwarranted expansion of tort liability, by

publishing monographs and similar educational materials on the

2

subject and by filing amicus curiae briefs in iate cases.

See, e.g., Pacific Mut. Life Ins. Co. v. Haslip, 111 §. Ct. 1032

(1991); Burlington Northern Railroad Co. v. Ford, 112 §. Ct.

2184 (1992); TXO Production Corp. v. Alliance Resources

Corp., 113 §. Ct. 2711 (1992).

WLF submits that the decisions below in this case are a

radical departure from the common law on the liability for

infliction of mental distress, especially in the workplace setting.

If left intact, these decisions will impose significant costs —

businesses not only in the Federal Employers’ Liability A

context, but also upon businesses in other areas as well. Such

increased costs are ultimately borne by the consumers and

workers as a whole. Any such ch aan Oe liability in

this area of the law is best left to F can thus

being 2 henader pesmpeative t Gee tanads ta Gib ute Gab Gant

presented by the parties in this action.

For the foregoing reasons, movant WLF ly

requests that it be allowed to participate in this case file the

annexed brief amicus curiae in support of petitioner.

Respectfully submitted,

Daniel J. Popeo Jo Christian

Paul D. Kamenar Record

WASHINGTON LEGAL Charles G. Cole

FOUNDATION David A. Price

2009 Massachusetts Ave., NW STEPTOE & JOHNSON

Washi n, D.C. 20036 1330 Connecticut Ave., NW

(202) 588-0302 oon) 4 n, D.C. 20036

Date: November 24, 1993

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ............ l

SUMMARY OF ARGUMENT ................. l

Ee concen ese ecececccess 2

I. UNDER THE COMMON LAW, MENTAL

DISTRESS ARISING FROM WORKPLACE

STRESS IS NOT COMPENSABLE ........ 2

ll. THE DECISIONS BELOW WOULD RENDER

EMPLOYERS’ LIABILITY UNPREDICTABLE

AND THEREFORE MORE DIFFICULT

Ee 5

ill. ANY DECISION TO RECOGNIZE A CAUSE OF

ACTOIN FOR NEGLIGENT INFLICTION

OF EMOTIONAL DISTRESS UNDER

FELA SHOULD BE MADE, IF AT ALL,

I 8

IV. THE DECISIONS BELOW IMPROPERLY

DISREGARDED COMMON LAW IN PERMITTING

A RECOVERY FOR MENTAL DISTRESS

ABSENT PHYSICAL INJURY OR DANGER

OF PHYSICAL INJURY .............. 10

CONCLUSION

TABLE OF AUTHORITIES

CASES: Page

Archer v. Indus. Comm’n, 619 P.2d 27 (Ariz. Ct

BD, TEED cc cccc ce eeeetecesecccseccees 5

Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557

CED bck cee seeded ee ese edeteotoses 1,4

Dillon v. Lees. 68 Cal. 2d 728, 69 Cal. Rptr.

Te, GEE Wee PEE GD cc ccc etc cc ecccese 11

Eastern Airlines, Inc. v. Floyd, 111 S. Ct.

rrr eer eee ee 4

Gillman v. B Northern R.R., 673 F.

Supp. 913 (N.D. Ill. 1987) .. 2... 2 ee ee ee ee 3

Thin La Chusa, 48 Cal. 3d 644, 257 Cal.

Rptr. 865 TH P.2d 814 (1989) Petes 6 Ge Wao 3, 11

STATUTES:

Fair Labor Standards Act

DT s+ .coccesd eo eee eeseevedoves 9

DE «cp socceceeeeseseobasce eee 9

DUCED ccc ceeevoeeesneceseceos 10

. Discrimination in Employment Act

Dn cceeensebceces eee sev odes z)

Ce. coc pbb eevedsereee en eéeun 4

PUP CEE scceccescecessoeeseees 10

i & Health Act

PUREE “cucceccesceneseseeeesn 9

Title VII of the Civil Rights Act of 1964

es a et tek ets 9

ee ae 9

CS EN 10

IEE deccccccccecocresscees 10

Americans with Disabilities Act

CULE PU Te eee 9

Family and Medical Leave Act, Pub. L. No.

