Norfolk S. Ry. Co. v. Everett

The trial court plainly erred in granting the employee's pretrial motion in limine barring the railway company from presenting evidence on or making an argument concerning whether the employee was within the zone of danger.

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In this suit under the Federal Employers’ Liability Act “FELA”, 45 U.S.C. § 51 et seq ., Norfolk Southern Railway Company “Norfolk Southern” appeals from the final judgment and jury verdict in favor of Michael Everett on his negligence suit for emotional damages arising out of a train derailment and collision into a commercial building. Norfolk Southern contends that the trial court erred in granting Everett’s motion in limine concerning the “zone of danger” test, in denying Norfolk Southern’s motion for a directed verdict, and in refusing to give certain jury charges. Because the trial court’s ruling on the motion in limine erroneously removed from the jury’s consideration an essential element of the plaintiff’s case, the judgment must be vacated and this case remanded for a new trial. 1. Norfolk Southern contends that the trial court erred in granting Everett’s pretrial motion in limine on the issue of whether Everett was within the zone of danger. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Citation omitted. Suarez v. Halbert , 246 Ga. App. 822, 824 1 543 SE2d 733 2000. The undisputed facts relevant to the resolution of this question of law are as follows.

This is the second appearance of this case before us. In Norfolk Southern R. Co. v. Everett , 299 Ga. App. 420 682 SE2d 621 2009 “Norfolk I” , we affirmed an order of the trial court denying Norfolk Southern’s motion for summary judgment on Everett’s FELA claim. Specifically, we held that the trial court correctly found that Everett had presented sufficient evidence from which a reasonable factfinder might conclude that he was within the zone of danger, a legal prerequisite for a finding of liability in a negligent infliction of emotional distress case. As the plaintiff presented sufficient evidence demonstrating a disputed issue of material fact, we held that the trial court correctly denied Norfolk Southern’s motion for summary judgment. Id. at 425-426.

Norfolk S. Ry. Co. v. Everett

The trial court plainly erred in granting the employee's pretrial motion in limine barring the railway company from presenting evidence on or making an argument concerning whether the employee was within the zone of danger.

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