No. 90-566 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

LEO F. MARAZZATO, SR., Acting as Personal Representative on Behalf 

of the Heirs and Successors in Interest of LEO F. MARAZZATO, JR., 

Plaintiff and Appellant, 

-vsBURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don C. Aldrich, William G. Jungbauer, Patrick R. 

Gillespie; Yaeger & Yaeger, Minneapolis, Minnesota. 

John W. Larson, Missoula, Montana. 

For Respondent: 

Randy J. Cox; Boone, Karlberg & Haddon, Missoula, 

Montana. 

Submitted on briefs: May 31, 1991 

Filed: 

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Clerk 

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CLERK 06 S - 3 ' - ,L Gp~jqSTATE OP W 61 :'YG:J& 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff, Leo F. Marazzato, Sr. (Mr. Marazzato), is the 

father and personal representative of Leo F. Marazzato, Jr. (the 

decedent). Mr. Marazzato brought this Federal Employers' Liability 

Act (FELA) action in the District Court for the Fourth Judicial 

District, Missoula County, seeking emotional distress damages 

suffered by the decedent prior to the decedent's death by suicide, 

and for the pecuniary loss the parents suffered after the 

decedentls death. The District Court granted Burlington Northern's 

Motion for Summary Judgment concluding that Mr. Marazzato had not 

established that it was foreseeable by Burlington Northern that its 

actions would result in the decedent's suicide. Mr. Marazzato 

appeals. We affirm. 

The revised dispositive issue is: Did the District Court 

correctly conclude that the plaintiff failed to present sufficient 

proof to establish that Burlington Northern knew or should have 

known that assignment to an unsupervised rubber room could have 

resulted in forseeable harm to the decedent? 

The decedent worked as a clerk for Burlington Northern from 

1976 until his suicide in March, 1988. Under a collective 

bargaining agreement, he was a "merger protected" employee which 

means that Burlington Northern was obligated to pay his wages even 

if it had no work for him to do. Upon sale of Burlington 

Northern's southern line to Montana Rail Link, Burlington Northern 

had more clerks in Missoula than needed. Beginning March 14, 1988, 

the decedent was assigned to an Alternative Work Location (known 

2 
as a "rubber room1' by employees) in Missoula. Employees who were 

assigned to the rubber room were required to report to the room for 

work shifts but had no work to do. The employees were free to 

read, watch television, play cards, and otherwise entertain 

themselves. There were no supervisors available or in attendance 

in the rubber room. 

On March 22, 1988, the decedent was notified that he was being 

transferred to Havre, Montana. He had the option of accepting the 

transfer by reporting to work in Havre within 20 days, taking a six 

month leave of absence without pay, or resigning and accepting a 

separation allowance. 

Evidence in the form of affidavits, depositions, and medical 

records show that the decedent's mental health deteriorated rapidly 

during the month of March. The decedent threatened to commit 

suicide several times during the month. On March 27, 1988, his 

Mother called the police and the decedent agreed to enter the 

hospital under the care of a psychiatrist. He was released the 

following day. That same day he received another letter indicating 

that it had come to the attention of Burlington Northern that his 

"home zone" was in Helena, Montana and that he was being reassigned 

to the rubber room in Helena. On March 29, 1988, the decedent 

bought a gun at a second-hand shop, drove up to the South Hills 

area of Missoula and killed himself. 

Mr. Marazzato argues that the decedent's assignment to the 

unsupervised rubber room caused his mental and emotional condition 

which was the direct and proximate result of Burlington Northern's 
negligence in failing to provide the decedent with a safe place to 

work in violation of FELA [45 U.S.C. 5 51, et seq.]. The District 

Court granted summary judgment to Burlington Northern on the basis 

of foreseeability. Mr. Marazzato contends that the District Court 

erred because affidavits from expert witnesses sufficiently 

established foreseeability of harm to reach the jury in a FELA 

case. 

Dr. James C. Deming, licensed psychologist from Bozeman, 

Montana, and Dr. Marie-Claude Rigaud, licensed psychiatrist from 

Aurora, Illinois, presented affidavits after analyzing the medical 

records and depositions available in this case. Both experts 

concluded that the decedent was suffering from major depression and 

dependent personality disorder prior to his death. Dr. Deming also 

concluded that decedent's behavior was consistent with llisolation 

stressw similar to the reactions found among military personnel 

stationed at isolated military stations. 

