following a particular type of physical injury.
In reviewing this matter, the Court takes note of the seminal case of Atchison, Topeka and Santa Fe Ry. v. Buell, 480 U.S. 557, 561, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987), in which the Supreme Court reviewed, as an ancillary matter and without deciding the question, whether purely "emotional injury" was cognizable under FELA. Although the emotional injury asserted in the instant case is premised upon an actual physical injury, the Court finds that Buell offers some guidance in this area:
". . . 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. . . . Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace. In addition, although many States have now recognized a tort of negligent infliction of emotional distress, they too vary in the degree of objective symptomatology the victim must demonstrate. . . . In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive 'yes' or 'no' answer" (480 U.S. at 568-570).
The Court notes as an aside that the Supreme Court has denied certiorari, with two justices dissenting, in recent cases reaching different results on the question of whether FELA extends to claims based purely on emotional distress (see Ray v. Consolidated Rail Corp., 721 F. Supp. 1017 [N.D. Ill. 1989], aff'd, 938 F.2d 704 [7th Cir. 1991], cert. denied, 112 S. Ct. 914, 116 L. Ed. 2d 813 ; Carroll v. Consolidated Rail Corp., 1991 U.S. Dist. LEXIS 2827 [E.D. Pa.], aff'd, 941 F.2d 1200 [3d Cir. 1991], cert. denied, 112 S. Ct. 916, 116 L. Ed. 2d 816 ).
Courts in various circuits have found that a claim for negligent infliction of emotional distress is cognizable under FELA and that plaintiffs can assert claims under FELA for a wholly mental injury (see, e.g., Taylor v. Burlington N.R.R. Co., 787 F.2d 1309 [9th Cir. 1986]; Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 [5th Cir.], modified, 797 F.2d 256 [5th Cir. 1986]). In both Taylor and Hagerty, the defendants argued that FELA covered only physical injuries. However, the court in Taylor determined that where continuing harassment by the defendant's foreman led to the plaintiff's paranoid schizophrenia, the plaintiff was eligible to assert a claim for wholly mental injury Taylor, 787 F.2d at 140). Likewise, in Hagerty, the court held that a seaman drenched in harmful chemicals during the course of his employment was eligible to assert an emotional injury claim based upon his fear of developing cancer in the future.
Closer to home, the Court looks to Halko v. New Jersey Transit Rail Operations, Inc., 677 F. Supp. 135 (S.D.N.Y. 1987), in which the widow of a Conrail employee brought a FELA action alleging that Conrail and the corporation which took over Conrail in New Jersey were negligent in failing to properly hire, train, and supervise its management, which contributed to the employee's suicide. The district court found that the continuing harassment of supervisors could have a causal connection to Halko's suicide. The court observed that "in this case, there certainly is a physical manifestation of the emotional distress . . . Moreover, the court is not dealing with a totally emotional injury since there was in fact a physical consequence albeit a delayed reaction" ( id. at 139). In the instant case, the physical injury clearly formed the foundation of the alleged mental distress.
The LIRR had actual knowledge of the conditions in and around the shaftway at Hempstead Railroad Station, which is the precise reason the plaintiff was dispatched to the area. In fact, Marchica and his crew were sent there to remedy a situation in which certain homeless people and drug addicts congregated, creating damage to the trainmen's room. With knowledge of the conditions prevailing in the area where this incident occurred, the railroad's culpability in terms of the foreseeability of harm is a matter properly left to a jury's determination (see Burns v. Penn Cent. Co., 519 F.2d 512, 514 [2d Cir. 1975], cited in Halko v. New Jersey Transit Rail Operations, Inc., 677 F. Supp. at 141).
This Court concludes that the alleged emotional injuries predicated upon a fear of contracting AIDS are recoverable under FELA. The LIRR owed a duty to Marchica to provide him a safe place in which to work. The scope of that duty and the reasonable foreseeability of harm are "essential ingredients of FELA negligence" ( Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117, 83 S. Ct. 659, 665, 9 L. Ed. 2d 618 ). "The right of the jury to pass upon the question of fault and causation must be most liberally viewed" ( Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 [2d Cir. 1980]). Therefore, these issues are not subject to determination upon a motion for summary judgment.
