Opinion
Civ. A. No. 89-7452.
February 4, 1993.
Lawrence A. Katz, Patrick T. Henigan, Mitchell A. Kaye, Robert E. Myers, Coffey Kaye, Bala Cynwyd, PA, for plaintiff.
Jonathan F. Altman, Thomas J. Wamser, Philadelphia, PA, for defendant.
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff, Jerald E. Bloom, brought this action against his former employer, Consolidated Rail Corporation ("Conrail"), pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq., for his psychiatric injuries that arose after the train he was driving struck and killed a pedestrian. Plaintiff claims that Conrail is liable under FELA because his injuries resulted from the manner in which a Conrail patrolman treated him after the incident and because Conrail failed to provide plaintiff with psychiatric treatment after prior incidents.
Plaintiff was disqualified from work at Conrail for psychiatric reasons in 1988 and received disability.
This case was assigned to the Honorable William H. Yohn, Jr., however, the parties have consented to trial before me. Presently before this Court is Defendant Conrail's Motion for Summary Judgment. For the following reasons, Conrail's Motion will be denied.
II. FACTUAL BACKGROUND
Viewing the facts in favor of Plaintiff, I accept the following for purposes of this Motion: Plaintiff had been employed by the railroad in engine service since 1956 and became an engineer in 1966 or 1967. During his career, Plaintiff was involved with four incidents where people were killed when they or their automobiles were struck by Plaintiff's locomotives. This action concerns mainly the fourth and final incident, but I will briefly describe the other three. It appears that the first occurred in the 1960s when a woman intentionally parked her car on the tracks with herself and her five children in the car. They were all
Defendant's first claim is irrelevant to this action because Plaintiff is not attempting to prove that his injuries were the result of Conrail negligence in causing Mr. Compton's suicide. Plaintiff admitted this fact in his Brief in Opposition to Defendant's Motion and stated that Defendant did not understand the nature of Plaintiff's claims. Plaintiff is claiming that his injuries were caused by the patrolman's actions and Conrail's failure to provide medical treatment. Therefore, Defendant's first claim will be dismissed and not considered.
Actually, this admission was stated in Plaintiff's Memorandum of Law filed in January 1991, in opposition to Defendant's first Motion for Summary Judgment filed before Judge Buckwalter. That memorandum was incorporated into Plaintiff's response memorandum for the present Motion for Summary Judgment.
Second, Defendant argues that the patrolman's actions were reasonable and therefore, it is entitled to summary judgment. I disagree. It is now well-settled that the FELA has been construed to cover some intentional torts even though its text only mentions negligence. Atchison, T. S.F.R. Co. v. Buell, 480 U.S. 557, 562 n. 8, 107 S.Ct. 1410, 1414 n. 8, 94 L.Ed.2d 563 (1987) (and cases cited therein). It seems that the most common of these actionable intentional torts has been assault. Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1930); Lancaster v. Norfolk W.R. Co., 773 F.2d 807 (1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987); Brooks v. Washington Terminal Co., 593 F.2d 1285 (C.A.D.C. 1979), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979). In addition, railroad workers are able to sue their employers for injuries arising out of intentional torts committed by fellow employees as long as the tort was committed in the course of the discharge of the fellow employee's duties and in furtherance of the employer's objectives. Lancaster, 773 F.2d at 818; see also, Jamison, 281 U.S. at 641, 50 S.Ct. at 442.
Plaintiff contends that he was assaulted by the Conrail patrolman and the patrolman's actions caused in part his emotional and psychiatric injuries. Therefore, Plaintiff's claim as stated against the patrolman is actionable under the FELA. Although Defendant argues that the patrolman's actions were reasonable, thereby defeating this claim under the FELA, the reasonableness of a person's actions is a question of fact for the jury. As such, Defendant's second claim must be denied.
Third and finally, Defendant asserts that Plaintiff was provided with adequate medical care, despite the fact that Plaintiff claims Conrail was negligent in failing to provide it. There is no question that Defendant provided Plaintiff with the opportunity to seek medical treatment because of the existence of the health plan provided by his union, the Brotherhood of Locomotive Engineers, and Conrail. In addition, there is no dispute that Plaintiff began seeking his own psychiatric treatment after the incident with Mr. Compton's suicide.
The question remains, however, whether Conrail's duty to provide a reasonably safe workplace would require Conrail to do more because of the frequency of train-impact deaths, such as providing Plaintiff with counselling and treatment after his earlier impacts. Plaintiff's doctor, Dr. Saul, believes that Conrail's failure to engage Plaintiff in therapy after the earlier fatalities contributed to Plaintiff's present injuries. In other words, I am faced with the question of whether Conrail acted reasonably in the circumstances of this case. Again, reasonableness is a question of fact for the jury. Therefore, Defendant's Motion must be denied.