Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 93 C 134--Roger B. Cosbey, Magistrate Judge.
Before BAUER, DIANE P. WOOD and EVANS, Circuit Judges.
David Marschand sued Norfolk and Western Railway Company ("Norfolk") under the Federal Employers' Liability Act, 45 U.S.C. sec. 51 et seq. ("FELA"), for negligent infliction of emotional distress. Marschand asserted that various negligent acts by Norfolk resulted in a grade crossing accident in which the train Marschand engineered struck a pickup truck, killing all three passengers in the truck. Marschand claimed that he suffered emotional distress because of Norfolk's negligence. After a four day bench trial, the district court entered judgment in favor of Norfolk. We affirm.
On May 12, 1991, Marschand was the engineer on a Norfolk train that struck a pickup truck at a grade crossing. Marschand did not see the collision between the locomotive engine and the truck. However, he testified at trial that when he realized the collision was imminent, he instinctively slid back into the engineer's chair to brace himself. Marschand also testified that he heard the collision and that he "could feel it through the floorboards of the train." A brakeman riding in the locomotive cab testified that he felt only a small bump at the time of the collision. Marschand learned after the accident that all three passengers in the pickup truck had died.
On the first anniversary of the accident, Marschand had flashbacks of the accident while at work. He began to cry uncontrollably. Shortly thereafter, Marschand met with a psychologist, who diagnosed Marschand as suffering from post traumatic stress disorder ("PTSD").
In May 1993, Marschand filed this negligent infliction of emotional distress claim against Norfolk pursuant to FELA, 45 U.S.C. sec. 51 et seq. On June 24, 1994, the Supreme Court decided the case of Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396 (1994). In Gottshall, the Court addressed whether, and to what extent, negligent infliction of emotional distress claims are cognizable under FELA. The Court concluded that a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional distress. The Court then examined three common law tests (the zone of danger test, the physical impact test, and the relative bystander test) for determining whether emotional injuries should be compensable, and held that the zone of danger test best reconciled FELA's broad remedial goals with its "central focus on physical perils," as well as the need to avoid countless trivial, possibly fraudulent suits and potentially "unlimited and unpredictable liability." Id. at 2410-11. The Court noted that "the 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." Id. at 2406. In the course of its opinion, the Court stated that "[u]nder this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas the worker outside the zone will not." Id. at 2410-11 (emphasis added). *fn1 Subsequently, in his pretrial and posttrial briefs, as well as at trial, Marschand focused on his "fear for his own safety" in the moments before the accident as the cause of his emotional distress.
After a four day bench trial, the district court concluded that Marschand "was never in any true danger of physical impact or injury because at all times he rode safely in the locomotive cab," that Marschand never feared for his own safety, and that Marschand's emotional distress was not caused by fear for his own safety. The court therefore found that Marschand had not satisfied the zone of danger test, and entered judgment in favor of Norfolk.
Marschand argues on appeal that he (as opposed to the train) sustained an impact during the collision sufficient to trigger a right to recover for negligent infliction of emotional distress under Gottshall. We need not decide this "impact" issue because Marschand failed to raise it in the trial court. See Gingiss International, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir. 1995). Instead, Marschand consistently argued that he could recover for his emotional distress because he reasonably feared for his own safety at the time of the accident, and because his fear proximately caused his emotional distress. When Marschand did mention "impact," it was in the context of asserting that he had been threatened imminently with physical impact, which is a far cry from the argument he makes now that he sustained a physical impact in the collision. In fact, Marschand discussed the threat of imminent physical impact only to support his claim that he feared for his own safety at the time of the accident. The district court rejected Marschand's claims, finding that he had not been threatened with imminent physical impact, nor had he feared for his own safety. Marschand does not challenge that determination. Instead, he now attempts to satisfy the zone of danger test by arguing that he sustained an impact in the accident.
Fatal to Marschand's attempt to raise the "impact" issue on appeal is the district court's pretrial order formulated after a pretrial conference at which Marschand's counsel appeared, and signed by the court only after counsel had reasonable opportunity to make corrections or ...