C. Fear of Contracting AIDS
Various state courts have addressed the question of whether the fear of contracting AIDS presents a viable cause of action, with differing results see, e.g., Carroll v. Sisters of St. Francis Health Services, Inc., 1992 Tenn. App. LEXIS 845 [Tenn. App. 1992] [proof of exposure to AIDS virus is not prerequisite to recovery for emotional distress resulting from fear of contracting AIDS in action alleging that hospital's negligence caused needle prick]; Ordway v. County of Suffolk, 154 Misc. 2d 269, 583 N.Y.S.2d 1014 (N.Y. Sup. Ct. 1992] ["AIDS phobia" may constitute viable psychic injury for purposes of action based on negligent infliction of emotional distress, but surgeon's claim as asserted was insufficient as a matter of law]; Transamerica Ins. Co. v. Doe, 840 P.2d 288 [Ariz. App. Div. 1, 1992] [exposure to infected blood is not bodily injury required as prerequisite to compensation for emotional distress based upon plaintiff's alleged exposure to AIDS and fear of contracting the disease]; Funeral Services By Gregory, Inc. v. Bluefield Community Hospital, 413 S.E.2d 79 [W.Va. 1991] [fear of contracting AIDS in absence of actual exposure to virus not recognized as legally compensable injury]; Johnson v. West Virginia University Hospitals, Inc., 413 S.E.2d 889 [W. Va. 1991] [security officer bitten by hospital patient suffering from AIDS entitled to recover for emotional distress based on worry that he would contract the disease]; Poole v. Alpha Therapeutic Corp., 698 F. Supp. 1367 [N.D. Ill. 1988] [wife of hemophiliac, who contracted AIDS from defendant's antihemophilic factor and asserted claim for fear of contracting AIDS alleged facts sufficient to arguably place her in zone of danger and to constitute reasonable fear for her safety, but failed to allege physical injury resulting from emotional illness]).
New York state courts have had their share of "AIDS phobia" cases. In Ordway v. County of Suffolk, supra, 583 N.Y.S.2d at 1016, where the Supreme Court, Suffolk County found that "AIDS phobia" could constitute a viable psychic injury, the court noted in reviewing the evidence that the plaintiff surgeon had not alleged that the operations he performed on a prisoner with AIDS, unbeknown to him at the time, were in any way remarkable. For example, "there was no broken glove, pierced skin, patient bite, etc., which distinguishes the operations in question from any other" (id. at 1016-17).
Several New York cases discuss actual physical injury as a basis for an emotional distress claim. In Hare v. State, 173 A.D.2d 523, 570 N.Y.S.2d 125 [2d Dept. 1991], the Appellate Division, Second Department determined that a hospital x-ray technician who was bitten by on unrestrained and allegedly AIDS-infected prisoner could not recover on a claim of emotional distress, especially where the prisoner's AIDS status was "rumor" at best. By contrast, the court in Castro v. New York Life Ins. Co., 153 Misc. 2d 1, 588 N.Y.S.2d 695 (N.Y. Sup. Ct. 1991), held that a cleaning worker who was stuck with a used hypodermic needle while transferring garbage from a waste container in the New York Life offices had a viable cause of action for fear of contracting AIDS.
In addition to immediate treatment, the plaintiff in Castro was seen in an outpatient clinic every month for testing and received regular treatment from a psychiatrist. Declining to dismiss the complaint for failure to state a cause of action, the court stated the following:
"given the massive informational campaign waged by federal, state and local health officials over the last few years in an effort to educate the public about this dreadful disease, any reasonable person exposed to this information who is stuck by a used and discarded hypodermic needle and syringe from which blood was apparently drawn could develop a fear of contracting AIDS" (id. at 698).
As one commentator closely connected to the Castro case subsequently stated: "Unlike Hare, the identity of the contaminator in Castro is unknown, making the fear of contraction more reasonable. . . Therefore, based upon the reasonableness of the fear, the breach of the duty, evidence of a specific incident and an actual physical injury, the facts in Castro arguably would support a claim even under the more narrow approaches taken by the lower courts" (Harry, H. Lipsig, "AIDS Phobia and Negligent Infliction of Emotional Distress," N.Y.L.J., March 26, 1992, at 3, 4).
Although there are no FELA cases directly discussing emotional distress in the context of fear of contracting AIDS, several FELA cases offer some guidance to the Court. In Masiello v. Metro-North Commuter R.R., 748 F. Supp. 199 (S.D.N.Y. 1990), a female employee's allegations that the railroad had negligently failed to protect her from the sexual harassment of co-workers, with the result that she developed an ulcer and emotional injuries, were held to be sufficient to state a cause of action for negligent infliction of emotional distress.
