problem, while in a pure negligence case the physical injury is caused directly by the defendant's conduct. He argues that he has alleged both types of claims.
The Eastern District of Pennsylvania was faced with a similar contention in Dennis v. Consolidated Rail Corp., 1994 U.S. Dist. LEXIS 12710, No. CIV. A. 93-1915, 1994 WL 494453 (E.D. Pa. Sept. 7, 1994). In Dennis, a Conrail employee alleged a cause of action for, among other things, "negligent infliction of emotional distress arising from prolonged and unreasonably dangerous work related stress." Id. at *3. Because Carlisle was decided when Conrail's motion for summary judgment was pending, Dennis' counsel, "twisting in the legal winds," tried to recast Dennis' claim as one for a purely physical injury. Id. at *12. The court rejected such a devise, reasoning that the claim was indeed the same as Carlisle -- a claim for too much, not too dangerous, work.
There were several reasons that led the Dennis court to its conclusion. First was the "magical transformation" of Dennis' claims. Id. Dennis had argued repeatedly that the pre-Supreme Court Carlisle case was analogous, if not identical, to her claims. Second, the court looked to the core of Dennis' claim. It noted that her claim was that she had been injured because of the "cumulative and excessive nature of the individual tasks she was required to perform." Id. Thus Dennis' claim, like Carlisle's claim, was that she had been given too much -- not too dangerous -- work. While the court noted that there may be some theoretical point where "non-actionable 'too much work' becomes actionable 'too dangerous work,'" it held that Dennis' claim did not reach that point.
Under the same reasoning, Capriotti's claim must fail. First this court notes that Capriotti's claim also underwent a magical transformation after Carlisle. What was once a claim "not very dissimilar" to Carlisle's, Plf.'s Mem. of Law at 11, is now allegedly very dissimilar. Plaintiff had previously devoted substantial pages of argument comparing his injuries to those in Carlisle, now he anxiously tries to distance himself from Carlisle, claiming instead that he suffers from a purely physical injury.
Notwithstanding plaintiff's chameleon-like allegations, his claim also fails on its merits. Plaintiff has not identified any particular condition existing at Conrail that was dangerous. Instead he argues that the cumulative effect of his duties and responsibilities and the long hours of work created a stressful environment which caused his injury. The core of his complaint then is identical to Carlisle: "that he had be given too much -- not too dangerous -- work to do." Gottshall and Carlisle, 114 S. Ct. at 2412.
The court is aware that Carlisle could have arranged his allegations to claim that his physical injuries were divorced from his emotional injuries. However, the core of his complaint would have been the same. "The court seriously doubts . . . that the Supreme Court intended that the distinction between non-actionable claims of too much work and actionable claims of too dangerous work should turn upon the labels attached to such claims rather than the substance of those claims." Dennis, 1994 U.S. Dist. LEXIS 12710 at *45, 1994 WL 494453, at *13. Because the substance of Capriotti's claim is the same as the claim in Carlisle, Carlisle is controlling. Here, because plaintiff has not alleged that he was within the zone of danger, his claim must fail.
II. VIOLATION OF THE HOURS OF SERVICE ACT
The Hours of Service Act ("Act"), 45 U.S.C. § 61 et seq. statutorily limits how many hours a railroad employee can work consecutively. While there is no private right of action under the Act, United Transp. Union v. Lewis, 699 F.2d 1109 (11th Cir. 1983), plaintiff claims that he is entitled to recover under FELA because Conrail's violation of the Act amounts to negligence per se.
As an initial matter, Conrail contends that the Act only applies to "individuals engaged in or connected with the movement of any train," 45 U.S.C. § 61(b)(2), and that plaintiff does not fit within this definition. The statutory language has been interpreted to mean that the employee must have duties that proximately relate to trains already in motion or about to move. Jopek v. New York Central R.R. Co., 353 F.2d 778, 783 (3d Cir. 1965). In the earlier motion for summary judgment, this court determined that because plaintiff has overall responsibility for the movement of trains in the Dewitt Yard, his duties proximately relate to trains in movement or about to move. See Transcript dated February 11, 1994, 92-CV-1085. Therefore, plaintiff is covered by the Act.
The defendant next contends that if plaintiff cannot recover directly under FELA for his negligent infliction of emotional distress claim, then he cannot recover for that claim by alleging violations of the Act. The court agrees. Under a negligence per se theory, if a plaintiff proves that a statutory violation has occurred he need not prove the traditional negligence elements of foreseeability, duty and breach, but he is still required to prove causation. Moody v. Boston and Maine Corp., 921 F.2d 1, 4 (1st Cir. 1990). In this case, plaintiff does not seek to recover directly under the Act, but seeks to recover under FELA, and thus, despite invoking the relaxed standards of proof under negligence per se, he is still bound by the FELA parameters established in Carlisle; that is, as stated, in emotional distress cases the plaintiff must prove that he was within the zone of danger. Therefore, because plaintiff has not alleged that he was in the zone of danger, his claims must fail.
Therefore it is hereby
ORDERED that defendant Consolidated Rail Corporation's motion for summary judgment is GRANTED and plaintiff's complaint is dismissed.
Judgment should be entered accordingly.
IT IS SO ORDERED.
DATED: MARCH 13, 1995
SYRACUSE, NEW YORK
FREDERICK J. SCULLIN, JR.
U.S. DISTRICT JUDGE
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