COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69815 RAYMOND HINKLE : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION NORFOLK AND WESTERN RAILWAY : COMPANY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-279825. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Robert B. Ramsey, Esq. Pratt, Bradford, Tobin & Alexander, P.C. Route 111 at Airline Drive P.O. Box 179 East Alton, Illinois 62024 For Defendant-appellee: Forrest A. Norman, Esq. Jay Clinton Rice, Esq. Gallagher, Sharp, Fulton & Norman Seventh Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 SWEENEY, JAMES D., P.J.: Plaintiff-appellant Raymond Hinkle appeals from the trial court's decision granting the motion for summary judgment filed by the defendant-appellee Norfolk & Western Railway Company. The appellant filed his complaint seeking compensation under Federal Employer's Liability Act (FELA), Section 51 et seq., Title 45, U.S.Code. The facts of this case are not in dispute. Raymond Hinkle was employed by the Norfolk & Western Railway Company in 1966. Since 1979, the appellant was employed as a machine operator and was assigned to operate a backhoe. On June 14, 1987, there was a train derailment in Bucyrus, Ohio. The appellant was not working that day, but drove to the site and was told by the foreman to get a backhoe and begin clean- up work. On the first day of this assignment the appellant worked from 7:00 p.m. until 4:00 p.m. the next day, June 15, 1987. From Tuesday, June 16, 1987 throughout Saturday, June 20, 1987, the appellant worked 48.5 hours cleaning up the derailment. On Sunday, June 21, 1987, the appellant worked 11.5 hours opening and closing ballast doors with a bar and a hammer. He returned to the derailment clean-up on Monday, June 22, 1987, and from that date through Wednesday, June 24, 1987, worked 26 hours. In this ten- day stretch of work the appellant worked 114.5 hours. On Sunday, June 21, 1987, while dumping ballast, the appellant felt a chest pain. He did not inform anyone of the pain because he - 3 - believed it to be just a pulled muscle. On June 24, 1987, the appellant operated the backhoe until approximately 2:30 or 3:00 p.m. At the direction of his supervisor, he left the job site early to purchase new tires for the backhoe. Later that evening he began to experience what he believed was indigestion. Between 8:30 and 9:00 p.m. the appellant drove to the Quick Check Store where his wife was employed. The appellant's wife drove the appellant to the hospital emergency room where he had a heart attack. The appellant subsequently underwent double bypass surgery at Grant Hospital in Columbus, Ohio. In his deposition, the appellant stated that to his knowledge there was no history of heart problems in his family; that he did not have a history of hypertension or high blood pressure, nor had any doctor informed him that he had an excessive cholesterol level. The appellant sets forth the following assignment of error: THAT THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. (FINAL VOL. 1893, P. 0179). The appellant argues that the trial court erred in granting the appellee's motion for summary judgment. The appellant states that the letters from his treating physician and from his family doctor were sufficient to support his claim under the FELA; that his injuries were foreseeable; and that the court erred in failing to make specific findings of fact. The Ohio Supreme Court has recently set forth both the purpose of the FELA and the manner in which state and federal law are - 4 - applied. In Vance v. Consol. Rail Corp. (1995), 73 Ohio St.3d 222 the court held: Section 1 of the FELA, Section 51, Title 45, U.S.Code, provides that "[e]very common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." "In 1906, Congress enacted the FELA 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 coverage of the statute is defined in broad language, which has been construed even more broadly." (Footnotes omitted.) Atchison, Topeka & Santa Fe Ry. Co. v. Buell (1987), 480 U.S. 557, 561-562, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563, 570-571. The FELA is to be liberally construed to further its remedial goal. Gottshall, 512 U.S. at , 114 S.Ct. at 2404, 129 L.Ed.2d at 440. What constitutes negligence for purposes of the FELA is a federal question, which does not vary under different conceptions of negligence under non-FELA state and local laws. "Federal decisional law formulating and applying the concept governs." Urie v. Thompson (1949), 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1295. Generally, "FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal." St. Louis Southwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306. Thus, past decisions of the courts of this state setting the parameters of negligence law in Ohio are largely irrelevant to a negligence inquiry under the FELA. As a state court, we are as capable of interpreting the FELA as a federal court would be, but we apply the same federal - 5 - law as the federal courts, without regard to Ohio's negligence law. Thus, while substantive federal law applies when determining whether or not the appellant has adequately met elements of negligence as applied to the FELA, Ohio procedural law applies in determining whether or not the appellant has met his burden pursuant of Civ.R. 56 and in determining whether or not the trial court's order was sufficient. Civ.R. 56 provides that before a motion for summary judgment may be granted, it must be determined that: (1) there is no genuine issue as to any material fact remaining to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come but to one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment was made, the conclusion is adverse to that party. Temple v. Wean, Inc. 50 Ohio St.2d 317. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322. In order to prevail in an action under the FELA, a litigant must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation. Vance, supra, citing to Adams v. CSX Transp., Inc. (C.A.6, 1990), 899 F.2d 536, 539, and Robert v. Consol. Rail Corp. (C.A.1, 1987) 832 F.2d 3, 6. - 6 - The United States Supreme Court has determined that a claim for negligent infliction of emotional distress may be brought pursuant to the FELA, but that such a claim is only cognizable where the injured party falls within the zone of danger. Recovery is limited to plaintiffs who sustain a physical impact as a result of negligent conduct or who are placed in immediate risk of physical harm by that conduct. Consol. Rail Corp. v. Gottshall (1994), 512 U.S. , 114 S.Ct. 2396, 129 L.Ed.2d 427. Under the zone of danger test, a worker may not recover for emotional injuries stemming from a stressful working environment. Id. Alan Carlisle, one of the litigants in Gottshall, supra, suffered insomnia, headaches, depression and weight loss. After an extended period of time in which he was required to work 12 to 15 hour shifts for weeks at a time, Carlisle suffered a nervous breakdown. The court ultimately held that being given too much work to do, as opposed to work which is too dangerous, is not a compensable claim within the FELA. A claim very similar to the one presented sub judice was decided by the United States Court for the Northern District of Ohio, Western Division. In Szymanski, Admrx. v. Columbia Transportation Co. (N.D. Ohio, Jan. 30, 1995), Case No. 93 CV 7423, unreported, plaintiff sought compensation for a heart attack brought on by inordinately arduous labor and stress. The court granted summary judgment based upon Gottshall, supra, finding that although the physical manifestations suffered by Szymanski, a heart - 7 - attack, and those suffered by Carlisle, insomnia, headaches, depression and weight loss, were different, the cause and effect were the same. The court found that both men claimed to have suffered physical illness due to overwork. The court granted summary judgment against Szymanski, finding that he, too, presented a case of too much work, not work that was too dangerous. The appellant herein presents just another such claim. Mr. Hinkle worked inordinately long hours in a short space of time and suffered a physical injury as a result. Based upon Gottshall, supra, and Szymanski, supra, this is not sufficient to place the appellant within the zone of danger. As a final note, this court should make clear as well that there is no requirement the trial court make findings of fact or conclusions of law when ruling on a motion for summary judgment. Sawchyn v. Westerhaus (1991), 72 Ohio App.3d 25. The appellant's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES M. PORTER, J., and DIANE KARPINSKI, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .