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GRUBE v. UNION PACIFIC R.R. CO.12/16/1994
The opinion of the court was delivered by
This case deals with the Federal Employer's Liability Act, 45 U.S.C. ยง 51 et seq. (1988), (FELA) and involves a question of whether a railroad employee may recover damages against employer railroad for negligent infliction of emotional distress.
At the time this case was argued, the question had not been resolved by the United States Supreme Court. Because of the conflict among the federal circuit courts> of appeal concerning the threshold standard which must be met by the plaintiffs bringing claims for negligent infliction of emotional distress under FELA, the United States Supreme Court granted certiorari in two cases arising in the Third Circuit Court of Appeals: Gottshall v. Consolidated Rail Corp., 988 F.2d 355 (3d Cir.), cert. granted 126 L.Ed.2d 247 (1993); Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir.), cert. granted 126 L.Ed.2d 247 (1993).
After the arguments in this case, the United States Supreme Court on June 24, 1994, rendered its decision in Consolidated Rail Corporation v. Gottshall, 512 U.S. ___, 129 L.Ed.2d 427, 114 S.Ct. 2396 (1994). On July 7, 1994, we entered an order offering the parties an opportunity to address the following questions:
"(1) Does the United States Supreme Court decision [in Gottshall] apply to this case?
"(2) Assuming the United States Supreme Court decision applies, would the record in this case permit this court to resolve the issue of whether plaintiff is within the `zone of danger' standard?
"(3) Assuming the United States Supreme Court decision applies, must this case be reversed and remanded for a new trial under the standard announced by the United States Supreme Court?
"(4) Any other questions deemed appropriate by the parties." The parties responded with supplemental briefs. Both parties agree and we conclude that the United States Supreme Court decision in Gottshall governs the disposition of this case. We will discuss the parties' further contentions concerning Gottshall below.
The facts are not in dispute. Although the briefs and oral arguments at times suggest otherwise, the factual findings of the trial court have not been appealed. Ernest A. Grube was employed by Union Pacific Railroad Company (Union Pacific). This case arose when the train he was operating as engineer collided with an automobile trapped upon a railroad crossing outside Lawrence. One of the occupants in the automobile died and two others suffered serious injury as a result of the collision. The decedent's heirs and the injured parties sued Grube and Union Pacific. These claims were settled and are not at issue in this appeal.
Grube filed a cross-claim against his employer, seeking damages for negligent infliction of emotional injury with accompanying physical manifestations. Grube saw the trapped car before the collision. He remembers the driver of the vehicle, a young man, looking at the approaching engine with an expression of shock, fright, or fear. Grube sustained no physical injury as a result of the collision, but when the train eventually stopped, he ran back to the accident scene attempting to render aid. He felt the pulse of the driver and touched the deceased, attempting to find a pulse. At the accident scene, Grube exhibited physical manifestations of his emotional distress; he became physically ill and, as he testified, he "threw up . . . that's when it started hitting me." Grube further testified that he had no thoughts of fear of personal injury at the time of the accident but was reacting and not thinking at the time and merely doing his job.
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