In Reese v. CSX Transportation, Inc., 1992 WL 119163 (W.D.N.Y. 1992), a re-assigned communications worker advised his supervisor that he felt he did not have sufficient experience to operate tower house switches which controlled traffic on approximately nine sets of railroad tracks. After experiencing diarrhea, insomnia, shaking, nausea, vomiting, confusion, depression and anxiety, the plaintiff called in sick on the fourth day. Although the defendant returned to work the following Monday, he wrote a letter several days later disqualifying himself from the job and was eventually admitted through the emergency room to a hospital psychiatric unit. Responding to a claim for damages under FELA, the district court found that the emotional injury was cognizable under FELA since it was also accompanied by a causally related physical manifestion.
In Masiello and Reese,, the courts determined that FELA applied to circumstances where claims of purely emotional distress were accompanied by physical manifestations. This Court has no doubt that FELA applies to the actual, physical injury sustained by John Marchica. Recognizing the broad remedial purpose of FELA and its liberal construction as enunciated in Urie v. Thompson, 337 U.S. 163, 180, 93 L. Ed. 1282, 69 S. Ct. 1018 (1949), this Court finds that FELA also encompasses a cause of action for fear of contracting AIDS in the circumstances of the instant case. Transmission of AIDS by intravenous drug use accounted for 25 percent of all AIDS cases in the United States by 1986 (Gerald H. Friedland & Robert S. Klein, "Transmission of the Human Immunodeficiency Virus," 317 NEW ENG. J. MED. 1125, 1127 ). Whether the plaintiff's fear was reasonable, at least through the period of time when he received his last negative result from testing, is a question for the finder of fact and will not be determined on papers submitted in a motion for summary judgment.
The Court finds that the cases cited by the defendant LIRR are distinguishable from the instant case. Neither Burk v. Sage Products, Inc., 747 F. Supp. 285 (E.D. Pa. 1990) nor Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir. 1985) were commenced under FELA. Burk was a paramedic who brought a products liability action under Pennsylvania state law against the manufacturer of a container for used syringes, on which the plaintiff was stuck by a protruding needle. The plaintiff could not prove that he was actually exposed to he AIDS virus because he could not show that the needle had been used by an AIDS patient and the cause of action was dismissed ( Burk, 747 F. Supp. at 286).
The plaintiff's reliance on Wisniewski is also misplaced. The action by the plaintiff wives and children whose husbands allegedly carried asbestos dust into their homes through clothing and tools was dismissed cause the plaintiffs did not suffer an actual physical injury upon which emotional distress followed ( Wisniewski, 759 F.2d at 272). The remaining cases cited by the defendant deal with claims of intentional infliction of emotional distress -- a claim which is not asserted by Marchica.
Whether Marchica's psychological history since this incident constitutes compensable damage in addition to the physical harm is a material question of fact for the jury (see Dobelle v. National R.R. Passenger Corp., 628 F. Supp. 1518, 1527 [S.D.N.Y. 1986]). In this type of case, the finder of fact may conclude that the plaintiff has sustained sufficient physical injury to support an award for mental anguish, even if subsequent medical diagnosis fails to reveal any other physical injury, and even though there is no proof at this time that the plaintiff has, in fact, contracted AIDS. Summary judgment in these circumstances is clearly inappropriate.
The Court finds that (1) FELA covers both the physical and emotional injuries alleged to have been inflicted upon the plaintiff; (2) a jury could find that the LIRR acted negligently toward Marchica; and (3) a jury could find that the LIRR's negligence played a role in both injuries. In light of these findings, the defendant's motion for summary judgment is denied.
In light of the foregoing, the motion by the defendant LIRR, pursuant to Fed. R. Civ. P. 56, for partial summary judgment, dismissing all claims relating or pertaining to the plaintiff's alleged fear of contracting AIDS (Acquired Immune Deficiency Syndrome), is denied. This case is set down for the selection of a jury on March 1, 1993, at 9:30 a.m. in Courtroom "A" of the Uniondale Courthouse. Further, the parties are advised that the case is set down for a status conference on February 10, 1993, at 9 a.m.
Dated: Uniondale, New York
January 26, 1993
ARTHUR D. SPATT
United States District Judge