*1 v. McBRIDE TRANSPORTATION, INC. CSX 2011 Decided June Argued 10-235. March No. *3 petitioner. argued A.
Charles for cause Rothfeld Tager, himWith on the M. briefs were Dan Evan Himrnel- farb, and James A. Bax. argued respondent.
David C. Frederick With him on T. the brief were Ho, Derek Brendan J. Crim- mins, Bird, Daniel Gross, G. Michael A. M. Mann, Lawrence Kujawski, P. John and Robert P. Marcus.* opinion delivered the of the Court, Ginsbueg Justice except as to III-A.† Part applicable This case concerns the standard causation in arising Employers' Liability cases under the Federal Act (FELA Act), § seq. 45 U. S. 51 et FELA C. renders rail- employees’ injuries “resulting roads liable for or deaths part § [carrier] negligence.” whole or in from In accord purpose with the text Act, this Court’s decision in (1957), R. Co., Missouri 352 S. 500 Pacific appellate uniform view of federal we conclude courts, incorporate “proximate that the Act does cause” stand- developed nonstatutory ards common-law tort actions. charge proper simply cases, hold, we tracks language informing Congress employed, juries that a de- plaintiff employ- fendant railroad caused or to a contributed ee’s if played the railroad’s injury. about the Saphire *Daniel filed brief for the of American Association Railroads *4 amicus curiae as urging reversal. amici curiae Briefs urging were affirmance filed for American White; Jeffrey R. by Association for Justice for the American Train Dis- Rogo patchers III; Harold J. by Association al. and Clinton Miller et A. Sturley, Cheryl and for Bluestein, F. Campagno S. Scott et al. Michael deGravelles, John W. Diamond, Dodson, Ross J. Richard Kenneth H. III, Edelman, Hooks Hickey, Hofmann, Paul H. Roger John Paul T. Vaughan. Jungbauer William G. Academy filed a brief for the of Rail Labor Attor- neys as amicus curiae. † Justice joins Thomas all opinion. but Part III-A of this engi- Respondent a worked as Robert McBride locomotive petitioner Transportation, operates Inc., which neer CSX system April On CSX an interstate railroads. assigned run oh local between Evans- McBride to assist ville, Vernon, Illinois. The run involved Indiana, Mount frequent stops to and remove rail starts and add individual “switching.” process The train McBride cars, a known as engine configuration: operate two was had an unusual “wide-body” engines three smaller followed conventional protested configuration unsafe, that the was cabs. McBride wide-body required switching heavy, engines because with independent hand-operated But use of brake. he constant ten hours into the told to take the train as is. About was injured using independent run, while McBride his hand surgeries physical Despite brake. and extensive ther- two regained apy, of the hand. he never full use Seeking compensation injury, for his McBride commenced against District a FELA action U. S. Court for CSX alleged He that the Southern District of Illinois. CSX was required negligent: him to twice the railroad use First, equipment switching; second, CSX to train unsafe for failed App. operate equipment. 24a-26a. him to A verdict instructed, District Court order, for McBride would be in negligent” if the found “was and that the that CSX injury. “negligence to” McBride’s caused or contributed Id., at 23a. sought charges the court declined
CSX additional required give. rejected would have instructions One [to] plaintiff that . . the defendant’s “the show . proximate injury.” Id., at 34a. Another cause of “any “proximate cause” to mean cause
would have defined sequence, produced probable natural which, complained qualification of,” only or nearest cause.” the last
“need not be nor cause, Id., at 32a.
690 n employed, Instead, the District Court as McBride re- quested, pattern the Seventh Circuit’s instruction for FELA cases, which reads: injury
“Defendant ‘caused or contributed to’ Plaintiff’s negligence played part if Defendant’s matter how —no injury. small—in about the The mere fact that injury necessarily an occurred does not that mean injury by negligence.” Id., caused 31a.
