No Sea Change in Causation Standards under the Jones Act
July 2011
In a surprisingly close 5–4 decision, the
U.S. Supreme Court recently held in CSX Transp.,
Inc. v. McBride, 180 L. Ed. 2d 637 (U.S. 2011), that proximate causation is not the correct
legal standard to be applied in cases arising under the Federal Employers
Liability Act (FELA), 45 U.S.C. § 51 et seq. (which is
incorporated into the Jones Act by virtue of 46 U.S.C. § 30104).
by Michael
A. Orlando
Meyer Orlando
LLC
One might have assumed the decision would not be a close call because,
for essentially the past 50 years, the law has been settled in the federal
court system. Under FELA/Jones Act, since the late 1950s, most courts have
applied a relaxed standard of causation, sometimes referred to as legal
cause, a sort of proximate cause–lite. The model federal pattern jury charge
has since reflected the standard of causation that many courts have referred
to as "featherweight." However, principally on Justice David Souter's
concurring opinion in Norfolk S. Ry. Co. v. Sorrell,
549 U.S. 158 (2007), CSX contended that the proper standard of causation
should be proximate cause. Four justices in this decision agreed with CSX's
position. Obviously, there were very strong arguments on both sides of this
issue despite the law being "settled" without any real conflicts in the
circuit courts of appeal.
Underlying Case
In the underlying proceeding, McBride v. CSX
Transp., Inc., 2007 U.S. Dist LEXIS 58925 (S.D. Ill. Aug. 13, 2007), Robert McBride worked as a locomotive
engineer for CSX. He was assigned to a particular train that had a somewhat
unusual engine configuration. He protested that the configuration was unsafe
because switching the engines required constant use of a hand-operated
independent brake, but he was told to take the train as is. Approximately 10
hours into a run, McBride injured his hand while using the independent
brake. His case went to a jury trial, which found in his favor under the
typical jury charge using the relaxed standard of causation.
CSX sought a jury charge on proximate causation, which the district court
rejected. Instead, the court used the typical pattern instruction, which
provides:
Defendant caused or contributed to Plaintiff's injury if
Defendant's negligence played a part—no matter how small—in bringing about
the injury. The mere fact that an injury occurred does not necessarily mean
that the injury was caused by negligence.
The case went up to the Seventh Circuit Court of Appeals (McBride
v. CSX Transp., Inc., 598 F.3d 388 (7th Cir. Ill. 2010)), which approved
the district court's instruction and affirmed the judgment on the basis that
the Supreme Court's decision in Rogers v. Missouri
Pac. R.R. Co., 352 U.S. 500 (1957), had relaxed the common law
proximate cause requirement in FELA cases. The Supreme Court granted
certiorari to decide whether the causation instruction is proper in FELA
cases (which will be applied to Jones Act cases as well).
The Majority Decision
The issue in the Supreme Court centered on the following text in the
first section of FELA.
Every common carrier by railroad ... shall be liable in damages
to any person suffering injury while he is employed by such carrier ... for
such injury or death resulting in whole or in
part from the negligence of any of the officers,
agents, or employees of such carrier....
45 U.S.C. § 51 (emphasis added).
Five of the justices in CSX believe "resulting in whole or
in part" is a congressional expression of a standard of causation and that
it is a standard weaker than proximate causation. The majority harkens back
to the case taught to all first-year law students, Palsgraf v. Long Island
R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), concerning the
concept of proximate cause, and notes that injuries have countless causes,
not all of which give rise to legal liability ("… the law arbitrarily
declines to trace a series of events beyond a certain point." (Opinion of
the court at 6, internal cites omitted).
The court goes through its 1957
Rogers decision in an effort to convince that such case should
be read as a comprehensive statement of the FELA causation standard. It did
so because CSX argued that the Rogers case only concerned the
division of responsibility among multiple parties rather than the standard
for causation itself. In short, the court believes that the
Rogers case was decided on the basis of the directness of causation to the
injury as opposed to the division of responsibility between multiple
parties. The majority opinion notes that, in reliance on the old
Rogers decision, every court of appeals has approved jury instructions
on causation identical or substantially equivalent to the model charge that
employs the less restrictive causation standard. The court further notes
that Congress has had more than 50 years to correct the
Rogers
decision if it disagreed with it but has chosen not to do so.
