Petition for Writ of Certiorari — Ferguson v. CSX Transportation

Supreme Court, U.S.

FILED

991 714 APR 25.2000

No. 99- OFFICE O£ IHE CLERK

IN THE

Supreme Court of the United States

RONALD T. FERGUSON,

Petitioner,

v. -

CSX TRANS INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

ae eaummbenietemaae ae ct ene

A RR RR NNN ner

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE R. COHAN

Counsel of Record

ANAPOL, SCHWARTZ, WEISS, COHAN,

FELDMAN & SMALLEY, P.C.

Attorneys for Petitioner

1710 Spruce Street

Philadelphia, PA 19103

(215) 790-4567

159265 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

l

QUESTIONS PRESENTED

1. May a court grant a motion for summary judgment

in a Federal Employer’s Liability Act case for the negligent

infliction of emotional distress where there exists a genuine

issue Of material fact on the “zone of danger test” issue:

namely whether Plaintiff, a 30 year employee of Defendant

railroad, who suffered from severe emotional distress which

was directly caused by the threat of immediate physical harm

when Defendant’s employee threw rocks and a 2x4 at

Plaintiff from just a few feet away and concurrently while

the Defendant’s employee was verbally threatening to kill

Plaintiff, his wife and children, and to burn down his home,

was in the “zone of danger”?

2. May a court grant a motion for summary judgment

when the uncontroverted Affidavits of Plaintiff and

Plaintiff's treating psychiatrist and the report of Plaintiff's

expert psychiatrist raise a genuine issue of material fact in -

stating that Plaintiff's emotional distress was caused by the

verbal and physical threats Plaintiff encountered during the

rock and lumber throwing incident?

TABLE OF CONTENTS

Questions Presemfe@ «....isscessn eee ee

Table of Comtem@t «cs sas cxuueess eee

Table of Cited Authorities ....................

Table of Appendices ETOP ro Bs Be

Opmmons Below .........55<6a0 se ieee

Statement Of Juriadaotaem .. 6.6... saan ev enens

Statutory Provisions Involved .................

Statement Of The Case ..5 0525555555 eee

A. The Proceedings Below ................

B. Background of the March 1, 1999 District

Court Judgmemt ...xcsiscs 0hae ee

Reasons For Granting The Writ ................

I. The Petition Should Be Granted Because The

Opinions Below Conflict With This Court’s

Prior Rulings On The Standard For Summary

JUGQMOMR. . onic iakseree eee

16

16

ul

Contents

Page

II. The Petition Should Be Granted Because the

Opinions Below Conflict With This Court’s

Prior Rulings On the “Zone Of Danger” Test

As Established Under FELA and Gottshall.

ee ewes ala aa ei ee Pee eae 17

A. The Courts Below Committed Error in

Ruling That Mr. Ferguson was not in the

“Zone of Danger” and That Therefore

His Emotional Distress Could Not Have

Resulted From His Fear of Imminent

i, be eae 18

B. The Uncontroverted Affidavits of Mr.

Ferguson’s Treating Psychiatrist and

Expert Psychiatrist Establish the Cause

of His Emotional Injury, The Physical

Confrontation With Deery. .......... 23

tr rena cy ad aln ea ad mae els 25

TABLE OF CITED AUTHORITIES

Page

Cases:

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) .. 16, 17

Bianco v. Philadelphia, Bethlehem and New England

Railroad Company, 1995 WL89036 (E.D. Pa.)

VEE Te Pee mae eee ee Oe eee ee Pre 21

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .... 16

Consolidated Rail Corporation v. Gottshall, -

S12 U.S. 532, 114 $. Ct. 2396 (1994) ........ passim

Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72

RE Aa aR eR ae ees 18

Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d

Fat US. PROG Cor. T9GG) oes occ ns caves es 16, 17

Marinari v. Asbestos Corp., 417 Pa. Super. 440

REE hs ks cay a Vine a-a ie ee a ae eee ee eee 22

Metro-North Commuter Railroad Company v.

Bacay, 137 BS. CA. ZEUS GFF) 2. ccc. ey. We

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77

S. €h. 443, oop we FU) ree 19

shee Shi ceatial

Aas RT WORN eA Ss SEIN RR 8 Nt

Cited Authorities

Statutes:

SELLS. © Seen oso kk ease ee ee ee

SUB. A: 2 Ft. oss riers ae

Rule:

Fed. R. Civ. P. 56(c)

Page

1.2

vi

TABLE OF APPENDICES

Page

Appendix A — Judgment Of The United States Court

Of Appeals For The Third Circuit Dated January

By BOD oc vcvcvacaatessesuckaeuss eee la

Appendix B — Memorandum And Order Of The

United States District Court For The Eastern

District Of Pennsylvania Dated And Filed

Fouruary 26, 1900 .scco0cs tenner eee 3a

4

i

;

i

;

4

l

Petitioner, Ronald T. Ferguson, respectfully requests that

a writ of certiorari be issued to review the judgment of the

United States Court of Appeals for the Third Circuit in this

case.

OPINIONS BELOW

The judgment of the United States Court of Appeals for

the Third Circuit is listed in a Table at Ronald T. Ferguson

v. CSXT, Inc., __ F.3d __ (3d Cir. (Pa.) January 26, 2000)

(Table, No. 99-1247) (Text Not Available on Westlaw). The

opinion of the district court in Ronald T. Ferguson v. CSXT,

Inc., Case No. 99-1247 (March 1, 1999), can be found at

36 F. Supp.2d 253.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit (“Court of Appeals”) was entered on

January 26, 2000.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The Federal Employer’s Liability Act (“FELA”)

provides that “[e]very common carrier by railroad . . . shall

be liable in damages to any person suffering injury while he

is employed by such carrier ... 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 .. .”

45 U.S.C.A. § 51.

Petitioner, Ronald Ferguson, filed this claim for the

negligent infliction of emotional distress pursuant to the

standard set forth in the case of Consolidated Rail

2

Corporation yv. Gottshall, 512 U.S. 532, 114 S. Ct. 2396

(1994) and its progeny. FELA is a Federal Statute, therefore

the United States District Court for the Eastern District of

Pennsylvania had original jurisdiction.

STATEMENT OF THE CASE

There are two fundamental questions in this case. The

first is whether a court may grant a motion for summary

judgment in a Federal Employer’s Liability Act case for the

negligent infliction of emotional distress where there exists

a genuine issue of fact on the “zone of danger test issue:

namely, whether the Plaintiff, a 30 year employee of

Defendant railroad, who suffered from severe emotional

distress which was directly caused by the threat of immediate

physical harm when Defendant’s employee threw rocks and

a 2x4 at Plaintiff from just a few feet away and concurrently

while the Defendant’s employee was verbally threatening to

kill Plaintiff, his wife and children, and to burn down his

home, was in the zone of danger.

