1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-1994

Bloom v. Conrail Corp.

Precedential or Non-Precedential:

Docket 93-1903

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Recommended Citation

"Bloom v. Conrail Corp." (1994). 1994 Decisions. Paper 214.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 93-1903 

_______________ 

JERALD E. BLOOM 

v. 

CONSOLIDATED RAIL CORPORATION, 

 Appellant

____________________________________________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 89-cv-07452) 

____________________________________________________ 

Submitted Under Third Circuit LAR 34.1(a) 

April 11, 1994 

Before: BECKER, MANSMANN, and SCIRICA, Circuit Judges. 

(Filed December 12, l994) 

 JAMES D. CRAWFORD 

 RALPH G. WELLINGTON 

 NICOLE REIMANN 

 Schnader, Harrison, Segal & Lewis 

 1600 Market Street, Suite 3600 

 Philadelphia, PA 19103 

 Attorneys for Appellant

 JOSEPH A. COFFEY, JR. 

 PATRICK T. HENIGAN 

 LAWRENCE A. KATZ 

 Coffey and Kaye 

 Suite 718, Two Bala Plaza 

 Bala Cynwyd, PA 19004 

 Attorneys for Appellee
 

___________________________ 

OPINION OF THE COURT

___________________________ 

BECKER, Circuit Judge. 

 This appeal requires that we apply the zone of danger 

test recently announced in Consolidated Rail Corp. v. Gottshall, 

114 S. Ct. 2396 (1994) to a claim for negligent infliction of 

emotional distress. The claim was brought by plaintiff Jerold E. 

Bloom, a railroad employee, against his employer Consolidated 

Rail Corporation ("Conrail") under the Federal Employer's 

Liability Act ("FELA"), 45 U.S.C. § 51 et seq. (1986), and 

resulted in a large judgment in his favor against Conrail. 

Bloom's injuries were caused by the emotional stress that he 

suffered after a locomotive engine he was operating struck and 

killed a pedestrian. Because under Gottshall the judgment cannot 

stand, we reverse and remand with directions to enter judgment 

for Conrail. 

 I. FACTS AND PROCEDURAL HISTORY

 Bloom was employed by Conrail as a locomotive engineer 

beginning in 1976. During his employment at Conrail, two of his 

trains were involved in fatalities. The first fatality occurred 

in the spring of 1986, when Bloom's engine struck a car and 

killed the driver. Following this fatality, Conrail allowed 

Bloom to return to work. Medical treatment was available through 

the health plan, though Conrail did not require psychiatric 
desensitization1 or any other kind of treatment, and Bloom did 

not seek any. The second fatality occurred on October 28, 1986, 

when Bloom's locomotive struck and killed a pedestrian who 

stepped on the tracks to commit suicide. Even though Bloom felt 

faint, lightheaded, and nauseous, a Conrail patrolman required 

him to exit the train and verify the point of contact, which was 

to Bloom, at that point, a gruesome exercise. Following the 

second fatality, Bloom sought and received psychiatric treatment 

covered under the health plan, and underwent extensive counseling 

for post traumatic stress disorder and chronic phobia syndrome. 

He was never able to resume railroad work. 

 Bloom brought this FELA action for negligent infliction 

of emotional distress in the District Court for the Eastern 

District of Pennsylvania. Conrail twice moved for summary 

judgment on grounds that Bloom's claim was not actionable under 

FELA. The district court denied the motions. At trial, after 

the presentation of plaintiff's case, Conrail moved for judgment 

as a matter of law on the grounds that Bloom's claim was not 

actionable and that there was insufficient evidence of causation. 

