Vance v. Consol. Rail Corp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Vance, Appellant, v. Consolidated Rail Corporation, Appellee.
[Cite as Vance v. Consol. Rail Corp. (1995), Ohio
St.3d .]
Employment relations -- Recovery of damages from Consolidated
Rail Corporation under Federal Employers' Liability Act
for infliction of emotional distress suffered during
employment permitted, when.
(No. 94-137 -- Submitted April 5, 1995 -- Decided August
16, 1995.)
Appeal from the Court of Appeals for Cuyahoga County, No.
63806.
On January 26, 1990, plaintiff-appellant Larry D. Vance
filed suit against his former employer, defendant-appellee
Consolidated Rail Corporation ("Conrail"), seeking to recover
damages from Conrail under the Federal Employers' Liability Act
("FELA"), Section 51 et seq., Title 45, U.S.Code, for
infliction of emotional distress he claimed to have suffered
during his employment.
Plaintiff began his employment with Conrail in 1976, when
the corporation was formed by the merger of seven separate
bankrupt railroads into one unit. Plaintiff had been an
employee of one of the railroads involved in the merger, the
Erie Lackawanna Railroad ("Erie"), since 1968. He went on sick
leave from Conrail in 1987, and remained on sick leave until
1988, when he was medically disqualified from work. In his
complaint, plaintiff claimed he was incapacitated from working
due to emotional distress brought about by an abusive work
environment which Conrail negligently failed to correct. The
basis of plaintiff's claim is set forth in paragraphs one and
five of his complaint:
"1. This suit is brought under the Federal Employers'
Liability Act (45 U.S.C., Sec. 51, et seq.). The action arises
out of the failure of Defendant Railroad, Consolidated Rail
Corporation, to provide Plaintiff, Larry Vance, with a safe
place to work. Defendant Railroad negligently caused and
inflicted upon Plaintiff severe emotional distress, anxiety,
and depression. This caused disabling psychological harm, and
accompanying physical harm.

"* * *
"5. The severe emotional distress and resulting injury
were directly and proximately caused by Defendant Railroad. It
negligently supervised and condoned the known conduct of
Plaintiff's superiors and fellow employees who in the process
of making work assignments and in other work related
associations, subjected Plaintiff to torment, embarrassment,
humiliation, frustration, harassment, inequity, ridicule, and
other severe emotional distress, because he was a former
employee of Erie Lackawanna Railroad. This outrageous conduct
throughout Plaintiff's employment relationship ultimately
caused Plaintiff's said emotional breakdown and
disqualification from his job, all of which was reasonably
foreseeable by Defendant Railroad."
At trial, plaintiff testified that the former employees of
Penn Central ("PC"), another railroad involved in the merger
which formed Conrail, hated the less numerous former Erie
employees. Plaintiff testified that he and other former Erie
workers were subjected to name-calling, harassment and
torment. Plaintiff recounted the following instances which he
claimed were primarily inflicted by former PC employees.
Specifically, he testified as to the following matters:
He was called a scab and other scurrilous names by former
PC employees of Conrail, and derogatory remarks about former
Erie employees were written on locker room walls and elsewhere
at the workplace.
He found a dead bloody rat on top of his sandwich in his
lunch box. Whoever put the rat into the lunch box had pried
open the locked door of his truck cap.
Not being assigned a locker at some work locations forced
him to change clothes in parking lots.
Sugar was put in the gas tank of his wife's car while it was
parked at a railyard when he drove it to work one day.
His supervisors would override his decision to pull railcars
out of service for defects and would put the cars back in
service.
He was not allowed to schedule his vacations when he
wanted them, even though he had more seniority than those who
got their chosen dates.
He was nearly run over by another employee in a truck who
wanted to "put a scare" into him.
He was not furnished needed safety equipment and had to
buy his own lantern and batteries when the company failed to
provide them. He was not furnished a key to control the blue
signal lights that indicated the presence of a worker on the
tracks.
In the presence of a supervisor, he was threatened by a fellow
employee with a chipping hammer (a sharp-pointed hammer with a
four-or five-inch handle used for removing scale from welds),
which caused great emotional distress.
He was taunted about his sex life after he confided in a
fellow employee about impotency problems and the other workers
learned of the problem.
He was not properly oriented as to track layout by
supervisors when he traveled to different railyards to work.
The words "Erie scab" were scraped into the side of his own
truck, apparently with a key.

While working at a railyard, he received an anonymous
phone call threatening that "you won't know what's going to hit
you."
Plaintiff testified to a generally antagonistic work
relationship between the former PC employees and the former
Erie employees at Conrail and indicated that he believed
Conrail did very little to regulate the conduct of former PC
employees toward former Erie employees. Plaintiff testified
that he complained of several of the abusive incidents
recounted above to supervisors, and also that supervisors
witnessed some of the incidents, but that no attempt to
ameliorate the abuse was undertaken by Conrail. Plaintiff
testified that it would have done no good for him to complain
about the mistreatment through the union grievance process
because the union was dominated by former PC employees who had
no interest in stopping it.
Other witnesses, called both by plaintiff and by Conrail,
also testified to animosity between the two groups of
employees, although there was disagreement as to the extent of
abuse. Conrail called some of the employees who allegedly had
harassed plaintiff, and they denied that the events detailed by
plaintiff had occurred. Conrail also called past supervisors
of plaintiff, who testified that they did not remember that he
had ever complained of harassment to them.
One of the chief points of contention between former Erie
workers and Conrail was that many former Erie employees lost
seniority when the merger forming Conrail occurred. Plaintiff
had participated in an unsuccessful lawsuit with other former
Erie employees against Conrail and the union in an attempt to
regain seniority. Conrail contended that any anxiety caused to
plaintiff by the seniority dispute was irrelevant to
plaintiff's FELA case, and had nothing to do with whether
Conrail failed to provide plaintiff a reasonably safe workplace.
Plaintiff's treating psychiatrist, Dr. James Fry,
testified that he began to treat plaintiff in 1985, at which
time plaintiff told Dr. Fry of his difficulties and unhappiness
with his employment since the merger forming Conrail. Dr. Fry
diagnosed plaintiff as severely depressed. In 1987, Dr. Fry
declared that plaintiff was medically disabled from work due to
the depression, which Dr. Fry opined was caused by plaintiff's
worrying about his job. Dr. Fry recommended electric shock
therapy in 1988. Plaintiff received ten treatments. At the
time of trial, plaintiff was receiving fairly large doses of a
tranquilizer and an antidepressant. Dr. Fry testified that
plaintiff did not speak of specific incidents of harassment on
the job until 1988, after plaintiff was disabled from work.
Dr. Fry further testified that plaintiff may not have related
the incidents until that time due to embarrassment and shame.
Dr. Fry also testified that, if the incidents of harassment did
occur, they certainly would have contributed to plaintiff's
depression.
After the trial court overruled Conrail's motion for a
directed verdict, the jury returned a general verdict for
plaintiff for $500,000 in damages. The trial court denied
Conrail's motions for judgment notwithstanding the verdict and
for a new trial.
Conrail appealed to the Court of Appeals for Cuyahoga