The second fundamental question is whether a court may

grant a motion for summary judgment when the

uncontroverted Affidavits of Plaintiff and Plaintiff's treating

psychiatrist and the report of Plaintiff's expert psychiatrist

raise a genuine issue of material fact in stating that Plaintiff's

emotional distress was caused by the verbal and physical

threats Plaintiff encountered during the rock and lumber

throwing incident. To fully appreciate the significance of

the issues presented by this case, it is essential to consider

its lengthy procedural background.

A. The Proceedings Below

Appellant, Ronald Ferguson, (Plaintiff below,

hereinafter “Mr. Ferguson’) filed this claim for negligent

FPR SRA A IAA Ti PI ak

3

infliction of emotional distress in June of 1997 pursuant to

the Federal Employer’s Liability Act, 45 U.S.C.A. § 51

et seq., (hereinafter “FELA”’) and, more specifically, based

upon the standard articulated in Consolidated Rail

Corporation v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396

(1994) and its progeny.

Since the events which gave rise to this matter, Mr.

Ferguson has suffered from major depression and a severe

anxiety disorder which has required ongoing psychiatric care,

including hospitalizations for psychiatric instability. These

psychiatric conditions are a direct result of a face-to-face

confrontation with an employee of Appellee, CSX

Transportation (Defendant below, hereinafter “CSX”’).

(See Appendix pages 1-9, the medical reports of Roy

Fitzgerald, M.D., Mr. Ferguson’s expert psychiatrist, and

Appendix pages 10-15, the medical reports of Dr. Satyendera

Diwan, Mr. Ferguson’s treating psychiatrist, and Appendix

page 16, Dr. Diwan’s sworn Affidavit) (References

throughout this petition are referring to the Third Circuit

Appendix). This CSX employee, Larry Deery (hereinafter

“Deery”) threw rocks and an eight foot two by four

(hereinafter “2x4”) at Mr. Ferguson, thereby threatening

imminent physical harm and causing Mr. Ferguson to fear

for his life. Deery also simultaneously made terroristic threats

against Mr. Ferguson’s life and his family’s life and well-

being.

For years, Deery had displayed dangerous and vicious

habits, and was known by CSX management, as well as

multiple employees of CSX, to have repeatedly threatened

physical bodily harm to CSX employees. Deery, a man of

about 6' 4" weighing between 250 and 260 pounds, also

exhibited other violent behaviors, all known to CSX

management. Ferguson filed suit against CSX under FELA

for negligent infliction of emotional distress based on the

4

rock throwing incident which was caused directly by CSX’s

failure to provide a safe work place.

At the close of discovery, CSX filed a Motion for

Summary Judgment based primarily on the United States

Supreme Court ruling in Consolidated Rail Corporation v.

Gottshall, 512 U.S. 532, 1148S. Ct. 2396 (1994), which sets

forth the standard for evaluating claims under FELA for

negligent infliction of emotional distress. This is also the

case which forms the legal basis for Plaintiff's claim.

Gottshail is analyzed in detail, in the context of this case, in

Mr. Ferguson’s Reasons For Granting Writ, II, infra.

It remains Mr. Ferguson’s contention that Mr. Ferguson

was placed in the “zone of danger” as defined by Gottshall

when CSX’s long-term employee, Deery, threw rocks and a

2x4 at him, intending to grievously injure Mr. Ferguson.

These attempts by Deery were part of along standing pattern

of violence and abuse perpetrated by Deery upon his fellow

CSX workers. This history was well known to CSX. When

Deery combined his propensity for threats, including

threatening to kill Mr. Ferguson and his family, with actual,

direct violent acts intending to cause Mr. Ferguson very real

physical harm, Mr. Ferguson suffered the emotional injuries

for which he has made this claim.!

1. CSX’s version of the facts in its Summary Judgment Motion

was based on a gross mischaracterization of what actually occurred

on August 21, 1996, on what had occurred before that date, and on

the harm caused Mr. Ferguson by CSX’s negligent failure to

terminate or control a known violent employee. CSX uses

Mr. Ferguson’s deposition testimony in a very unfair and misleading

fashion, by picking and choosing quotations out of context in an

attempt to bolster its arguments. Further, counsel for CSX never

asked Mr. Ferguson if he was in fear for his life, or in fear of

(Cont'd)

5

The District Court in reviewing CSX’s Motion for

Summary Judgment and Mr. Ferguson’s Response thereto,

stated that Mr. Ferguson had for the purposes of the

underlying Summary Judgment Motion met his burden

regarding negligence. (See Court Order from Summary

Judgment). The Court agreed that CSX had notice or

knowledge of its employee’s exhaustive history of

threatening behavior. /d. In spite of its belief that the incident

between Ferguson and the CSX employee was foreseeable,

the Court ruled that Ferguson was not in the “zone of danger”

as defined by Gottshall during his face-to-face confrontation

with Deery. In granting CSX’s Motion for Summary

Judgment, the District Court failed to consider the Affidavit

of Plaintiff, Ron Ferguson (Appendix page 33), his treating

psychiatrist, Dr. Diwan (Appendix page 16) or the reports

of Plaintiff’s expert psychiatrist, Dr. Roy Fitzgerald

(Appendix pages 1-9). The District Court’s Order granting

summary judgment was entered on March 1, 1999.

(See Appendix pages 107-117).

Plaintiff filed a Notice of Appeal on March 17, 1999 to

the United States Court of Appeals for the Third Circuit.

(See Appendix at page 118). On Appeal, the Court upheld

the District Court’s opinion and affirmed the District Court’s

judgment, without commenting on or distinguishing the

Court’s decision. The Court of Appeals’ Order was entered

on January 26. (See Appendix at page 119).

ss

(Cont'd)

imminent physical harm or injury, when Deery was hurling rocks

and a 2x4 at him and threatening him with a multitude of terroristic

threats. See Affidavit of Ron Ferguson at Appendix page 33.

6

B. Background of the March 1, 1999 District Court

Judgment

Mr. Ferguson filed his Complaint in June of 1997

stating a claim for the negligent infliction of emotional

distress caused by CSX Transportation. (See Plaintiff's

Complaint at Appendix pages 17-24). The parties engaged

in extensive discovery, involving the depositions of 15

witnesses. The facts reflect a history of incidents of

violence and dangerous behavior by Larry Deery, a long-

standing employee of CSX. (See summary contained in

Plaintiff's management expert, Dr. Ryberg’s report, at

Appendix pages 25-32). Having permitted Deery’s

conduct to continue unabated, CSX permitted the

foreseeable, ultimate violent episode involving Ronald

Ferguson. Because the scope of review for this Court ts

de novo, a somewhat lengthy presentation of the facts is

necessary.

Mr. Ferguson was frightened and terrorized while

under a barrage of rocks and an eight foot 2x4 thrown

from less than five feet away by Deery, who stands 6’ 4"

and between 250 and 260 pounds, while Deery

simultaneously threatened, with obscenities and gestures,

to kill him, to burn down his home, to kill his family and

to cause him ultimate physical injury.

In more detail, the incident occurred as follows: On

August 21, 1996, Deery, a yardmaster working for CSX,

approached Mr. Ferguson, who at the time was on duty

and on company grounds, and began screaming

obscenities and threats directed at Mr. Ferguson. Deery

threatened to kill Ferguson for “ratting his brother Phillip

—— ee

5

out” to the train master, Rich Trincia. (See page 47 of

Mr. Ferguson’s deposition transcript at Appendix pages

38-53). Deery continued to scream at Ferguson and

threatened to burn his home down and kill his family for

what he had allegedly done to Deery’s brother Phillip. Deery

continued to rant and rave for about five to ten minutes before

picking up rocks and throwing them directly at Ferguson.

At one point, Deery picked up a 2x4 piece of lumber and

threw it at Ferguson, intending to do him bodily harm.

(See page 42 of Mr. Ferguson’s deposition transcript at

Appendix pages 38-53. Also, see Mr. Ferguson’s statement

at Appendix pages 34-37).

Mr. Ferguson could not specify the velocity of the 2x4,

but he was clearly frightened by it. (See page 172 of

Mr. Ferguson's deposition transcript at Appendix pages 38-

53). In spite of the immediate shock and fear experienced

by Ferguson, he managed to avoid being hit by the rocks

and the 2x4. (/d. at 42 ). While a fence separated Deery and

Ferguson, at one point Deery was within three feet of

Ferguson and “he (Deery) had his nose through it (the

fence).” (/d. at 136). Deery continued to challenge Ferguson

to come over to him, saying that he would kill his family

and burn his house down.

Apparently, Deery was enraged by Ferguson because in

or about March or April of 1996, Ferguson had reported

Phillip Deery, Larry Deery’s twin brother, to the assistant

trainmaster, Rich Trincia, for a safety violation. Thereafter,

for the next month or month and a half, Ferguson had no

problems or issues with Phillip Deery. Problems did,

however, develop between Larry Deery and Mr. Ferguson

at that time. Specifically, on two occasions, Deery threatened

8

to kill Mr. Ferguson for reporting his brother. (See pages 72

and 73 of Mr. Ferguson’s deposition transcript at Appendix.

pages 38-53). These threats were not face-to-face threats but

were made over the hand held radio, to Philip Deery, but

overheard by Mr. Ferguson. (/d. -at 72-73). While these

threats were clearly unsettling to Ferguson, there was no

imminent threat of physical harm, and, therefore, Ferguson

was not particularly bothered by them.

Moreover, Mr. Ferguson continued to work in spite of

the verbal threats Deery had issued over the radio. It should

be noted that when Deery verbally threatened Ferguson over

the radio, Ferguson did not suffer any emotional breakdown.

It was not until Deery threatened him with imminent physical

harm by throwing rocks and a 2x4 at him in the face-to-face

confrontation on August 21, 1996 that Ferguson suffered an

emotional breakdown.

Mr. Ferguson has a long history as an emotionally stable,

hard working employee. He began working for the railroad

in 1966. He worked for roughly 25 years for CSX

Transportation, first as a fireman and later as an engineer.

He received several letters of commendation and a service

award for his performance at CSX. (See Appendix pages

54-56, letters of commendation and letter of service award).

According to John Allen (hereinafter “Allen’’), the terminal

manager, Ferguson was a good employee who was quiet and

caused no problems. (See John Allen’s deposition at

Appendix pages 57-68). In 1991, Ferguson was diagnosed

with Non-Hodgkins’s lymphoma, and was quite ill for some

time with this life threatening disease. He was forced to stop

working and go on disability. He received a bone marrow

transplant and participated in multiple chemotherapy

9

programs. (See Dr. Fitzgerald’s report dated February 25,

1997 “Background Information” as seen at Appendix pages

1-9).

Mr. Ferguson ultimately overcame his bout with cancer,

and instead of remaining permanently disabled as he could

have, he voluntarily chose to return to work as an engineer

for CSX Transportation in late 1993. Throughout his bout

with cancer and near death experience, Mr. Ferguson

remained emotionally strong. He at no time required

psychiatric care, and, in fact, developed a new more

optimistic and positive outlook on life following his

recovery. (See Dr. Fitzgerald’s report dated February 25,

1997 at Appendix pages 1-9). This is clearly not a man who

would seize on any excuse not to work.

He enthusiastically returned to CSX Transportation in

late 1993, but found that a completely new and distasteful

work atmosphere had developed during his two plus year

absence. CSX management appeared to tolerate vulgarity,

verbal abuse, intimidation and other negative behavior from

its employees, and, in particular, from Larry Deery.

(See pages 85-86 of Mr. Ferguson’s deposition transcript at

Appendix pages 38-53 . Also, see summary submitted by

Plaintiffs expert, Dr. Ryberg at Appendix pages 25-32).

Upon Ferguson’s return, he was shocked to learn of an

incident as described below involving Deery and Russell

Marando (hereinafter “Marando”), another employee of CSX

Transportation, in which Deery explicitly threatened

Marando. Specifically, in August of 1993, Deery was being

investigated for leaving work without authority. Prior to the

investigation hearing, Deery called Marando on the telephone

and threatened him and his family with bodily injury if

Marando showed up at the hearing concerning Deery.

10

en ee

(Appendix pages 69-73 is the narrative report of Defendant,

CSX police concerning the police investigation of threats

by Deery dated August 11, 1993).

Marando advised CSX police that Larry Deery:

In an intimidating manner, calls me on the

telephone at home. He made reference to my

children, asked me if J had children, told me not

to show up on August 3, 1993 for the

investigation, that there was only one way in and

out of Wilsmere, that he had to buy some bullets,

that he may as-well go to jail if he can’t have his

job.

Larry Deery advised Mr. Marando that, “He can

get three square meals a day in jail, he has only

known two places in this world, one of them was

jail and one was the Railroad, and he couldn’t go,

if he couldn’t work on the Railroad, he might as

well go to jail.”

2. The following is an additional exchange between Marando

and Defendant CSX police investigating this incident:

Q: In the last two years, have you known Larry to be a

violent or unstable person, that displayed tendencies

to be violent or threatening people?

A: Oh yeah. All the time. It seems like it’s a regular

thing. He intimidates people all the time.

Q: And do you honestly feel that he is capable of any

violence towards you? :

A: I believe he has threatened me, yeah, he has

threatened me at work here. To beat the crap out of

(Cont’d)

1]

At about the same time, CSX police also interviewed

assistant trainmaster Richard Trincia. Mr. Trincia

informed the CSX investigating officer that, “I have tried

to handle Mr. Deery in the past, however, he has just

gotten too far out of hand. At times, he acts like he’s

~ crazy or something.” /d. CSX police reported that “He

(Rich Trincia) was tired of all the annoyance and

problems this boy has caused down here. ‘There is

something going on all the time involving this guy.’ ”

/d. It is critical to note that this shocking conduct is part

of Defendant’s own records, and pre-dates the actions

which are the subject of this case. This history is of

critical importance with respect to gaining an

understanding that Deery’s violent actions towards

Ferguson were real, not imagined, and that Ferguson’s

physical well-being was threatened on the day in question.

