Background: The plaintiffs, Kathleen Brennan and Thomas Brennan, filed suit against their employer, Casco Bay Island Transit District ("Casco").

The Brennan's worked as deckhands on Casco's ferry, the MAQUOIT II.  On August 13, 2004, Kathleen Brennan was ordered to stand on the bumper of a car to help weigh it down so it could pass under the overhead bar. More weight was needed so Thomas Brennan also got on the bumper. To make room for Thomas, Kathleen moved towards the center of the bumper.

After the car began moving, Kathleen slipped backwards off the car and fell in the opening between the water edge of the pier's concrete ramp, the upper deck of the boat, and the two planks over which the vehicle was traveling.

Thomas sought counseling for emotional distress, but has not had any additional problems since Kathleen's accident.

The Brennan's filed a motion for summary judgment on Casco's affirmative defense of contributory negligence.  They contended that they were entitled to summary judgment because a seaman may not be held to be contributorily negligent if he was carrying out orders that resulted in his own injury, even if he recognized the danger. They argued that Kathleen was following out the operations manager's orders. Casco responded that Kathleen moved to the center of the bumper on her own, and that was the cause of the injury.

Casco filed a motion for summary judgment on all claims asserted by Thomas Brennan. Casco contended that Thomas could not recover for emotional distress as he was not placed in immediate or imminent risk of physical harm, and did not suffer any physical injury. Both parties contested whether the zone of danger test established in Consolidated R.R. Corp. v Gottshall, 512 U.S. 532, applied to Thomas's claims in this case.

Issue: Whether the Court will grant summary judgment to either party.

Held:
The Court held that the Brennan's motion for summary judgment on contributory negligence should be denied. The Brennan's offered several statements about what happened, but they do not establish that Kathleen was following the operations manager's orders when she moved to the center of the bumper and subsequently fell.

Casco's motion for summary judgment against Thomas Brennan's claims was granted. The Court noted that Thomas needed to have shown some physical injury to convince the Court there were issues of material fact. It was undisputed that Brennan suffered no injuries. Further, the Court held the zone of danger test did not apply here. Thomas was unaware Kathleen had fallen until a few minutes after, and Thomas had a handhold, which meant he was unlikely to fall off. Therefore, Thomas failed to show he was in the zone of danger. Thus, summary judgment was granted in favor of Casco.

Comments:

In Gottshall, the Supreme Court held that the zone of danger test applied to claims for emotional injury brought under FELA.

The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of the defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct.

Here, Thomas Brennan failed to show either of the requirements for the zone of danger test. Thus, he could not sustain summary judgment.

Steve Gordon
http://www.offshoreinjuries.com