Zone of Danger


Consider the following situations and ask yourself - who has a claim against the railroad?

  1. It is Valentine's Day 1996 approaching midnight. A switchman stands in the middle of the yard quietly going about his business helping move the nation's freight. From out of the night, a runaway Burlington Northern Santa Fe train has somehow managed to enter the yard going almost 50 miles per hour, heading directly for two standing engines which are next to the yard office where friends and fellow workers are changing shifts. The train rocks back and forth on the 10 mile per hour track but manages to not derail. As time slows down, seconds pass like days, yet the runaway train flies by the young switchman within 40 yards of where he stands. As the train hits the standing engines, he hears a thunderous collision and watches as huge engines are thrown into the air, bombarding the yardhouse and derailing countless cars in and around him. He knows that "there is no escape - I am going to die". Propane tank cars litter the yard but miraculously there is no explosion. When all finally quiets down and the smell of diesel fumes and the cold and the darkness is all that can be sensed, he realizes that he has been missed - he has survived.

    He immediately helps his injured coworkers. He has suffered no cuts, no bruises, no bumps, no fractures, no physical injuries. However, in the ensuing months, he has nightmares, and flashbacks and cannot get himself to come back into the yard, to stand next to moving equipment or even watch trains go by.

  2. It happens all too often, your train comes around a bend and a car has decided to "beat your train" over the crossing. The adrenaline pumps, your instincts are heightened and decisions are made instantaneously. Although you slam your train into emergency, you know the impact is inevitable. The collision itself seems to occur in slow motion as your powerful train collides with the now tiny looking vehicle. You can see the terrified teenage driver and her friends. The moment is etched forever in your brain - the crunching metal, the shattering glass, and the screeching brakes roaring in your ears. When your train finally stops, you immediately try to help, only to witness one of the most difficult scenes of all - the injuries and death of young lives.

    Since you were not physically injured, you try your best to return to work. The scene haunts you though and around every turn you reach for your emergency brakes. You know it was not your fault, but that gives little comfort.

  3. Two Amtrak engineers had their locomotive sliced open by a 40 foot long steel beam protruding from a Union Pacific rail car during a "meet". Both men suffered physical fractures which healed prior to trial. However, both also suffered psychological damage in this crash, including Post Traumatic Stress Disorder (PTSD). Despite therapy, their PTSD has never completely healed and they are permanently disabled from their jobs with Amtrak.

  4. It is an extremely hot, humid and sultry day. You and your best friend are pounding spikes, lifting rail and doing the company's business in the heat of the day. Although breaks are requested they are denied and although complaints are registered about the horrible conditions, the supervisor insists that work go forward. Your friend suddenly clutches his chest, collapses to the ground and dies in your arms as you try to render care for the massive heart attack he suffers. The railroad's supervisor callously concludes that since you are out in the middle of no where and since your friend is dead, you and your co-workers might as well keep on working until someone responds to the radio transmission for help. Understandably this highly charged, unreasonable and emotionally devastating experience has an emotional and psychological consequence on you which forces hospitalization, psychological counseling and long term emotional care.
All four of the above scenarios are based on real incidents and involve very real and serious psychological injuries. Yet, the mere fact that one is psychologically injured does not necessarily result in the right to recovery under the FELA.

In 1994, The United States Supreme Court concluded that "pure emotional and/or pure psychological damage" will not be compensable under the FELA. The Court in two cases, Carlisle and Gotschall, concluded that in order for a railroad worker to recover for psychological and/or emotional injury, the worker must either have some type of accompanying physical injury or have been in the "zone of danger". The Court in Carlisle indicated that although the circumstances were horrendous that no recovery could occur under the FELA because Carlisle, in witnessing his friend's heart attack, as in scenario number 4, was not himself physically injured nor was he in the "zone of danger".

In the Amtrak case, number 3, the physical injuries, although temporary in nature, allowed the two engineers to successfully pursue recovery for their Post Traumatic Stress Disorder (see related article in this issue).

The "eye witness runaway train case" and the "crossing case", numbers 1 and 2, did not involve any physical injuries but potentially could result in recovery for pure psychological damages if it can be shown that the railroad workers were in the "zone of danger".

The United States Supreme Court did not define in great detail what the zone of danger means. However, the case law implies that one has to be reasonably fearful of eminent serious bodily injury and/or death and that all circumstances will be taken into consideration when deciding if someone is actually in the "zone of danger". The test is two fold: 1) That the person believed and testifies that he or she was in the "zone of danger" and; 2) that a Court agrees that a reasonable person would have so felt.

In crossing cases, if crew members in the cab are bounced around and are bruised, cut or otherwise physically injured, they should be able to bring a claim for any psychological and/or emotional trauma resulting from the incident. Likewise, if it can be shown under the circumstances that they reasonably felt that they were in the "zone of danger" they could also bring such a claim even if physically unhurt. For example, if they were reasonably in fear of an explosion from the impact with the car or if the vehicle hit was carrying flammable or hazardous materials, or if a derailment is likely, as in a collision with a concrete truck, and the crew members in the cab reasonably expect that they are going to receive serious bodily injury as a result of the collision, they would be in the "zone of danger".

The Carlisle and Gotschall cases address only the question of whether a claim exists and do not take it any further. For example, in the eyewitness case above, #1, once our firm proved that the Carlisle and Gotschall standard had been met, the court required us to prove that this particular incident caused the emotional damage complained of and the extent of that emotional damage in order to have our client recover. We were able to prove both and an excellent recovery was obtained for this eyewitness.