Case Name: Norfolk Southern Railway Company v Everett
Date Decided: July 7, 2009
Court: Court of Appeals of Georgia
Judge: Judge Doole
Citation: 299 Ga.App. 420

Background:
Plaintiff, Michael Everett, brought an action under the Federal Employers’ Liability Act (“FELA”) against employer, Norfolk Southern Railway (“Norfolk Southern”).

On March 6, 2006, Everett was moving a six-car train filled with auto parts down an incline into an auto plant. One of the employees misinformed Everett that the train derailment device was in the “off” position while in fact it was in the “on” position.

Everett moved the train forward, and because of the derailment device position, the cars began derailing 150 feet from the auto plant’s entrance. Everett quickly applied the engine brakes but the train traveled 300 feet before it stopped. Everett claims he was “slightly pulled” in his seat during the incident but suffered no physical injury.

Everett sued Norfolk Southern under the FELA claiming negligent infliction of mental distress. Everett claimed he became frightened and believed if it didn’t stop he and his co-workers might be killed.

The trial court denied Norfolk’s motion for summary judgment and appealed to this Court. The Court reasoned that it cannot say that Everett was within the zone

Issue:
Did the trial court err in denying Norfolk’s motion for summary judgment in opposition to Everett’s claim under FELA for Negligent infliction of mental distress?

Held:
Under federal law whether an employee’s claim satisfies the zone of danger test is a legal question which an appellate court reviews de novo.

The zone of danger test limits recovery for emotional distress, under FELA, to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, those within the zone of danger of physical impact can recover for fright.

This Court found that Everett failed to meet the first prong of the test, sustaining a physical impact because an event cannot constitute a physical impact unless it has a physically harmful effect on the body. As such, this Court found that a train engineer who experiences a “jolt” of the movement of the cars in the train caused by the train hitting another car is insufficient.

However, this Court found Everett met the second prong, which requires that the event “place him in immediate risk of physical harm” because the derailment and collision were a direct result of the misinformation from a co-worker that it was safe to proceed.

This Court ultimately held that in light of the evidence most favorable to Everett, including his sworn statement that he suffered emotional distress, but despite the lack of physical injury that Everett is not barred from recovery.

Accordingly this Court found that it could not conclude Everett, as a matter of law, was outside the zone of danger.

Comment:
This Court did not find conclusively whether Everett was within or outside the zone of danger required by FELA to recover for emotional injuries. However, it did find, based on Everett’s sworn testimony and FELA’s broad goal of providing for relief to injured railroad employees that there was sufficient evidence to create genuine issues of material fact as to whether Everett was within the zone of danger.

Steve Gordon