NOONAN, Circuit Judge:
Dense fog off of Point Reyes, California, "the foggiest point on the Pacific coast." K. Goodwin, Point Reyes Visions (2008). A covey of fishing vessels trolling for salmon in the fog. Afternoon, July 13, 2007, M/V Eva Danielsen departs San Francisco loaded with cargo destined for Portland. The Eva Danielsen is 291 feet in length and has a dead weight of 4,286 tons. Among the covey of fishing vessels is the Marja, owned and operated by Brian Stacy. At 5 P.M., the radar of the Marja picks up the Eva Danielsen, one mile away, headed to the Marja on a collision course. The Marja signals the danger to the freighter. The Eva Danielsen avoids hitting the Marja but comes close enough for Stacy to hear her engine and machinery and to feel the vessel's wake. She passes at close quarters.
Having passed the Marja, the Eva Danielsen collides with the F/V Buona Madre. The collision destroys the fishing vessel and results in the death of her captain, Paul Alan Wade. This lawsuit followed from these events.
Brian Stacy brought this suit against the owners and operators of the Eva Danielsen for the negligent infliction of emotional distress. Stacy alleged that the freighter was proceeding at an unsafe speed without a proper lookout, proper radar equipment, or proper signals in violation of the International Navigation Rules Act. Stacy alleged that this action put him in grave and
On motion of the defendants, the district court dismissed Stacy's first amended complaint for failure to state a cause of action. The court stated:
Jurisdiction is based on federal maritime jurisdiction of torts committed on the high seas. 28 U.S.C. § 1333(1). We disregard as erroneous and irrelevant Stacy's alternative jurisdictional theory of diversity of citizenship.
We review de novo the dismissal. Barker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir.2009). We accept as true facts alleged and draw inferences from them in the light most favorable to the plaintiff. Id. The sufficiency of the complaint is governed by the general maritime law of the United States. Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1409 (9th Cir.1994). The federal standard for the negligent infliction of emotional distress is provided by Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-48, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).
Under this test, applicable in the maritime jurisdiction of the United States, a tort is committed by a defendant subjecting a plaintiff to emotional harm within "the zone of danger" created by the conduct of the defendant. Id. 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." Id. The Supreme Court went on to quote a law review article's exposition: "That is, `those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.'" Id. at 548, 114 S.Ct. 2396 (quoting Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm, 34 U. Fla. L.Rev. 447, 489 (1982)).
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. Nothing more was required to assert a cause of action cognizable under maritime law.
The dissent cites cases in which various state courts defined the zone of danger by reference to the plaintiff being the witness of an accident to someone else. Gottshall cited those cases. It did not endorse them. Gottshall explicitly stated that the zone included a plaintiff "placed in immediate risk of physical harm."
Nothing in Chan addresses a claim of emotional damages by a person directly endangered by a vessel. Nothing in Chan purports to refine or reject the teaching of the Supreme Court in Gottshall. Nothing in Chan is relevant to the adequacy of Stacy's complaint.
For these reasons, the judgment of the district court is REVERSED and the case is REMANDED for further proceedings.
HALL, Circuit Judge, dissenting:
The majority's dramatic rendering of the events that led to the tragic death of plaintiff Brian Stacy's fellow fisherman, Paul Wade, omits certain important facts. The majority also refuses to follow binding circuit precedent, Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir.1994), in which a three-judge panel of this court defined the contours of the "zone of danger" test for claims of negligent infliction of emotional distress ("NIED") under general maritime law, and announced a formulation of that test which is well grounded in state common law, appropriate to the maritime context, and consistent with Supreme Court precedent regarding claims of NIED under federal common law. Id. at 1408-09.
Under the Chan formulation of the "zone of danger" test—which is the only one of the three major common law tests defining the class of plaintiffs who can recover damages for NIED that even arguably applies in this case—recovery of damages for NIED is allowed without proof of any physical impact or injury to the plaintiff, so long as he or she: (1) witnessed peril or harm to another, and (2) was also threatened with physical harm as a consequence of the defendant's negligence. Id. at 1409. I believe we are bound by Chan, and that Stacy has not stated and cannot state a claim for NIED under the Chan "zone of danger" test. Therefore, I respectfully dissent.
