David L. Marschand v. Norfolk and Western Railway Company
Docket: 95-2445
Court: Court of Appeals for the Seventh Circuit; April 16, 1996; Federal Appellate Court
David L. Marschand filed a lawsuit against Norfolk and Western Railway Company under the Federal Employers' Liability Act (FELA) for negligent infliction of emotional distress stemming from a grade crossing accident on May 12, 1991. During the incident, Marschand, the engineer of the train, did not witness the collision with a pickup truck but felt the impact through the train and learned that all three passengers in the truck had died. Following the accident, he experienced flashbacks and was diagnosed with post-traumatic stress disorder (PTSD) a year later.
Marschand's claim was evaluated in light of the Supreme Court's ruling in Consolidated Rail Corp. v. Gottshall, which clarified the standards for emotional distress claims under FELA. The Court established the "zone of danger" test, which limits recovery for emotional injuries to those who either sustain a physical impact due to negligent conduct or are placed in immediate risk of physical harm. This test was intended to ensure that claims are valid and to limit the potential for fraudulent lawsuits. Marschand's case was ultimately decided in favor of Norfolk, as he could not demonstrate that he was within the "zone of danger" at the time of the incident.
After a four-day bench trial, the district court found that Marschand was never in actual danger during a collision, as he rode safely in the locomotive cab and did not fear for his safety. Consequently, the court determined that Marschand failed to meet the zone of danger test for recovering damages for emotional distress and ruled in favor of Norfolk. On appeal, Marschand contended that he sustained a physical impact during the collision, which could allow recovery under the Gottshall standard. However, the appellate court noted that this argument was not raised in the trial court and thus would not be considered. Marschand had consistently argued that his emotional distress stemmed from a fear for his safety, not from any actual impact. The district court had specifically rejected his claims regarding the threat of imminent physical harm and his fear for his safety, and Marschand did not contest these findings.
The pretrial order, established after a conference attended by Marschand's counsel, outlined the issues to be tried but did not include the claim of physical impact. The order emphasized Marschand's fear for his safety, and the appellate court highlighted the importance of pretrial orders in framing the issues for trial. Any claims not raised during the pretrial conference cannot be introduced later. Marschand's failure to include the impact issue in the pretrial order prevented him from raising it on appeal.
Marschand's case was centered on his fear of physical impact and concerns for his safety, which the district court emphasized in its judgment favoring Norfolk. Initially, Marschand presented one theory of recovery but attempted to introduce a second theory, which was not permissible. The court referenced Washington v. Electrical Joint Apprenticeship Training Comm. to support this position. The judgment of the district court was affirmed.
The excerpt also discusses the ambiguity in the Third Circuit’s decision in Bloom v. Consolidated Rail Corp. regarding the criteria for recovering emotional damages under the Federal Employers Liability Act (FELA) without physical impact. The Gottshall case indicated that plaintiffs could recover if they were either physically impacted or placed in immediate risk of such harm. It emphasized that employers should not escape liability for emotional injuries stemming from the fear of physical impact simply because the impact did not occur.
Marschand's trial brief outlined key trial issues, including whether he was in the zone of danger during the May 12, 1991, accident, whether he feared for his safety at that time, and whether his PTSD was a result of Norfolk's negligent conduct that posed an imminent threat. In his post-trial brief, he reiterated that his PTSD was causally linked to his fear experienced during the incident.