Dr. Rigaud observed that the decedent had been under the 

effect of a multitude of moderate to severe job stressors for some 

time before his assignment to the rubber room. Those earlier 

stressors included two imposed job transfers which involved change, 

deprivation of the support of significant others, perception of 

inadequate preparation and training to do the job safely and 

effectively, and poor fit between the individual and his 

environment. His responses to those stressors were expressed 

fears, depression, and feelings of loneliness and emptiness, as 

well as insecurity and job dissatisfaction. The organization 
changes within the company added new stressors such as uncertainty 

about his employment future. Confinement in the rubber room 

without identified objectives or well-defined expectations as to 

what was to be achieved resulted in boredom and lack of meaningful 

purpose which created additional stressors. Based on these 

observations, Dr. Rigaud came to the following conclusions: 

(1) The conditions of [decedent's] employment at 

[Burlington Northern] constituted major traumata which 

led to a progressive emotional deterioration, and 

eventually to his latest episode of agitated suicidal 

depression. 

(2) Additionally, acute stressors which came to bear 

after his discharge fromthe hospital further exacerbated 

an already precarious condition and led to more 

psychological distress, acute despair, confusion, 

impaired reality testing and judgment. 

(3) [Decedent] killed himself as a result of an 

irresistible impulse brought about by his emotional 

condition described above. 

(4) [Burlington Northern] should have been able to 

foresee the potentially detrimental impact that such 

stressful working conditions would have had on their 

employees. At the least, the company should have 

assigned a supervisory personnel who could have observed 

and monitored such effects as they were becoming evident. 

Mr. Marazzato asserts these expert conclusions were sufficient to 

establish foreseeability in a FELA case. 

Under FELA, the test of whether a case should go to a jury is 

simply whether the evidence justifies with reason the conclusion 

that employer negligence played any part, even the slightest, in 

producing the injury or death for which damages are sought. Rogers 

v. Missouri Pac. R.R. (1957), 352 U.S. 500, 506. Mr. Marazzato 

cites Rosers for the proposition that FELA is liberally construed 

to require only a slight amount of foreseeability to get a FELA 
case to a jury. The ~oqers Court went on to say "[ilt does not 

matter that, from the evidence, the jury may also with reason, on 

grounds of probability, attribute the result to other causes, 

including the employee's contributory negligence." Rosers, 352 

U.S. at 506. It is obvious from this statement that the Rosers 

case was addressing the issues of multiple causes and contributory 

negligence after it had been established that the employer was 

negligent. Also see Gallick v. Baltimore & Ohio R.R. (1963), 372 

U.S. 108, 116; Barilla v. Atchison, Topeka & Santa Fe Ry. (D.Ariz. 

The plaintiff has the burden of proving that defendant's 

negligence was the proximate cause in whole or in part of 

plaintiff's [death]. Barilla, 635 F.Supp. at 1059. Reasonable 

foreseeability of harm is an essential ingredient of FELA 

negligence. Gallick, 372 U.S. at 117. 

Mr. Marazzato has failed to provide any proof that Burlington 

Northern knew or should have known that assignment of the decedent 

to an unsupervised rubber room created a reasonable possibility of 

harm. Affidavits of medical experts that establish a medical 

theory do not demonstrate knowledge on the part of Burlington 

Northern. We agree with the conclusion of the District Court that 

FELA 

. . . requires some proof before being submitted to the 

jury; here there is no suggestion of any kind in any of 

the evidence submitted to the Court that would give rise 

to a finding of foreseeability with respect to a suicide 

arising from the use of the [rubber room], by any of the 

employees, or by this specific employee. 

We hold that the District Court did not err in concluding that Mr. 
Marazzato failed to establish reasonable foreseeability of harm 

absent sufficient facts constitute notice Burlington 

Northern. 

Mr. Marazzato argues that he was prevented from establishing 

Burlington Northern's knowledge of the effects of rubber rooms on 

the employees because the District Court granted Burlington 

Northern's Motion for a Protective Order during discovery. There 

is no basis for Mr. Marazzato's contention. While it is true that 

the District Court did grant Burlington Northern protection as to 

several interrogatories, the District Court denied the motion as 

to Interrogatory No. 30 which stated: 

Please identify each and every paper, study, report and 

memoranda outlining the actual, possible or anticipated 

mental or emotional impact or the use of "rubber roomsgr 

on employees such as plaintiff's decedent which 

Burlington Northern has in its possession or has access 

to. 

Through Interrogatory No. 30, Mr. Marazzato had access to all 

documents in Burlington Northern's possession that could have 

established Burlington Northern's knowledge. Mr. Marazzato failed 

to prove that Burlington Northern should have foreseen harm to the 

decedent. 

We hold that the District Court correctly concluded that the 

plaintiff failed to present sufficient proof to establish that 

Burlington Northern knew or should have known that assignment to 

an unsupervised rubber room could have resulted in foreseeable harm 

to the decedent. 