In spite of the terroristic threats Deery made to

Marando in 1993, CSX management never formally

(Cont'd)

me, or to use more specific terms “beat the living

shit out of me,” or he has made threats here in the

yard office, in reference to the postal, if anybody

would remember the postal workers. Or how they

take care of people they don’t like, or something to

that effect. You know they go in and shoot them

and he had made mention of that several times here

on the property.

Q: How do you basically, what I am saying is, how do

you feel, do you feel he is going to come and get

you, or is he, has he left you with that feeling?

A: I feel like this, I have told several people that are

close to me, that if anything happens to me,

remember his name, so what does that tell you.

12

investigated those allegations.’ In fact, other than the CSX

police investigation summaries attached hereto, there is no

evidence of any kind that CSX management did anything

with respect to these terroristic threats which were part of

an ongoing pattern of conduct. (See Dr. Ryberg’s report at

Appendix pages 25-32).

Multiple CSX employees and management personnel

testified at their depositions that Deery was constantly

insubordinate to CSX management personnel, acted with

vulgarity towards co-employees, was intimidating towards

co-employees, destroyed company property, vandalized

company property, and, among other things, made physical

threats and racial slurs to individuals on company grounds.

(A multitude of examples are outlined in Dr. Ryberg’s report

at Appendix pages 25-32).*

3. At his deposition, Allen testified that he was unaware of

Deery’s threats to Marando and, further, that unless both employees

were on company property and on duty, CSX police had no reason

to report these threats to CSX management. (See pages 24-26 of

John Allen’s deposition transcript at Appendix pages 57-68). In

August of 1993, Deery, at a formal investigation hearing, was

discharged from service for leaving work without authority.

(See report of CSX investigation/board of inquiry/hearing dated

August 23, 1993 at Appendix pages 76-78). Ultimately, Deery filed

an appeal of his dismissal, and based upon management’s failure to

properly prosecute Deery, Deery was permitted to return to work

with full back pay in 1994. (See Public Law Board No. 5529 dated

October 10, 1994, Award No. 5 reinstating Larry Deery at Appendix

pages 79-80). -

4. By example, Theresa Brown, an assistant trainmaster and

occasional supervisor of Deery, testified that she believed Deery

had a problem with women on the railroad and with her being his

boss. (See pages 14-15 of deposition transcript of Theresa Brown at

Appendix pages 81-86). Ms. Brown further testified that the

(Cont'd)

13 ;

There were many other incidents involving threatening

and/or violent behavior by Deery. (See Appendix pages

25-32).° However, this behavior was ignored by CSX

management, and thus CSX management simply failed to

(Cont'd)

following message was next to her name on a CSX computer:

“IT was sucking cock.” (/d. at 13). Ms. Brown advised CSX

management that she believed the message was from Larry Deery.

(/d. at 14, 17-18).

5. By further example, Richard Trincia also testified that he

repeatedly discussed Deery’s behavioral problems with Deery’s

direct supervisor, Allen. (See pages 40-43 of Richard Trincia’s

deposition transcript at Appendix pages 87-96). Specifically, Trincia

believed Deery took a fire extinguisher off the wall and sprayed it

all along the walls, the ceiling, the floor and computers.

(/d. At 40-41). He believed Deery trashed company computers and

tampered with CSX air conditioners. (Jd. At 40-42). Trincia testified

that the day after Deery returned to work, printers were destroyed.

(/d. At 43). There is no indication anywhere in the record that CSX

followed up with any investigations of these allegations. Trincia

additionally testified that in 1989 or 1990, Deery literally broke

into his office. (Jd. At 65-66). He broke the door of Trincia’s file

cabinet and stole his own paycheck. /d. The only discipline Deery

received for breaking into the assistant trainmaster’s office and

stealing his own paycheck was a thirty day suspension. (See pages

14-15 of John Allen’s deposition transcript at Appendix pages 57-

68). Trincia stated that the reason he is on disability for job-related

stress 1s because of the following: (1) Larry Deery, (2) the “changing

of the guard of the company” and (3) “their changing of policy.”

(/d. At 13-14).

Additionally, Pedro Perez (hereinafter “Perez”), a cleaning

contractor hired by CSX to clean its offices, testified at his deposition

that Deery threatened him with physical harm and yelled racial slurs

at him. (See pages 22-27 of Pedro Perez’ deposition transcript at

Appendix pages 97-105). Perez reported these threats to Trincia and

(Cont'd)

14

meet its responsibility and duty to provide a safe work place.

(See Dr. Richard Ryberg’s report at Appendix pages 25-32).

It is Dr. Ryberg’s opinion, to a reasonable degree of certainty,

that the multiple CSX failures to investigate, record and

report the serious Deery incidents constitute negligence on

the part of CSX. /d. This negligence caused the unsafe work

environment, resulting in the Ferguson incident, which forms

the basis for this cause of action. /d.

It is also important to note that Deery was ultimately

discharged from service by CSX as a direct result of his

assault of Ferguson on August 21, 1996. (See notice of

discharge at Appendix page 106). In fact, the bulk of

Ferguson’s allegations were confirmed by various witnesses

who testified at Deery’s formal investigation, which occurred

almost one year after the incident. /d. There has never been

a question by anyone associated with CSX concerning the

veracity of Ferguson’s allegations. John Allen insists that if

Ferguson had initially reported the incident to him he would

have “dialed 911” and had Deery “locked up.” (See pages

47 and 48 of John Allen’s deposition transcript at Appendix

pages 57-68).

Thus, the overwhelming factual evidence clearly

establishes that CSX ignored a long history of violent

threatening conduct by Deery, and created a climate of fear

(Cont'd)

Allen. (/d. at 27). In spite of Perez’ complaints, Deery continued to

harass Perez and his employees when Perez or his employees would

attempt to do their jobs. (See pages 35-36 at Appendix pages 97-

105). Allen admits that Perez reported to him that Deery screamed

obscenities and racial slurs at Perez, but had no recollection of Perez

reporting threats of physical harm. (See pages 39-40 of Allen’s

deposition at Appendix pages 57-68). Allen admits to discussing

the incident with Deery but chose not to document the incident.

(/d. at 40 and 41).

15

and frustration among its employees, including

Mr. Ferguson. The incident involving Mr. Ferguson was

entirely foreseeable.

The District Court recognized that Deery had an

extensive record:

The record is replete with examples of numerous

problems Deery had with other co-workers during

his tenure at CSX. In fact, Plaintiff exhaustively

describes Deery’s various past indiscretions and

boorish behavior by citing to the depositions of

several CSX employees. Thus, it is clear from the

record that CSX had knowledge or notice of

Deery’s indiscretions and threatening behavior.

