Room for Debate on Proximate Cause versus Relaxed Standard of Causation
in a Jones Act Context
February 2007
In January 2007, the U.S. Supreme Court decided
a railroad personal injury case under the Federal Employers' Liability Act (FELA), Norfolk Southern Railway Company v. Sorrell,
2007 U.S. LEXIS 1006. Since the Jones Act expressly incorporates by reference
FELA's liability standard, this case has direct implications in a maritime personal
injury setting.
by Michael
A. Orlando
Meyer Orlando,
LLC
At first blush, the direct holding of Sorrell might seem to have little real effect on what the maritime practitioner would
already believe maritime law to hold. However, on closer analysis, the case
may have deeper significance.
The Facts
The facts of the case are that Timothy Sorrell sustained neck and back injuries
while working as an employee of Norfolk Southern Railway. He brought suit in
state court in Missouri. On a jury verdict in his favor, the court awarded $1.5
million in damages. At trial, Norfolk objected to the jury instructions which
reflected a more lenient causation standard for the defendant's negligence than
for the plaintiff's contributory negligence. The standard jury instructions
in Missouri allowed a finding of negligence against the railroad if the negligence
contributed in whole or in part to the injury, but allowed a finding of contributory
negligence of the employee if the employee's negligence "directly contributed
to cause the injury." 2007 U.S. LEXIS 1006, *6.
The Missouri Court of Appeals affirmed the trial court and rejected Norfolk's
contention that the causation standards should be the same as to the plaintiff
and the defendant. After the Missouri Supreme Court denied discretionary review,
the U.S. Supreme Court granted certiorari on the question of whether the causation
standard for an employee's contributory negligence under FELA differs from the
causation standard for railroad negligence.
The Standard of Causation Question
One interesting aspect of the case is that Norfolk attempted to expand the
question presented to encompass what the standard of causation under FELA should
be as opposed to whether the standard was the same for both the plaintiff and
the defendant. Norfolk contended that the proximate cause standard, rather than
the relaxed causation standard, should apply to it as well as the employee.
Unfortunately, this is not what Norfolk contended in the trial court or throughout
the appellate process until it got to the U.S. Supreme Court. In the trial court
and the lower courts of appeals, Norfolk had contended that the relaxed standard
of causation that was applied to it should also apply to the plaintiff. The
Court, as is typical, declined to rule on the expanded question as it had not
been tested and ruled on by the lower courts.
The holding of the Sorrell case is that the
causation standards should be the same for both proof of the plaintiff's negligence
claim against the railroad as well as the railroad's comparative negligence
claim against the plaintiff. The main opinion, as authored by Chief Justice
Roberts, is joined by all of the Justices with the exception of Justice Ginsburg.
There is nothing earth shattering in the Court's main opinion as it merely goes
through what surely will be a relatively noncontroversial analysis to reach
the conclusion that whatever the causation standard is, it should be applied
to both the plaintiff and the defendant.
The Supreme Court's Analysis
The Court based its ruling on the proposition that at common law, the causation
standards for negligence and contributory negligence were the same. The Court
cited to the Second Restatement of Torts which provides:
- The rules which determine the causal relation between the plaintiff's
negligent conduct and the harm resulting to him are the same as those determining
the causal relation between the defendant's negligent conduct and the resulting
harm to others.
Section 465 (2) p.510 (1964). The Court notes that it could find no basis
for concluding that Congress intended FELA to allow disparate causation standards.
The Court noted that while Section 1 of FELA uses the language "in whole or
in part" while addressing railroad negligence but does not have that same language
when covering employee contributory negligence in Section 3 of the statute,
such does not justify a departure from the common law practice of applying a
single standard of causation.
- Even if the language in Section 1 is understood to address the standard
of causation, and not simply to reflect the fact that contributory negligence
is no longer a complete bar to recovery, there is no reason to read the
statute as a whole to encompass different causation standards. Section 3
simply does not address causation. On the question of whether a different
standard of causation applies as between the two parties, the statutory
text is silent.
2007 U.S. LEXIS 1006, *23–24. Sorrell was taking the position that FELA's
remedial purpose and history of liberal construction meant that a higher standard
for causation for contributory negligence was acceptable.
- We conclude that FELA does not abrogate the common law approach, and
that the same standard of causation applies to railroad negligence under
section 1 as to plaintiff contributory negligence under Section 3.… The
question presented in this case is a narrow one, and we see no need to do
more than answer that question in today's decision.
Id. at *24.
The Importance of the Decision
The actual holding of this case will not change what has been understood
to be settled maritime law in that it is commonly understood in today's practice
that the standards of causation are the same as between the seamen and his or
her maritime employer. Now, though, there is a Supreme Court case holding that
the causation standard is the same for plaintiff and defendant. The importance
of the Sorrell case is derived more from the
open debate created through the two concurring opinions, one authored by Justice
Souter (joined by Justices Scalia and Alito) and the other authored by Justice
Ginsberg and joined by none of the others on the Court.
