Wilson v. Norfolk & Western Ry. Co.

Annotate this Case
                               NO. 5-97-0798

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

RONALD WILSON,                         )  Appeal from the 
                                       )  Circuit Court of 
     Plaintiff-Appellee,               )  Madison County.
                                       )  
v.                                     )  No. 95-L-971
                                       )
NORFOLK AND WESTERN RAILWAY COMPANY,   )  Honorable
                                       )  George J. Moran,
     Defendant-Appellant.              )  Judge, presiding.
_________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:

     The plaintiff, Ronald Wilson, filed a complaint pursuant to
the Federal Employer's Liability Act (the Act) (45 U.S.C.A. 51 et
seq. (West 1986)), seeking to recover damages from defendant,
Norfolk and Western Railway Company.  Plaintiff alleged that
defendant intentionally inflicted emotional distress upon him
during the course of his employment with defendant.  Defendant
moved for summary judgment on plaintiff's complaint, claiming that
since plaintiff had not suffered a physical contact or the threat
of a physical contact as a result of its alleged actions, it was
not liable to the plaintiff.  The circuit court denied defendant's
motion for summary judgment.  Upon defendant filing a motion to
reconsider or, in the alternative, a motion for certification under
Supreme Court Rule 308 (155 Ill. 2d R. 308), the circuit court
denied the motion to reconsider but did, however, certify for
interlocutory appeal, pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308), the following question:  "Whether plaintiff must plead
and offer proof of physical contact or the threat of physical
contact before a plaintiff can recover for the intentional
infliction of emotional distress under the [Act]."
     Initially, we note that the aforementioned question is really
two-fold:  (1)  Is a claim for intentional infliction of emotional
distress recognized under the Act?  (2)  If so, must the plaintiff
plead and prove physical contact or the threat of physical contact
before he can recover for intentional infliction of emotional
distress under the Act?  
     Since there is disagreement among the federal courts on the
answers to the aforementioned questions (see Ray v. Consolidated
Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991); Adams v. CSX
Transportation, Inc., 899 F.2d 536 (6th Cir. 1990); Netto v.
Amtrak, 863 F.2d 1210 (5th Cir. 1989); Hammond v. Terminal R.R.
Ass'n of St. Louis, 848 F.2d 95, 96-97 (7th Cir. 1988); Moody v.
Maine Central R.R. Co., 823 F.2d 693 (1st Cir. 1987); Lancaster v.
Norfolk & Western Ry. Co., 773 F.2d 807 (7th Cir. 1985); Kraus v.
Consolidated Rail Corp., 723 F. Supp. 1073 (E.D. Pa. 1989), aff'd,
947 F.2d 935 (3d Cir. 1991) (unpublished decision); Teague v.
National R.R. Passenger Corp., 708 F. Supp. 1344 (D. Mass. 1989)),
we must determine which federal court's reasoning that this court
will adopt.  
     The section of the Act that is at issue in this case reads as
follows:
     "Every common carrier by railroad while engaging in commerce
     between any of the several States *** shall be liable in
     damages to any person suffering injury while he is employed by
     such carrier in such commerce *** 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, or by
     reason of any defect or insufficiency, due to its negligence,
     in its cars, engines, appliances, machinery, track roadbed,
     works, boats, wharves, or other equipment."  (Emphasis added.) 
     45 U.S.C.A. 51 (West 1986).
     Much debate about this section of the Act has centered around
the word "negligence" and its meaning.  It is clear that Congress
enacted the Act in 1906 to provide a federal remedy for railroad
workers who suffer personal injuries as a result of the negligence
of their employer or their fellow employees.  A primary purpose of
the Act was to eliminate a number of traditional defenses to tort
liability and to facilitate recovery in meritorious cases.  The Act
expressly prohibits covered carriers from adopting any regulation,
or entering into any contract, to limit their liability under the
Act.  The coverage of the statute is defined in broad language,
which has been construed even more broadly.  The United States
Supreme Court has recognized generally that the Act is a broad
remedial statute, and the Court has adopted a "`standard of liberal
construction in order to accomplish [Congress's] objects.'" 
Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62,
94 L. Ed. 2d 563, 571, 107 S. Ct. 1410, 1414 (1987) (quoting Urie
v.  Thompson, 337 U.S. 163, 180, 93 L. Ed. 1282, 69 S. Ct. 1018,
1030 (1949)).  