Furthermore, for the purposes of this motion, the

Court finds that CSX had notice of Deery’s past

behavior and it was foreseeable that the-August

21, 1996 incident could occur. (See Opinion).

Further, it is Mr. Ferguson’s contention that his injuries

resulting from this incident were equally foreseeable. Most

important, the uncontroverted Affidavits of Mr. Ferguson’s

treating psychiatrist states that Mr. Ferguson suffered severe

emotional distress at the hands of Deery, who attempted to

inflict actual physical harm upon him in a face-to-face

confrontation on August 21, 1996, while simultaneously

threatening him with death as well as direct physical harm.

(See Appendix at pages 10-15). Surely, this evidence raises

a genuine issue of material fact as to the cause of Mr.

Ferguson’s emotional breakdown.

16

REASONS FOR GRANTING THE WRIT

I. The Petition Should Be Granted Because The

Opinions Below Conflict With This Court’s Prior

Rulings On The Standard For Summary Judgment.

Mr. Ferguson’s petition for writ of certiorari should be

granted because the opinions of the District Court and Court

of Appeals in the instant action conflict with this Court’s

important prior rulings on the standard for summary

judgment. This Court has consistently held that to grant

summary judgment, a court must be convinced that the

prevailing party has successfully demonstrated “that there

is NO genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Jdeal Dairy

Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737 U.S. 744

(3d Cir. 1996). Anderson vy. Liberty Lobby, 477 U.S. 242,

250 (1986); Accord Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment is appropriate if “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavit, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

To grant summary judgment, a court must be convinced that

the prevailing party has successfully demonstrated “that there

is nO genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Ideal Dairy

Farms at 744. Anderson y. Liberty Lobby, 477 U.S. 242, 250

(1986); Accord Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.

Ideal Dairy Farms at 744. Anderson v. Liberty Lobby, Inc.,

17

477 U.S. at 255. Further, summary judgment may not be

granted if there is disagreement over what inferences can be

reasonably drawn from the facts, even if the facts are

undisputed. /deal Dairy Farms at 744. Further, a trial court

should not act other than with caution in granting summary

judgment and may deny summary judgment where there is

reason to believe that the better course would be to proceed

to a full trial. See Anderson at 251, 255. Any fact question

on a genuine issue of material fact will preclude the grant of

summary judgment. /d. Mr. Ferguson’s petition should be

granted so that the Court may affirm the importance of its

longstanding holdings on the proper standard of summary

judgment.

II. The Petition Should Be Granted Because the

Opinions Below Conflict With This Court’s Prior

Rulings On the “Zone Of Danger” Test As

Established Under FELA and Gottshall.

Mr. Ferguson’s petition for writ of certiorari should be

granted because the opinions below conflict with this Court’s

rulings on the “Zone of Danger” Test as interpreted from

the FELA and established in the case of Consolidated Rail

Corporation v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396

(1994). The Courts below failed to recognize that under the

standard of the FELA and Gofttshall for negligent infliction

of emotional distress, Ferguson’s evidence raises genuine

issues of material fact.

18

A. The Courts Below Committed Error in Ruling That

Mr. Ferguson was not in the “Zone of Danger” and

That Therefore His Emotional Distress Could Not

Have Resulted From His Fear of Imminent Physical

Harm.

In Consolidated Rail Corporation vy. Gottshall, 512 U.S.

532, 114 S. Ct. 2396 (1994), the United States Supreme

Court, in an opinion by Justice Clarence Thomas, recognized

that an emotional injury, even absent physical injury, is a

valid cause of action under FELA. In Gottshall, the Supreme

Court reviewed the various states’ laws regarding negligent

infliction of emotional distress and established a standard

under federal common law. The Court adopted the “zone of

danger test” and recognized a right of recovery for emotional

injury for those plaintiffs who either sustained a physical

impact as a result of defendant’s negligence or “are placed

in immediate risk of physical impact by that negligence.”

See Gottshall at 2399-2400.

In Gottshall, the district court granted defendant’s

motion for summary judgment, but the Court of Appeals for

the Third Circuit reversed. The Supreme Court found that

the Third Circuit’s standard was erroneous, because it was

not based on federal common law. In analyzing the standard

for negligent infliction of emotional distress, the Supreme

Court found that both the physical impact test and Dillon v.

Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72 (1968) “relative

bystander requirement were too restrictive®’, based on the

Congressional mandate to construe broadly and liberally

6. Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72 (1968)

allowed for recovery for negligent infliction of emotional distress

without physical impact only when a plaintiff witnessed injury to a

relative, and plaintiff himself was in the zone of danger.

ee . .

19

potential claims under FELA. Rogers v. Missouri Pacific

R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957).

In adopting the zone of danger test, the Court stated,

Based on the realization that “‘a near miss may be

as frightening as a direct hit” (Gottshall citing

Pearson, U.Fla.L.Rev., at 488) the zone of danger

test affords recovery for emotional injury to those

plaintiffs who sustained a physical impact as a

result of the defendant’s negligent conduct, or

who are placed in the immediate risk of physical

harm by that conduct.

(Emphasis added). See Gottshall at 2406. The Supreme Court

saw no reason to allow an employer to escape liability for

emotional injury caused by the apprehension of physical

impact, simply because of the fortuity of the fact that the

impact did not occur. Gottshall at 2411. Thus, railroad

employees are able to recover for injuries, physical and/or

emotional, caused by the conduct of another railroad

employee, that threatens them imminently with physical harm

when such conduct has been allowed to occur due to the

negligence of the defendant railroad. See Gottshall at 2411.

Gottshall did not address the issue of negligent infliction

of emotional distress that occurs when a plaintiff is threatened

with terroristic threats at the same time he is being threatened

with physical harm. Thus, this is a case of first impressions

under the Gottshall standard. In light of the Supreme Court’s

recognition of the Court’s duty to consider claims brought

under the FELA broadly and liberally, see Rogers v. Missouri

Pacific R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493

(1957), it seems clear that imminent threat of physical harm

combined with verbal threats to kill the victim and his family

20

should constitute a cognizable claim. The Supreme Court

stated that the imminent threat of physical harm gives rise

to a cause of action under the FELA if the victim of that

threat has been denied a safe place to work by the defendant

railroad’s negligence. It does not make sense that if the

defendant railroad’s negligence has denied its employee a

safe place to work by exposing him to both the imminent

threat of physical harm and an accompaniment of threats to

kill the employee/victim and his family, the defendant

railroad is somehow protected from the consequences of its

negligent conduct.

In its Summary Judgment Motion, CSX argued that Mr.

Ferguson failed to meet the Gottshaill threshold by suggesting

that even if Mr. Ferguson was in the zone of danger, he has

no cause of action because his emotional distress was caused

by the terroristic threats to his personal safety and to that of

his family, and not by the physical assault by defendant’s

employee Deery. Both the District Court and the Court of

Appeals agreed. In so doing, they ruled on Ferguson’s state

of mind at the time of the attack, even though uncontroverted

affidavits submitted by Mr. Ferguson and his treating

physician, and by his expert witness psychiatrist clearly

stated the exact opposite of the Courts’ findings. Defendant

offered no affidavits, or other evidence to eliminate these

questions of fact.