County, raising seven assignments of error. The court of
appeals, in a split decision which resolved only Conrail's
first two assignments of error, vacated the jury verdict and
entered judgment for Conrail, holding that Conrail's motions
for a directed verdict and for judgment notwithstanding the
verdict should have been granted. The court of appeals
majority held that "plaintiff has not proven a cause of action
for negligent infliction of emotional distress, even if one
were available under the FELA." The majority determined that
plaintiff had not proved that Conrail was negligent, in part
because he did not show that he was subjected to
"unconscionable abuse," and also because he "failed to show
that Conrail should have reasonably foreseen his extreme
reaction to railroad yard harassment." Based upon its finding
of no negligence, the court of appeals majority found it
unnecessary to decide whether a claim for negligent infliction
of purely emotional distress is cognizable under the FELA.1
The dissenting judge at the court of appeals concluded
that a cause of action for emotional distress is available
under the FELA, and believed that plaintiff presented
sufficient evidence to create a jury question on the issue of
Conrail's negligence. The dissenter would have overruled
Conrail's first two assignments of error, and would have
proceeded to address the remaining ones.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Wallace R. Steffen, for appellant.
Gallagher, Sharp, Fulton & Norman and Sheila A. McKeon,
for appellee.

Alice Robie Resnick, J. The court of appeals'
consideration of this case occurred before the United States
Supreme Court announced its decision in Consol. Rail Corp. v.
Gottshall (1994), 512 U.S. , 114 S.Ct. 2396, 129 L.Ed.2d
427, which resolved some issues pertinent to this appeal. In
light of Gottshall, this case presents two issues for our
review: (1) Does plaintiff's claim of negligent infliction of
emotional distress place him within the class of plaintiffs who
may recover under the FELA? (2) If issue one is resolved in
plaintiff's favor, did plaintiff sufficiently demonstrate that
Conrail's negligence caused his injuries so as to create a jury
question on Conrail's duty, breach of duty, foreseeability, and
causation?
At this juncture, we clarify that, while plaintiff's claim
may appear to be based upon the intentional actions of fellow
employees, the essence of his FELA claim against Conrail is
that his employer negligently failed in its duty to provide him
with a safe workplace. Therefore, his claim sounds in terms of
negligent infliction of emotional distress, going to Conrail's
negligence in allowing a hostile workplace environment to
flourish.

I
A
Federal Employers' Liability Act

Section 1 of the FELA, Section 51, Title 45 U.S.Code,
provides that "[e]very common carrier by railroad * * * shall
be liable in damages to any person suffering injury while he is
employed by such carrier * * * for such injury * * * resulting
in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier."
"In 1906, Congress enacted the FELA to provide a federal
remedy for railroad workers who suffer personal injuries as a
result of the negligence of their employer or their fellow
employees. A primary purpose of the Act was to eliminate a
number of traditional defenses to tort liability and to
facilitate recovery in meritorious cases. * * * The coverage
of the statute is defined in broad language, which has been
construed even more broadly." (Footnotes omitted.) Atchison,
Topeka & Santa Fe Ry. Co. v. Buell (1987), 480 U.S. 557,
561-562, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563, 570-571. The
FELA is to be liberally construed to further its remedial
goal. Gottshall, 512 U.S. at , 114 S.Ct. at 2404, 129
L.Ed.2d at 440.
What constitutes negligence for purposes of the FELA is a
federal question, which does not vary under different
conceptions of negligence under non-FELA state and local laws.
"Federal decisional law formulating and applying the concept
governs." Urie v. Thompson (1949), 337 U.S. 163, 174, 69 S.Ct.
1018, 1027, 93 L.Ed. 1282, 1295. Generally, "FELA cases
adjudicated in state courts are subject to state procedural
rules, but the substantive law governing them is federal." St.
Louis Southwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409,
411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306. Thus, past
decisions of the courts of this state setting the parameters of
negligence law in Ohio are largely irrelevant to a negligence
inquiry under the FELA. As a state court, we are as capable of
interpreting the FELA as a federal court would be, but we apply
the same federal law as the federal courts, without regard to
Ohio's negligence law. Since we are bound to apply the unique
body of federal decisional law interpreting the FELA, our
discussion in this case is of virtually no precedential value
to any non-FELA negligence issues that arise under Ohio law.
B
Gottshall and the "Zone of Danger" Test
In Gottshall, supra, the United States Supreme Court
granted certiorari to determine "the threshold standard that
must be met by plaintiffs bringing claims for negligent
infliction of emotional distress under FELA." 512 U.S. at ,
114 S.Ct. at 2403, 129 L.Ed.2d at 438. The Gottshall court
determined that "claims for damages for negligent infliction of
emotional distress are cognizable under FELA." Id. at , 114
S.Ct. at 2407, 129 L.Ed.2d at 444. The court went on to hold
that "a railroad has a duty under FELA to avoid subjecting its
workers to negligently inflicted emotional injury." Id. at
, 114 S.Ct. at 2408, 129 L.Ed.2d at 444.
The liability faced by a railroad for inflicting emotional
distress is not, however, unlimited. Even though the FELA
requires a liberal interpretation, it is not a workers'
compensation statute. Liability is based on the employer's
negligence. Id. at , 114 S.Ct. at 2404, 129 L.Ed.2d at
440. The Gottshall court, noting that common-law principles

