Douville v. Casco Bay Island Transit CV-98-178-JD 08/18/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Susanni Douville, et al.

v. Civil No. 98-178-JD

Casco Bay Island Transit

O R D E R

The plaintiffs, Lillian H. Douville and Donald F. Douville,

brought this action against the defendant. Casco Bay Island

Transit District, asserting claims governed by federal maritime

law. The plaintiffs allege that they suffered injuries when the

defendant negligently ran the mooring line of a vessel owned and

operated by it over the top of the port railing and failed to

untie the line before the vessel left port. The defendant admits

that its negligence was the cause of the injuries claimed by the

plaintiffs, but disputes the scope of recoverable damages.

Before the court is the defendant's motion to dismiss the

plaintiffs' claim for negligent infliction of emotional distress

in count III (document no. 4).

Background1

The defendant operates a ferry system that transports

passengers, vehicles, and other cargo to and from various ports

1 The facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiffs. within the navigable waters of Casco Bay, Maine. On July 4,

1995, the plaintiffs, along with their daughter, Susanni, and

son-in-law, John R. Hull, Jr.,2 boarded the Machigonne II, a car-

ferry boat owned and operated by the defendant. Upon boarding

the Machigonne II, the plaintiffs positioned themselves at the

bow of the vehicle deck.

The Machigonne II pulled away from its docked position, but

a mooring line attached to its bow remained affixed to a pier

cleat. As the Machigonne II continued to pull away from the

dock, the mooring line became increasingly taut and stretched

across the width of the bow in the direction of the plaintiffs.

The mooring line headed towards Lillian Douville, who, due to

severe rheumatoid arthritis, was confined to a wheelchair.

Lillian Douville's husband and her son-in-law managed to lift the

mooring line over her head and then ducked underneath to avoid

direct injury to themselves. The Machigonne II continued to pull

away with the mooring line still affixed to the pier cleat until

the mooring line eventually snapped under the tension, ricocheted

back into the Machigonne II, and struck Susanni Douville on her

hand. As a result of the accident, the plaintiffs claim they

suffered emotional distress and Lillian Douville claims her

2 Initially, Susanni Douville and John Hull, Jr. were also parties to this action, but they have since settled their claims against the defendant.

2 arthritic condition was exacerbated.

The plaintiffs brought this action against the defendant on

January 8, 1997, in the United States District Court for the

District of Maine.3 In counts I and II, the plaintiffs allege

negligence and failure to warn, respectively, under general

maritime law. In count III, Lillian Douville seeks recovery for

negligent infliction of emotional distress caused by her near­

injury and by witnessing her daughter's injury. In count III,

Donald Douville seeks recovery for negligent infliction of

emotional distress caused by witnessing his wife's near-injury

and his daughter's injury. In count IV, Donald Douville seeks

recovery for loss of his wife's consortium.

On April 23, 1997, the district court in Maine denied the

defendant's motion to dismiss the loss of consortium claim. On

November 14, 1997, the defendant moved to dismiss count III

pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim

upon which relief can be granted. That motion, which was not

resolved prior to the case being transferred to this district, is

currently before the court. However, because the defendant filed

an answer to the plaintiffs' complaint on March 12, 1997, the

pleadings have closed under Fed. R. Civ. P. 7(a). Thus, the

3 The case was reassigned to this court on March 30, 1998, because Susanni Douville was offered, and accepted, a law clerk position for a magistrate judge within the District of Maine.

3 court will treat the defendant's motion to dismiss as a motion

for judgment on the pleadings. See Fed. R. Civ. P. 12(c) .

Discussion

The standard for evaluating a Rule 1 2 (c) motion for judgment

on the pleadings is essentially the same as the standard for

evaluating a Rule 12(b)(6) motion. See Republic Steel Corp. v.

Pennsylvania Enq'q Corp.,

(7th Cir. 1986) . In

both cases, the court's inguiry is a limited one, focusing not on

"whether a plaintiff will ultimately prevail but whether [it] is

entitled to offer evidence to support the claims." Scheuer v.

Rhodes,

(1974) (motion to dismiss under Fed. R.

Civ. P. 12(b)(6)). In making its inguiry, the court must accept

all of the factual averments contained in the complaint as true,

and draw every reasonable inference in favor of the plaintiffs.

See Garita Hotel Ltd. Partnership v. Ponce Fed. Bank,

(1st Cir. 1991) (Rule 12(c) motion); Santiago de Castro

v. Morales Medina,

(1st Cir. 1991) (Rule 12(c)

motion). Great specificity is not reguired to survive a Rule 12

motion. "[I]t is enough for a plaintiff to sketch an actionable

claim by means of 'a generalized statement of fact.'" Garita,

(guoting 5A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (1990)). In the end, the

4 court may not enter judgment on the pleadings unless it appears

"'beyond doubt that the plaintiff can prove no set of facts in

support of his or her claim which would entitle him or her to

relief.'" Santiago de Castro,

(guoting Conley v.

Gibson,

(1957)); see also Rivera-Gomez v. de

Castro,

(1st Cir. 1988) .