Moreover, since Deery was screaming death threats

while simultaneously throwing rocks and an eight foot long

2x4 at Mr. Ferguson, it would seem impossible to surgically

separate the two offenses. The CSX approach, with which

the lower courts agreed, was to simply ignore the physical

violence, i.e., the thrown rocks and 2x4. But it was the face-

to-face confrontation and the actual threats and the actual

threat of imminent physical harm, that triggered

21

Mr. Ferguson’s very real fear that Deery would then and

there carry out his stated threat of killing Mr. Ferguson, and

thereafter his wife and children. (See Appendix at page 33,

Mr. Ferguson’s Affidavit, and page 133 of Mr. Ferguson’s

deposition transcript at Appendix pages 38-53).

The evidence points directly to the conclusion that, then

and there, Ferguson was in fear of immediate physical harm

while the rocks and 2x4 were being thrown at him by Deery

from three feet away. It was the fear of being struck by the

rocks and 2x4, along with the simultaneous death threats,

that were the direct cause of the emotional breakdown which

followed. The inference must be drawn from Mr. Ferguson’s

previous behavior that it was only the threat of imminent

physical injury that caused the emotional breakdown which

kept him out of work. Cancer and previous death threats over

the telephone by the same man had failed to cause any such

emotional injury.

CSX cited two cases to support its argument that Mr.

Ferguson’s emotional condition was not caused by fear of

imminent physical harm, as required by Gottshall, namely,

Bianco v. Philadelphia, Bethlehem and New England

Railroad Company, 1995 WL89036 (E.D. Pa.) and Metro-

North Commuter Railroad Company v. Buckley, 117 S. Ct.

2113 (1997). Neither the District Court nor the Court of

Appeals mentioned either case, perhaps in recognition that

neither case is applicable to the present case, however, a

brief discussion seems appropriate.

In Bianco, the plaintiff was told that if he refused to

undergo training to operate locomotives, he would be fired.

Plaintiff refused on the ground that the training program was

no._ good, and that he would therefore cause accidents if he

were forced to operate the locomotive. The Court held that

22

the threat of physical harm was not imminent, as there had

been no accident (or even a near miss) involving the plaintiff,

nor any evidence of the inadequacy of the training program.

In the present case, of course, there is abundant evidence of

negligence on the part of management and a clear threat of

imminent physical harm from the rocks and 2x4 that were

thrown at Ferguson.

The Buckley decision involves an asbestos case. It is well

known that special rules have been fashioned in this unique

area of the law to weed out claims that are insufficient or

not ripe. While there is no specific federal common law

detailing when a plaintiff can file an asbestos-related lawsuit,

general common law principles recognize that a plaintiff who

originally suffered from a compensable non-malignant

asbestos-related disease may bring a first action upon

discovering the condition, and may bring a second action if

and when he or she develops cancer. See Marinari v. Asbestos

Corp., 417 Pa. Super. 440 (1992). Marinari recognized that

since there is no medical connection between the non-

malignant and malignant condition, a plaintiff may not

recover for speculative future damages regarding fear of

cancer in a lawsuit filed for a non-malignant condition.

The plaintiffin Buckley argued that he had a fear of future

cancer because of long term exposure to asbestos. Plaintiff

had neither asbestosis nor pleural thickening, nor any of the

indicia of a problem caused by asbestos. His claim, quite

simply, was not ripe. More importantly, an asbestos plaintiff

may bring two separate and distinct claims if the appropriate

conditions develop. Mere fear of future cancer will not

suffice.

In the present case, Mr. Ferguson’s emotional distress

is not based upon some speculative fear of future events.

23

Rather, his life was in danger in August of 1996, when Deery

threw rocks and a 2x4 at him in an effort to inflict serious

harm upon him, and he reasonably feared for his life. Clearly,

Mr. Ferguson was in the zone of danger at that time. The

sequelae to that event is a harsh reality for Mr. Ferguson,

with which he lives every day of his life. Mr. Ferguson’s

injuries are real, debilitating, and have virtually ruined his

life.

B. The Uncontroverted Affidavits of Mr. Ferguson’s

Treating Psychiatrist and Expert Psychiatrist

Establish the Cause of His Emotional Injury, The

Physical Confrontation With Deery.

Based upon the opinions of Plaintiff's expert psychiatrist

and Plaintiff's treating psychiatrist, Plaintiff has clearly met

the burden of proof as required by Gottshall. Neither the

District Court nor the Court of Appeals mentioned Mr.

Ferguson's medical documentation, and thus presumably did

not consider it. CSX submitted no medical reports

whatsoever.

The uncontroverted reports of Mr. Ferguson’s expert

psychiatrist, Dr. Fitzgerald, clearly establish the cause of

Mr. Ferguson's present emotional distress. Dr. Fitzgerald

has examined and evaluated Mr. Ferguson on several

occasions and in his report of February 25, 1997, discussed,

in great detail, the physical threats Ferguson faced at the

hands of Deery on August 21, 1996. Dr. Fitzgerald

specifically connects Mr. Ferguson’s current emotional

instability to the physical and verbal threats by Deery on

August 21, 1996. (See Appendix at pages 1-9,

Dr. Fitzgeraid’s reports). Even if CSX had to have Mr.

Ferguson examined by its own psychiatrist, (which it did

not), certainly Dr. Fitzgerald’s report would still raise a

genuine issue of material fact.

24

Additionally, Dr. Diwan fully supports Dr. Fitzgerald’s

concerning the cause of Mr. Ferguson’s condition.

Specifically, Mr. Ferguson’s treating psychiatrist, Dr. Diwan

states in his Affidavit: “I believe that the combination of the

physical and verbal threats made by Deery at Ron Ferguson,

as well as Deery’s known history of violent behavior which

caused terror and fear of immediate physical harm, directly

resulted in severe and permanent psychological damage to

Ron Ferguson.” (See Appendix at pages 10-15, emphasis

added). As stated previously, it is inconceivable that a

combination of verbal and physical threats could bar a claim

under the FELA.

CSX failed to produce any medical opinion contradicting

the opinions of Dr. Diwan and Dr. Fitzgerald that Mr.

Ferguson has sustained severe emotional-injury as a direct

result of the physical and verbal threats he faced on August

21, 1996, at the hands of Larry Deery, and, therefore, those

opinions must be accepted on the issue of causation.

Mr. Ferguson’s petition should be granted so that this

Court may affirm its holding on the “Zone of Danger” Test

which it established in the Gottshall case. Also, if the lower

courts’ interpretation of this Court’s “Zone of Danger” test

is allowed to stand, the Congressional mandate to construe

potential claims under FELA broadly and liberally will be

frustrated.