Interestingly, the majority opinion notes that the element of reasonable foreseeability is an ingredient of negligence, and that, by implication,
there is no need for it to be part of the standard for causation, and, thus,
"if negligence is proved … and is shown to have played any part, even the
slightest, in producing the injury, then the carrier is answerable in
damages even if the extent of the injury or the manner in which it occurred
was not probable or foreseeable." (Id. at 17. Internal
quotation marks and citations omitted.)
The majority decision goes to
extraordinary lengths to make a pragmatic decision that the relaxed standard
of causation in current use is easily understood by jurors whereas wording
for proximate causation is difficult to understand and apply by the common
layman. In the end, after noting that "countless judges have instructed
countless juries in language drawn from Rogers," five of the
justices were convinced that stare decisis should not be
disturbed. (Id. at 12.)
The Dissent
The dissent
forcefully argues that the majority decision wrongfully dispenses with the
firmly established element of proximate causation as the standard under
common law for actions sounding in negligence. Writing for the dissent,
Chief Justice Roberts states:
The test the Court would substitute—whether
negligence played any part, even the slightest, in producing the injury—is
no limit at all. It is simply "but for" causation. Nothing in FELA itself,
or our decision in Rogers v. Missouri Pacific R. Co., 352 U.S.
500 (1957), supports such a boundless theory of liability.
Dissent at 1–2.
The proximate cause standard "limits liability at some point before the want
of a nail leads to loss of the Kingdom." (Id. at 3.) Chief
Justice Roberts notes that FELA expressly abrogated common law tort
principles in four express ways, but one of those was not the element of
causation. Because Congress chose to dispense with common law doctrines in
those ways in the FELA but not for the element of causation, there is no
evidence that Congress intended to abrogate proximate causation by its
silence.
The dissent further notes that the majority's theory that the
words "in whole or in part" signal a departure from the historic requirement
of proximate cause in negligence actions is incorrect. The dissent believes
those words have a completely different purpose. The dissent believes the
words "in whole or in part" relate to the principal of contributory
negligence; in other words, that the FELA abolished such defense, meaning
the railroad would remain liable even if its negligence was not the sole
cause of injury. The dissent rejects the notion that such words relax the
standard of causation to essentially a "but for" test.
Chief Justice
Roberts maintains that a but for causation standard is no limitation on
causation at all. He strenuously argues that the 1957
Rogers decision did not establish a relaxed causation standard. The dissent takes
the position that the Rogers decision applied proximate
causation rather than repudiating it.
The Court today takes the "any part, even the slightest" language out of
context and views it as a rejection of proximate cause. But
Rogers was talking about contributory negligence—it said so—and the language
it chose confirms just that. "Slight" negligence was familiar usage in this
context.
Id. at 9.
The dissent goes on to state, "The use of the term 'even the slightest' in
Rogers makes perfect sense when the decision is understood to
be about multiple causes—not about how direct any particular cause must be."
(Id. at 9–10.) The dissent further notes that although all
of the federal courts of appeals have read Rogers to support
the reduced causation standard, the Supreme Court does not resolve questions
before it by a show of hands. In other words, four of the justices believe
that all of the prior courts of appeals' decisions have misread the 1957
Rogers decision, which is quite an astounding belief. The
dissent notes that a number of state supreme courts disagree with the
federal courts of appeals' decisions and instead apply proximate cause as
the standard. The dissent strongly believes that the element of reasonable foreseeability contained within the proximate cause standard was never
intended to be read out of FELA.
Law has its limits. But no longer when it
comes to the causal connection between negligence and a resulting injury
covered by FELA. A new maxim has replaced the old:
Caelum terminus est—the sky's the limit.
Dissent at 15–16.
What is truly
incredible about the CSX decision is that, with one more
justice siding with the dissent, the court would have overturned what had
been fairly settled law throughout the entire federal court system in the
United States over the past 50 years on the standard of causation in
FELA/Jones Act cases. In short, four of the justices on the current Supreme
Court believe that all underlying federal courts have been misreading the
1957 decision in Rogers. Presently, and for the past 5 decades,
it has been nearly impossible for a Jones Act employer to overcome the
featherweight causation standard implied into the Jones Act through FELA.
Employers have consistently argued that the standard of causation should be
proximate causation just as it is under standard common law tort principles.
Conclusion
By a mere one vote out of nine on the Supreme Court,
the standard could have changed overnight to proximate causation, clearly
benefitting employers in Jones Act negligence cases. It would now appear
that it will take Congress rewriting FELA if proximate cause is to become
the standard for causation under the Jones Act. No doubt, Jones Act
employers were heavily rooting for railway employer CSX, but there was no
sea change with this decision.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do 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.