     An overview of the relevant case law is necessary in order to
answer the aforementioned questions.  In Buell, 480 U.S. 557, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987), a railroad carman filed a
complaint pursuant to the Act, alleging that the railroad had
condoned his harassment by fellow employees, causing him to suffer
an emotional breakdown.  The railroad moved for summary judgment,
and the United States District Court for the Eastern District of
California granted summary judgment in favor of the railroad.  The
plaintiff appealed.  The United States Court of Appeals for the
Ninth Circuit reversed and remanded.  Buell v. Atchison, Topeka &
Santa Fe Ry. Co., 771 F.2d 1320 (9th Cir. 1985).  On a writ of
certiorari, the United States Supreme Court, in relevant part, held
that the record was insufficient to determine whether purely
emotional injury was compensable under the Act.   When the United
States Supreme Court made the aforementioned determination, it
stated:  
          "The question whether `emotional injury' is cognizable
     under the [Act] is not necessarily an abstract point of law or
     a pure question of statutory construction that might be
     answerable without exacting scrutiny of the facts of the case. 
     Assuming, as we have, that *** jurisprudence [under the Act]
     gleans guidance from common-law developments, see Urie v.
     Thompson, 337 U.S.  at 174, 93 L. Ed. 1282, 69 S. Ct. 1018,
     whether one can recover for emotional injury might rest on a
     variety of subtle and intricate distinctions related to the
     nature of the injury and the character of the tortious
     activity.  For example, while most States now recognize a tort
     of intentional infliction of emotional distress, they vary in
     the degree of intent required to establish liability[] and the
     level of physical manifestation of the emotional injury
     required to support recovery.  Moreover, some States consider
     the context and the relationship between the parties
     significant, placing special emphasis on the workplace.  *** 
     In short, the question whether one can recover for emotional
     injury may not be susceptible to an all-inclusive `yes' or
     `no' answer.  As in other areas of law, broad pronouncements
     in this area may have to bow to the precise application of
     developing legal principles to the particular facts at hand." 
     (Emphasis added.)  Buell, 480 U.S.  at 568-70, 94 L. Ed. 2d  at
     575-76, 107 S. Ct.  at  1417-18.  
     The United States Court of Appeals for the Sixth Circuit, in
Adkins v. Seaboard System R.R., 821 F.2d 340 (6th Cir. 1987)
(railroad worker alleged company conspiracy to dismiss him),
refused to permit recovery under the Act for intentional infliction
of emotional distress.  The Sixth Circuit concluded that the
language of Buell applies only to negligent conduct giving rise
under the Act to claims of emotional injury.  See also Antalek v.
Norfolk & Western Ry. Co., 742 F.2d 1454 (6th Cir. 1984) (court
held that claim for intentional infliction of emotional distress
was not cognizable under the Act).
     The United States Court of Appeals for the First Circuit
rendered its decision on this subject in Moody, 823 F.2d 693.  In
Moody, a railroad employee brought an action against the railroad
pursuant to the Act, alleging that the railroad negligently injured
him through continued harassment, resulting in fatigue and
depression, which in turn resulted in angina attacks.  The United
States District Court for the District of Maine granted the
railroad's motion for summary judgment (Moody v. Maine Central R.R.
Co., 620 F. Supp. 1472 (D. Me. 1985)), and the plaintiff appealed. 
The court of appeals held that the employee failed to establish
that there was a causal connection between his condition and any
conduct on the part of the railroad.  The Moody court cited the
aforementioned language from the Buell decision and stated as
follows:  "We discern from the Buell opinion an attempt to leave
the door to recovery for wholly emotional injury somewhat ajar but
not by any means wide open."  Moody, 823 F.2d  at 694.  The Moody
court noted that some railroads have argued that allowing actions
under the Act, even though arbitration is available under the
Railway Labor Act (45 U.S.C. 153 (1986)), would open the
floodgates of litigation (Moody, 823 F.2d at 694); however, the
Buell court addressed that argument by stating, "This parade of
horribles mistakenly assumes that a significant percentage of
employees bringing grievances suffer the type of severe emotional
injury that has generally been required to establish liability for
purely emotional injury *** and that a significant percentage of
employees are subject to the type of unconscionable abuse which is
a prerequisite to recovery."  (Emphasis added.)  Buell, 480 U.S.  at
568-70, 94 L. Ed. 2d  at 574, 107 S. Ct.  at  1417-18.  Hence, it is
clear that the Moody and Buell decisions implicitly hold that one
must suffer either (1) severe emotional injury or (2)
unconscionable abuse, in order to recover for wholly emotional
injuries under the Act.  
     On January 25, 1989, the United States Court of Appeals for
the Fifth Circuit, in Netto v. Amtrak, 863 F.2d 1210 (5th Cir.