For this upon instruction, the Seventh Circuit relied this Rogers Court’s decision v. Missouri R. Pacific jury U. S. 500 a verdict returned for McBride, setting damages total reducing at $275,000, but percentage one-third, amount attributed to plaintiff’s negligence. App. 29a. appealed renewing
CSX to the Circuit, Seventh its ob- jection “proximate to the failure to instruct on cause.” Be- appellate fore “maintain[ed] court, CSX that the correct proximate definition causation a ‘direct relation between ” injurious alleged.’ asserted and the conduct (2010) F. (quoting 3d 393, n. Holmes v. Securities In- (1992)). Corporation, vestor Protection 503 U. S. A properly jury, might instructed CSX contended, have found the chain of indirect, causation was too or that the engine configuration propensity was unsafe of its because during switching, to cause crashes not because of risk engineer’s Defendant-Appellant to an hands. Brief for (CA7),pp. No. 08-3557 49-52. Appeals approved
The Court of the District Court’s in- judgment jury’s struction and affirmed the entered Rogers require- proximate verdict. had “relaxed ment” FELA cases, Circuit Seventh view concluded, every appeals.” “echoed court other acknowledging F. 3d, at While handful of state applied] courts “still traditional formulations of id., cause in FELA cases,” n. 7, the Seventh Circuit *6 hardly an instruction that erroneous declare said could Supreme own words in “simply paraphrased] Court's the Rogers,” id., at the in- whether causation granted certiorari to decide
We proper in Circuit is the endorsed struction Seventh (2010). That instruction does 562 U. 1060 FELA cases. S. “proximate but does tell the cause,” term not include the “pla[y] part jury matter must defendant’s —no [plaintiff’s] injury.” small —in about how App. 31a.
II A exceptionally hazardous The railroad business was phys- eentury. recounted, “the we have dawn of 20th As dangers railroading in the death or maim- ical of ... resulted year,” every ing Consolidated Rail of thousands workers (1994),including Corporation 532, 542 Gottshall, v. 512 S.U. Rep. year alone, No. 432, in the 1908 S. 281,645 casualties (1910). year Cong., in 2 Enacted same Sess., 61st 2d doing part “shif[t] overhead of the human an effort to employers,” employees Gottshall, to their business from (internal omitted), quotation S., marks 512 U.
prescribes:
“Every railroad . . . shall be liable common carrier injury suffering any person damages while he in injury employed by such or death for such carrier ... resulting part from in or whole in agents, employees of carrier such ....” or officers, added). § (emphasis U. S. C. key respects:
Liability in these limited under FELA is only employees, only their are hable Railroads employment. FELA’s injuries sustained in course language as broad as could be “is causation, however, Thompson, U. S. framed.” Urie “resulting phrase in whole the breadth of Given Congress’ [railroad’s]negligence,” from the “human recognized goal[s],” itarian” and we that, “remedial comparison litigation law, tort at common “a relaxed applies Gottshall, of causation standard under FELA.” Rogers, In S., 542-543. our 1957 we decision de scribed that relaxed standard as follows: [FELA] simply
“Under test case is proofs justify whether with reason the conclusion employer negligence played any part, that slightest, even the producing or death for which damages sought.” are at 506. *7 emphasized,
theAs Seventh Circuit instruction gave permitting District Court case, this a for verdict Mc- “[railroad] if played Bride matter how —no injury,” App. small—in 31a, about the tracked the language Rogers. Rogers prescribes If the definition of applicable causation FELA, under instruction was plainly proper. Union, See Patterson v. McLean Credit 49.1 (1989) (“Considerations 164, U. S. special of stare decisis have .”). statutory interpretation force in the area of . . . Rogers, While CSX does not ask tous disturb the railroad con- tends that opinion. lower courts have overread that In CSX’s post, Rogers view, shared the dissent, at 713-714, was a nar- rowly focused decision touch, that did not much concern, less displace “proximate common-lawformulations of cause.”