The motion was denied. The jury determined that Bloom suffered 

$425,000 total damages, of which thirty percent was caused by 

Conrail's negligence and seventy percent was caused by the 

suicidal pedestrian. The district court entered a $425,000 

 

1. One trauma, even if it fails to cause a severe reaction, 

apparently may sensitize a person to subsequent traumas. During 

psychiatric desensitization treatment, doctors attempt to reduce 

a patient's propensity for a sensitized future response to trauma 

via counseling and medication. 
judgment for Bloom, reasoning that 45 U.S.C. § 51 holds carriers 

liable for injuries resulting "in whole or in part" from their 

negligence. Conrail filed post-trial motions requesting judgment 

as a matter of law or, alternatively, to amend the judgment to 

limit damages. The district court sua sponte dismissed the 

motions for lack of prosecution. 

 On this appeal Conrail has argued that the district 

court erred in not granting judgment as a matter of law because 

Bloom's claim is not actionable under FELA in light of Gottshall

(which was decided after the appellate briefs were filed),2 and 

because there was no evidence that Conrail caused Bloom's injury. 

Conrail also assigns error in the district court's refusal to 

apportion damages according to the jury's determination, and 

contends that the district court abused its discretion by sua 

sponte dismissing Conrail's post-trial motions. Bloom counters 

each of these contentions, and also responds that if Bloom's 

claim is not actionable on the present record under Gottshall, we 

should remand for further factual findings.3 We limit our 

 

2. We held the case c.a.v. pending the Supreme Court's 

disposition of Gottshall. 

3. On appeal, Bloom has also contended that Conrail's appeal is 

not properly before this court because Conrail did not timely 

file its notice of appeal. We find Bloom's appellate 

jurisdiction arguments plainly without merit. Bloom submits that 

Conrail's appeal is not timely because: (1) under Rule 4(a)(1) 

of the Federal Rules of Appellate Procedure ("FRAP"), Conrail's 

notice of appeal was filed more than thirty days after the 

district court entered judgment in favor of Bloom and (2) FRAP 

4(a)(4) does not apply because Conrail's post-trial motions were 

not "timely" since they were dismissed for lack of prosecution 

under E.D. Pa. Local Rule 20(e). 
discussion to the dispositive question whether Bloom's FELA claim 

is actionable in the wake of Gottshall. This is a question of 

law and our review is plenary. 

 

 II. IS BLOOM'S CLAIM ACTIONABLE UNDER FELA?

 A. Gottshall

 The Gottshall opinion dealt with two cases, both 

emanating from this court, Gottshall v. Consolidated Rail Corp., 

988 F.2d 355 (3d Cir. 1993) and Carlisle v. Consolidated Rail 

Corp., 990 F.2d 90 (3d Cir. 1993). 

 Like Bloom, James Gottshall was an employee of Conrail. 

Gottshall was a track repairman who was assigned along with his 

co-workers the task of replacing a stretch of defective track on 

an extremely hot and humid afternoon. During that afternoon 

Conrail drove the men to complete their task at an unusually fast 

pace and, although water was available, repeatedly discouraged 

breaks. Under these conditions, Gottshall's longtime friend, 

Richard Johns, collapsed. In response, Gottshall administered a 

cold compress which enabled Johns to regain consciousness. 

(..continued) 

 We hold that Conrail's notice of appeal was timely 

filed within the thirty-day appeal period of FRAP 4(a)(4). Our 

holding here is controlled by Osei-Afriyie v. Medical College of 

Pennsylvania, 937 F.2d 876 (3d Cir. 1991). In Osei-Afriyie, we 

held that a notice of appeal was timely when it was filed more 

than thirty days after the judgment date, but within thirty days 

of the district court's dismissal of post-trial motions for lack 

of prosecution under E.D. Pa. Local Rule 20(e). In this case, 

like Osei-Afriyie, Conrail's notice of appeal was filed more than 

30 days after the judgment date, but within 30 days of the 

district court's dismissal of post-trial motions for lack of 

prosecution under E.D. Pa. Local Rule 20(e). Therefore, like the 

appeal in Osei-Afriyie, it is timely under FRAP 4(a)(4). 
Following this incident, Conrail ordered the men, except Johns, 

back to work. Five minutes later, Johns again collapsed. 