Ee 9

Federal Employers’ Liability Act,

45 U.S.C. § 51 ee POrrertT Coot passim

ARTICLES

Kenneth S. Abraham, Making Sense of the

Liability Insurance Crisis, 48 Ohio St.

ee PUA Weu Reece es ccc ccc ccc. 6

Marc A. Antonetti, Labor Law: Workers’

Compensation Statutes and the Recovery of

Emotional Distress s in the Absence

of Physical Injury, 1990 Surv. Am.

EPS i ae 5, 7,8

Peter S. Barth, Workers’

Mental Stress Cases, 8 Behavioral Sciences

EE SPT 5

D Bussey, Mental “Stress” Claims and

‘ : The Problems and

for Change, 43 Federation

& Corp. Counsel Q. 99 (1993) ........ 5,7

Derik R. Girdwood, Comment, Can / Collect

Workers’ Compensation Benefits Job

oe Crazy?, 1992 Detroit gn

iv

Peter W. Huber, Liability: The Legal Revolution

and Its Consequences a

Joseph J. Kelleher, Note, An Attorney’s

Liability For the Negligent et &

Emotional Distress, 58 Fordham L. Rev

ESE EEE

Richard N. Pearson, Liability to Bystanders For

Negligentty Inflicted Emotional Harm -- A

Comment on the Nature of Arbitrary Rules,

34 U. Fla. L. Rev. 477 (1982) .........

Sara J. Sersland, Mental Caused By

Mental Stress: Standards of Proof In

Workers’ Compensation Cases, 33 Drake L.

Rev. 751 (1963-84) .........505050008-

Stress and Distress, Harv. Bus. Rev., July/Aug.

BP oS ee ces ebeceesvreseseceoes

BOOKS

RP ewe ee ee

William L. Prosser, John W. Wade & Victor E.

Schwartz, Cases and Materials on Torts

PPG GEE cc ccteccescessevess

No. 92-1956

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1993

ConsoLmaTep Ram. Corporation,

Petitioner,

v.

James E. GorrsuHat and Aan CARLISLE,

Respondents.

BRIEF OF AMICUS CURIAE

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The interest of the amicus is set forth in the motion

SUMMARY OF ARGUMENT

_ The decisions below correctly noted that "[i]n deciding

Employers’ Liability Act], FELA jurisprudence | grt

idance from common-law developments.’" Pet.

U.S $5368 G98). T. & S.F. Ry. v. Buell, 480

U.S. 557, 568 987)) SSCP. a ty peseiing seooveries for

ork- stress, and not

frome aay astasd ar Goouenn phycodl iajery, the Thied

Circuit departed radically from the teachings of the

common law.

At common law, there is simply no “tort” of negligent

infliction of emotional distress. law courts do

a eS ee en ee ee ee disallowing a claim

based on oak Gio, . but

these tests an expanded rule of damages for conduct

that is already understood to be tortious, A

defining a distinct tort. ee Poe

exercise reasonable care to avoid ao ton

another person. Only in cases of infliction of

emotional distress, involving extreme and outrageous

conduct, does the common law hold a party liable absent

conduct that is tortious on some other ground.

Mena dress is 50 upreicable hat abil fo

—

.

UNDER THE COMMON LAW, MENTAL

DISTRESS ARISING FROM WORKPLACE

STRESS IS NOT COMPENSABLE

In deciding claims of negligent infliction of emotional

Cone, Oe ee ee ee

pore dy Tah onan. ae re es

por gy dw mental distress, an

tay See Wil of jurisdictions continue to use

See William L. , John W. Wade & Victor

Samet, Cases and Materials on Torts 396 (8th ed.

988) (hereinafter "Prosser"); Richard N. Pearson,

Liable to Bystanders For Negligently Inflicted Emotional

Harm = ee OS ee ede tie 2 34

U. Fla. L. Rev. 477, 486-88 (19 Under this rule,

3

liability for negligent infliction of emotional distress

tiles aon of tortious conduct; rather, it

simply provides for an category of damages.

z

E

ft

ry

3

a

E

stitute, Restatement (Second) of Torts § 313(2) (1965)

(hereinafter “Restatement"); Gillman vv. Burlington

Northern R.R., 673 F. Supp. 913, 917 n.1 (N.D. IIL.

1987) (collecting authorities).

Third, the zone of danger rule is expanded in some

jurisdictions to include a bystander who was not not within the

zone of danger, but who was a close relative of the victim.