The Souter concurring opinion agrees that the same causation standards should
be applied to both the plaintiff and the defendant, but seeks to clarify the
Court's prior precedent on the issue. It is clear to the writer that Justice
Souter and the two other Justices joining in his concurring opinion believe
that a proper standard for causation in a FELA suit should be proximate cause
rather than the relaxed standard currently being applied. Justice Souter starts
his analysis from the proposition that prior to FELA, it was clear common law
that the plaintiff had to prove a defendant's negligence caused his injury proximately,
not indirectly or remotely. He argues that while FELA changed some common law
rules, it did so expressly.
For instance, one common law rule that FELA explicitly changed was that the
contributory negligence bar to a plaintiff's recovery under common law was replaced
with comparative negligence. He further argues that for the first nearly 50
years after enactment of FELA, the Court applied the familiar proximate cause
standard and that it was not until the court decided Rogers v. Missouri Pacific RR. Co., 352 U.S. 500 (1957), that courts
started applying a relaxed standard of causation. According to Souter, the Rogers decision did not change the causation standard.
- True, I would have to stipulate that clarity was not well served by
the statement in Rogers that a case must
go to a jury where "the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing the injury
or death for which damages are sought." Ibid. But that statement did not
address and should not be read as affecting the necessary directness of
cognizable causation as distinct from the occasional multiplicity of causations.
It spoke for apportioning liability among parties, each of whom was understood
to have had some hand in causing damage directly enough to be what the law
traditionally called a proximate cause.
Id. at *29–30. The concurring opinion
goes on to state:
- The absence of any intent to water down the common law requirement of
proximate cause is evident from the prior cases on which Rogers relied. To begin with, the "any part,
even the slightest" excerpt of the opinion (cited by respondent in arguing
that Rogers created a more relaxed standard
of causation than proximate cause) itself cited Coray v. Southern Pacific Co., 335 U.S. 520 (1949).… There, just
8 years before Rogers, Justice Black unambiguously
recognized proximate cause as the standard applicable in FELA suits.
Id. at *30. Justice Souter then cites
further examples of why it is that the Rogers case does not stand for the principle that causation in a FELA case should be
anything other than proximate cause. Even though the concurring opinion concludes
with the statement "I do not mean to suggest any view of [the post Rogers cases] except for the misreading of Rogers
expressed here and there," it is the writer's belief that the Souter concurring
opinion gives hope that some day some court will retrace the steps leading to
the so called "relaxed causation standard" currently being applied in Jones
Act cases.
Justice Ginsberg writes a separate opinion concurring in the judgment principally
to express the belief that the Rogers case changed
the standard of causation from proximate cause to the relaxed standard currently
being applied in FELA and maritime personal injury cases which holds an employer
may be found negligent when the negligence played any part, even the slightest,
in producing the injury or death for which damages are sought. Justice Ginsberg
states "In FELA cases, strong policy considerations inform the causation calculus." Id. at *36. She cites to prior Supreme Court
precedent stating "We have liberally construed FELA to further Congress's remedial
goal," citing to Consolidated Rail Corp. v. Gottshall,
512 U.S. 532, 543 (1994). Justice Ginsberg would have everyone believe that
all of the confusion is simply a matter of semantics and that rather than using
the phrase "proximate cause" courts should instead term it "legal cause."
The fact of the matter is that proximate cause is different than legal cause,
and either the Rogers case changed the causation
standard or it did not. The three justices on the Souter concurring opinion
believe that the Rogers case did not actually
change the proximate cause standard in FELA cases, but Justice Ginsberg believes
that it did. The five other Justices participating in the Court's main opinion
expressed no belief one way or the other.
Conclusion
It is the writer's belief that the Sorrell case will provide a forum for maritime practitioners to attempt to change the
current feather-weight causation standard being applied in Jones Act cases.
At least three Justices—Souter, Scalia, and Alito—believe that there was no
intent to create a relaxed standard of causation under FELA, which has lead
to the current Jones Act causation standard. All it would take would be to convince
two other Justices and the railroad and maritime industries could get back to
a level playing field in which personal injury claims were decided based on
common law principles of proximate causation rather than the current "relaxed"
"feather-weight" "slightest" cause currently being applied.
The issue was not squarely presented in this case. It needs to be one that
is taken up to the U.S. Supreme Court if we expect any change.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author’s employer or IRMI. This article does not purport
to provide legal, accounting, or other professional advice or opinion. If such advice
is needed, consult with your attorney, accountant, or other qualified adviser.