Gottshall again rushed to assist him and, realizing that his 

friend was having a heart attack, administered CPR. The 

supervisor tried the radio to call paramedics, but it had been 

taken offline for repair. By the time help arrived Johns had 

died at Gottshall's side. The men were then again ordered back 

to work, with Johns' sheet-covered corpse left in view along the 

tracks. 

 The next day, Conrail reprimanded Gottshall for 

administering CPR, and over the days that followed, Conrail 

worked the crew as hard under similar conditions. Gottshall 

subsequently left work, secluded himself in his basement, and 

spent three weeks in a psychiatric institution where he was 

treated for major depression and post-traumatic stress disorder. 

He exhibited suicidal preoccupations, anxiety, insomnia, appetite 

loss, physical weakness, nightmares, and weight loss. 

 We reversed the district court's grant of summary 

judgment for Conrail and remanded for trial. We reasoned that, 

when considering the totality of the extreme facts, Gottshall's 

claim had sufficient indicia of genuineness of emotional injury 

to be cognizable under FELA, and that genuine issues of material 

fact existed regarding breach of duty, injury, and causation. 

Judge Roth dissented. The Supreme Court granted certiorari, and 

determined that the common-law "zone of danger" test is the 

proper standard for evaluating whether a railroad employer has a 

legal duty in negligent infliction of emotional distress claims 
under FELA. Since that test was different from and narrower than 

this court's test, the Court reversed and remanded for 

reconsideration. 

 B. Carlisle

 Alan Carlisle began working for Conrail as a train 

dispatcher in 1976. His job was to ensure timely and safe 

movement of passengers and cargo. A 1984 reduction in force, 

combined with aging railstock and equipment, increased his job 

stress and responsibility. Conrail constantly pressured Carlisle 

to achieve on-time performance and instructed him to ignore 

safety concerns that would slow the movement of trains. In 1988, 

Carlisle additionally became trainmaster in the South 

Philadelphia yards, where he troubleshot trains in dangerous 

areas over erratic hours. He began to experience insomnia, 

fatigue, headaches, depression, sleep walking, and weight loss. 

After working 12-15 hour days for 15 straight weeks, his stressrelated problems culminated in a nervous breakdown. 

 We affirmed the jury award of $386,500 in damages, 

reasoning that Carlisle's claim had sufficient indicia of 

genuineness of emotional injury and that it was reasonably 

foreseeable that extended exposure to the dangerous and stressful 

working conditions would cause injury. We therefore upheld his 

FELA claim for negligent infliction of emotional injuries arising 

from work-related stress. The Supreme Court granted certiorari. 

In contrast to Gottshall, which resulted in a remand for further 

consideration in light of the newly announced standard, the Court 

in Carlisle not only reversed, but also remanded with 
instructions to enter judgment for Conrail, explaining that 

Conrail had no legal duty since Carlisle plainly was not in the 

zone of danger. 

 C. The Zone of Danger Test

 The 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. Gottshall, 114 S. Ct. 

at 2408-09. In justifying these limitations, the Court wrote: 

 Our FELA cases require that we look to the 

common law when considering the right to 

recover asserted by respondents, and the 

common law restricts recovery for negligent 

infliction of emotional distress on several 

policy grounds: the potential for a flood of 

trivial suits, the possibility of fraudulent 

claims that are difficult for judges and 

juries to detect, and the specter of 

unlimited and unpredictable liability. 

Id. at 2411. The Court concluded that these policy 

considerations "accord with the concerns that have motivated our 

FELA jurisprudence." Id. 

 To effectuate these goals, the Court defined the zone 

of danger test as follows: "The zone of danger test limits 

recovery for 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." Id. at 2406 (emphasis added). Unfortunately, using 

different language seemingly in tension with the foregoing, the 

Court later explained: "Railroad employees thus will be able to 
recover for injuries--physical and emotional--caused by the 

negligent conduct of their employers that threatens them 

imminently with physical impact." Id. at 2411 (emphasis added). 