1989), rendered its decision on this issue.  In Netto, the
plaintiff, an Amtrak employee, brought an action alleging that
Amtrak had violated certain provisions of the Act.  Specifically,
the plaintiff asserted that he suffered emotional injuries that
were caused by Amtrak's harassment of him during an investigation
into an alleged rape for which the plaintiff had been the
investigator.  The United States District Court for the Eastern
District of Louisiana entered summary judgment against the
plaintiff, and he appealed.  The Netto court stated that the United
States Supreme Court in Buell "appears to invite the lower courts
to parse the [Act] in light of the specific facts of later cases." 
Netto, 863 F.2d  at 1213.  The Netto court specifically stated that
it declined to determine whether a plaintiff may recover for purely
emotional injuries under the Act.  The Netto court did, however,
make that decision implicitly when it stated:  "[E]ven if we were
to allow such claims, Netto's failure to adduce any evidence to
establish an essential element of his claim--unconscionable or
outrageous conduct by Amtrak--would preclude recovery."  (Emphasis
added.)  Netto, 863 F.2d  at 1214.  
     Finally, in June of 1994, the United States Supreme Court in
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 129 L. Ed. 2d 427, 114 S. Ct. 2396 (1994), made it clear that a claim for
negligent infliction of emotional distress is cognizable under the
Act.  
     There is no question that the Act has been found to apply to
intentional torts.   See Jamison v. Encarnacion, 281 U.S. 635, 641,
74 L. Ed. 1082, 50 S. Ct. 440, 442 (1930); Civil v. Waterman
Steamship Corp., 217 F.2d 94, 98 (2nd Cir. 1954); Besta v.
Consolidated Rail Corp., 580 F. Supp. 869 (S.D.N.Y. 1984).  Thus,
the argument that the Act applies only to negligence cases would be
an anomaly.  In fact, in Jamison, 281 U.S.  at 641, 74 L. Ed. 1082,
50 S. Ct.  at 442-43, the United States Supreme Court recognized
that the intentional tort of assault would be cognizable as an
action under the Act.  The Jamison court stated:  
          "`Negligence' is a word of broad significance and may not
     readily be defined with accuracy.  Courts usually refrain from
     attempts comprehensively to state its meaning.  While
     liability arises when one suffers injury as the result of any
     breach of duty owed him by another chargeable with knowledge
     of the probable result of his conduct, actionable negligence
     is often deemed--and we need not pause to consider whether
     rightly[--]to include other elements.  Some courts call
     willful misconduct evincing intention or willingness to cause
     injury to another gross negligence.  [Citations.]  ***  As
     unquestionably the employer would be liable if plaintiff's
     injuries had been caused by mere inadvertence or carelessness
     on the part of the offending foreman, it would be unreasonable
     and in conflict with the purpose of Congress to hold that the
     assault, a much graver breach of duty, was not negligence
     within the meaning of the act."  Jamison, 281 U.S.  at 641, 74 L. Ed. 1082, 50 S. Ct.  at 442-43.
     After reviewing the aforementioned cases, we are persuaded
that the answer to the first question that we must answer--whether
a claim for intentional infliction of emotional distress is
recognized under the Act--is "yes."  Since the United States
Supreme Court made it clear in Gottshall that a claim for negligent
infliction of emotional distress is recognized under the Act, we
have no problem stating that a claim for intentional infliction of
emotional distress is recognized under the Act.  This is so because
the employer would unquestionably be liable if a plaintiff's
injuries were the result of negligence and it would be unreasonable
and in conflict with the purpose of Congress to hold that
intentional infliction of emotional distress, a much graver breach
of duty, would not be considered "negligence" within the meaning of
the Act.  See Jamison, 281 U.S.  at 641, 74 L. Ed. 1082, 50 S. Ct. 
at 442-43.    
     Now we must determine the second question--whether plaintiff
must plead or offer proof of physical contact or the threat of
physical contact before he can recover for intentional infliction
of emotional distress. 
     In Lancaster, 773 F.2d  at 813, the Seventh Circuit Court of
Appeals determined that the Act does not create a cause of action
for tortious harms brought about by acts that lack any physical
contact or threat of physical contact.  In reaching its decision,
the Lancaster court admitted that the Act does reach some
intentional torts.  See Jamison, 281 U.S. 635, 74 L. Ed. 1082, 50 S. Ct. 440; Civil, 217 F.2d  at 98; Besta, 580 F. Supp. 869.  The
Lancaster court stated that the Act's main purpose was to eliminate
a number of traditional defenses to tort liability, such as
contributory negligence, contractual waiver of liability, the
fellow-servant rule, and assumption of risk.  The Lancaster court
stated that all of the foregoing are defenses to negligence, not
intentional wrongdoing.  Then the Lancaster court stated,
"Nevertheless, the applicability of the [Act] to (at least some)
intentional torts is too well settled to be questioned any longer." 
