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: y*-" 'I 4--4 99

Clerk



### AUG ;I:] j$$b

CLERK06S- 3 '- ,L Gp~jqSTATEOPW 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. Marazzatobrought thisFederal Employers' Liability Act (FELA) action in the District Court for the Fourth Judicial District, Missoula County, seeking emotional distress damages sufferedby the decedentprior to the decedent's deathby suicide, and for the pecuniary loss the parents suffered after the decedentls death. TheDistrictCourt granted BurlingtonNorthern's Motion for Summary Judgment concluding that Mr. Marazzato had not established that itwas foreseeableby 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 theplaintiff failed topresent 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 toMontana Rail Link, BurlingtonNorthern had more clerks inMissoula thanneeded. BeginningMarch 14, 1988, the decedent was assigned to an Alternative 

### Work Location (known 2as a "rubber room1'by employees) in Missoula. Employees who were assigned to the rubber roomwere 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. OnMarch 22, 1988, thedecedentwas notified thathewas being transferred to Havre, Montana. He had the option of accepting the transferby reporting towork inHavre 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 showthat thedecedent'smental 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 followingday. That samedayhe received another letter indicating that it had come to the attention of Burlington Northern that his "home zone" was in Helena,Montana and thathewas 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 toprovide thedecedent with a safeplace to work in violation of FELA 

### [45U.S.C. 

### 5 51, et seq.]. The District Court granted summary judgment to BurlingtonNorthern 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 themedical records and depositions available in this case. Both experts concludedthat thedecedentwas suffering frommajor depressionand dependentpersonality disorderprior tohis 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 amultitude of moderate to severe job stressors for some time before his assignment to the rubber room. Those earlier stressorsincludedtwo imposed job transfers which involvedchange, 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 organizationchangeswithin 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 [BurlingtonNorthern] 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 hisdischarge fromthehospital furtherexacerbated 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 supervisorypersonnel who could have observed andmonitored such effects as theywere 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 

### FELAcase 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

casewas 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 shouldhave known that assignment of thedecedent 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 [rubberroom], 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 forMr. 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. 30which 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 BurlingtonNorthern's knowledge. Mr. Marazzato failed to prove that Burlington Northern should have foreseenharm 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

anunsupervised rubber room couldhave resulted in foreseeableharm 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 soughttwo separatetypesofdamages intheDistrict Court. He sought damages for the decedent's emotional distress, which he allegedwas 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

# . Becauseplaintiff's actionwasbroughtpursuantto theFederal 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 citedby either of theparties which appears to clearly allow recovery for negligent infliction of emotional distress isBuell

### v.Atchison, Topeka&

### Santa

### Fe

### Ry.Co. (9thCir. 1985), 771 

### F.2d 1320, 1324. However,Buell

### was reversed by the United States

### supreme Court inAtchison,Topeka&

### SantaFeRy.Co.v.

### Buell (

### 198

### 7)

## ,480

## 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 inflictionofphysicalharm to the plaintiff. Montana has allowed recovery for negligent infliction of emotional distress under limited circumstances which are not present in this case. Verslandv.CaronTransport 

### (1983)

## , 206 Mont. 313, 322-23, 671 P.2d 583, 588. However, we have been reluctant to extend the cause of actionbeyond those circumstances described in Versland. Dayv.MontanaPowerCo. 

### (1990), 242 Mont. 195, 789 P.2d 1224. While theremay be sound public policy arguments for extending the circumstances under which a cause of action for negligent inflictionof emotional distressmay be presented, I

### donotbelieve that the railroad workplace is the place to begin, absent some authority from the federal decisions or statutes. 

### Iwould 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 aegv.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]egligenceactions 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. CannonEsquire,

### P.C. (1989), 381 Pa.Super. 227, 553 A.2d 439; McLaughlin

### v. Sullivan (1983), 123 N.H. 335, 461A.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 amental condition in the decedent that proximately results in an uncontrollable impulse to commit suicide or thatprevents 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 tortiousact. The tortious act alleged by plaintiffwas defendant's failure to supervise the work site to which plaintiff's decedentwas confined. However, there was no evidence that that lack of supervisioncontributed in any way to the mental conditionwhich 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 suicidedidnot occurat theworkplace. 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 careprofessionals who ultimately saw 

### and treated decedent shortlybefore his suicide. Therefore, I

### would conclude that decedent's suicide was a deliberate intervening act 

### exonerating defendant fromlegalresponsibility fordecedent's death, and on that basis affirm the District Court.