play a significant role in the development of the FELA
negligence law, evaluated the various common-law tests which
have developed to determine which claims of negligent
infliction of emotional distress may go forward, based on the
policy considerations underlying recognition of the tort. The
court chose the "zone of danger" test as the proper test to be
applied in determining whether, as a threshold matter, a
plaintiff has stated a cognizable claim under the FELA. 512
U.S. at , 114 S.Ct. at 2410, 129 L.Ed.2d at 447.
Under the zone of danger test, recovery for emotional
injury is limited "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 , 114 S.Ct. at 2406, 129 L.Ed.2d at 443.
"Under 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 a worker
outside the zone will not. 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 ,
114 S.Ct. at 2410-2411, 129 L.Ed.2d at 448.
C
Was Plaintiff in the Zone of Danger?
Consistent with the principles espoused in Gottshall, we
must determine if plaintiff's claim meets the requirements of
the zone of danger test, which it must in order for him to be
placed in the class of plaintiffs who may potentially recover
under the FELA for the negligent infliction of emotional
distress.
The United States Supreme Court opinion in Gottshall
actually involved the appeals of two separate cases which were
consolidated for review. The plaintiff in one of the cases,
James Gottshall, sought to recover against his employer,
Conrail, for negligent infliction of emotional distress. His
claim was based on witnessing the death of a longtime friend
and fellow employee. The cause of death was a heart attack
which was allegedly precipitated by Conrail's forcing
employees, including the deceased friend and also plaintiff, to
do overly strenuous work on a hot, humid day. See 512 U.S.
at , 114 S.Ct. at 2400-2401, 129 L.Ed.2d at 435-436.
Plaintiff Gottshall thus appeared to present primarily a theory
of bystander recovery which involved to some extent witnessing
an injury to another person as the event that brought about his
distress. After holding that the zone of danger test must be
satisfied for recovery for emotional distress under the FELA,
the court declined to decide whether Gottshall was in the zone
of danger, but remanded to the Third Circuit Court of Appeals
to consider the issue. Id. at , 114 S.Ct. at 2411, 129
L.Ed.2d at 449. Since the Gottshall court made no comments on
whether plaintiff Gottshall was in the zone of danger, we can
discern no guiding principles emerging from the Supreme Court
on that particular plaintiff's situation to aid us in our
inquiry in the case before us.
The other case considered on appeal by the Supreme Court
in Gottshall involved plaintiff Alan Carlisle. Carlisle
claimed his employer, Conrail, caused him emotional distress,

and a nervous breakdown, by subjecting him to a great deal of
stress on his job, brought about by excessive work
responsibilities and working overly long hours. See 512 U.S.
at , 114 S.Ct. at 2402, 129 L.Ed.2d at 437-438. Plaintiff
Carlisle thus based his claim against Conrail on emotional
distress he suffered due to Conrail's alleged failure to
provide a safe workplace. After enunciating the zone of danger
test, the Gottshall court found as a matter of law that
Carlisle was not in the zone of danger, refusing to "take the
radical step of reading FELA as compensating for stress arising
in the ordinary course of employment." 512 U.S. at , 114
S.Ct. at 2412, 129 L.Ed.2d at 449.
In Buell, supra, the United States Supreme Court stated
that "whether one can recover for emotional injury might rest
on a variety of subtle and intricate distinctions related to
the nature of the injury and the character of the tortious
activity." 480 U.S. at 568, 107 S.Ct. at 1417, 94 L.Ed.2d at
575. While Gottshall establishes the general rule that a
plaintiff must be in the zone of danger to recover for
emotional distress under the FELA, the case did not attempt to
define which plaintiffs are in the zone of danger under
situations factually distinguishable from those before the
court. In such distinguishable situations, a case-by-case
analysis must be undertaken.
We find, through the evidence he presented at trial, that
plaintiff was placed in immediate risk of physical impact by
Conrail's negligence, so that the zone of danger test was
satisfied. In particular, plaintiff testified that important
safety devices were denied to him, that a fellow employee came
at him with a chipping hammer, and also that a fellow employee
attempted to run him over. These instances of abuse to which
plaintiff testified at trial indicating plaintiff's fear for
his physical safety due to the acts of fellow employees are
sufficient to place him in the zone of danger, pending a
resolution by the jury of the relevant issues of fact.
Plaintiff alleged that Conrail was negligent in failing to
provide him with a safe place to work. While much of
plaintiff's evidence went to Conrail's failure to provide an
emotionally safe place to work, some of the evidence also went
to Conrail's failure to provide a physically safe place to
work, so that plaintiff was in the zone of danger, as that
requirement is defined in Gottshall.
We are struck by the differences between plaintiff's
emotional-distress claim resulting from effects of his
workplace environment and the emotional-distress claim of
plaintiff Carlisle in Gottshall. Plaintiff here is claiming
damages for injuries different in kind from those which arise
in the ordinary course of employment. Plaintiff in this case
claims that his injuries were caused by a hostile work
environment, not merely by a stressful work environment.
Since plaintiff was in the zone of danger based on an
immediate risk of physical impact, we need not determine
whether there would be some threshold level of hostility,
accompanied by no threat of physical impact, that a plaintiff
in a FELA action could demonstrate when the employer is
allegedly negligent for allowing the atmosphere of abuse to
flourish and that could allow the plaintiff's claim to proceed

despite Gottshall. In that situation, the plaintiff's claim
may be a square peg that does not appear to fit in Gottshall's
round hole.
II
That plaintiff was in the zone of danger, and so satisfies
the threshold Gottshall test placing him within the class of
plaintiffs who may recover for negligent infliction of
emotional distress under the FELA, answers only one of the
issues in this case. "To prevail on a FELA claim, a plaintiff
must 'prove the traditional common law elements of negligence:
duty, breach, foreseeability, and causation.'" Adams v. CSX
Transp., Inc. (C.A.6, 1990), 899 F.2d 536, 539, quoting Robert
v. Consol. Rail Corp. (C.A.1, 1987), 832 F.2d 3, 6. The court
of appeals majority in this case found that plaintiff failed to
prove that Conrail was negligent. We, therefore, must examine
the elements of plaintiff's claim.
As this case comes to us, the court of appeals majority
reversed the trial court's denial of Conrail's motions for a
directed verdict and for judgment notwithstanding the verdict.
In FELA cases Ohio law applies where matters of procedure,
rather than of substantive federal FELA law, are involved, so
that both motions must be evaluated under Ohio's Civ.R. 50. In
so doing the evidence must be construed most strongly in favor
of the party opposing the motion. To grant either motion, a
trial court must find that reasonable minds could come to but
one conclusion and that conclusion must be adverse to the party
opposing the motion. Civ.R. 50(A)(4); White v. Ohio Dept. of
Transp. (1990), 56 Ohio St.3d 39, 45, 564 N.E.2d 462, 468 (if
reasonable minds can come to more than one conclusion the issue
should go to the jury). See McNees v. Cincinnati Street Ry.
Co. (1949), 152 Ohio St. 269, 272-273, 40 O.O. 318, 320, 89
N.E.2d 138, 141 (standards for granting motion for judgment
notwithstanding the verdict and for granting motion for
directed verdict are the same).
As a preliminary matter, we agree with the observation
made by the court of appeals majority that "there was
sufficient medical evidence to establish that plaintiff was
suffering from chronic and disabling depression." Conrail does
not dispute that plaintiff has suffered emotional injury.
Conrail does dispute, however, that the injury is attributable
to its negligence.
A
Duty
There is no doubt that an employer has a responsibility
under the FELA to provide a safe place to work. Furthermore,
"as part of its 'duty to use reasonable care in furnishing its
employees with a safe place to work,' Buell, 480 U.S. [557], at
558 [94 L.Ed.2d 563, 568, 107 S.Ct. 1410, 1412], a railroad has
a duty under FELA to avoid subjecting its workers to
negligently inflicted emotional injury." Gottshall, 512 U.S.
at , 114 S.Ct. at 2408, 129 L.Ed.2d at 444. The zone of
danger test outlines Conrail's duty pertaining to negligent
infliction of emotional distress. Id. at , 114 S.Ct. at
2410, 129 L.Ed.2d at 447. Conrail clearly had a duty to
provide plaintiff, an employee in the zone of danger, with a
reasonably safe workplace.
B