Lancaster, 773 F.2d  at 813.  The Lancaster court noted, however,
that it could find no intentional tort cases where the physical
dimension was lacking.  Although the Lancaster court recognized
that in Slaughter v. Atlantic Coast Line Rail Co., 302 F.2d 912
(D.C. Cir. 1962), the court allowed a suit under the Act for false
arrest, it explained the rationale of that decision by stating that
limiting a person's freedom of movement by arrest or imprisonment
was a form of physical interference.
     Next, the United States Court of Appeals for the Seventh
Circuit rendered its decision in Hammond, 848 F.2d  at 95 (7th Cir.
1988), on June 6, 1988.  In that decision, the Seventh Circuit
reiterated its holding in Lancaster that "the [Act] does not create
a cause of action for tortious harms brought about by acts that
lack any physical contact or threat of physical contact."  Hammond,
848 F.2d  at 96.     
     In Adams, the plaintiff brought suit against his former
employer, seeking to recover damages for emotional injury under the
Act.  Specifically, the plaintiff claimed that the company
negligently deprived him of an emotionally safe workplace.  The
United States District Court for the Eastern District of Tennessee
denied the plaintiff's claim, and the plaintiff appealed.  The
Sixth Circuit Court of Appeals held that the plaintiff could not
recover damages for emotional injury under the Act because he
failed to establish either a breach of the employer's duty to
provide an emotionally safe workplace or the foreseeability of his
emotional injury.  In so holding, however, the Adams court reviewed
the language of Buell and Netto and determined, "We similarly hold
that an employer has not breached its duty to provide an
emotionally safe workplace unless the employer (acting through its
agents) engages in `unconscionable abuse' of an employee."  Adams,
899 F.2d  at 540.
     In July of 1991, the Seventh Circuit Court of Appeals in Ray
reiterated its previous holdings in Lancaster and Hammond that an
emotional injury must result from physical contact or the threat of
physical contact in order to be compensable under the Act.  Ray,
938 F.2d 704.  
     In Gottshall, where the United States Supreme Court determined
that a claim for negligent infliction of emotional distress is
cognizable under the Act, the Court adopted the zone-of-danger
test, which limits recovery for emotional injury to those
plaintiffs who either sustain a physical impact as a result of the
defendant's negligence or are placed in immediate risk of physical
impact by that negligence.  In making this determination, however,
the Gottshall court stated in footnote two that its decision was
"not concerned *** with the separate tort of intentional infliction
of emotional distress."  Gottshall, 512 U.S. 532, 129 L. Ed. 2d  at
439 n.2, 114 S. Ct.  at 2403 n.2.
     It is important to note that while the traditional rule was
that a plaintiff could not recover for mental injuries unconnected
with actual or threatened impact, the majority of jurisdictions now
appear to have abandoned that rule.  See Gates v. Richardson, 719 P.2d 193, 195 (Wyo. 1986) (see note 1, citing cases from 37
jurisdictions); Restatement (Second) of Torts 312, 436, 436A
(1965).  One leading commentary states, "In the great majority of
cases allowing recovery[,] the genuineness of the mental
disturbance has been evidenced by resulting physical illness of a
serious character ***."  W. Keeton, Prosser & Keeton on Torts, 12,
at 64 (5th ed. 1984).  Even the American Law Institute urges that
as long as the distress is "genuine and severe," bodily harm should
not be required.  Restatement (Second) of Torts 46, Comment k, at
78 (1965).   We agree.
     In fact, the United States Supreme Court, in note 16 in Buell,
480 U.S.  at 568 n.16, 94 L. Ed. 2d  at 575 n.16, 107 S. Ct.  at 1417
n.16, stated, "The tort of intentional infliction of mental
distress as described in 46 of the Restatement [(Second) of Torts]
can be safely characterized as the general rule in the United
States."  Section 46 of the Restatement (Second) of Torts reads as
follows:
     "46.  Outrageous Conduct Causing Severe Emotional Distress
               (1) One who by extreme and outrageous conduct
          intentionally or recklessly causes severe emotional
          distress to another is subject to liability for such
          emotional distress, and if bodily harm to the other
          results from it, for such bodily harm." Restatement
          (Second) of Torts 46, at 71 (1965).
