The opinion of the court was delivered by: Justice Maag delivered the opinion of the court:
Appeal from the Circuit Court of Madison County.
Honorable George J. Moran, Judge, presiding.
The plaintiff, Ronald Wilson, filed a complaint pursuant to the Federal Employer's Liability Act (the Act) (45 U.S.C.A. §51 et seq. (West 1986)), seeking to recover damages from defendant, Norfolk and Western Railway Company. Plaintiff alleged that defendant intentionally inflicted emotional distress upon him during the course of his employment with defendant. Defendant moved for summary judgment on plaintiff's complaint, claiming that since plaintiff had not suffered a physical contact or the threat of a physical contact as a result of its alleged actions, it was not liable to the plaintiff. The circuit court denied defendant's motion for summary judgment. Upon defendant filing a motion to reconsider or, in the alternative, a motion for certification under Supreme Court Rule 308 (155 Ill. 2d R. 308), the circuit court denied the motion to reconsider but did, however, certify for interlocutory appeal, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), the following question: "Whether plaintiff must plead and offer proof of physical contact or the threat of physical contact before a plaintiff can recover for the intentional infliction of emotional distress under the [Act]."
Initially, we note that the aforementioned question is really two-fold: (1) Is a claim for intentional infliction of emotional distress recognized under the Act? (2) If so, must the plaintiff plead and prove physical contact or the threat of physical contact before he can recover for intentional infliction of emotional distress under the Act?
Since there is disagreement among the federal courts on the answers to the aforementioned questions (see Ray v. Consolidated Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991); Adams v. CSX Transportation, Inc., 899 F.2d 536 (6th Cir. 1990); Netto v. Amtrak, 863 F.2d 1210 (5th Cir. 1989); Hammond v. Terminal R.R. Ass'n of St. Louis, 848 F.2d 95, 96-97 (7th Cir. 1988); Moody v. Maine Central R.R. Co., 823 F.2d 693 (1st Cir. 1987); Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807 (7th Cir. 1985); Kraus v. Consolidated Rail Corp., 723 F. Supp. 1073 (E.D. Pa. 1989), aff'd, 947 F.2d 935 (3d Cir. 1991) (unpublished decision); Teague v. National R.R. Passenger Corp., 708 F. Supp. 1344 (D. Mass. 1989)), we must determine which federal court's reasoning that this court will adopt.
The section of the Act that is at issue in this case reads as follows:
"Every common carrier by railroad while engaging in commerce between any of the several States *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track roadbed, works, boats, wharves, or other equipment." (Emphasis added.) 45 U.S.C.A. §51 (West 1986).
Much debate about this section of the Act has centered around the word "negligence" and its meaning. It is clear that Congress enacted the Act in 1906 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. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their liability under the Act. The coverage of the statute is defined in broad language, which has been construed even more broadly. The United States Supreme Court has recognized generally that the Act is a broad remedial statute, and the Court has adopted a "`standard of liberal construction in order to accomplish [Congress's] objects.'" Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62, 94 L. Ed. 2d 563, 571, 107 S. Ct. 1410, 1414 (1987) (quoting Urie v. Thompson, 337 U.S. 163, 180, 93 L. Ed. 1282, 69 S. Ct. 1018, 1030 (1949)).