See Prosser, 5. , at 407-08; . 2) ,

(in

bank). This rule would permit liability where, for

example, a mother has witnessed a car striking and

injuring her child. Li ey too

rule c relative rule

a new tortious conduct. Instead,

hey aply in cases involving conduct that ws Toru

respect to the victim, and permit recovery by an

ediidendl estegaty of chniamaats.

of certain services. lg Bag as on Note,

<n duane table "toe the of

Emotional Distress, 58 Fordham L. a. 130 , 1319-21

(1990) (legal malpractice); Prosser, supra, at 402

(negligence by telegraph company in transmitting a

—— negligence in the handling of

corpses

In short, virtually all of the cases allowing a recovery

for negligent infliction of emotional distress involved an

4

act that was independently tortious, such as a physical

impact, injury to another individual, damage to property,

or other tortiously negligent conduct. None of these

common law rules establish a general duty to refrain from

negligently inflicting emotional distress.

Rather, the common law imposes only a duty to

refrain from intentional infliction of emotional distress.

Even that cause of action is a com ively recent

development. “Because of the fear of fictitious or trivial

claims, distrust of the proof orfered, and the difficulty of

setting up any satisfactory boundaries to liability, the law

has been slow to afford independent protection to the

interest in freedom from emotional distress standing

alone." Restatement, supra, § 46 comment b.

Moreover, the cause of action for intentional infliction

of emotional distress is further limited by a requirement of

extreme and outrageous conduct by the defendant. See

Restatement, supra, § 46(1); Atchison, T. & S.F. Ry. Co.

v. Buell, 480 U.S. 557, 568 n.16 (1987); Eastern Airlines,

Inc. v. Floyd, 111 S. Ct. 1489, 1502 (1991). “It has not

been enough that the defendant has acted with an intent

which is tortious or even criminal .. . ." Restatement,

supra, § 46 comment d.

These common law principles, however, were not

applied by the court below. The cases under review

involved neither intentional infliction of emotional distress

nor one of the exceptions to the common law rule barring

recovery for negligently caused mental stress. As

discussed below, a rule permitting recovery for emotional

distress caused by mere negligence, by removing the

carefully drawn boundaries of the common law, would

have severe detrimental effects.

5

Il. THE DECISIONS BELOW WOULD RENDER

EMPLOYERS’ LIABILITY UNPREDICTABLE

AND THEREFORE MORE DIFFICULT TO

INSURE

the exi of care, ay TH

a cause Sapa aka ey ma a

railroads. Moreover, the availability of such a cause of

action under FELA could influence lower courts in non-

FELA tort and workers’ compensation cases to recognize

the cause of action as well, with problematic results for

employers and ultimately for consumers and hoo gr ees.

See generally George D. Bussey, Mental " Claims

and Workers’ PR ge ye The pa Ai and

Suggestions for Change, 43 Federation of Ins. & Corp.

comtuaie te Mb few thon 8 whee

r M es

Sciences and the Law 349 (1990); Sara J. Sersland, Mental

Disability Caused By Mental Stress: Standards of Proof In

Workers’ Compensation Cases, 33 Drake L. Rev. 751

(1983-84).

Workplace mental distress is far more difficult for an

employer to predict and guard against than physical injury.

The occurrence of physical injuries, which have a clear

physical cause and effect, does not , 5. mainly on

ividual characteristics of the victim. rrence of

emotional injuries, on the other hand, ee gms ft

such characteristics. See Marc A. Antonetti, Labor

Workers’ Compensation Statutes and the "Recovery of

Emotional Distress Damages In the Absence of Physical

Injury, 1990 Ann. Surv. Am. Law 671, 672. "Where a

workman loses a finger becaur= of an errant of

machinery, the ascertainable i» = and the work-related

cause are direct and simple. E _sver, emotional distress

so related." Archer v. Indus. Comm’n, 619 P.2d 27 (Ariz.

6

Ct. App. 1980). A worker’s “personal subjective

vulnerability" determines his or her reaction to job stress.

Sersland, supra, at 757. Moreover, “One can’t know how

an employee will cope with a stressful job without knowing

the quality of his or her — ae s." Stress and

Distress, Harv. Bus. Rev., July/Aug. 1993, at 9.