     It is clear from section 46 and comment d to section 46 that
liability should only be imposed where defendant's conduct has been
extreme and outrageous.  Restatement (Second) of Torts, 46,
Comment d, at 72-73 (1965).  This liability, however, clearly does
not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.  Our society's rough edges are
still in need of filing down, and plaintiffs must necessarily be
expected and required to be hardened to a certain amount of rough
language and to occasional acts that are definitely inconsiderate
and unkind.  The law must not intervene in every case where
someone's feelings are hurt.  We must still have the freedom to
express an unflattering opinion, and a safety valve must be left
through which "irascible tempers may blow off relatively harmless
steam."  Restatement (Second) of Torts, 46, Comment d, at 73
(1965).  See Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498
(1994); McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806 (1988).
     We agree with section 46 of the Restatement (Second) of Torts. 
Hence, the answer to the second question--whether plaintiff must 
plead and prove physical contact or the threat of physical contact
before he can recover for intentional infliction of emotional
distress under the Act--is "no."  As the Restatement (Second) of
Torts states, in order for a plaintiff to establish liability for
intentional infliction of emotional distress, he must show that
defendant has, by extreme and outrageous conduct, intentionally or
recklessly caused severe emotional distress to the plaintiff.
     In so holding, we recognize that the United States Seventh
Circuit Court of Appeals, in Ray (938 F.2d at 705), Lancaster (773
F.2d 807), and Hammond (848 F.2d at 96-97), determined that the Act
does not create a cause of action for tortious harms, including
intentional infliction of emotional distress, brought about by acts
that lack any physical contact or threat of physical contact. 
According to defendant's attorney, this court has no choice but to
follow the aforementioned Seventh Circuit Court of Appeals'
decisions.  In oral argument, defense counsel said, "You don't get
to decide [whether this court should follow the Seventh Circuit's
decisions]" because this court is "obligated to follow the Seventh
Circuit['s] decisions."  Defendant cited Dungey v. United States
Steel Corp., 148 Ill. App. 3d 484, 499 N.E.2d 545 (1986), in
support of its position.  Based upon this reasoning, defense
counsel then stated that since the Seventh Circuit Court of Appeals
has determined that the Act does not create a cause of action for
tortious harms, including intentional infliction of emotional
distress, brought about by acts that lack any physical contact or
threat of physical contact, this court is obligated to follow the
Seventh Circuit Court of Appeals' decisions pursuant to the Dungey
decision and to declare the same holding as the aforementioned
Seventh Circuit decisions.  We disagree.
     In Dungey, the issue was whether this court should follow the
Seventh Circuit Court of Appeals' decisions when interpreting
provisions of the Jones Act.  The Dungey court stated as follows:
     "The United States district courts sitting in Illinois would
     be obliged to follow Johnson [v. John F. Beasley Construction
     Co., 742 F.2d 1054 (7th Cir. 1984)], there being no contrary
     holding of the United States Supreme Court which would be
     binding on all inferior Federal courts.  [Citations.]  It
     would be anomalous that different rules for determining seaman
     status would turn on whether a cause was filed in the Federal
     district courts in Illinois or in the Illinois circuit courts,
     there being concurrent jurisdiction in actions arising under
     the Jones Act.  [Citations.]
          We choose to adopt the reasoning of Johnson [citation]." 
     (Emphasis added.)  Dungey, 148 Ill. App. 3d at 495, 499 N.E.2d 
     at 553.
     Hence, there is no doubt that the Dungey decision does not
mandate that this court follow the Seventh Circuit Court of Appeals
as defendant represented in oral argument.  In fact, the Dungey
decision merely determined, out of comity, that it would follow the
Seventh Circuit Court of Appeals' decision.  This is evidenced by
the sentence that states, "We choose to adopt the reasoning of
Johnson."  (Emphasis added.)  Dungey, 148 Ill. App. 3d 495, 499 N.E.2d  at 553.  If we had no choice but to follow the Seventh
Circuit Court of Appeals, then how could we choose to adopt their
reasoning?  
     In making the aforementioned determinations, we recognize that
decisions of the federal courts interpreting a federal act are
controlling upon Illinois courts, "in order that the act be given
uniform application."  Busch v. Graphic Color Corp., 169 Ill. 2d 325, 335, 662 N.E.2d 397, 403 (1996).  Since we have based our
decision on United States Supreme Court precedent, one of those
decisions postdating the foregoing Seventh Circuit decisions, it is
clear that a claim for intentional infliction of emotional distress
is recognized pursuant to the Act and that section 46 of the
Restatement (Second) of Torts "can be safely characterized as the
general rule in the United States" (see Buell, 480 U.S.  at 568, 94 L. Ed. 2d  at 575, 107 S. Ct. at 1417).  We see no reason to depart
from stare decisis.   

     Certified question answered; order affirmed; cause remanded.

     GOLDENHERSH and CHAPMAN, JJ., concur.



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