Case Name: Falisia Peters v. TransitAmerica Services, Inc.
Case No.: 17-CV-309160

I. Background

In this lawsuit, plaintiff Falisia Peters (“Plaintiff”) asserts a single cause of action for negligent infliction of emotional distress (“NIED”) under the Federal Employers Liability Act (the “FELA”) against defendant TransitAmerica Services, Inc. (“Defendant”) based on the following allegations in the First Amended Complaint (“FAC”).

Plaintiff worked for Defendant as an assistant conductor on trains operated by Caltrain in the Bay Area. (FAC, ¶ 6.) Plaintiff alleges Defendant failed to protect her from an abusive train passenger who regularly boarded her train. (FAC, ¶¶ 9-14.) Plaintiff identifies herself as an African American woman. (FAC, ¶ 6.) Plaintiff describes the abusive passenger as a white, male, double amputee with bilateral prosthetic limbs who is “six feet, one inches tall and weighs 260 pounds.” (FAC, ¶ 9.) In 2005, the passenger was prohibited from riding buses operated by the San Mateo County Transit District after making racist comments to an African American bus driver and threatening him with physical violence. (FAC, ¶ 8.) This abusive passenger engaged in similar conduct on Caltrain. (FAC, ¶¶ 9-14.)

Throughout the summer of 2014, the abusive passenger boarded Caltrain while Plaintiff was working and yelled racial slurs and threats of physical violence that were so obscene they will not be recounted herein. (FAC, ¶¶ 9-14.) The passenger frequently violated Caltrain rules, and when Plaintiff asked him to comply, he yelled threats, obscenities, and racial slurs. (FAC, ¶ 9.) On several occasions, the passenger charged Plaintiff in his power wheelchair, yelling slurs, threats, and obscenities, and attempting to hit her with a cane. (FAC, ¶¶ 11-12.) Plaintiff reported these incidents to her supervisor. (FAC, ¶¶ 9-12.)

During one incident, Plaintiff went back into the train car and refused to allow the passenger to board. (FAC, ¶ 12.) One hour later, the passenger called the Caltrain customer service line and threatened to shoot Plaintiff if he was refused service again. (FAC, ¶ 13.) Despite this threat and the fact that Plaintiff filled out an incident report when she denied him access to the train, Defendant instructed Plaintiff later that same day to help this passenger board the train. (FAC, ¶ 14.) When Plaintiff realized which passenger was in need of boarding assistance, she retreated back into the train car; the passenger banged on the train car as it pulled away. (FAC, ¶ 14.)

Defendant continued to let the abusive passenger ride Caltrain, despite his well-documented history of racist, threatening, and abusive behavior. (FAC, ¶ 16.) Plaintiff had severe anxiety, acute stress disorder, and posttraumatic stress disorder, and so she took three weeks of medical leave. (FAC, ¶ 16.) Defendant did nothing during Plaintiff’s medical leave to remedy the situation, and it continued to allow the passenger to ride Caltrain so long as he did not use racial epithets and “remained civil.” (FAC, ¶ 17.)

In August 2014, Plaintiff asked Defendant to obtain a restraining order against the passenger so she could return to work. (FAC, ¶ 18.) Defendant did nothing. (FAC, ¶ 18.) Plaintiff retained an attorney, and ultimately, through the Peninsula Corridor Joint Powers Board, obtained a “Workplace Violence Restraining Order” prohibiting the passenger from riding Caltrain from December 12, 2014, until December 11, 2017. (FAC, ¶ 19.)

Plaintiff returned to work in January 2015, but learned from coworkers that the passenger was being allowed to ride Caltrain despite the restraining order. (FAC, ¶ 20.) Around that time, Defendant issued an advisory to Caltrain crew members that the presence of an individual with a restraining order did not constitute an emergency. (FAC, ¶ 20.) Plaintiff experienced a relapse in her condition and took additional medical leave. (FAC, ¶ 20.)

In February 2015, “Caltrain Transit Police issued a Memorandum to [Defendant] and its employees, reminding [them] that there was a restraining order prohibiting [the passenger] from riding Caltrain.” (FAC, ¶ 21.) Despite this reminder, in which employees were instructed to contact Train Control so Caltrain Transit Police could intervene, Defendant continued to allow the passenger to ride Caltrain. (FAC, ¶ 21.) It was not until June 2015 that Defendant informed Plaintiff it would enforce the restraining order and post photos of the passenger to help employees recognize him and call for assistance. (FAC, ¶ 22.)

Plaintiff alleges Defendant “put [her] in the zone of danger of immediate physical harm every moment she worked” and breached its duty to provide her with a safe workplace by failing to obtain a restraining order when she reported the repeated incidents and failing to enforce the restraining order once she obtained it. (FAC, ¶ 23.) As a result of Defendant’s breach, Plaintiff suffered extreme stress and anxiety resulting in “great mental, physical and nervous pain and suffering.” (FAC, ¶ 24.)