Affirmed. 
\ 

I / 

Chief Justice 

Justices 
Justice Terry N. Trieweiler specially concurring. 

I concur in the result achieved by the majority's opinion. 

However, I would arrive at the same conclusion for different 

reasons. 

Plaintiff sought two separate types of damages in the District 

Court. He sought damages for the decedent's emotional distress, 

which he alleged was negligently caused prior to decedent's death, 

and he sought damages which resulted because of decedent's death. 

Both claims were dismissed based on lack of foreseeability. 

However, plaintiff raised two issues on appeal: 

1. Whether an FELA claimant may recover damages for 

emotional injuries which are negligently inflicted, even though 

there is no physical injury or threat of physical harm; and 

2. Whether he had offered sufficient evidence on the issue 

of foreseeability to overcome defendant's motion for summary 

judgment . 

Because plaintiff's action was broughtpursuantto the Federal 

Employers' Liability Act, the conduct which gives rise to a cause 

of action and the nature of damages recoverable are controlled by 

federal statutes and case law. 

The only case law cited by either of the parties which appears 

to clearly allow recovery for negligent infliction of emotional 

distress is Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771 

F.2d 1320, 1324. However, Buell was reversed by the United States 
supreme Court in Atchison, Topeka & Santa Fe Ry. Co. v. Buell ( 19 8 7 ) , 4 8 0 u . s . 

557, 107 S.Ct. 1410, 94 L.Ed.2d 563. Plaintiff has cited this 

Court to no federal decisional law since reversal of the Buell 

decision, which clearly allows recovery for the negligent 

infliction of emotional distress absent infliction of physical harm 

to the plaintiff. 

Montana has allowed recovery for negligent infliction of 

emotional distress under limited circumstances which are not 

present in this case. Versland v. Caron Transport (1983) , 206 Mont. 313, 

322-23, 671 P.2d 583, 588. However, we have been reluctant to 

extend the cause of action beyond those circumstances described in 

Versland. Dayv. MontanaPowerCo. (1990), 242 Mont. 195, 789 P.2d 1224. 

While there may be sound public policy arguments for extending 

the circumstances under which a cause of action for negligent 

infliction of emotional distress may be presented, I do not believe 

that the railroad workplace is the place to begin, absent some 

authority from the federal decisions or statutes. 

I would affirm the District Court's judgment dismissing that 

part of plaintiff's claim which relates to the decedent's suicide 

based on the following general rule set forth in aeg v. Massey 

(1989), 239 Mont. 469, 781 P.2d 277: 

The general rule, as relied upon by the ~istrict Court, 

in the area of civil liability for suicide is that 

ll[n]egligence actions for the suicide of another will 

generally not lie since the act or suicide is considered 

a deliberate intervening act exonerating the defendant 
from legal responsibility . . . I' 41 ALR 4th, 353. 

Prosser and Keeton on Torts f 44 at 280-81 (4th ed. 

1971); McPeake v. Cannon Esquire, P.C. (1989), 381 Pa.Super. 

227, 553 A.2d 439; McLaughlin v. Sullivan (1983), 123 N.H. 

335, 461 A.2d 123. We expressly adopt this rule. 

Krieg, 239 Mont. at 472-73, 781 P.2d at 279. 

The plaintiffs sought to survive summary judgment by coming 

within the following exception to the general rule: 

a. [Wlhere the defendant's tortious act 

causes a mental condition in the decedent that 

proximately results in an uncontrollable 

impulse to commit suicide or that prevents the 

decedent from realizing the nature of his act . . . . meg, 239 Mont. at 471, 781 P.2d at 278. 

However, there was no substantial evidence in this record that 

decedent took his life because of a mental condition caused by 

defendant's tortious act. The tortious act alleged by plaintiff was 

defendant's failure to supervise the work site to which plaintiff's 

decedent was confined. However, there was no evidence that that lack 

of supervision contributed in any way to the mental condition which 

resulted in decedent's suicide. In fact, the evidence, including 

decedent's medical records and the history reconstructed by the 

plaintiff's own consultants, indicates that the mental condition 

which led to decedent's suicide was caused by notice to him that he 

was being transferred to a new location where he would be apart from 

his parents and without friends. 
Furthermore, decedent s suicide did not occur at the work place. 

It occurred in a remote area near Missoula after he had been 

discharged from the care of professional psychologists or 

psychiatrists. Had there been indications of despondency or 

depression while at work which could have been detected by closer 

supervision, nothing more could have been expected from defendant 

than a referral to the health care professionals who ultimately saw 

and treated decedent shortly before his suicide. Therefore, I would 

conclude that decedent's suicide was a deliberate intervening act 

exonerating defendant fromlegal responsibility for decedent's death, 

and on that basis affirm the District Court.