Case Name: Peters v. TransitAmerica Services, Inc.
Case No.: 17CV309160

Defendant TransitAmerica Services, Inc. (“Defendant”) moves for summary judgment in its favor and against plaintiff Falisia Peters (“Plaintiff”) as to her First Amended Complaint (“FAC”).

I. Factual and Procedural Background

In this action, Plaintiff asserts a single claim against Defendant for negligent infliction of emotional distress (“NIED”) under the Federal Employers’ Liability Act (the “FELA” or the “Act”) based on her assertion that Defendant failed to protect her from an abusive train passenger who regularly boarded her train. (FAC, ¶¶ 9-14.)

According to the allegations of the FAC, Plaintiff worked for Defendant as an assistant conductor on trains operated by Caltrain in the Bay Area. (FAC, ¶ 6.) Plaintiff identifies herself as an African American woman and 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.” (Id., ¶ 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. (Id., ¶¶ 9-14.)

Throughout the summer of 2014, the abusive passenger boarded Caltrain while Plaintiff was working and yelled racial slurs, obscenities and threats of physical violence towards her. (FAC, ¶¶ 9-14.) The passenger frequently violated Caltrain rules, and when Plaintiff asked him to comply, he yelled threats, obscenities, and racial slurs. (Id., ¶ 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. (Id., ¶¶ 11-12.) Plaintiff reported these incidents to her supervisor. (Id., ¶¶ 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. (Id., ¶ 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. (Id., ¶ 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. (Id.)

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, Id.)

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. (Id., ¶ 19.)

Plaintiff returned to work in January 2015, but learned from coworkers that the passenger was still 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. (Id.) Plaintiff experienced a relapse in her condition and took additional medical leave. (Id.)

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. (Id.) 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. (Id., ¶ 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.” (Id., ¶ 24.) Plaintiff filed the FAC on September 25, 2017.

On January 15, 2019, Defendant filed the instant motion for summary judgment. Plaintiff filed her opposition on March 26, 2019.

II. Motion for Summary Judgment

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

B. Analysis

In moving for summary judgment of Plaintiff’s FAC, Defendant contends that Plaintiff’s claim under the FELA fails because she was never at “immediate risk of physical harm” and thus not in the zone of danger, an element necessary to recover damages under the Act.

1. The FELA

In California, injured employees are generally entitled to workers’ compensation benefits irrespective of whether the employer was at fault. (Lab. Code, § 3200 et seq.) However, such benefits are not available to railroad employees who suffer on-the-job injuries like those alleged to have been suffered by Plaintiff; their right of recovery is governed by the FELA, which permits recover only if the employer acted negligently. (45 U.S.C. § 51.) (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 6.) This Act, enacted by Congress in 1908, was “founded on common-law concepts of negligence and injury 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.” (Id. [internal citations omitted].) Congress enacted the FELA in order to standardize railroads’ liability throughout the United States and courts construe the Act liberally in order to fulfill its remedial purposes. (Id.)

A FELA action can be brought in either federal or state court and when, as is the case here, it is brought in the latter, state law governs procedural questions while federal law governs substantive issues. (Lund, supra, 31 Cal.4th at 6.) “The starting point for any analysis of emotional distress claims under FELA is the Supreme Court’s decision in Gottshall.” (Lukowski v. CSX Transp., Inc. (2005) 416 F.3d 478, 482.) “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 482, citing Consolidated Rail Corp. v. Gottshall (1994) 512 U.S. 532, 555-556.) “[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 an 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.’” (Id. at 482, citing Gotshall, 512 U.S. at 547-548.) Proximate cause, as traditionally understood, is not required to establish causation under the FELA; an employee is entitled to recover under the damages “if the employer’s negligence played any part in producing the injury, no matter how slight.” (Taylor v. Burlington Northern R. Co. (9th Cir. 1986) 787 F.2d 1309, 1313 [italics in original].)

2. The Subject Encounters Between Plaintiff and the Abusive Passenger

In its supporting memorandum, Defendant does not dispute that Plaintiff encountered the abusive passenger, Thomas Churchill (“Churchill”), that he said obscene things to her, that he made various gestures with his arms and that he banged on the train door while Plaintiff was on the train. However, it maintains that in none of the five interactions with Churchill that serve as the basis of Plaintiff’s NIED claim did she suffer a physical impact from him or find herself in immediate risk of physical impact or harm by his conduct. These five interactions, which Defendant refers to as Encounters 1, 2, 3, 4 and 5 for ease of reference, consist of the following:

Encounter 1: On May 22, 2014, as Churchill existed a train car in his power wheelchair, Plaintiff asked him to speak more quietly on his cell phone, to which Churchill responded by yelling “highly offensive, racist and threatening comments” at her. (FAC, ¶ 9.)