Currently before the Court is Defendant’s demurrer to the NIED cause of action on the ground of uncertainty and failure to state facts sufficient to constitute a cause of action.

II. Discussion

A. Uncertainty

A party may demur on the ground of uncertainty to challenge a pleading as uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) “A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-46.)

Defendant argues the “first cause of action is uncertain because it fails to allege with the requisite level of specificity how [the passenger’s] actions placed [Plaintiff] in imminent risk of physical impact or harm.” (Dem. at p. 2:5-7.) But Defendant does not cite and the Court is otherwise unaware of any authority to support the proposition that an NIED claim must be pleaded with specificity. Additionally, Defendant’s argument does not justify sustaining the demurrer on the ground of uncertainty because it does not address an ambiguity in the facts actually alleged. In actuality, a specificity argument may be advanced in support of a general demurrer on the ground of failure to state sufficient facts. (See Small v. Fritz Cos. (2003) 30 Cal.4th 167, 182 [general demurrer to fraud claim sustainable based on lack of specificity and particularity].)

In conclusion, Defendant does not demonstrate the pleading is so incomprehensible it cannot reasonably respond. The demurrer on the ground of uncertainty is therefore OVERRULED.

B. Failure to State Sufficient Facts

Defendant argues Plaintiff fails to state a cause of action for NIED because she does not allege she was within the zone of danger. For the following reasons, Defendant’s argument lacks merit.

For context, Plaintiff asserts her NIED claim pursuant to the FELA. (See 45 U.S.C. § 51, et seq.) “The FELA, enacted by Congress in 1908, is ‘founded on common-law concepts of negligence and injury’ [citation] to ‘provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees [citation].” (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 6.) Congress enacted the FELA to standardize railroads’ liability throughout the United States. (Ibid.)

When a plaintiff asserts a claim under the FELA “in state court, state law governs procedural questions, while federal law governs substantive issues.” (Lund, supra, 31 Cal.4th at pp. 6-7; see also 45 U.S.C. § 56 [federal and state courts have concurrent jurisdiction].) “The starting point for any analysis of emotional distress claims under FELA is the Supreme Court’s decision in Gottshall.” (Lukowski v. CSX Transportation, Inc. (6th Cir. 2005) 416 F.3d 478, 482, citing Consolidated Rail Corp. v. Gottshall (1994) 512 U.S. 532.)

“In Gottshall, the Court held that in order to recover emotional distress damages under FELA, a plaintiff must demonstrate that he or she was within the ‘zone of danger’ of physical impact.” (Lukowski, supra, 416 F.3d at p. 482, quoting Gottshall, supra, 512 U.S. at pp. 555-56.) “[T]he common law ‘zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct. That is, those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.’” (Lukowski, supra, 416 F.3d at p. 482, quoting Gottshall, supra, 512 U.S. at pp. 547-48.)

Plaintiff alleges the abusive passenger charged her in his power wheelchair on several occasions. (FAC, ¶¶ 10-12, 14.) On some of these occasions, the abusive passenger simultaneously tried to hit Plaintiff, swinging his cane and his arms around. (FAC, ¶¶ 11-12.) Thus, Plaintiff does in fact allege she was in immediate danger of physical harm.

Defendant takes the position that because Plaintiff was able to avoid actually being hit by retreating into the train car, she was not in immediate danger. (Mem. of Pts. & Auth. at pp. 6-7.) The first problem with Defendant’s position is that it appears to suggest an attacker must succeed in order for a plaintiff to recover for emotional distress. But the zone of danger test exists specifically because “‘a near miss may be as frightening as a direct hit.’ [Citation.]” (Gottshall, supra, 512 U.S. at p. 547.) The second problem with Defendant’s position is its logic. The fact that Plaintiff escaped or retreated into the train car does not support the conclusion that she was never in danger. To the contrary, the very fact that Plaintiff retreated or escaped depends on the factual premise that she was in danger in the first instance, which premise is supported by her allegation that the abusive passenger charged her when she stepped out of the train car and onto the platform where he was waiting. (FAC, ¶¶ 11-12.) Finally, Defendant’s position is problematic because it does not cite any legal authority to support it or any of the implicit assumptions upon which it appears to be based. For example, Defendant does not cite any authority on what constitutes sufficient proximity, whether defined based on some legal concept or a specific unit of measurement. Furthermore, Defendant does not cite any case that, although not espousing any particular standard or rule, is illustrative or analogous.

In conclusion, Defendant’s argument that Plaintiff does not allege she was in the zone of danger lacks merit. Defendant does not advance any other arguments in support of its demurrer. Consequently, the demurrer on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.