The Honorable Rodney W. Sippel, 1 

## United States Court of Appeals

FOR THE EIGHTH CIRCUITThe Honorable Joseph F. Bataillon, United State s District Judge for the District 2 of Nebraska. -2- c o mpanion case Consolidated Rail Corp. v. Carlisle . The District Court granted the 2 motion. We affirm.
An employee of Union Pacific since 1972, Crown worked as a corridor manager in the Harriman Dispatch Center (HDC) from June 19 89 to August 1994. Crown's suit for negligent infliction of emotional distress alleges that Union Pacific c reated an unsafe work environment at the HDC in violation of FELA, 45 U.S.C. §§ 51-60 (1994), b y fa iling to employ adequate manpower, requiring employees to work excessive hours, fa iling to install adequate lighting, and ignoring complaints and studies criticizing the working con ditions in the HDC. As a result of the allegedly stressful workin g conditio ns in the HDC, Crown claims to have suffered extreme weight gain; carpa l tunnel syndrome; knee joint problems; cough syncope syndrome; sleep a pnea; diabetes; nicotine , alcohol, and eating addictions; and a nervous breakdown requirin g hospitalization. He also alleges e motional injuries such as helplessness, hopelessness, anger, and fatigue.

We review a grant of summary judgment de novo, applying the same standard
as the district court. See Hindman v. Transkrit Corp. , 145 F.3d 986, 990 (8th Cir

. 199 8). We will affirm a grant of summary judgment when the record, viewed in th e light most favorable to the nonmoving party, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Hindman , 145 F.3d at 990.

Union Pacific met its initial burden of showin g the absence of a genuine issue of material fact by noting that the Supreme Court in Carlisle had denied recovery for a FELA claim of negligent infliction of emotional distress arising from a stressful work environment because it was outside the zone of danger. The burden then shifted toCro wnargues that Union Pacific's motion has not shown any undispute d 3 material issues upon which summary judgment could be gra nted. However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to es tablish the existence of an element essential to that party's case, and on which that p arty will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Th e Supreme Court also phrased the latter part of this test as "threaten[ ] 4 imminently with physical impact." See Gottshall , 512 U.S. at 556. Because bot h statem ents refer to "near miss" situations, references to "immediate risk of physica l harm" are intended to include "threaten imminently with physical impact." -3- Crown to set forth specific facts showing that a genuine issue of material fact existed regarding whether he was within the zone of danger. See Fed. R. Civ. P. 56(e). 3

The zone of danger test, as adopted by the Supreme Court in Gottshall an d Carli sle , is used to decide whether a plaintiff can recover under FELA for negligen t infliction of emotional distress. See Metro-N orth Commuter R.R. Co. v. Buckley , 117 S. Ct. 2113, 211 7 (1997). The Supreme Court has clearly defined the zone of danger test to limit "recovery for emotional injury to those plaintiffs who sustain a physica l impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Got tshall , 512 U.S. at 547-48; see also MetroNorth , 117 S. Ct. at 2117. The District Court found, and we agree, that Crown had 4 conceded that he did not sust ain a physical impact that induced his emotional distress. See Crown v. Union Pac. R.R. Co. , No. 8:96CV392, slip op. at 4 (D. Neb. Dec. 23, 1997) (order granting summary judgment). Thus Crown must pro ve that he was placed in immediate risk of physical harm as a result of Union Pacific's negligen ce and that this immediate risk of physical harm caused him to suffer emotional injuries.

Carlisle is on all fours with the present case. Carlisle was a train dispatche r whose job was ma de difficult by aging railstock, outdated equipment, and work force reductions (resulting in additional duties and long hours). He and other dispatcher s complained about safetyconcerns, work-related stress, and poor working conditions.C rown incorrectly suggests that Metro-North allows FELA recovery whe n 5 emotional injuries produce physical symptoms, regardless of the zone of danger test. In Metro-North

there was a physical impact, inhalation of asbestos fibers, but the Court found the impact was insufficient because the plaintiff lacked manifest symptoms of a disease. See Metro-North , 117 S. Ct. at 2118. Unlike the plaintiff in Metro-North , Crown cannot show any physical impact or threat of physical impact. -4- Aftera promotion to trainmaster, Carlisle experienced insomnia, headaches , depression, weight loss, and ultimately a nervous breakdown. Carlisle sue d the railroad for negligent infliction of emotional distress alleging that it breached its duty to provide a safe work place by forcing him to work under unreasonabl y stressful conditions. The Supreme Court stated that a FELA claim for negligent infliction of emotional distress arising from work-related stress should n ot be upheld because it would "impose a duty to avoid creating a stressful work environment, and thereby dramatically expan d employers' FELA liability to cover the stresses and strains of everyday employment." Gottsh all , 512 U.S. at 554. The Supreme Court remanded with instructions to ente r judgment for the railroad because "Carlisle's work -stress-related claim plainly does not fall within the common law's conception of the zone of danger." Id. at 558.
Like Carlisle, Crown has not shown he was threatened with an immediate risk of physical harm that would place him within the zone of danger. Crown repeatedly complained of s tress-related emotional and physical injuries, but he did not show that th e negligent acts of Union Pacific caused him to suffer a physical impact or a n immediate risk of physical harm . Instead, Crown argues that he has met his burden of proof by showing he suffered physical injuries as a result of the stress. But FELA is "aimed at ensuring the security of the person f rom physical invasions or menaces," and the zone of danger test "is consistent with FELA's central focus on physical perils. " Gottshall , 512 U.S. at 555-56 ( internal quotation omitted). Thus, a physical impact or an immediate risk of physical impact is required, rather than merely a "physical injury" as Crown suggests. 5-5-

Although FELA is tobe liberally construed, it does not make Union Pacific the insurer of Crown's safety. See Gottshall , 512 U.S. at 543. Union Pacific can be liable only for it s negligence, not for the fact that injuries occurred. See id. Despite hi s evidence of emotional and physical injuries, Crown has not shown that the railroad's negligence caused him to suffer a physical impact or a risk of immediate physical harm as required by Gottshall

and Carlisle . Therefore, Crown has failed to show that he was within the zone of danger, which is an element essential to his recovery.

The order of the district court is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.