Breach of Duty
Plaintiff testified that the atmosphere of abuse endured
by former Erie employees was pervasive throughout the company.
It does not require a great leap of reasoning to conclude that
if the jury gave credence to plaintiff's allegations, then
Conrail had to be aware of the abusive environment, or at the
very least, should have been aware of it. Plaintiff alleged
that foremen witnessed some of the incidents of abuse, and that
nothing was ever done by Conrail to deal with the problems in
plaintiff's work environment. Conrail countered at trial by
presenting evidence that plaintiff never sufficiently
complained of the abuse, and also that much of the abuse did
not actually occur, or if it did occur that plaintiff
exaggerated the significance of the events. If the jury
accepted plaintiff's view of the facts, it could easily have
determined that Conrail, acting through its "officers, agents,
or employees" (Section 51, Title 45, U.S.Code) at the very
least should have been aware that plaintiff was in an unsafe
work environment. We find that plaintiff presented sufficient
evidence to create a jury question on whether Conrail breached
its duty to provide a safe workplace.
In Adams, supra, 899 F.2d at 539-540, the United States
Court of Appeals for the Sixth Circuit held that the FELA
requires a plaintiff claiming emotional injury to show
"unconscionable abuse" before an employer can be found to have
breached its duty to provide a safe workplace.
The court of appeals in this case reversed the jury
verdict in part because it determined that plaintiff failed to
show unconscionable abuse. However, the trial judge instructed
the jury that plaintiff had to show that "Conrail's actions
amounted to unconscionable abuse" before it would be
established that a breach of the duty to provide a safe
workplace occurred. Since the jury returned a general verdict
for plaintiff that was unclarified by interrogatories, we must
assume that the jury followed the trial court's instruction in
this regard and that the jury found that plaintiff did suffer
unconscionable abuse, as required by Adams. We do not comment
on the ambiguities of requiring unconscionable abuse (a concept
that seems more appropriate in an inquiry regarding a claim for
intentional infliction of emotional distress) in a negligence
action brought under the FELA. Furthermore, we need not
determine whether the Adams unconscionable-abuse test is
consistent with the general contours of the Supreme Court's
opinion in Gottshall, because we find that plaintiff met the
heightened burden of showing unconscionable abuse.
C
Foreseeability
The court of appeals majority in this case reversed the
jury verdict for plaintiff in part because it found that
plaintiff failed to show Conrail should have foreseen his
"extreme reaction" to the claimed workplace abuse. However,
the foreseeability of plaintiff's reaction is directly
dependent on the degree of abuse he endured. As discussed
above, we must assume that the jury found that Conrail at the
least should have been aware of the hostile work environment
surrounding plaintiff; we must also assume that the
mistreatment plaintiff endured amounted to unconscionable

abuse. We cannot say that a plaintiff who endures
unconscionable abuse is not to be expected to display strong
reactions or emotions. We are not prepared, as the court of
appeals majority was, to characterize plaintiff's response to
his situation as an "extreme reaction," which Conrail could not
have foreseen as a matter of law. Instead, we find that
plaintiff created a jury question as to foreseeability. Since
the jury's general verdict was unclarified by interrogatories,
we accept the jury's decision that plaintiff's reaction was not
excessive given the circumstances, a decision the jury
necessarily had to make to arrive at its ultimate conclusion
that Conrail was negligent.
D
Causation
As part of the liberal construction accorded to the FELA,
a "relaxed standard of causation applies" to a negligence claim
under the act. Gottshall, 512 U.S. at , 114 S.Ct. at 2404,
129 L.Ed.2d at 440. "Under this statute the test of a jury
case is simply whether the proofs justify with reason the
conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages
are sought." Rogers v. Missouri Pacific RR. Co. (1957), 352
U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499. We see
no reason to apply a more stringent standard of causation for
emotional injury under the FELA than for physical injury,
recognizing like the Supreme Court in Gottshall that "'severe
emotional injuries can be just as debilitating as physical
injuries,'" 512 U.S. at , 114 S.Ct. at 2408, 129 L.Ed.2d at
444 (quoting Gottshall v. Consol. Rail Corp. [1993], 988 F.2d
355, 361). We therefore find that in the process of
establishing the other elements of Conrail's negligence to the
satisfaction of the jury, plaintiff easily met his burden of
proving that Conrail's negligence played at least a slight part
in producing his injury.
III
In summary, based on Part I of our discussion, plaintiff
was in the zone of danger under the standards set forth by the
Supreme Court in Gottshall for recovery for emotional injury
under the FELA. In addition, based on Part II of our
discussion, we agree with the conclusion of the dissenting
judge below that plaintiff raised a jury question as to
Conrail's negligence. Construing the evidence most strongly in
favor of plaintiff, we defer to the decision of the jury, since
reasonable minds could come to different conclusions regarding
Conrail's negligence. We adopt the position of the dissenting
judge below, who would have resolved Conrail's first two
assignments of error in that court by concluding that Conrail's
"motions for directed verdict and judgment notwithstanding the
verdict were correctly overruled by the trial court."
For all the foregoing reasons, the judgment of the court
of appeals on the issues addressed in its opinion is
reversed.2 We remand this cause to the court of appeals for
further proceedings, to allow that court to rule on those
assignments of error raised by Conrail that have not yet been
addressed.
Judgment reversed
and cause remanded.

