Courts - Massachusetts 9th Circuit rules fisherman can seek damages for near miss Seaman says incident impacted him emotionally that he could not work

By Pat Murphy

The Daily Record Newswire

BOSTON, MA -- You figure that those who make their living on the oceans are a pretty hearty lot.

So it comes as something of a surprise that one California fisherman would claim he suffered emotional distress because a wayward freighter passed too close for comfort one fogbound afternoon.

What comes as even more of a surprise is that yesterday a federal court of appeals agreed that the fisherman could proceed on his claim for damages.

And at least one dissenting judge thinks that yesterday's decision broadly expands the availability of emotional distress damages for all types of plaintiffs, including the ordinary driver along the highway.

Tragedy off Point Reyes

Point Reyes is just northwest of San Francisco on the Pacific Coast. The waters off Point Reyes are notorious for heavy fog, particularly during the summer months.

And dense fog is what the 32-foot fishing vessel Marja found herself in on the afternoon of July 13, 2007.

The Marja is owned and operated by Brian Stacey. That afternoon, Stacey had the Marja among a number of other fishing vessels trolling for salmon in the fog.

About 5 p.m., Stacey became alarmed because his radar picked up a freighter about a mile away on a collision course with his Marja.

The freighter turned out to be the 291-foot, 4,000-ton Eva Danielsen, which had just left San Francisco bound for Portland, Oregon.

Stacy managed to radio Eva Danielsen of the danger, and the freighter avoided the Marja. But it was a close call. So close that Stacey could hear the rumble of the Eva Danielsen's engines and feel her wake.

Stacey was safe, but not so Captain Paul Alan Wade of the fishing vessel Buona Madre.

After passing the Marja, the Eva Danielsen ploughed into and sank the Buona Madre, killing Captain Wade.

Emotionally distressed fisherman

Now it's easy to understand why the family of Captain Wade would be suing the owners of the Eva Danielsen for wrongful death.

But why would Stacy head to court? After all, you'd think he'd feel relief at having narrowly avoided disaster himself.

And apparently the fog was so dense that day that he never actually saw the Eva Danielsen approach dangerously close to his Marja, nor its collision with the Buona Madre.

In fact, Stacy didn't actually learn about the fate of Captain Wade until days later.

But Stacy claims that he did indeed suffer emotional distress and off to federal court he went.

Stacy sued the owners and operators of the Eva Danielsen for the negligent infliction of emotional distress. He alleged that the freighter was going too fast considering the fog, and without a proper lookout, proper radar equipment, or proper signals in violation of the International Navigation Rules Act.

According to Stacy, the near miss so impacted him emotionally that he could not work and needed psychiatric help.

U.S. District Judge Claudia Wilken was understandably skeptical. And she read long-standing 9th Circuit precedent as applying "zone of danger" test in maritime cases.

Under that test -- at least as Judge Wilken read the precedent -- a maritime negligent infliction of emotional distress claim must be premised on the plaintiff's having experienced a "psychic injury" by "witnessing another being seriously injured or killed," while simultaneously being threatened with physical injury to himself.

So Judge Wilken must have been pretty confident in dismissing Stacy's lawsuit given that he essentially hadn't witnessed anything.

Boy, was she in for a surprise!

On June 30, the 9th Circuit concluded that Judge Wilken had misread the precedent and reversed her dismissal of Stacy's claim.

The court decided that the case was controlled by the U.S. Supreme Court's decision in Consolidated Rail Corp. v. Gottshall.

The 9th Circuit explained that in Gottshall, the Supreme Court held that the zone of danger test "allowed recovery for "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.'"

The court noted that the Supreme Court in Gottshall quoted with approval a law review article's explanation that those within the zone of danger of physical impact can recover for fright.

That saved the day for Stacy.

"Stacy alleged that he was within the zone of danger and that he suffered emotional distress from the fright caused by the negligent action of the defendants," the 9th Circuit said. "Nothing more was required to assert a cause of action cognizable under maritime law." (Stacy v. Rederiet Otto Danielsen)

Judge Hall dissents

Circuit Judge Cynthia Holcomb Hall thought the majority was ignoring binding 9th Circuit precedent, precedent the judge argued was consistent with Gottshall.

"Based upon a more careful reading of Gottshall, however, I believe it is reasonable to conclude that the [9th Circuit zone of danger] test is consistent with Gottshall, at least in cases in which the plaintiff alleges a 'stand-alone' claim for [negligent infliction of emotional distress] -- such as the one Stacy alleges -- based on a threat of 'immediate traumatic harm' which does not result in any actual physical impact or injury."

Standing by the "witnessed harm" requirement, Judge Hall said that Stacy simply could not state a claim.

The judge wrote that "Stacy has not alleged that he suffered fright or shock or severe emotional distress as a result of any 'immediate traumatic harm' caused or threatened by his 'near miss' with the Eva Danielsen while he was in the 'zone of danger' created by appellees' negligent conduct-such as might have resulted if he had witnessed Wade's death. ...

"To the contrary, Stacy acknowledges that after he notified the Coast Guard and his fellow fishermen that he and the Marja were safe and sound, he returned to business as usual, and resumed fishing."

This last observation by the judge shows just how far Stacy still has to go in proving his claim. It's going to be tough to convince a jury that he suffered severe emotional distress when after the close call with the Eva Danielsen he went back to work as though nothing had happened.

And Judge Hall fretted about how the majority's apparent expansion of the zone of danger test might apply to the more mundane traffic accident, hypothesizing about a reckless pickup truck driver who nearly misses dozens of other highway drivers during a long trip that ends up in a fiery crash.

"Under the majority's reading of the Gottshall 'zone of danger' test, ... every one of the hundreds, perhaps thousands, of motorists and their passengers who were 'frightened' by 'near misses' with the pick-up truck as it sped erratically past them on that 200-mile stretch of I-5, or who were alarmed upon learning of the fiery wreck from news reports the next day, could also state a claim for [negligent infliction of emotional distress] -- whether or not they witnessed the accident and, indeed, possibly even if there was no collision at all," Hall wrote.

Published: Tue, Jul 6, 2010

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