Skye v. Maersk Line: In 3 Separate Opinions, a Divided Panel Finds that the Gottshall Decision Bars a Jones Act Injury Claim Based Only on Injuries Induced by Excessive Work Hours

Skye v. Maersk Line, No. 12-16433, from SDFla

Lead Opinion: Circuit Judge Pryor, joined specially by Senior Circuit Judge Fay

Special Concurrence: Senior Circuit Judge Fay

Dissent: Circuit Judge Jordan

Summary of Lead Opinion: The plaintiff seaman sued under the Jones Act, 46 U.S.C. § 30104, for an injury stemming from excessive work hours and an erratic sleep schedule. The plaintiff obtained a jury verdict, and the defendant then moved for judgment as a matter of law based on the Supreme Court’s decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  The district court denied the motion and entered judgment for the plaintiff.

The plaintiff argued that he had suffered injury because he worked long hours under stress, which caused the release of adrenaline that damaged his heart.  In Gottshall, the Supreme Court held that Plaintiffs could not recover for work-related stress under the Federal Employee’s Liability Act (“FELA”). 

The majority began by noting that the Jones Act was similar to FELA in that it incorporated FELA’s remedial scheme and case law interpreting FELA applies to the Jones Act.  In Gottshall, the Supreme Court made clear that these statutes are aimed at ensuring the security of the person from physical invasions or menaces.  For employers to be liable, the employees’ injuries must be caused by the negligent conduct of the employer that threatens the employee imminently with physical impact. 

The majority found that the plaintiff’s injury was not cognizable under this standard.  The panel found that work-related stress is not a physical peril.  In Gottshall, a divided 6-3 Supreme Court held that the long-term effects of work-related stress are not cognizable under FELA because they are not caused by physical impact or fear from the threat of physical impact.  The Supreme Court adopted the “zone of danger” test for injuries not caused by a physical impact: injuries are compensable only if the employee was injured when he was within the zone of danger of a physical impact caused by the employer’s negligence.  A work-related stress claim, the Supreme Court found, does not fall within this zone-of-danger. 

Likewise here, the plaintiff’s claim that he suffered an injury induced by overwork was not cognizable. An arduous work schedule and an irregular sleep schedule are not physical perils.  Circuit Judge Pryor observed that compensating the plaintiff for his injury would lead to a flood of trivial suits because there is no way to predict what effect a stressful work environment would have on any given employee.

The majority vacated the judgment awarded in the plaintiff’s favor, reversed the denial of the defendant’s motion for judgment as a matter of law, and rendered judgment in favor of the defendant.

Summary of Special Concurrence: In a rare (for him) special concurrence, Senior Circuit Judge Fay indicated that he concurred in the majority opinion because he was bound by Gottshall.  He stated however that Gottshall was contrary to the purpose and language of FELA.  He felt that the core purpose of FELA and the Jones Act was to provide covered employees with a safe place to work, and that a workplace requiring excessive work was not a safe place to work.  He saw no difference between giving an employee a defective piece of equipment and being required to work outrageous hours in determining whether a workplace is safe.  He expressed hope that the Supreme Court will revisit this area of the law (which seems unlikely considering that the majority opinion in Gottshall was written by Justice Thomas, and joined by then-Chief Justice Rehnquist, Justice Scalia, Justice Kennedy, Justice O’Connor, and Justice Souter; even though the composition of the Court has changed, there are still 3 justices who joined the majority in Gottshall and it is doubtful that Chief Justice Roberts or Justice Alito would differ significantly from the votes of Justice O’Connor and Chief Justice Rehnquist). 

 

Summary of Dissent: Circuit Judge Jordan dissented because he did not believe the plaintiff’s claim constituted a claim for negligent infliction of emotional distress, i.e. mental or emotional harm caused by the negligence of another that is not directly brought about by a physical injury but may manifest itself in physical symptoms.  He believed instead that the jury specifically found, on its verdict form, that the plaintiff had suffered only a physical injury, namely a thickening of his heart wall which could lead to congestive heart failure.  Since the court owed great deference to the jury’s factual findings, Circuit Judge Jordan did not believe that the court could determine as a matter of law that his injury was purely emotional.  For that reason, the zone of danger test articulated in Gottshall did not apply. 

Judge Jordan noted that federal courts have divided over whether to read Gottshall broadly or narrowly.  He believes a narrow reading is best and accords most consistently with the Supreme Court’s decision in Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2007), which distinguished Gottshall and held that an asbestosis sufferer could seek compensation for fear of cancer as an element of asbestosis-related pain and suffering damages.

Note: The Ayers case was an interesting 5-4 decision (Majority: Ginsburg, joined by Stevens, Scalia, Thomas, and Souter; Dissent: Kennedy, Rehnquist, O’Connor, and Breyer).

Note:  Circuit Judge Jordan’s decision is very similar to the dissent from an en banc Sixth Circuit decision addressing this issue, Szymanski v. Colombia Transportation Co., 154 F.3d 591 (6th Cir. 1998) (en banc).  That case was a 10-3 decision.  The majority included Democratic-appointed judges Gilbert Merritt, Cornelia Kennedy, and Guy Cole.  The dissent was authorized by Democratic-appointed Judge Karen Moore, and joined by liberal lion Judge Boyce Martin and Judge Marcia Daughtrey.  In other words, in taking this position, Judge Jordan aligns himself with some very liberal judges, a possible indication, as I noted earlier, that Judge Jordan may eventually slide from moderately liberal into a very liberal judge.