This action presents the following issues: (1) whether

recovery of damages for negligent infliction of emotional

distress is cognizable under the general maritime law; and (2) if

such an action is available, what standard must be met to prevail

on the claim. The court addresses these issues seriatim.

I. Recovery of Damages for Negligent Infliction of Emotional Distress Under Maritime Law

The issue of whether the plaintiffs can recover for

negligent infliction of emotional distress under general maritime

law is a guestion of first impression in the First Circuit. See

Ellenwood v. Exxon Shipping Co.,

(1st Cir.

1993) (court refused to address the plaintiff's inadeguately

developed emotional distress claims). Unsettled issues of

general maritime law should be resolved by a judicial analysis of

congressional enactments in the field of maritime law, relevant

state legislation, and state common law. See Miles v. Apex

Marine Corp.,

(1990). For situations not

5 directly governed by congressional legislation or maritime

precedent, the general maritime law is "developed by the

judiciary." East River S.S. Corp. v. Transamerica Delaval, Inc.,

(1986). However, the process of judicial

development should attempt to preserve the "harmony and

uniformity" of the general maritime law. Yamaha Motor Corp.,

U.S.A. v. Calhoun,

(1996) (guoting Western Fuel

Co. v. Garcia,

(1921)).

Case law under the Jones Act guides the development of the

general maritime law. See Chan v. Society Expeditions, Inc.,

(9th Cir. 1994). The Jones Act states, in part:

Any seaman who suffers personal injury in the course of his employment may maintain . . . an action for damages at law [and] the common-law rights and remedies in cases of personal injury to railroad employees shall apply . . . .

(West 1975). The Federal Employees Liability

Act ("FELA"),

, governs the remedies available

to injured railroad employees. Because the Jones Act incor­

porates FELA, see Miles,

, cases interpreting FELA

are also instructive for the development of the general maritime

law, see Chan,

.

Workers who bring suit under FELA may bring claims for

damages for emotional distress. See Consolidated R.R. Corp. v.

Gottshall,

(1994). In Gottshall, the Supreme

6 Court interpreted the term "injury" under FELA to extend beyond

physical injuries to encompass emotional injuries, reasoning that

"emotional injuries can be just as debilitating as physical

injuries."

. In reaching this conclusion, the Court

looked beyond the statute to the common law principle universally

recognized in nearly all United States jurisdictions that

negligent infliction of emotional distress is a meritorious claim

cognizable under general maritime law. See

Similarly, the Ninth Circuit recognizes a claim for

negligent infliction of emotional distress for non-seafarers

suffering non-fatal injuries on the high seas. See Chan,

. The court in Chan, relying on Gottshall, found no

reason to disallow meritorious emotional distress claims under

general maritime law when these claims are available to workers

under FELA and to plaintiffs in nearly all fifty states. See

The Gottshall and Chan holdings have been followed in other

jurisdictions confronted with general maritime law claims for

negligent infliction of emotional distress. See Williams v.

Carnival Cruise Lines, Inc.,

(S.D. Fla. 1995)

(recovery of damages by passengers for negligent infliction of

emotional distress allowable); Loeber v. United States, No. 89-

2483,

, at *1 (E.D. La. Sept. 14, 1992)

(recognizing claims for emotional distress under maritime law);

7 but cf. Rollins v. Peterson Builders, Inc.,

(D.R.I. 1990) (ore-Gottshall case) (plaintiffs could not satisfy

requisites for recovery).

The defendant argues that since the Maine court chose not to

follow Chan when it denied the defendant's motion to dismiss the

loss of consortium claim, this court's use of Chan for purposes

of this motion would be inconsistent. The court disagrees.

Because the incident in Chan occurred on the high seas, the court

turned to the remedial provisions of the Death on the High Seas

Act ("DOHSA") that limits recoverable damages in wrongful death

suits to "a fair and just compensation for the pecuniary loss

sustained."

(West 1975); see also Chan,

. The Chan court reasoned that, because damages for

loss of consortium and loss of society are unavailable to non­

dependants of those killed on the high seas, a fortiori, these

remedies are unavailable to non-dependants of those merely

injured. See

. To have held otherwise would not have

served the "goal of uniformity in maritime cases."

Because this case occurred within the coastal waters of

Maine, neither Chan's holding nor its rationale apply to the loss

of consortium claim here.4 The Chan court explicitly

4 DOSHA only applies to actions "occurring on the high seas beyond a marine league from the shore of any State."

(West 1975).

8 acknowledged this distinction by stating that loss of consortium

and loss of society damages are recoverable to passengers and

their beneficiaries for deaths or injuries occurring in state

territorial waters. See

. Thus, there is no

inconsistency in allowing the loss of consortium claim to go

forward while following Chan's ruling concerning recovery of

damages for negligent infliction of emotional distress.

Negligent infliction of emotional distress claims in

maritime law have been recognized by the Supreme Court and by

courts in the Fifth, Ninth, and Eleventh Circuits. Given the

rationale of those cases, the lack of cases to the contrary, and

the mandate to preserve the "harmony and uniformity" of maritime

law, the court holds that the plaintiffs may pursue a claim for

negligent infliction of emotional distress.

