Three major limiting tests for evaluating claims alleging negligent infliction of emotional distress have developed in the common law. The first of these has come to be known as the physical impact test. Under the physical impact test, plaintiff seeking damages for emotional injury stemming from a negligent act must have contemporaneously sustained a physical impact, no matter how slight, or injury due to defendant's conduct. The second test has come to be referred to as the zone of danger test. The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct. Those within the zone of danger of physical impact can recover for fright, and those outside of it cannot. The third prominent limiting test is the relative bystander test. Courts of nearly half the states now allow bystanders outside of the zone of danger to obtain recovery in certain circumstances for emotional distress brought on by witnessing the injury or death of a third party, who typically must be a close relative of the bystander, that is caused by defendant's negligence.
The railroad company challenged the trial court's award of damages to an employee for negligent infliction of emotional distress. The employee, who was a train engineer, allegedly suffered emotional distress after the train he was driving hit a car that was stalled on railroad tracks. Finding that the employee failed to establish an essential element of the zone of danger test, the court reversed the judgment.
May a railroad employee recover damages against employer railroad for negligent infliction of emotional distress?
Kentucky has held that the physical contact may be slight but that the resulting emotional injury must be the direct result of the contact. Indiana, on the other hand, has ruled that while the impact must cause physical injury, the resulting emotional distress need not result from the injury. Under any of these tests, Grube could not recover because he sustained no physical injury from the impact and because his emotional distress did not result from any impact/injury suffered by him.
The facts of this case establish that Grube failed to establish an essential element of the zone of danger test, viz., that he at any time feared for his own personal safety. We therefore reverse the judgment of the trial court and enter judgment for the defendant, Union Pacific.