From the employer’s point of view, the principal

difficulty arising the murky lines of causation in

mental stress is not the post hoc problem of determining

responsibility for it. While claims based on mental stress

do present serious evidentiary difficulties, the real problem

is that of predicting stress before the fact. Given the

highly individual nature of responses to stress, an employer

who is under a duty to exercise reasonable care to protect

employees from job stress cannot do so except by cutting

stress across the board -- a goal that could be achieved, if

at all, only through revolutionary changes in the

workplace. The fact is that a great many jobs, from

restaurant kitchen work to heart surgery, from e

school teaching to litigating, are inevitably stressful.

Nor is it any answer to say that the standard of care

could be based on the expected responses of a "reasonable"

employee rather than those of the actual employees; the

problem lies precisely with the wide range of stress

responses to be found in “reasonable” people. "Stress is

an elusive phenomenon, determined by motivations and

incentives. My stress may be your ." Derik R.

Girdwood, cok + I Collect ge A

Compensation Benefits If My Job Drives Me Crazy?,

Detroit Coll. L. Rev. 591, 610 n.92 (quoting Reading This

a Cause You Stress, Bus. Week, Oct. 14, 1985, at

).

The unpredictability of mental distress, and of liability

for mental distress under a negligence standard, has an

important economic consequence: it will render liability

insurance or workers’ compensation insurance less

available and more costly. Insurance requires that risks be

statistically predictable over the long term. See Peter W.

7

Huber, Liability: The Legal Revolution and Its

Oe37 (1988): Kenneth S. Abraham,

Making Sense of the Liability Insurance Crisis, 48 Ohio

St. L.J. 399, 404-09 (1987). But insurers simply have no

would be necessary to price an insurance product.

The result of higher insurance premiums would be to

increase employment costs, and perhaps to reduce

employment, in numerous blue collar and white collar

fields. It is therefore unsurprising that state legislatures

supra, at 689; Bussey, supra, at 141 n.241.

In the absence of some form of physical impact, the

approach of the common law to claims for mental stress

has been to draw the line at those intentionally caused by

ou conduct. ee eee ares &

the courts to the most egregious situations, b

many of the concerns raised by emotional distress claims.

When there is evidence that the defendant acted with the

intention of provoking emotional distress, it is at least clear

that the defendant saw a potential causal relationship

between his or her conduct and the plaintiff's reaction.

There is also less cause to doubt the genuineness of the

plaintiff's injury. Finally, the requirement of outrageous

conduct demarcates behavior which, even if not precisely

defined, should be easily recognized by every reasonable

person.

Whereas claims for intentional infliction of emotional

distress arguably seek to bring p conflicts to court

before they erupt into less civi forms of resolution,

claims for creation of job-related stress would

make litigab og ae ions to the terms and conditions of

through other means, including discussions with

supervisors, individual contract negotiations, grievance

procedures and collective bargaining, and existing

8

legislation directed at the most serious abuses.

Recognition of a cause of action for negligent infliction of

emotional distress, when the common law had

pe claims for outrageous, intentional conduct, would

expand liability in ways that would be unpredictable,

uninsurable, and unwise.

Il. ANY DECISION TO RECOGNIZE A CAUSE

OF ACTION FOR NEGLIGENT INFLICTION

OF EMOTIONAL DISTRESS UNDER FELA

SHOULD BE MADE, IF AT ALL, ONLY BY

CONGRESS

The Third Circuit’s decisions not only represent

unsound policy, but also plunge the judicial branch into an

area in which is better equipped to act. Any

regulation of 1 conditions in the workplace should

proceed on an incremental basis and with careful

adjustment between protection of Sepoctoune'ss Oleh ees and upheaval

of workplace the state and

federal level shows — Ee these judgments are

quintessentially legislative and can be handled through

legislative action where apprupriate.

In states where claims for workplace stress have been

recognized at all, eee eee

context of a comprehensive scheme workers’

ya age where the claim is narrowly O“iefined and

damages are specifically limited by law. Even so, a

number of legislatures have amended their workers’

compensation laws to overturn or limit judicial decisions

that allowed claims for workplace stress. For example, the

Massachusetts legislature overturned a decision that

permitted claims based on distress arising from ordinary

business operations such as personnel transfers. See

Antonetti, supra, at 689-90. The Michigan legislature

overtumed a decision allowing claims where the employee

merely believed that his or her mental injury resulted from

job stress, regardless of whether it actually did. Jd. at

692-93. Numerous other have also crafted

restrictions on workplace stress claims. Jd. at 695 &

pn 7 a ee ing based on policy

is through legislative

ao,

At the federal level, Congress has frequently enacted

legislation to address sources of workplace stress.