Encounter 2: Later that day, Churchill, who requires assistance to board the train, attempted to board the train car on which Plaintiff was working. Given his previous behavior, Plaintiff refused Churchill entry and he “advanced towards [her] into close proximity” and yelled racial slurs. (FAC, ¶ 10.) Plaintiff backed away and closed the train door. (Id.)

Encounter 3: On June 26, 2014, Plaintiff was on a train arriving at the Burlingame station. When the doors opened, Churchill was on the platform and Plaintiff approached to assist him. Churchill advanced towards her in his power wheelchair, yelling. Plaintiff retreated and closed the doors so that Churchill could not enter the train. (FAC, ¶ 11.)

Encounter 4: On July 7, 2014, at the Redwood City station, Plaintiff exited the train car onto the platform, where Churchill was waiting. As soon as he saw her, Churchill began yelling at her and advanced toward Plaintiff in his power wheelchair, this time swinging his arms as he got close. Plaintiff retreated into the train and closed the doors. (FAC, ¶ 12.)

Encounter 5: Later that day, at the Menlo Park station, Plaintiff exited her train onto the platform and encountered Churchill, who advanced towards her, “yelling threats and racist comments.” (FAC, ¶ 14.) Plaintiff retreated and closed the train doors, leaving Churchill outside, where he proceeded to bang on the door with his fists. (FAC, ¶ 14.)

3. Whether Plaintiff was in the Zone of Danger

It is undisputed that Plaintiff never sustained a physical impact during her encounters with Churchill. (Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”) No. 7.) Thus, the determinative issue on Defendant’s motion is whether Plaintiff was ever in the “zone of danger” during these interactions, i.e., was placed in immediate risk of physical harm by Defendant’s purportedly negligent conduct of failing to keep her from having to encounter Churchill. (See Lukowski v. CSX Transp., Inc., supra, 416 F.3d at 482.) Defendant maintains that Plaintiff was never in “immediate risk of physical harm” during any of the encounters because: Churchill never made physical contact with her (UMF No. 8); Plaintiff never saw Churchill with a weapon, nor did her tell her he had one (UMF Nos. 18, 19); Churchill never threw anything at Plaintiff (UMF No. 9); Plaintiff could not recall whether Churchill waived his cane at her or just his fists (UMF Nos. 32, 40, 52); Churchill is confined to a wheelchair as a bilateral amputee (UMF Nos. 2, 4, 5); Plaintiff was able to quickly retreat back into the train and shut the doors during each encounter (UMF Nos. 24, 33, 39, 47); and even if Plaintiff has not shut to doors, Churchill could not board the train because a wheelchair lift needed to be deployed (UMF Nos, 16, 17). Based on the foregoing, Defendant suggests that Churchill posed a relatively limited physical threat to Plaintiff, and maintains that the relationship between the alleged negligent behavior and the railroad was quite attenuated because here, unlike many FELA claims, the perpetrator, Churchill, was not Defendant’s employee.

Defendant attempts to analogize the facts at bar to those in McMillan v. National R.R. Passenger Corp. (1994) 648 A.2d 428 and Nelson v. Metro-North Commuter R.R. (2nd Cir. 2000) 235 F.3d 101, cases in which the appellate courts concluded that the plaintiff employees did not suffer immediate risk of physical harm and therefore could not succeed on their FELA claims.

In McMillan, a railroad employee sued under the FELA for emotional distress arising from alleged harassment by fellow employees, and for assault and battery by a single co-employee. The Court of Appeal held that the employee was not in the zone of physical danger and thus failed to establish a prima facie case of NIED because he failed to produce evidence that his physical safety was “imminently endangered” by his co-workers’ alleged harassment and horseplay in the blacksmith shop, and that the threat of injury to him was more than minimal or negligible. The harassment included the co-worker slamming a steel table with a huge hammer next to the plaintiff and lighting a blowtorch and placing it to the plaintiff’s pants. Per the evidence before it, the court explained, the threat of injury to the plaintiff was not only not immediate, but also both speculative and remote.

In Nelson, a railroad employee filed a claim under the FELA based on allegations that the railroad negligently inflicted emotional distress on her by allowing a co-employee into an area of the train station where she worked after she had reported that individual for multiple incidents of sexual harassment. The court agreed with the trial court’s conclusion that the plaintiff had not adduced enough evidence to create a question for the jury as to whether she was placed in an “immediate risk of physical harm” by the defendant’s conduct. The court reached this conclusion after “delv[ing] into the meaning of the Gottshall test” and finding that the risk of physical harm to the plaintiff was not more than minimal. The court reasoned that even when temporally close, as it was to the plaintiff in the case before it, the risk of physical harm must be, at the very least, more than minimal to find that the plaintiff was placed in an immediate risk of physical harm.