Thus it is unclear whether the zone of danger test turns (in the 

absence of actual physical impact) on risk of physical impact or 

risk of physical harm. 

 In the course of its opinion, the Court made several 

other pertinent observations. The Court stated that "[u]nder 

this test, a worker within the zone of danger of physical impact 

will be able to recover for emotional injury caused by fear of 

physical injury to himself, whereas the worker outside the zone 

will not," id. at 2410-11 (emphasis added), However, again 

using different language, the Court later stated that "[w]e see 

no reason . . . to allow an employer to escape liability for 

emotional injury caused by apprehension of physical impact . . . 

." Id. at 2411 (emphasis added). Then, the Court noted that 

"[t]he zone of danger test is consistent with FELA's central 

focus on physical perils," id. at 2410, and that "the rule will 

further Congress' goal of alleviating the physical dangers of 

railroading," id. at 2411, but this passage fails to clear up 

the confusion. 

 The Court also instructed that the "zone of danger test 

announced today" should be applied "in light of common-law 

precedent." Id. at 2411. Similarly, in a concurring opinion, 

Justice Souter emphasized that we should "develop a federal 

common law of negligence under FELA, informed by reference to the 

evolving common law." Id. at 2412 (Souter, J., concurring). We 
take this as an injunction to look at common-law precedent, state 

and federal, and to build upon it. 

 In sum, Gottshall mandates application of the commonlaw zone of danger test to determine whether a railroad employer 

has a legal duty that would enable negligent infliction of 

emotional distress claims to be made under FELA. As we have 

pointed out, the Supreme Court's language is in important 

respects opaque and confusing in that it is unclear whether 

plaintiffs must be placed in immediate risk of physical harm4 or 

whether plaintiffs must be imminently threatened with physical 

impact.5 Although these concerns are not outcome determinative 

 

4. It is also unclear whether the Court would require the 

plaintiff to actually fear physical injury (to himself) as a 

prima facie element (absent physical impact) or would just 

consider fear in determining damages. While the Court appears to 

have adopted the damages approach (by stating that "a worker in 

the zone of danger of physical impact will be able to recover for 

emotional injury caused by fear of physical injury to himself," 

Gottshall, 114 S. Ct. at 2410-11), we note that some common-law 

zone of danger tests include fear as a prima facie element. See, 

e.g., Niederman v. Brodsky, 261 A.2d 84, 90 (Pa. 1970). Though 

it does not appear under the facts of this case that Bloom feared 

physical injury to himself, we need not reach the issue, since we 

hold that Bloom fails to otherwise qualify under other aspects of 

the enunciated test. 

5. Finally, it is also unclear, inter alia, whether by this 

language ("physical impact") the Court would require a 

plaintiff's initial injuries to be physically manifested. Many 

zone of danger jurisdictions "require that a plaintiff 

demonstrate a 'physical manifestation' of an alleged emotional 

injury, that is, a physical injury or effect that is the direct 

result of the emotional injury, in order to recover." Gottshall, 

114 S. Ct. at 2407 n.11 (citing Garvis v. Employers Mut. Casualty 

Co., 497 N.W.2d 254 (Minn. 1993)). However, under Gottshall's 

formulation, it is not clear whether physical manifestation is an 

element. In Atchison, Topeka & Santa Fe Railway Co. v. Buell, 

107 S. Ct. 1410, 1418 & n.22 (1987), the Supreme Court hinted but 
here, we hope the Supreme Court will clarify them in its next 

FELA emotional distress case. 

 D. Discussion 

 In applying Gottshall to this case, it is necessary 

that we assess: (1) whether Bloom sustained a physical impact; 

or (2) whether Bloom was placed in immediate risk of physical 

harm (or alternatively whether Bloom was threatened imminently 

with physical impact). 