=a cediee Veiotet engiapment

suieal aed extes of coalect or

prescribed specific rules of For

imple, Tile Vif of the Civil Rights, Act of 196, 42

. § 2000e-2, prohibits discrimination in employment

= 6s ae color, religion, sex, or national

origin; the Americans With Disabilities Act, 42 U.S.C.

§ 12112, prohibits discrimination on the basis of an

employee’s disability; the Age Discrimination in

Employment Act, 29 U.S.C. §§ 623, 631, prohibits age

discrimination against individuals between 40 and 70 years

old; and the Discrimination Act, 42 U.S.C.

§ 2000e(k), i discrimination based on an

cployee’s pregnancy Each of these statutes prohibits a

type of conduct y to produce emotional distress and

provides a defined remedy.

Similarly, the Family and Medical Leave Act, Pub. L.

No. 103-3, 107 Stat. 6 (1993), entitles employees to take

up to 12 weeks of unpaid leave in a 12-month period on

account of childbirth, care of a close relative with a

serious health condition, or the employee’s own serious

health condition. The Occupational Safety and Health Act,

29 U.S.C. #6 651-78, regulates workplace conditions

bearing on employees’ health and saf The Fair Labor

Seats Aste U.S.C. §§ 207, 212, lates, inter

alia, overtime compensation and the use child labor.

These statutes, too, target sources of emotional distress in

the workplace.

Moreover, unlike nae law courts, a legislature

that seeks to regulate workp stress can delegate power

to an administrative body with the ability to gather

information and develop expertise concerning the practices

it is to regulate. State workers’ compensation programs

10

are administered by workers’ compensation boards. See,

e.g., Girdwood, supra, at 598. The various federal

statutes are likewise administered by Executive Branch

agencies such as the Equal Emplo Opportunity

Commission, 29 U.S.C. § 633a(b), 42 U.S.C. §§ 2000e-

4, 2000e-5, and the Department of Labor, 29 U.S.C.

§ 216.

Thus, judicial recognition of a general cause of action

under FELA for negligent infliction of emotional distress

would not only bypass the judgment of Congress as to

which kinds of workplace stress should be .

but would also bypass the agencies in which Congress has

vested responsibility for regulating workplace conditions.

IV. THE DECISIONS BELOW IMPROPERLY

DISREGARDED COMMON LAW _eiIN

PERMITTING A RECOVERY FOR MENTAL

DISTRESS ABSENT PHYSICAL INJURY OR

DANGER OF PHYSICAL INJURY

This Court should adopt the overall common law

position, consistent with its statement in Buell, by

declining to impose a general duty to refrain from

a en ee Because Carlisle

and were decided incorrectly below under any of

the common law rules, whether the physical impact rule,

the zone of danger rule, or the variation allowing recovery

by a close relative bystander, those decisions should be

reversed regardless of the specific rule that this Court

adopts.

In Carlisle, plaintiff complained of general work-

related stress resulting from outdated i , long

hours, and other factors. Pet. App. A-74-75, A-87. The

Third Circuit, upholding "for the first time" a recovery

based on “negligent infliction of emotional distress arising

from work-related stress," declined to apply any of the

common law rules circumscribing the aanions

damages. Pet. App. A-89. woh Be i

from common-law developments,” the Third Circuit went

|

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Most of the conduct cited plaintiff iff as a basis for his

claimed -- forcing iff to work while his

friend’s body lay beside the track, working the men “even

harder" the day -- plainly insufficient to

il

he might ~»ffer the same fate superficial examination,

this sufficient to bring plaintiff himself within

the zone of , within the meaning of that test

a

mene

ie nite

3 Hii it

UTR

isis

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HHH HE

-~

it

For the foregoing reasons, the judgments of the court

of appeals should be reversed.

Respectfully submitted,

Charles G. Cole

David A. Price

2009 Massachusetts Ave... NW STEPTOE & JOHNSON

i 1330 Connecticut Ave., NW

tow x D.C. 20036

(202) 429-3000

, D.C. 20036

Daniel J. Popeo

FOUNDATION

Paul D. Kamenar

WASHINGTON LEGAL

Wash

(202) 5

Date: November 24, 1993