II. Applicable Standard of Recovery for Negligent Infliction of Emotional Distress

Having concluded that the general maritime law allows a

claim for negligent infliction of emotional distress, the court

must now determine the scope of the cause of action. Courts have

placed limits on such claims to control possible abuse through

fabricated claims and claims far removed from the negligent act

alleged to have caused them. See Gottshall,

(citing Maloney v. Conroy,

(Conn. 1981)).

9 Therefore, "policy considerations mandate that infinite liability

be avoided by restrictions that . . . narrow the class of

potential plaintiffs."

at 546 (quoting Tobin v. Grossman,

249 N .E .2d 419, 423 (N.Y. 1969)).

To address these concerns, courts have adopted three

approaches. See Gottshall,

. The first and most

restrictive of these is the "physical impact" test, which

requires the plaintiff seeking damages for emotional injury to

sustain "a physical impact (no matter how slight) or [physical]

injury due to the defendant's conduct."

The second test is

referred to as the "zone of danger" test, which limits recovery

for emotional injuries to those "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."

at 547-

48. This test may also require an accompanying "physical

manifestation" of the emotional injury. See

at 549 n.ll;

Williams,

. The last and least restrictive

limiting test is the "relative bystander" test, which turns on

whether the defendant could reasonably have foreseen the

plaintiff's emotional injury. See Gottshall,

.

This test offers three factors to consider in determining

foreseeability:

(1) Whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance

10 away from it. (2) Whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

(quoting Dillon v. Legg,

(Cal. 1968)).

The plaintiffs urge that the court should adopt the relative

bystander test, which has been incorporated into Maine law. See,

e.g., Cameron v. Pepin,

(Me. 1992).

However, in Gottshall, the Supreme Court held that FELA

incorporates the zone of danger test. See

.

To preserve uniformity, the Supreme Court stated that a court is

not allowed to sanction more expansive remedies under general

maritime law than those remedies prescribed under the Jones Act.

See Miles,

. Because the Jones Act incorporates

FELA and the Supreme Court adopted the zone of danger test to

FELA claims, this court concludes that this is the appropriate

test for negligent infliction of emotional distress claims

brought under the general maritime law.

The defendant argues that the court should also import the

physical manifestation test. The Supreme Court left open the

issue as to whether an accompanying physical manifestation is

necessary for recovery under FELA. See Gottshall,

n.3 (Ginsburg, J., dissenting). Despite the Court's failure

11 to decide this issue, most cases prior to and following Gottshall

require some form of physical manifestation to sustain a

negligent infliction of emotional distress claim. See In re

United States,

(1st Cir. 1969) (action does not

lie for negligently inflicted emotional disturbances alone, but

requires physical consequences of mental disturbance); Williams,

(holding only plaintiffs within the zone of

danger experiencing a physical manifestation may recovery for

negligent infliction of emotional distress) ; Ellenwood v. Exxon

Shipping Company,

(D. Me. 1992), aff'd ,

(1st Cir. 1993) ("plaintiff alleging negligent

infliction of emotional distress under the maritime law must

prove an accompanying physical injury"); see also W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 54, at 361 (5th

ed. 1984) (majority of jurisdictions hold recovery unavailable

for mental disturbance unless accompanied by physical injury,

illness, or other physical consequence); Restatement (Second) of

Torts § 436A (1965) (rejects liability for emotional disturbances

unaccompanied by bodily harm or other compensable damages). One

advantage of requiring a physical manifestation is that the

requirement serves to limit "the prospects for a flood of

fraudulent claims." Ellenwood, 7 95 F. Supp. at 34; see also,

e.g., Williams,

. The court, in accord with

12 the weight of authority on the issue, concludes the plaintiffs

must show not only that they were within the zone of danger, but

also that they suffered a physical manifestation of their alleged

emotional injuries.

In the case at bar, Lillian Douville's allegations in count

III state a cognizable claim for negligent infliction of

emotional distress under this standard. Her proximity to the

tensing mooring line and the fact that her husband and son-in-law

had to lift the mooring line to prevent it from hitting her

placed Lillian Douville within the zone of danger. She also

alleges that the emotional distress she suffered exacerbated her

arthritis. The court concludes that her pleadings satisfy the

reguirements necessary to state a claim for relief on the theory

of negligent infliction of emotional distress.

Donald Douville's allegations are also broad enough to

encompass a cognizable claim for negligent infliction of

emotional distress. He also was within the zone of danger. The

record is silent on the issue of whether or not he suffered a

physical manifestation of his emotional distress, but the

defendant has not demonstrated that he can prove no set of facts

that would entitle him to relief. Therefore, Donald Douville is

entitled to bring forth evidence in support of his claim, which

must ultimately include proof that he suffered a physical

13 manifestation of his emotional distress.

Conclusion

For the reasons stated above, the defendant's motion to

dismiss the claims in count III (document no. 4) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 18, 1998

cc: Tina Schneider, Esguire William H. Welte, Esguire William S. Brownell, Clerk, USDC - ME

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