1. 

 Under the zone of danger test announced by the Court in 

Gottshall, Conrail has a legal duty if Bloom sustained a physical 

impact. Bloom argues that he sustained a physical impact because 

the locomotive engine struck the pedestrian, and he could hear 

the thump. Bloom further argues any physical impact, no matter 

(..continued) 

failed to decide, whether physical manifestation is required 

under FELA. Ultimately, we also need not reach this issue 

because, in light of common law precedent, Bloom did demonstrate 

physical manifestation through weight loss, loss of sleep, 

nightmares, vomiting, and diagnosed post-traumatic stress 

disorder. See, e.g., Towns v. Anderson, 579 P.2d 1163, 1164 

(Colo. 1978) (en banc) (nightmares, sleepwalking, nervousness, 

and irritability showed sufficient physical manifestation); 

Savard v. Cody Chevrolet, Inc., 234 A.2d 656, 657, 660 (Vt. 1967) 

(nervous shock, sleeplessness, weight loss, faintness, and 

trembling showed sufficient physical manifestation); Daley v. 

LaCroix, 179 N.W.2d 390, 395-96 (Mich. 1970) (weight loss, 

inability to perform household duties, extreme nervousness, and 

irritability are facts from which jury could find physical 

injury); Johnson v. State, 334 N.E.2d 590, 591 (N.Y. 1975) 

(recurrent nightmares, difficulty in concentrating, irritability, 

inability to function properly at work, tenseness, anxiety, and 

psychiatric confirmation of emotional distress showed objective 

manifestations of the injury). 

 
how slight, suffices, citing Plummer v. United States, 580 F.2d 

72, 76-77 (3d Cir. 1978), where the plaintiff was negligently 

exposed to potentially lethal tuberculosis. Plummer, 580 F.2d at 

76. Conrail counters that Bloom did not sustain a physical 

impact because at all times he safely rode in the locomotive's 

cab, and, while the pedestrian was physically impacted by the 

train, Bloom was not. We agree. 

 As Conrail submits, Bloom rode safely in the 

locomotive's cab, and the physical impact was between the train 

and the pedestrian. Even if the "no-matter-how-slight" standard 

applies, Bloom's claim would unavailingly stretch the broadest 

common-law cases.6 Even Stoddard v. Davidson, 513 A.2d 419 (Pa. 

 

6. Under the common law, courts applying the physical impact 

test developed the "no-matter-how-slight" standard to prevent 

sometimes harsh results in near-miss situations. Thus, physical 

impact was found in some tenuous circumstances. W. Page Keeton 

et al., Prosser and Keeton on the Law of Torts 363-64 (5th ed. 

1988) (" 'Impact' has meant a slight blow, a trifling burn or 

electric shock, a trivial jolt or jar, a forcible seating on the 

floor, dust in the eye, or inhalation of smoke.") (citations 

omitted); see, e.g., Homans v. Boston Elevated Ry. Co., 62 N.E. 

737 (Mass. 1902) (slight blow); Kentucky Traction & Terminal Co. 

v. Roman's Guardian, 23 S.W.2d 272 (Ky. 1929) (trifling burn); 

Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980) (x-rays of pregnant 

woman); Zelinsky v. Chimics, 175 A.2d 351 (Pa. Super. Ct. 1961) 

(jostling of occupants in low-speed car collision); Porter v. 

Delaware, Lackawanna W. R.R. Co., 63 A. 860 (N.J. 1906) (dust in 

eye); Morton v. Stack, 170 N.E. 869 (Ohio 1930) (smoke 

inhalation). Other courts applying the physical impact test, 

however, have not extended it so far. See, e.g., Williams v. 

Baker, 572 A.2d 1062, 1064 n.8 (D.C. 1990) ("We use the term 

'impact' in this discussion and throughout the opinion in its 

ordinary use, just as its use has developed under the impact 

rule. It means a violent physical contact, a striking together, 

a collision.") (citing Webster's New World Dictionary 703 (2d ed. 