Moyer, C.J., Douglas, F.E. Sweeney and Pfeifer, JJ.,
concur.
Wright, J., concurs separately.
Cook, J., dissents.

FOOTNOTES:
1In holding as it did, the court of appeals majority resolved
only Assignments of Error I and II of Conrail's appeal, and
found Assignments of Error III through VII moot, citing App.R.
12(A)(1)(c). Following are Conrail's seven assignments of
error:
"I.The trial court erred in denying Conrail's motion for
directed verdict/motion jnov on plaintiff's claim for negligent
infliction of emotional distress.
"II.The trial court erred in denying Conrail's motion for
directed verdict/motion jnov on the issue of negligence.
"III.The trial court erred in denying defendant's motion for
directed verdict on the basis that plaintiff failed to plead a
specific amount of monetary damages in his complaint.
"IV.The trial court erred in denying defendant's motion for a
directed verdict/motion jnov on the statute of limitations.
"V.The trial court erred in allowing the introduction of
irrelevant and prejudicial testimony from plaintiff's fellow
employees.
"VI.The trial court committed reversible error in failing to
charge the jury that any award to plaintiff is not subject to
income tax.
"VII. The trial court erred in permitting evidence of
plaintiff's future lost wages."
2 In addition to arguments relative to the FELA, plaintiff
argues that the court of appeals actually reversed the jury
verdict by a two-to-one vote on the weight of the evidence,
thereby violating the prohibition contained in Section 3(B)(3),
Article IV of the Ohio Constitution that "[n]o judgment
resulting from a trial by jury shall be reversed on the weight
of the evidence except by the concurrence of all three judges
hearing the cause." We find that the court of appeals majority
did not reverse on the weight of the evidence, but reversed
based on its resolution of a question of law, so that a
violation of the Ohio Constitution did not occur. See Ruta v.
Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115,
430 N.E.2d 935.
Wright, J., concurring. I write separately because I
believe that the majority applies an imperfect analysis to the
case at hand. In so doing, the majority opinion distorts the
otherwise clear distinction between intentionally and
negligently inflicted emotional distress and, as a result, also
distorts the scope of an employer's liability under the FELA
for intentional injuries inflicted upon an employee by another
employee.
The majority construes Vance's FELA claim against Conrail
as a claim for negligent infliction of emotional distress.
Although Vance obviously suffers from emotional distress, that
distress was not negligently inflicted. More accurately,
Vance's fellow employees intentionally caused his emotional
distress. Properly construed, Vance's claim against Conrail is
not that Conrail negligently inflicted emotional distress on

him, but rather that Conrail negligently supervised its
employees, thereby allowing the intentional acts of abuse to
occur. In fact, this is the theory advanced in Vance's
complaint:
"5. The severe emotional distress and resulting injury
were directly and proximately caused by Defendant Railroad. It
negligently supervised and condoned the known conduct of
Plaintiff's superiors and fellow employees who *** subjected
the Plaintiff to torment, embarrassment, humiliation,
frustration, harassment, inequity, ridicule, and other severe
emotional distress, because he was a former employee of Erie
Lackawanna Railroad." (Emphasis added.)
The majority follows the United States Supreme Court's
analysis in Consol. Rail Corp. v. Gottshall (1994), 512 U.S.
, 114 S.Ct. 2396, 129 L.Ed.2d 427, to reach the conclusion that
Conrail is liable for negligent infliction of emotional
distress. In Gottshall, Gottshall's supervisor made
Gottshall's crew work without appropriate breaks in hot and
humid conditions. Gottshall suffered emotional distress after
the harsh conditions caused the death of his friend and the
supervisor ordered the crew to continue to work within sight of
the body. The case did not involve allegations that the
supervisor acted with the intent of causing Gottshall, or any
other employee, emotional distress. Instead, it seems that the
supervisor ordered the crew to work without scheduled breaks
and to continue to work after the death of Gottshall's friend
for the simple reason that the track had to be repaired as
quickly as possible. Id. at , 114 S.Ct. at 2400-2401, 129
L.Ed.2d at 435-436.
The issue that the Gottshall court faced was whether a
claim for negligent infliction of emotional distress is
cognizable under the FELA. Id. at , 114 S.Ct. at 2403, 129
L.Ed.2d at 439. The court addressed this issue by considering
whether a negligently inflicted emotional injury may constitute
a compensable "injury" under the FELA. Id. at , 114 S.Ct.
at 2408, 129 L.Ed.2d at 444. After noting that "'severe
emotional injuries can be just as debilitating as physical
injuries,'" the court found that a negligently inflicted
emotional injury is a compensable injury under the FELA. Id.,
quoting Consol. Rail Corp. v. Gottshall (C.A.3, 1993), 988 F.2d
355, 361. Of the three common-law tests for validly asserted
claims of negligent infliction of emotional distress, the court
adopted the "zone of danger" test, finding that it best
reconciled the competing concerns of providing a realistic
limit to liability and the remedial nature of the FELA. Id.
at , 114 S.Ct. at 2410, 129 L.Ed.2d at 447.
The case at hand, which involves an intentionally
inflicted injury, is clearly distinguishable from Gottshall.
The question presented in Gottshall was whether a negligently
inflicted emotional injury is compensable under the FELA. The
court specifically refused to answer the question of whether an
intentionally inflicted emotional injury is compensable. Id.
at , 114 S.Ct. at 2403, 129 L.Ed.2d at 439, fn. 2.
In this case, the employees' conduct that caused Vance's
emotional distress may only be characterized as intentional;
through their acts they intended to harass Vance and cause him
severe emotional distress. The intent to harass Vance is