25

CONCLUSION

Plaintiff/Appellant, Ronald Ferguson, has solid evidence

supporting his claim for negligent infliction of emotional

distress under Gottshall. Mr. Ferguson was within the “zone

of danger” as defined by Gottshall when, according to his

own Affidavit and that of his treating psychiatrist, he suffered

a severe emotional breakdown as a result of risk of physical

impact when the Defendant’s employee threw rocks and a

2x4 at him while threatening to kill him, burn down his house,

and kill his wife and children. At a minimun, the Plaintiff

raises a material issue of fact as to whether his injuries

resulted from the fear of physical impact and the face-to-

face confrontation of Defendant’s employee. Accordingly,

Mr. Ferguson respectfully request that his petition for writ

of certiorari be granted.

Respectfully submitted,

LAWRENCE R. COHAN

Counsel of Record

ANAPOL, SCHWARTZ, WEISS, COHAN,

FELDMAN & SMALLEY, P.C.

Attorneys for Petitioner

1710 Spruce Street

Philadelphia, PA 19103

(215) 790-4567

APPENDIX

la

APPENDIX A — JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT DATED JANUARY 26, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1247

RONALD T. FERGUSON

Appellant,

CSX TRANSPORTATION

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civil No. 97-cv-03945)

District Judge: Honorable Eduardo C. Robreno

Submitted Under Third Circuit LAR 34.1(a)

November 1, 1999

BEFORE: NYGAARD, MCKEE and ROSENN,

Circuit Judges.

JUDGMENT

This cause came to be considered on the record from

the United States District Court for the Eastern District of

Pennsylvania and was submitted pursuant to Third Circuit

LAR 34.1(a) on November 1, 1999.

2a

Appendix A

On consideration whereof it is now ordered and adjudged

by this court that the judgment of the District Court entered

on February 26, 1999, is hereby AFFIRMED.

Costs taxed against appellant.

ATTEST:

s/ P. Douglas Sisk

Clerk

Date: January 26, 2000

3a

APPENDIX B — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA DATED

AND FILED FEBRUARY 26, 1999

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 97-3945

RONALD T. FERGUSON,

Plaintiff,

p

CSX TRANSPORTATION,

Defendant.

MEMORANDUM

EDUARDO C. ROBRENO, J. February 25, 1999

I. INTRODUCTION

Plaintiff, Ronald T. Ferguson has filed a claim pursuant

to the Federal! Employer’s Liability Act, 45 U.S.C. § 51

(“FELA”) against his former employer, CSX Transportation

(“CSX”). Specifically, plaintiff has brought a claim under

FELA for the negligent infliction of emotional distress

caused by defendant CSX. Before the Court is defendant’s

motion for summary judgment. Because plaintiff was not

4a

Appendix B

within the “zone of danger” as articulated by the United

States Supreme Court in Gottshall, defendant’s motion will

be granted.

I]. FACTS

The following facts are not in dispute or are construed

in the light most favorable to the plaintiff. On or about August

21, 1996, Larry Deery (“Deery”)', an employee of CSX who

was off-duty at the time of this incident, drove his car to the

site where plaintiff was working and began screaming

obscenities and threats directed at plaintiff. At the time,

plaintiff was working at CSX’s rail yard in Willsmere,

Delaware. According to plaintiff, Deery threatened to kill

him for reporting to a CSX supervisor some indiscretions

on the part of Deery’s brother, Phillip Deery, who was also

an employee of CSX.’ Plaintiff alleges that, for a period of

1. The record is replete with examples of numerous problems

Deery had with other co-workers during his tenure at CSX. In fact,

plaintiff exhaustively describes Deery’s various past indiscretions

and boorish behavior by citing to the depositions of several CSX

employees. Thus, it is clear from the record that CSX had knowledge

or notice of Deery’s indiscretions and threatening behavior.

Furthermore, for the purposes of this motion, the Court finds that

CSX had notice of Deery’s past behavior and it was foreseeable

that the August 21, 1996 incident could occur. Although plaintiff

may be able to satisfy this element of his negligence claim, as

discussed in full below, defendant’s motion will be granted since

CSX did not owe plaintiff a legal duty since he was not within the

zone of danger.

2. In or about March or April of 1996, plaintiff had reported

Phillip Deery to a supervisor for safety violations. Although plaintiff

(Cont'd)

Sa

Appendix B

about five to ten minutes, Deery continued to scream at him,

threatening to burn down his home and kill his family.

Initially, when the verbal abuse began, plaintiff was

standing next to a running locomotive and Deery was inside

his parked car, behind a fence, approximately fifty (50) feet

away. However, because Deery was in his car and plaintiff

was some distance away standing next to a running train,

plaintiff could not hear exactly what Deery was saying. As a

result, plaintiff began walking toward the fence separating

him from Deery. At that point, continuing the verbal assault

towards plaintiff, Deery exited his car and also walked toward

the fence separating the two individuals. According to the

plaintiff, the two were now three (3) to five (5) feet away,

still separated by the fence. After verbally threatening

plaintiff for a few more minutes, Deery picked up some rocks

and stones, as well as a 2x4 piece of lumber and threw them

at plaintiff. It is undisputed that plaintiff was not hit by any

of the objects Deery threw at him.’ Following Deery’s tirade

(Cont'd)

did not have any run-ins with Phillip Deery, Larry Deery allegedly

threatened to kill plaintiff on two previous occasions. These threats,

however, were never face-to-face threats, but were made over a

hand-held radio and overheard by plaintiff. Plaintiff admits that while

these threats were unsettling, there was no imminent threat of

physical harm.

3. Thus, it is clear that plaintiff seeks recovery for “purely

emotional claims”. The Third Circuit defines “purely emotional

claims” as a “mental disturbance unaccompanied by a contemporaneous

infliction of physical injury.” Gottshall v. Consolidated Rail

Corporation, 56 F.3d 530, 533 n.3 (3d Cir. 1995) (citing Bloom v.

(Cont'd)

6a

Appendix B

of both words and rocks, plaintiff alleges that Deery returned

to his car and made slashing motions across his throat before

driving out of the area.’

As aresult of this confrontation, plaintiff claims to have

suffered severe emotional distress. Since the incident,

plaintiff has been continuously fearful for his life and that

of his family. In addition, he has been unable to work and

has difficulty concentrating. Lastly, plaintiff has suffered

from major depression and severe anxiety disorder which -

has required long-term psychiatric care.

Ill. LEGAL STANDARD

Summary judgment is appropriate if the moving party

can “show that there is no genuine issue as to any material

fact and the moving party-is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). When ruling on a motion for

summary judgment, the Court must view the evidence in the

(Cont'd)

Consolidated Rail Corp., 41 F.3d 911, 915 n.5 (3d Cir. 1994)).

Although the Third Circuit has not decided “whether emotional

distress, to be actionable must produce accompanying physical

manifestations in reaction to the mind's disturbance”, see id., for

the purposes of this motion, the Court concludes that plaintiff has

sufficiently demonstrated an accompanying physical manifestation.