First the material facts of this case, as alleged in Stacy's first amended complaint: On the afternoon of July 13, 2007, Stacy was alone on his 32-foot commercial fishing vessel, the Marja, fishing for salmon in the waters off Point Reyes National Seashore just outside of the San Francisco Bay. Stacy had his trolling gear deployed, which restricted maneuverability, and was underway at a speed of approximately 3 knots. Other vessels, including Wade's Buona Madre, were fishing nearby. Dense fog restricted visibility in the area to "near zero."
At about the same time, a 291-foot commercial freighter named Eva Danielsen— which was owned and operated by appellees—left San Francisco, bound for Portland, Oregon. At approximately 5:00 p.m., the Eva Danielsen entered the fishing grounds, traveling at excessive speed, without appropriate lookouts, without sounding proper signals, without keeping proper radar watch, and otherwise proceeding in violation of International Navigation Rules that govern vessel traffic in the area.
Although the Eva Danielsen avoided Stacy's vessel, it collided with the Buona Madre. Stacy alleges that the Buona Madre was "near" the Marja at the time of the collision, but he does not alleged that he saw, heard, felt, or otherwise perceived the collision contemporaneously with its occurrence.
The Eva Danielsen reported a collision to the Coast Guard by radio, and conducted a brief search. Following this report, Stacy proceeded north of his position to assist in the search for persons in the water. During this period, Stacy heard radio traffic expressing a belief that it was his vessel, the Marja, that was run down by the Eva Danielsen. Stacy advised all concerned that he was safe, and that the Marja had not been struck by the freighter. Following this report, the search was suspended and Stacy resumed fishing.
It was not until four days later, on or about July 17, 2007, that Stacy learned from other fishermen that the Buona Madre had been run down by the Eva Danielsen, and that its captain, Wade, had died after the collision. Stacy also learned that Wade had been alive after the collision, floating in the water near where Stacy had been fishing. There is no indication that Stacy knew Wade. Nor is there any allegation that Stacy knew the Buona Madre was among the vessels in the fishing grounds on the fateful day as the Eva Danielsen passed through.
Stacy filed his complaint against the owners and operators of the Eva Danielsen in federal court, alleging a single claim for NIED under general maritime law. Stacy alleged that, as a result of the events described in his complaint, he "was placed in grave and imminent risk of death or great bodily harm, and as a result suffered and continues to suffer great physical, mental, and nervous pain and suffering, stress and anxiety." He further alleges that he "was required to and did employ physicians and surgeons to examine, treat and care for him," and that he was also "prevented from attending to his usual occupation and thereby has lost earnings and benefits."
Relying on Chan, 39 F.3d 1398, the district court acknowledged that a claim for NIED is cognizable under maritime law, but it nevertheless granted the appellees' motion to dismiss Stacy's complaint for failure to state a claim upon which relief could be granted. After finding both the so-called "physical impact" test and the "relative bystander rule" inapplicable in the context of this case, the district court carefully considered whether Stacy might be able to state a claim under the "zone of danger" theory as articulated in Chan. Faithfully applying the limiting test announced by this court in Chan, the district court concluded that he could not. Citing Chan, 39 F.3d at 1408, the district court explained:
The district court granted Stacy leave to amend his complaint, but Stacy declined. Accordingly, the district court dismissed his complaint with prejudice.
In Chan, a three-judge panel of this court was called upon to decide whether a claim for damages for NIED is cognizable under general maritime law, and, if so, to determine the "threshold standard" for such claims under federal common law. 39 F.3d at 1408-09. A brief synopsis of the facts and holding of Chan is called for here, as the majority suggests the "zone of danger" test adopted by the panel in that case was mere dictum, or is somehow inapposite in the factual circumstances of this case.
In Chan, two members of the Chan family, father Benny and daughter Samantha, were injured during a cruise on a ship chartered by the father's employer, Society Expeditions. 39 F.3d at 1401-02. On the second day of the cruise, Benny and Samantha were among a group of passengers being ferried from the ship by an inflatable raft to a coral atoll when the raft turned broadside to a wave and capsized. Id. at 1402. Benny and Samantha were thrown into the surf, and the pilot of the raft and another passenger died in the capsizing. Id. Benny sustained severe brain and head injuries, as well as other physical injuries, and Samantha sustained both physical and emotional injuries. Id.