obvious from the behavior at issue, which included attacking
Vance with a chipping hammer, attempting to run him over with a
truck, taunting him about his sexual dysfunction, placing sugar
in his wife's gas tank, scratching "Erie scab" on the side of
his truck, and placing a dead, bloody rat in his lunch box.
This type of conduct does not qualify as negligent infliction
of emotional distress because the employees did not
"unintentionally cause[] emotional distress to another." 2
Restatement of the Law 2d, Torts (1965), Section 313. Instead,
this conduct is properly characterized as intentional
infliction of emotional distress: "One who by extreme and
outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such
emotional distress ***." Yeager v. Local Union 20 (1983), 6
Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, syllabus; 1
Restatement of the Law 2d, Torts (1965), Section 46.
Because Vance's injury is the result of intentional acts
by coworkers acting outside the scope of their employment,
Conrail cannot be liable for his emotional injury under the
theory of respondeat superior. See Annotation (1966), 8
A.L.R.3d 442. Although Conrail cannot be vicariously liable
for Vance's injury, it may still be liable to the extent it was
negligent in allowing its employees to intentionally harass
Vance. This theory, which has a long history under the FELA,
provides that an employer may be liable for injuries received
by an employee as a result of an intentional tort of a
coemployee if the employer was negligent in hiring,
supervising, or failing to fire the employee who caused the
injury. See Harrison v. Missouri Pacific RR. Co. (1963), 372
U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711; Taylor v. Burlington N.
RR. Co. (C.A.9, 1986), 787 F.2d 1309; Lancaster v. Norfolk & W.
Ry. Co. (C.A.7, 1985), 773 F.2d 807, 818, certiorari denied
(1987), 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788; Green v.
River Terminal Ry. Co. (C.A.6, 1985), 763 F.2d 805; Annotation
(1966), 8 A.L.R.3d 442, 446. See, also, 2 Restatement of the
Law 2d, Agency (1965), Section 219; 2 Restatement of the Law
2d, Torts (1965), Section 317.
Before determining whether Conrail breached a duty it owed
to Vance by failing to adequately supervise the employees who
harassed him, it must first be determined whether an
intentionally inflicted emotional injury is a compensable
injury under the FELA. Gottshall, supra, 512 U.S. at , 114
S.Ct. at 2410-2411, 129 L.Ed.2d at 447-448.
Significantly, the United States Court of Appeals for the
Sixth Circuit has held that an intentionally inflicted, purely
emotional injury is not compensable under the FELA. Adkins v.
Seaboard Sys. RR. (1987), 821 F.2d 340. Specifically, the
Adkins court held that a claim by an employee that he suffered
emotional distress as a result of being threatened with
discharge was not compensable. The court based its decision on
three grounds. First, the court reasoned that the FELA has not
been held to provide compensation for purely emotional
injuries. Id. at 342. Second, the court reasoned that the
FELA "has not been applied to any intentional torts lacking any
physical dimension." Id. at 341. Third, the court reasoned
that the FELA provides a remedy for negligently inflicted
injuries and the plaintiff had not alleged that the railroad

was negligent. Id.
The broad pronouncement by the court in Adkins that an
emotional injury caused by intentionally inflicted emotional
distress is not cognizable under the FELA has become suspect in
light of the United States Supreme Court's decision in
Gottshall, supra. Specifically, the Gottshall court expressly
decided that purely emotional injuries are compensable under
the FELA. And although the Gottshall court required some
physical dimension to the injury, manifested in the "zone of
danger" test, actual physical contact is now not a requirement
for a claim to be cognizable under the FELA. Of course, the
Sixth Circuit's decision remains correct as to the facts of
Adkins, because the court in Gottshall declined to "take the
radical step of reading FELA as compensating for stress arising
in the ordinary course of employment." Gottshall, supra, 512
U.S. at , 114 S.Ct. at 2412, 129 L.Ed.2d at 449.
Even though the Gottshall court decided that an emotional
injury caused by negligent infliction of emotional distress is
a compensable injury under the FELA, it did not decide whether
an intentionally inflicted emotional injury may also be
compensable. In order to decide this question, it is necessary
to consider the nature of the cause of action in light of the
history and policies of the FELA to ensure their
compatibility. In reviewing the history of the tort of
intentional infliction of emotional distress, it becomes
evident that, like negligent infliction of emotional distress,
this tort existed at the time the FELA was adopted in 1908.
See Magruder, Mental and Emotional Disturbance in the Law of
Torts (1936), 49 Harv. L.Rev. 1033, 1052; Prosser & Keeton, Law
of Torts (5 Ed.1984) 60. As the tort has developed, several
elements have surfaced as being necessary to a valid claim.
First, the conduct which brings about the distress must be
extreme and outrageous. Magruder, supra, at 1053; 1
Restatement of the Law 2d, Torts (1965), Section 46, Comment d
("Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community."). Second, the plaintiff must have suffered severe
emotional distress. Prosser, supra, at 63; 1 Restatement of
the Law 2d, Torts (1965), Section 46, Comment j ("Complete
emotional tranquillity is seldom attainable in this world, and
some degree of transient and trivial emotional distress is a
part of the price of living among people. The law intervenes
only where the distress inflicted is so severe that no
reasonable man could be expected to endure it.").
The court in Atchison Topeka & Santa Fe Ry Co. v. Buell
(1987), 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563, noted
that the common law of intentional infliction of emotional
distress, like the common law of negligent infliction of
emotional distress, is not uniform, and that jurisdictions have
adopted different forms of the tort in three significant
respects. Id. at 568-569, 107 S.Ct. at 1417, 94 L.Ed.2d at
575. Specifically, the court noted that some jurisdictions
allow recovery for recklessly inflicted, as well as
intentionally inflicted, emotional injuries, that some
jurisdictions require physical manifestation of the emotional

injury, and that some jurisdictions consider the relationship
of the parties and place special emphasis on the workplace.
Id. In noting these differences, the court in Buell seemed
concerned with whether the more relaxed versions of this tort
were consistent with the FELA's underlying policies. This was
the concern raised by the court in Gottshall when it reviewed
the tort of negligent infliction of emotional distress.
Specifically, that court noted that the FELA is not a "workers'
compensation statute," that railroads are not "the insurers of
the emotional well-being and mental health of their employees,"
and that the FELA does not provide a remedy for "stress arising
in the ordinary course of employment." Gottshall, supra, 512
U.S. at , 114 S.Ct. at 2404, 2409, 2412, 129 L.Ed.2d at
440, 446, 449. In other words, in order for an intentionally
inflicted injury to be a compensable injury under the FELA, the
scope of the compensable injury must be subject to reasonable
limits.
I believe that the traditional elements of the common-law
tort of intentional infliction of emotional distress go a long
way towards satisfying the court's concern of placing
reasonable limits on the types of emotional injuries that are
compensable. First, because this case involves intentionally
inflicted emotional injuries, it is not necessary to determine
whether recklessly inflicted emotional injuries are compensable
under the FELA. Second, the requirement that the emotional
injury be severe significantly limits the potential class of
plaintiffs. Third, the fact that the abusive behavior must
qualify as "extreme or outrageous" or "unconscionable abuse"
also limits the class of plaintiffs to those who have been
subjected to only the most outrageous behavior. See Buell,
supra, 408 U.S. at 567, 107 S.Ct. 1416, 94 L.Ed.2d at 574, fn.
13. Additionally, the context within which the abusive
behavior occurs has an impact on whether particular behavior is
sufficiently outrageous. Prosser, supra, supplement at 18.
"The salon of Madame Pompadour is not to be likened to the
rough-and-tumble atmosphere of the American oil refinery."
Eddy v. Brown (Okla. 1986), 715 P.2d 74, 77. Given that a
railroad yard can present a similar rough-and-tumble
atmosphere, acts of harassment in that context must be
particularly egregious to qualify as unconscionable abuse.
Fourth, even though actual physical manifestation of the
distress is not required, Gottshall, supra; Taylor supra, 787
F.2d 1309; Yeager, supra, 6 Ohio St.3d at 374, 6 OBR at 425,
453 N.E.2d at 671; Magruder, supra, 49 Harv. L.Rev. at 1058,
where physical manifestation of an emotional injury is not
present, courts require a greater showing that the conduct is
extreme and outrageous. Prosser, supra, at 64.
However, in order to ensure that only those intentionally
inflicted emotional injuries that are consistent with the FELA
will be compensated, I believe it is necessary to supplement
the common-law elements of the tort of intentional infliction
of emotional distress. Specifically, given the FELA's focus on
physical perils, see Lancsater, supra, 773 F.2d at 813, and the
Gottshall court's determination that the FELA does not provide
compensation for "stress arising in the ordinary course of
employment," Gottshall, supra, 512 U.S. at , 114 S.Ct. at
2412, 129 L.Ed.2d at 449, I believe a plaintiff seeking

