Railroad Locomotive Engineer Must Plead More Than Fear of Cancer for FELA Claim To Proceed
The U.S. District Court for the Eastern District of California dismissed a railroad locomotive engineer’s claims that his employer created an unsafe work environment by doing nothing to mitigate dust from the asbestos used on locomotives and rolling stock. The plaintiff claimed damages for, among other things, mental anguish caused by the fear of cancer and for the failure of his employer to warn about the risks of exposure to asbestos. In dismissing the claims with leave to amend, the court explained that the plaintiff’s complaint did not presently plead an actual injury in fact, which is required under the Federal Employer’s Liability Act. Although claims for emotional distress are compensable under FELA, mere exposure to asbestos is insufficient to show a physical impact, as required in the “zone of danger” test articulated in the U.S. Supreme Court case of Consolidated Rail Corp. v. Gottshall.