The Chans filed a complaint against the owners of the ship and Society Expeditions, including claims seeking damages for emotional distress under general maritime law on behalf of Samantha, her two siblings who were not with the family on the cruise, and her mother, Victoria. Citing Sea-Land Services v. Gaudet, 414 U.S. 573, 585 n. 17, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) and Cook v. Ross Island Sand & Gravel Co., 626 F.2d 746, 752 (9th Cir. 1980), the district court in Chan dismissed all of the emotional distress claims, concluding that the mental pain and anguish of an injured party's family is not compensable in an action under general maritime law. 39 F.3d at 1408.
While the Chan case was pending on appeal, the Supreme Court decided Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), and for the first time recognized a federal common law claim for NIED—in that case for a railroad worker subject to the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 ("FELA"). Gottshall, 512 U.S. at 549-50, 114 S.Ct. 2396. However, because it was concerned that recognition of such claims poses "the very real possibility of nearly infinite and unpredictable liability for defendants," the Supreme Court evaluated the three major theories that limit the class of plaintiffs who can recover damages for NIED under state common law—i.e., the "physical impact" test, the "zone of danger" test, and the "relative bystander" test. Id. at 546-49, 114 S.Ct. 2396. After a lengthy discussion of the evolution of the NIED tort and the policy underpinnings of the three common law tests, the Supreme Court adopted the "zone of danger" test for NIED claims brought pursuant to FELA. Id. at 547-548, 114 S.Ct. 2396.
As articulated by the Supreme Court in Gottshall, recovery of damages for NIED is available under the "zone of danger" test 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."
Following the lead of Gottshall, the Chan panel held that a claim for NIED is cognizable under general maritime law. 39 F.3d at 1408-09. But, contrary to the majority's assertion, that is not all the Chan panel decided. Declaring that "[w]e next must decide the threshold standard that must be met by plaintiffs bringing claims for [NIED]" under general maritime law, the Chan panel looked to state common law, as instructed by the Supreme Court in Gottshall, and proceeded to discuss the same three theories limiting recovery for NIED identified by the Supreme Court in Gottshall. 39 F.3d at 1409-10.
In describing the most restrictive theory, the "physical injury or impact" test, the Chan panel stated that it allows a plaintiff to recover emotional distress damages "only if he or she suffers an accompanying physical injury or contact." Id. at 1409 (citing Plaisance v. Texaco, Inc., 937 F.2d 1004, 1009 (5th Cir.1991), aff'd on other grounds, 966 F.2d 166 (5th Cir.1992), cert. denied, 506 U.S. 1001, 113 S.Ct. 604, 121 L.Ed.2d 540 (1992)). Turning to the next most restrictive theory, the Chan panel articulated the "zone of danger" doctrine as follows:
39 F.3d at 1409 (citing Plaisance, 966 F.2d at 168, and Nelsen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837 (D.Hawai'i 1992)). Finally, the Chan panel described what it called the "bystander proximity" test for NIED as follows:
After outlining the three tests, the Chan panel decided that it did not need to select one of the common law limiting tests for NIED to be controlling in all cases arising in the maritime context—as the Gottshall Court had done in the FELA context— because none of those theories would allow recovery by the two Chan children who were not physically present on the cruise with their parents and Samantha, and because the facts alleged as to Samantha would allow her to recover under all three of the theories. 39 F.3d at 1410. What the majority overlooks in suggesting that the "zone of danger" theory articulated in Chan is mere dictum, however, is that the panel in that case apparently believed it was necessary to define the legal contours of a claim of NIED under each of the three theories, to be applied by the district court as to Victoria Chan's NIED claim after affording her a chance to amend her complaint in light of the panel's decision.
The majority implies, however, that the Chan panel's formulation of the "zone of danger" test is inconsistent with the test adopted by the Supreme Court in Gottshall and subsequently applied by the Court to NIED claims arising in FELA cases, albeit in very different factual contexts. See Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 430, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997) (no right to recover damages for "fear of cancer" under "zone of danger" test for NIED based on mere exposure to asbestos without evidence of any "physical impact," i.e., that the plaintiff has developed asbestos-related disease); Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 146, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) (recovery allowed under "zone of danger" test for NIED where the plaintiff has been diagnosed with asbestosis, and damages for "fear of cancer" are alleged as part of the pain and suffering associated with existing asbestos-related disease). For reasons I will explain, I disagree.
Ignoring the in-depth reasoning in Justice Thomas's majority opinion in Gottshall, the majority here quotes only a preliminary statement of the "zone of danger" test recited by the Gottshall Court, as follows:
512 U.S. at 547-48, 114 S.Ct. 2396 (quoting Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 488-89 (1982)) (emphasis added). Based upon a more careful reading of Gottshall, however, I believe it is reasonable to conclude that the Chan test is consistent with Gottshall, at least in cases in which the plaintiff alleges a "stand-alone" claim for NIED—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. See Ayers, 538 U.S. at 147-48, 123 S.Ct. 1210 (Gottshall and Buckley describe two types of claim for negligently inflicted emotional distress: "stand-alone" claims not provoked by any physical impact or injury, for which recovery is sharply circumscribed by the zone-of-danger test; and claims for emotional distress brought on by a physical injury, for which pain and suffering recovery has been traditionally permitted).
Carlisle, on the other hand, alleged a claim for NIED based on his own job-related stress from working as a train dispatcher, and later as a trainmaster, who was responsible for ensuring the safe and timely movement of passengers and cargo under very difficult working conditions— including aging railstock and outdated equipment, and reductions in the work force that required him to take on additional duties and to work extremely long, erratic hours—which caused him to experience insomnia, headaches, depression, weight loss, and eventually a nervous breakdown. Id. at 539, 114 S.Ct. 2396.
In rejecting the more flexible and expansive "foreseeability" test the Third Circuit applied to evaluate Gottshall's and Carlisle's claims for NIED, and specifically discussing the need to limit the class of plaintiffs eligible for recovery of damages, the Supreme Court made the following observations regarding Gottshall's claim:
512 U.S. at 553, 114 S.Ct. 2396.
There are also several annotations that compile the numerous state and federal cases on NIED, and support the district court's observation that "in nearly all of the cases the [Gottshall] Court cited as using the ["zone of danger"] test, the plaintiffs sought to recover for NIED on the basis that they had witnessed another
Of course, Stacy does not, and apparently cannot, allege that he witnessed the collision that led to Wade's death. He nevertheless alleges that he was in the "zone of danger" created by appellees' negligent conduct, and I have no doubt that Stacy has adequately pleaded (although, obviously, has not yet proven) that appellees were negligently operating the Eva Danielsen as it passed through the fishing grounds in dense fog. However, in addition to his failure to allege that he witnessed the deadly "peril or harm" to Wade, as required by Chan, 39 F.3d at 1409, Stacy's pleading falters because he has failed adequately to allege that he suffered "fright" or "shock" or any other type of severe emotional distress as a result of appellees' negligent conduct while he was in the "zone of danger." Indeed, and contrary to the majority's assertion, Stacy does not allege that he suffered "fright" or "shock" at all—neither as the Eva Danielsen approached the Marja on a collision course, nor as it passed the Marja "at close quarters," nor when he heard reports that it had run down a boat in the fishing fleet, nor when he eventually learned that it had run down the Buona Madre and killed its captain. Rather, Stacy only vaguely claims that the entire course of events, from the moment he detected the Eva Danielsen on his radar until four days later, when he learned the freighter had run down the Buona Madre and killed Wade, caused him to suffer severe emotional distress.