recovery under the FELA for an emotional injury caused as a
result of intentional infliction of emotional distress must
show that the injury was caused, at least in part, by
physically menacing behavior. See Gottshall, supra, 512 U.S.
at , 114 S.Ct. at 2412, 129 L.Ed.2d at 449. Given the
addition of the above element, I believe it is clear that an
intentionally inflicted, severe emotional injury which was
caused, at least in part, by physically menacing behavior
constituting unconscionable abuse qualifies as a compensable
injury under the FELA.
The next question is the scope of an employer's duty to
prevent its employees from intentionally inflicting emotional
distress upon other employees. The court in Buell noted that
under the FELA an employer has a duty to use reasonable care in
furnishing its employees with a safe place to work. Buell,
supra, 408 U.S. at 558, 107 S.Ct. at 1412, 94 L.Ed.2d at 568.
That duty includes the obligation to take reasonable
precautions to prevent severe emotional abuse of one employee
by other employees. Halko v. New Jersey Transit Rail
Operations, Inc. (S.D.N.Y. 1987), 677 F.Supp. 135. "[A]
railroad is guilty of negligence if it fails to prevent
reasonably foreseeable danger to an employee from intentional
or criminal misconduct." Green, supra, 763 F.2d at 808,
quoting Brooks v. Washington Terminal Co. (C.A.D.C. 1979), 593
F.2d 1285, 1288, certiorari denied (1979), 442 U.S. 910, 99
S.Ct. 2823, 61 L.Ed.2d 275. Reasonable foreseeability of the
harm is an "essential ingredient" of an employer's liability
under the FELA. Gallick v. Baltimore & O. RR. Co. (1963), 372
U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618. "[T]he fact that 'the
foreseeable danger was from intentional or criminal misconduct
is irrelevant; respondent nonetheless had a duty to make
reasonable provision against it.'" Harrison, supra, 372 U.S.
at 249, 83 S.Ct. at 690-691, 9 L.Ed.2d at 713, qouting Lillie
v. Thompson (1947), 332 U.S. 459, 462, 68 S.Ct. 140, 142, 92
L.Ed. 73, 75. In that vein, a railroad will not be liable for
the intentional harassment of one employee by another employee
unless it knew or had reason to know of the offending
employees' vicious propensities or that the work area is
conducive to an unreasonable risk of unconscionable abuse. See
Green, supra, 763 F.2d at 808-809; Persley v. Natl. RR.
Passenger Corp. (D.Md., 1993), 831 F.Supp. 464, 468-469. With
respect to the types of intentionally inflicted injuries that
are foreseeable, it seems clear that an employer may be liable
for only those injuries which the employer could have
potentially prevented. In other words, where an employee acts
outside the scope of his employment, an employer can be liable
only if the offending conduct occurs on the employer's premises
and the employer knew or had reason to know that it could
control the employee's conduct and knew or had reason to know
of the necessity and opportunity to exercise that control, and
failed to do so. See 2 Restatement of Law 2d, Torts (1965)
125, Section 317.
Vance presented sufficient evidence from which a jury
could find that Conrail's employees intentionally caused him
severe emotional distress through physically menacing
behavior. The jury was properly instructed that a finding of
"unconscionable abuse," as set forth in Buell, supra, 480 U.S.

at 567, 107 S.Ct. at 1416, 94 L.Ed.2d at 574, fn. 13, was a
prerequisite to Vance's being able to recover. The types of
harassment to which he was subjected were sufficient for a jury
to find that they constituted "unconscionable abuse," and it is
obvious that a significant portion of the harassment,
specifically the attack with the chipping hammer and the
attempted hit and run with the truck, was physically menacing
in nature. Vance also presented sufficient evidence from which
the jury could find that his emotional injury was of such
severity as to justify recovery even though there were no
physical manifestations of his injury. As a result, Vance met
the burden of proof required to show that his emotional injury
is a compensable injury under the FELA.
Vance also met his burden of proving that Conrail failed
in its duty to provide him with a safe workplace. The jury was
instructed that Conrail had a duty to use ordinary care to
protect its employees from foreseeable danger. The jury was
also instructed that in order for Vance to recover, the jury
had to find that Conrail was negligent in allowing the
emotional abuse to occur. The court instructed the jury that,
in order to find Conrail liable, they had to find that Vance's
injuries were reasonably foreseeable. Vance presented
sufficient evidence from which the jury could find that Conrail
knew of the generally abusive environment in the railyard
between the former employees and the particular abuse he was
receiving to support a determination that Conrail knew or
should have known that the work area was conducive to an
unreasonable risk of unconscionable abuse. Additionally, Vance
presented sufficient evidence to support a finding that
Conrail's failure to properly supervise its employees was a
cause of his injuries. As a result, Vance presented sufficient
evidence to support a finding that Conrail was liable for his
emotional injury because it failed to adequately supervise the
offending employees.
Thus, I agree with the majority's reversal of this matter
but reject in part its reasoning.
Cook, J., dissenting. I respectfully dissent. In my
view, Vance did not prove he should recover for his emotional
injury under FELA as such claims have been delimited by the
United States Supreme Court in Consol. Rail Corp. v. Gottshall
(1994), 512 U.S. , 114 S.Ct. 2396, 129 L.Ed.2d 427.
Recovery for negligently inflicted, purely emotional injuries,
according to Gottshall, is limited to "zone of danger"
situations. Vance's claim, premised on a hostile work
environment produced by sporadic, intentional incidents of
harassment by various co-workers, is not cognizable for
negligent infliction of emotional distress.

