Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 14 (2003)

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148

NORFOLK & WESTERN R. CO. v. AYERS

Opinion of the Court

emotional distress brought on by a physical injury (or disease) category, Brief for Respondents 26.7

Relevant to this characterization question, the parties agree that asbestosis is a cognizable injury under the FELA. See Urie v. Thompson, 337 U. S. 163, 187 (1949) (occupational diseases caused by exposure to hazardous dusts are injuries under the FELA). Norfolk does not dispute that the claimants suffer from asbestosis, see Tr. of Oral Arg. 4, or that asbestosis can be "a clinically serious, often disabling, and progressive disease," Reply Brief 6 (internal quotation marks omitted). As Metro-North plainly indicates, pain and suffering damages may include compensation for fear of cancer when that fear "accompanies a physical injury." 521 U. S., at 430; see id., at 436 ("The common law permits emotional distress recovery for that category of plaintiffs who suffer from a disease."). Norfolk, therefore, cannot plausibly maintain that the claimants here, like the plaintiff in Metro-North, "are disease and symptom free." Id., at 432. The plaintiffs in Gottshall and Metro-North grounded their suits on claims of negligent infliction of emotional distress. The claimants before us, in contrast, complain of a negligently inflicted physical injury (asbestosis) and attendant pain and suffering.

B

Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or "parasitic" on, a physical injury are traditionally compensable. The Restatement (Second) of Torts § 456 (1963-1964) (hereinafter Restatement) states the general rule:

"If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for

7 Justice Breyer, it appears, would not place this case in either of the two above-described categories, but somewhere in between. See post, at 187 (opinion concurring in part and dissenting in part).

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