4. Although the plaintiff alleges that he presently believes that

Deery will carry out his threats to harm him and his family, it ts

undisputed that since the incident he has not heard from nor had

contact with Deery. See Dep. of Ronald T. Ferguson, at 102, 133

(“Pl.’s Dep.”). In fact, Deery was fired as a result of this incident

with plaintiff. See Pl.’s Ex. S.

Ta

Appendix B

light most favorable to the non-movant. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The Court must accept the non-movant’s version of

the facts as true, and resolve conflicts in the non-movant’s

favor. Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974

F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912

(1993).

The moving party bears the initial burden of

demonstrating the absence of genuine issues of material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once the movant has done so, however, the non-moving party

cannot rest on its pleadings. See Fed. R. Civ. P. 56(e). Rather,

the non-movant must then “make a s!.owing sufficient to

establish the existence of every eleme.it essential to his case,

based on the affidavits or by depositions and admissions on

file.” Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992);

see also Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

Furthermore, in order for a court to grant summary

judgment in a FELA negligence case, the defendant must

demonstrate the absence of a genuine issue of material fact

on at least one of the required elements for negligence and

that the issue should be resolved in its favor as a matter of

law. See, e.g., Smolsky v. Consolidated Rail Corp., 780

F. Supp. 283, 290 (E.D. Pa. 1991); Lauria v. National R-R.

Passenger Corp., No. 95-1561, 1997 WL 83767, at *3 (E.D.

Pa. Feb. 20, 1997).

Sa

Appendix B

IV. ANALYSIS

A. Recovery Under the FELA

The FELA provides that “[e]very common carrier by

railroad . . . shall be liable in damages to any person suffering

injury while he is employed by such carrier . . . 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... .”

45 U.S.C.A. § 51 (West 1986). However, FELA is not a

workers’ compensation statute and does not require railroad

employers to insure the safety of their employees. See, e.g.,

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543

(1994); Inman vy. Baltimore & Ohio R.R. Co., 361 U.S. 138,

140 (1959). Nevertheless, the Supreme Court has liberally

construed FELA to further the statute’s broad remedial goal.

Gottshall, 512 at 543.

The traditional common law negligence elements of

duty, breach, foreseeability, causation and damages apply

in an action brought under FELA. Robert v. Consolidated

Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987); see also Finley v.

National R.R. Passenger Corp., No. 95-3594, 1997 WL

59322, at *3 (E.D. Pa. Feb. 12, 1997); Lauria, 1997 WL

83767, at *2 (E.D. Pa. Feb. 20, 1997) Walsh v. Consolidated

Rail Corp., 937 F. Supp. 380, 383 (E.D. Pa. 1996). The

question in this case is whether, under the circumstances of

this case, defendant owed plaintiff a legal duty.

B. Claims for Negligent Infliction of Emotional Distress

Under the FELA — Zone of Danger Test.

The United States Supreme Court, in Consolidated Rail

Corp. v. Gottshall, 512 U.S. 532 (1994), outlined the standard

9a

Appendix B

to be applied when considering claims for negligent infliction

of emotional distress under the FELA. In Gottshall, the

Supreme Court held that “an emotional injury constitutes

‘injury’ resulting from the employer's ‘negligence’ for

purposes of FELA only if it would be compensable under

the terms of the zone of danger test.” Jd. at 555 (citing

45 U.S.C. § 51). It defined the zone of danger test by stating

that the law “limits recovery of 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.” /d. at

547-48. According to the Third Circuit, “(t]he Supreme Court

adopted the zone of danger test, in part, to limit defendants’

liability to certain classes of plaintiffs and to certain types

of harm, notwithstanding that some genuine claims would

be foreclosed.” Bloom v. Consolidated Rail Corp., 41 F.3d

911, 914 (3d Cir. 1994) (citing Gottshall, 512 U.S. at 552).

The Third Circuit has concluded that under Gottshall,

when plaintiff asserts a claim for negligent infliction of

emotional distress, a defendant will owe the plaintiff a legal

duty only if: 1) the plaintiff sustained a physical impact or

2) plaintiff was placed in immediate risk of physical harm

or threatened imminently with physical impact. Bloom, 41

F.3d at 915-16. It is clear from the record that plaintiff did

not sustain a physical impact. Plaintiff testified at his

deposition and concedes in his Response that he was never

hit by any of the objects thrown by Deery. See Pl.’s Dep. at

43, 100; Pl.’s Br. in Resp. to Defs.’ Mot. for Summ. J. at 5.

Therefore, the only issue remaining 1s whether, under the

circumstance, does plaintiff satisfy the second prong of the

Bloom test.

10a

Appendix B

Plaintiff's deposition testimony clearly reveals that the

emotional distress he claims was not the result of the fear of

immediate physical harm from being hit by the objects

thrown over the fence by Deery, but rather by the fear of the

threats of future harm which Deery was making toward

plaintiff and his family. See Pl.’s Dep. at 99. As he testified

at his deposition, due to these threats, he remains 1n constant

fear and has suffered severe emotional distress. P1.’s Dep. at

99-100; PL.’s Exs. C, F.. This Court concludes that the fear

of some future harm caused by verbal threats is insufficient

to place plaintiff within the actionable zone of danger because

these threats of future harm did not place plaintiff “in

immediate risk of physical harm or threatened [him]

imminently with physical impact.” Bloom, 41 F.3d at 915-

16. The fear plaintiff suffered due to the threat to burn down

his house, as well as the threat of future harm to plaintiff

and his family is, therefore, not compensable. Cf Krause vy.

Security Search & Abstract Co. of Phila., Inc., Nos. 96-595,

96-5742, 1997 WL 528081, at *8 (E.D. Pa. Aug. 21, 1997)

(verbal threats made to plaintiffs about physically harming

family members not enough to meet Pennsylvania’s zone of

danger test and allow recovery for negligent infliction of

emotional distress).

An appropriate Order follows.

5. Plaintiff's consulting physician also recognized that

plaintiff's fear stems from the threats of future harm. See Pl.’s Ex.

A at 2-3. The doctor states that plaintiff “has been continuously

fearful for his life and for that of his family since leaving railroad

work after making a formal complaint against the Deery brothers

for the threats to kill him . . . .” Jd. at 3.

lla

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 97-3945

RONALD T. FERGUSON,

Plaintiff,

V.

CSX TRANSPORTATION,

Defendant.

ORDER

AND NOW, this 25th day of February, 1999, upon

consideration of defendant CSX Transportation’s motion for

summary judgment (doc. no. 19), plaintiff's response (doc.

no. 27), and defendant’s reply thereto (doc. no. 28), it is

hereby ORDERED that:

1. Defendant’s motion for summary judgment is

GRANTED; and

2. JUDGMENT is ENTERED in favor of defendant

and against plaintiff.

The clerk shall mark this case CLOSED.

AND IT IS SO ORDERED.

s/ Eduardo C. Robreno

EDUARDO C. ROBRENO, J.