An overview of the relevant case law is necessary in order to answer the aforementioned questions. In Buell, 480 U.S. 557, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987), a railroad carman filed a complaint pursuant to the Act, alleging that the railroad had condoned his harassment by fellow employees, causing him to suffer an emotional breakdown. The railroad moved for summary judgment, and the United States District Court for the Eastern District of California granted summary judgment in favor of the railroad. The plaintiff appealed. The United States Court of Appeals for the Ninth Circuit reversed and remanded. Buell v. Atchison, Topeka & Santa Fe Ry. Co., 771 F.2d 1320 (9th Cir. 1985). On a writ of certiorari, the United States Supreme Court, in relevant part, held that the record was insufficient to determine whether purely emotional injury was compensable under the Act. When the United States Supreme Court made the aforementioned determination, it stated:
"The question whether `emotional injury' is cognizable under the [Act] is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that *** jurisprudence [under the Act] gleans guidance from common-law developments, see Urie v. Thompson, 337 U.S. at 174, 93 L. Ed. 1282, 69 S. Ct. 1018, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity. For example, while most States now recognize a tort of intentional infliction of emotional distress, they vary in the degree of intent required to establish liability and the level of physical manifestation of the emotional injury required to support recovery. Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace. *** In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive `yes' or `no' answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand." (Emphasis added.) Buell, 480 U.S. at 568-70, 94 L. Ed. 2d at 575-76, 107 S. Ct. at 1417-18.
The United States Court of Appeals for the Sixth Circuit, in Adkins v. Seaboard System R.R., 821 F.2d 340 (6th Cir. 1987) (railroad worker alleged company conspiracy to dismiss him), refused to permit recovery under the Act for intentional infliction of emotional distress. The Sixth Circuit concluded that the language of Buell applies only to negligent conduct giving rise under the Act to claims of emotional injury. See also Antalek v. Norfolk & Western Ry. Co., 742 F.2d 1454 (6th Cir. 1984) (court held that claim for intentional infliction of emotional distress was not cognizable under the Act).
The United States Court of Appeals for the First Circuit rendered its decision on this subject in Moody, 823 F.2d 693. In Moody, a railroad employee brought an action against the railroad pursuant to the Act, alleging that the railroad negligently injured him through continued harassment, resulting in fatigue and depression, which in turn resulted in angina attacks. The United States District Court for the District of Maine granted the railroad's motion for summary judgment (Moody v. Maine Central R.R. Co., 620 F. Supp. 1472 (D. Me. 1985)), and the plaintiff appealed. The court of appeals held that the employee failed to establish that there was a causal connection between his condition and any conduct on the part of the railroad. The Moody court cited the aforementioned language from the Buell decision and stated as follows: "We discern from the Buell opinion an attempt to leave the door to recovery for wholly emotional injury somewhat ajar but not by any means wide open." Moody, 823 F.2d at 694. The Moody court noted that some railroads have argued that allowing actions under the Act, even though arbitration is available under the Railway Labor Act (45 U.S.C. §153 (1986)), would open the floodgates of litigation (Moody, 823 F.2d at 694); however, the Buell court addressed that argument by stating, "This parade of horribles mistakenly assumes that a significant percentage of employees bringing grievances suffer the type of severe emotional injury that has generally been required to establish liability for purely emotional injury *** and that a significant percentage of employees are subject to the type of unconscionable abuse which is a prerequisite to recovery." (Emphasis added.) Buell, 480 U.S. at 568-70, 94 L. Ed. 2d at 574, 107 S. Ct. at 1417-18. Hence, it is clear that the Moody and Buell decisions implicitly hold that one must suffer either (1) severe emotional injury or (2) unconscionable abuse, in order to recover for wholly emotional injuries under the Act.
On January 25, 1989, the United States Court of Appeals for the Fifth Circuit, in Netto v. Amtrak, 863 F.2d 1210 (5th Cir. 1989), rendered its decision on this issue. In Netto, the plaintiff, an Amtrak employee, brought an action alleging that Amtrak had violated certain provisions of the Act. Specifically, the plaintiff asserted that he suffered emotional injuries that were caused by Amtrak's harassment of him during an investigation into an alleged rape for which the plaintiff had been the investigator. The United States District Court for the Eastern District of Louisiana entered summary judgment against the plaintiff, and he appealed. The Netto court stated that the United States Supreme Court in Buell "appears to invite the lower courts to parse the [Act] in light of the specific facts of later cases." Netto, 863 F.2d at 1213. The Netto court specifically stated that it declined to determine whether a plaintiff may recover for purely emotional injuries under the Act. The Netto court did, however, make that decision ...