I
Because recognition of a cause of action for negligent
infliction of emotional distress holds out the very real
possibility of nearly infinite and unpredictable liability for
defendants, courts have placed substantial limitations on the
class of plaintiffs that may recover for emotional injuries and
on the injuries that may be compensable. Id. at , 114 S.Ct
at 2405, 129 L.Ed.2d at 442. The court held in Gottshall that
negligent infliction of emotion distress is cognizable under

FELA, meaning that, as a part of its "'duty to use reasonable
care in furnishing its employees with a safe place to work,' *
* * a railroad has a duty under FELA to avoid subjecting its
workers to negligently inflicted emotional injury." (citation
omitted.) Id. at , 114 S.Ct. at 2408, 129 L.Ed.2d at 444.
The court cautioned that the duty, however, is not
self-defining. Id. "[T]he common-law background of this
right of recovery must play a vital role in giving content to
the scope of an employer's duty under FELA to avoid inflicting
emotional injury." Id. at , 114 S.Ct at 2408, 129 L.Ed.2d
at 445.
Referring then to the common law of the states on the
subject, the court noted that "[n]o jurisdiction, however,
allows recovery for all emotional harms, no matter how
intangible or trivial, that might be causally linked to the
negligence of another. Indeed, significant limitations, taking
the form of 'tests' or 'rules,' are placed by the common law
on the right to recover for negligently inflicted emotional
distress, and have been since the right was first recognized
late in the last century." Id. at , 114 S.Ct at 2405, 129
L.Ed. 2d at 441.
Having considered the various "tests" and "rules" used in
the common law to define the class of plaintiffs who may
recover for negligent infliction of emotion distress, the court
adopted the "zone of danger" limiting test, which holds that
"'those within the zone of danger of physical impact can
recover for fright and those outside of it cannot.'" Id.
at , 114 S.Ct. at 2406, 129 L.Ed.2d 443, quoting Pearson,
Liability to Bystanders for Negligently Inflicted Emotional
Harm - A Comment on the Nature of Arbitrary Rules (1982), 34
U.Fla.L.Rev. 477, 489. "The zone of danger test also is
consistent with FELA's central focus on physical perils." Id.
at , 114 S.Ct. at 2410, 129 L.Ed.2d 447. The court wrote
that the "zone of danger" test is "based on the realization
that 'a near miss may be as frightening as a direct hit.'" Id.
at , 114 S.Ct. at 2406, 129 L.Ed.2d at 443, quoting Pearson
at 488. 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,"
in situations involving a frightening, accidental near miss.
Id. Thus, the Court concluded that the "zone of danger" test is
"a well-established 'common-law concep[t] of negligence,' that
is suitable to inform our determination of the federal question
of what constitutes negligence for purposes of FELA."1
(citations omitted.) Id. at , 114 S.Ct. at 2410, 129
L.Ed.2d at 447.
With this as the relevant legal framework, the facts and
allegations proven by Vance did not support a case for
negligent infliction of emotional distress. As perceived by
the majority, Vance demonstrated that he was subjected to a
"hostile workplace environment" at work. This is not within
the narrow limits of a "zone of danger" test, i.e., fright
caused by imminent physical peril. The incidents such as the
rat in the lunch box, the scratched car, the taunting about
sexual matters, the sugar in the gas tank, or the failure to
provide safety equipment were bundled by the majority as if

each meets the "zone of danger" test.
The two incidents involving threats of physical peril, the
chipping hammer incident and the co-worker trying to run down
Vance with a vehicle in the yard, are intentional acts and thus
do not fit the Gottshall constraints. The railroad had a duty
to avoid subjecting Vance to negligently inflicted emotional
injury as defined by the "zone of danger" test. Vance, of
course, did not allege nor did he wish to try to prove that the
employer intentionally inflicted emotional distress.
Both the majority and concurring opinions consider the
applicability of a theory of negligent supervision to this
case. In my view, that theory fails for two reasons. First,
such claims may be brought under FELA for intentional acts of a
co-employee only where there is a physical injury, not a purely
emotional injury. Limitation of the purely emotional claims
to "zone of danger" scenarios is the upshot of the Gottshall
decision. Second, even if one could recover for purely
emotional injuries under a negligent supervision theory, Vance
did not present evidence that either the chipping hammer
incident or the attempted rundown was committed by an employee
who had previously demonstrated such behavior, thereby
triggering the employer's duty to discipline or discharge such
employee. To the contrary, the majority opinion casts a duty
on railroads to regulate conduct of the general employee
population rather than limiting the duty to an offending
individual employee. Of critical importance, in most of the
incidents, no culprit was even identified. Rather, it is only
by evidence of a "pervasive" attitude in the company that the
majority holds the employer to the nebulous duty "to deal with
the problems" in Vance's work environment.
II
I also differ with the majority's employing the
"unconscionable abuse" test from Adams v. CSX Transp., Inc.
(C.A.6, 1990), 899 F.2d 536, decided before Gottshall. Because
Gottshall limits claims of negligent infliction of emotional
distress to the class of plaintiffs meeting the "zone of
danger" test, the Adams "unconscionable abuse" test is no
longer applicable.
Conclusion
The majority decision merits the same criticism the
Supreme Court leveled at the Third Circuit's decision it
reviewed in Gottshall, i.e., that the "ruling would tend to
make railroads the insurers of the emotional well-being and
mental health of their employees." 512 U.S. at , 114 S.Ct.
at 2409, 129 L.Ed.2d at 446. Because the majority violates the
boundary imposed by Gottshall on FELA claims for purely
emotional injury, I dissent and would affirm the judgment of
the court of appeals

Footnote:
1 In Heiner v Moretuzzo (1995), 73 Ohio St.3d ,
N.E.2d , decided today, we held that in order to recover for
negligent infliction of emotional distress in Ohio, a plaintiff
has to have suffered the emotional injury from witnessing or
experiencing a dangerous accident or have had an appreciation
of actual physical peril.