Defendant argues that while Churchill’s conduct actions towards Plaintiff was “certainly annoying and frustrating,” there is no evidence that the threat of injury by him was more than minimal or negligible and his conduct cannot be said to have risen to the level of lighting a blowtorch and placing it to someone pants, which was insufficient to support an NIED claim in McMillan. Thus, Defendant concludes, considering the foregoing facts and taking into account Gottshall’s warnings about the “specter of unlimited and unpredictable liability” for emotional distress claims, Plaintiff was not in a zone of danger and summary judgment should be granted in its favor.

In her opposition, Plaintiff disputes a number of Defendant’s material facts, specifically numbers 4, 5, 24, 30, 31, 33, 38, 39, 47, 51 and 52, and asserts that on this basis alone, Defendant’s motion must be denied. She continues that she was indeed placed in an immediate threat of physical harm in her encounters with Churchill, particularly Encounters 2-5. According to Plaintiff’s evidence, during Encounter 2, when she stepped on the platform, Churchill was a mere five feet away from her and was already rolling towards her in his wheelchair. (Plaintiff’s Separate Statement of Disputed and Undisputed Material Facts in Opposition to Defendant’s Motion for Summary Judgment (“PUMF”) Nos. 55, 56, 68.) He was only a few feet away from her while calling her calling her “nigger” and swinging his arms. (PUMF Nos. 70-71.) During Encounter 3, he was a couple feet away from her, coming at her while again swinging his arms and telling her he was going to “fuck her up” and “get her.” (PUMF Nos. 30, 31, 77, 80.) In Encounter 4, Churchill was a few feet from her before advancing toward her while throwing his fists. (PUMF Nos. 38, 39, 88.) In Encounter 5, he was five feet away before he started coming at her. (PUMF No. 94.) In all of these encounters, Plaintiff explains, Churchill nearly hit her, putting her in immediate risk of physical harm.
As Plaintiff maintains, there mere fact that Churchill did not actually succeed in hitting her is not disqualifying. In Gottshall, the court expressly recognized this fact, noting that “a near miss can be as frightening as a direct hit.” (Gottshall, supra, 512 U.S. at 547.) Further, in rejecting some of the other tests previously utilized to determine liability for NIED claims that depended on physical contact having occurred, the court explained that there was “no reason to allow an employer to escape liability for emotional injury caused by the apprehension of physical contact simply because of the fortuity that the impact did not occur.” (Id., at 556.) The Court agrees with Plaintiff that there is sufficient evidence to find that a triable issue of material fact exists as to whether she was in immediate risk of physical harm. In arguing that Plaintiff was not in immediate risk of physical harm, Defendant emphasizes that Churchill is a bilateral amputee who is wheelchair-bound and thus posed a minimal physical risk to Plaintiff.

However, Plaintiff submits evidence that demonstrates that Churchill was not confined to his wheelchair with the level of permanence that Defendant appears to suggest, as he has prosthetic legs and Plaintiff has previously observed him standing on them out of his wheelchair. (PUMF No. 5.) Churchill was less than five feet from Plaintiff on several occasions when he rolled toward her, waving his arms while yelling racially abhorrent words and threatening to “fuck [her] up” and “get her.” These facts are distinguishable from those in Nelson and McMillan, which involved a sexual harasser (a co-worker) coming into the victim’s workplace and being within her line of sight despite orders not to do so in the former, and “horseplay” in the latter. Neither involved an individual approaching the purported victim in the manner alleged her, with close physical proximity, explicit threats of harm, arms waiving and racial epithets.

The facts here are more analogous to those in Sloan v. United States (E.D. Penn. 2009) 603 F.Supp.2d 798, a case cited by Plaintiff in her opposing papers, in which a seaman brought an action against a vessel owner alleging that he suffered injuries caused, in part, by the owner’s negligence. The plaintiff in Sloan, a light-skinned African-American man, had observed a co-worker making racist comments regarding other African-American co-workers and received a “dirty look” from the co-worker when he identified himself as African-American. A verbal argument began between the two and the co-worker got into the plaintiff’s face like he was going to fight him. Before any physical contact actually took place, another co-worker stepped in between them. The Sloan court held that a comment made by the co-worker (“fucking liar”) along with him physically “menacing” the plaintiff presented a genuine issue of material fact as to whether he face an immediate risk of physical harm that was more than minimal.

Here, the obscene, racist and pointed comments purportedly made by Churchill along with the manner in which he approached Plaintiff are similarly sufficient to raise a triable issue of whether she was in the zone of danger during their encounters. Accordingly, Defendant’s motion for summary judgment is DENIED.