1984)). 

 As courts increasingly adopted the zone of danger test, the 

need to stretch the definition of physical impact dissipated. 

Some zone of danger jurisdictions, however, do include the no-
Super. Ct. 1986), where it was held that the plaintiff sustained 

a "physical impact" when he was jostled as a result of his motor 

vehicle running over a corpse left in the road, is 

distinguishable in terms of extent of the impact.7 Moreover, 

Plummer is also distinguishable because it is a toxic exposure 

case involving the threat of future physical harm -- not an 

accident case like this one. So then, Bloom did not sustain a 

physical impact, and hence we turn to the other facets of the 

test. 

2. 

 Under the zone of danger test announced by the Supreme 

Court in Gottshall, Conrail may have a legal duty to Bloom if he 

was placed in immediate risk of physical harm or if Bloom was 

threatened imminently with physical impact. Compare Towns v. 

Anderson, 579 P.2d 1163 (Colo. 1979) (boy on porch of home 

destroyed by explosion and fire who experienced no direct 

physical impact was subjected to "unreasonable risk of bodily 

harm"); Robb v. Pennsylvania R.R. Co., 210 A.2d 709 (Del. 1965) 

(woman who lodged car in rut on train track and jumped prior to 

collision but who experienced no direct physical impact was 

(..continued) 

matter-how-slight qualifier in the physical impact prong of the 

zone of danger test. See Plummer, 580 F.2d at 76 (quoting Kahle 

v. Glosser Bros., 462 F.2d 815, 817 (3d Cir. 1972)). 

Importantly, in Gottshall, the Supreme Court included the nomatter-how-slight qualifier when defining the physical impact 

test but did not include it when defining the zone of danger 

test. Gottshall, 114 S. Ct. at 2406. 

7. Moreover, the Stoddard panel was seriously divided. Judge 

Brosky wrote the opinion of the court, Judge Johnson dissented, 

and Judge Lipez concurred in the result without opinion. 
"within the immediate zone of physical risk") with Resavage v. 

Davies, 86 A.2d 879 (Md. 1952) (mother who, from porch, watched 

child get hit by car was not subjected to unreasonable risk of 

bodily harm); Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980) 

(parents who, from a few yards away, watched child get hit by car 

not in "zone of danger of physical impact"); Asaro v. Cardinal 

Glennon Memorial Hosp., 799 S.W.2d 595 (Mo. 1990) (mother who 

sustained emotional injury after child was mistreated at hospital 

was not "threatened with bodily harm"). While Bloom contends 

that he met this test, Conrail counters that Bloom was not placed 

in immediate risk of physical harm because at all times he safely 

rode in the locomotive's cab. We agree, and conclude Bloom was 

neither placed in immediate risk of physical harm nor threatened 

imminently with physical impact. 

 III. CONCLUSION

 In sum, we hold that the district court erred as a 

matter of law in denying Conrail's motion for judgment as a 

matter of law because Bloom's evidence fails to establish any set 

of facts actionable under FELA in light of the zone of danger 

test announced by the Supreme Court in Gottshall. Accordingly, 

we will reverse the judgment and remand with instructions to 

enter judgment for Conrail.8

 

8. Bloom contends that if we find insufficient evidence in the 

record to support a finding of physical impact or zone of danger, 

then the appropriate remedy is a new trial because "[a] new trial 

will permit Mr. Bloom to present evidence that was not relevant 

under this Court's decision and that did not become relevant 

until the Gottshall decision was rendered on June 24, 1994." 
 _____________________________ 

(..continued) 

Supplemental Brief of Appellee at 5 n.4. But in making this 

argument, Bloom neither proffers nor suggests what new evidence 

is now relevant and would be introduced in light of Gottshall. 

Hence we reject this argument.