To be sure, the facts presented by Stacy are tragic and compelling, which might explain the majority's effort to extend the "zone of danger" test to the present context. It is perfectly understandable that Stacy—as well as all of the other fishermen who were fishing in dense fog when the Eva Danielsen came steaming through their fishing grounds on July 13, 2007, especially those who assisted with the search operation after the Eva Danielsen collided with the Buona Madre, as Stacy claims he did—might suffer great psychic trauma upon learning, after the fact, that one of their fellow fishermen died after being tossed into the ocean as a result of a collision with the freighter. They might also have suffered "survivor's guilt" for having failed to rescue Wade, who was allegedly, although unbeknownst to them at the time, still alive and floating in the water near where they had been fishing. But, again, it appears that Stacy had no way of knowing that until days later. Stacy might well have suffered additional guilt from the fact that the post-collision search was called off as a result of his report that he and his boat, the Marja, were safe and sound and had not collided with the Eva Danielsen, as the latter ship had reported. Nevertheless, even assuming all of this to be true, 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
In concluding that Stacy has stated a claim upon which relief may be granted, I believe the majority conceives of a much more expansive "zone of danger" test than has been recognized to date by the Supreme Court, this court, or any other jurisdiction that has adopted that test. A not-so-hypothetical scenario to which many a landlubber can relate, and which is closely analogous to the facts of this maritime case, easily illustrates the problem.
The majority and I probably would agree that the motorists who were directly involved in such an horrific crash (including, of course, the driver of the big-rig), and those who witnessed first-hand the carnage and destruction caused by the driver of the pick-up truck as it occurred without suffering any direct physical impact or injury, could state a claim for NIED against that driver and any other negligent actors who caused the crash, under any formulation of the "zone of danger" test. Under the majority's reading of the Gottshall "zone of danger" test, however, 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 NIED— whether or not they witnessed the accident and, indeed, possibly even if there was no collision at all.
As this hypothetical demonstrates, recovery for NIED under a "zone of danger" theory—at least in cases involving a serious "injury producing, sudden event"—will
Because the allegations of Stacy's first amended complaint do not satisfy the "zone of danger" test for NIED as stated in Chan, I would affirm the judgment of the district court dismissing his complaint for failure to state a claim upon which relief may be granted.
Failure to distinguish between direct and derivative emotional harm undermines the dissent. The dissent relies on a passage from Gottshall rejecting the Third Circuit's "foreseeability" test. Nothing in this passage imposes a "witnessed harm" requirement for claims of direct emotional harm.
The dissent also relies on two annotations. The first bears the title, Recovery Under State Law for Negligent Infliction of Emotional Distress
The dissent repeats its fallacy by relying on two cases that purportedly "formulate the `zone of danger test' as including a `witnessed harm' requirement." Dis. Op. 1043. By their own terms, those cases addressed "negligent infliction of emotional distress upon injury to a third person." Asaro v. Cardinal Glennon Mem'l Hosp., 799 S.W.2d 595, 600 (Mo. 1990) (emphasis added); see Rickey v. Chicago Transit Auth., 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, 5 (1983) (applying the zone of danger test to "a bystander who is in the zone of physical danger" (emphasis added)).
The dissent's "not-so hypothetical" scenario is vivid and thought-provoking. It underscores the dissent's faulty rationale. The dissent envisions a speeding motorist who nearly collides with "dozens, perhaps hundreds of other vehicles" over a two-hundred mile stretch of highway. Dis. Op. 1045. At the end of this distance, the motorist dramatically collides with a big rig. Id. at 1044-45. The "dozens, perhaps hundreds of other vehicles" could potentially prevail against the speeding motorist under a zone of danger theory, assuming they each suffered emotional distress from their own near-collisions. See, e.g., Wooden v. Raveling, 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 (1998); see also Camper v. Minor, 915 S.W.2d 437, 442 (Tenn.1996) (noting that the zone of danger test "arose primarily from `near-miss' automobile accident cases"). The vehicles sufficiently near the final collision with the big rig may possibly recover as bystanders. Cf., e.g., Zea v. Kolb, 204 A.D.2d 1019, 613 N.Y.S.2d 88, 88 (1994); Stadler v. Cross, 295 N.W.2d 552, 554 (Minn. 1980). Yet under the dissent's approach, the most obvious candidate for recovery—the driver of the big rig—would have no claim against the speeding motorist. After all, the driver of the big rig did not witness any collision between the speeding motorist and a third party; the driver of the big rig was the direct victim of negligent conduct, and under the dissent's view, his claim is foreclosed by Chan.