Understanding argument requires background. this some “proximate The term concept: cause” is for shorthand Injuries give causes, countless all should not rise legal liability. Keeton, See Dobbs, W. D. R. Keeton, D.& (5th § p. Owen, Prosser and Keeton on 42, Law of Torts 1984) (hereinafter Keeton). ed. Prosser and . “What we . . ‘proximate,’” jurist mean the word one noted has ex- plained, simply “[B]ecause public this: of convenience, of policy, rough justice, of a arbitrarily sense of the law declines beyond point.” Palsgraf trace series of events certain Long E. Island R. 248 N. Y. N. (1928) (Andrews, “proximate dissenting). Common-law J., often varied, were both constricted formulations cause” Cooley, comprehend. T. Law of Torts and difficult to See 1888) (2d example, pre- (describing, for 73-77, 812-813 ed. any recovery scriptions precluding event of “interven- in the negligence). ing” contributory courts cause or Some liability “proximate the sole off if a cause” was not cut p. (noting §65, Keeton cause. Prosser and “tendency single, principal, dominant, some ... look for injury”). Many ‘proximate’ every used definitions resembling proposed to the District Court or those CSX (CSX urged Appeals. at 689-690 Court proposed key probable” or “direct” to de- words “natural alleged neg- required relationship scribe between § conduct); pp. ligent 282-283. Keeton Prosser and concurring opinion Drawing largely on Justice Souter’s (2007), Sorrell, 158,173 549 S. Southern R. Co.v. Norfolk displaced only “any part” test that the CSX contends injuries recovery involving common-law restrictions on “multiple contributory negligence causes.” Brief or other omitted).1 (internal Rog- quotation marks for Petitioner 35 requisite aof cause,” directness CSX ers “did address *8 governed by argues, question to be re- continues hence that Brief for Petitioner 35. strictive common-lawformulations. B argument, turn first the facts we of To evaluate CSX’s injured Rogers. employee was while burn- in that case ing vegetation lined the defendant’s rail- that off and weeds passing flames, fanned the which train had road tracks. A top spread vegetation a culvert of where the to the from the escape, standing. Attempting employee em- the was 1 Sorroll, was the causation standard same In Court hold the tho that contributory employee negligence, but said negligence for railroad S., at 164-165. should be. nothing about that standard what
ployee slipped gravel sloping covering and fell on the the sustaining injuries. culvert, serious atS., 501-503. jury A Missouri state-court returned a verdict for the em- ployee, Supreme but the Missouri Court reversed. Even if negligent failing the railroad had been to maintain a flat employee surface, the court at reasoned, the was fault be- spreading of cause his lack of the attention to fire. Thompson, 284 W. As S. 2d the fire “was something extraordinary, to, unrelated and disconnected gravel,” “obliged say from the incline of the the court felt plaintiff's injury [that] probable the natural con- any sequence negligence of defendant.” Ibid. jury's upset.
We held that the verdict should not have been Describing potential readings Supreme two of the Missouri opinion, Court’s we condemned the First, both. court erred concluding employee’s negligence was the “sole” injury, reasonably cause for the found that rail negligence played part. Rogers, road atS.,U. 504- Second, the court erred insofar held that the as rail negligence road’s was not sufficient cause unless it was the “probable” injury. more cause of at Id., 505. FELA, incorporate any we affirmed, did not traditional common-law “proximate formulation of [requires] which causation[,] jury [to] find the defendant’s was the sole, producing injury.” efficient, Id., at 506. Whether negligent the railroad’s act was the “immediate reason” fall, we added, was “an Id., irrelevant consideration.” “any at part” 503. We then announced test, id., (“nar g., and reiterated it id., several times. See, e. “single ro[w]” inquiry” “negligence is whether em ployer played any injury); at all” in about the (FELA “rarely id., presents single case more than the question played employer whether part, injury”).2 small, however in the 2In Rogers’ repeated face of “any part... produc admonition *9 single ing injury” the test was the FELA, test for causation under the speculates Rogare waa dissent oimply making a veiled reference to a comprehensive sensibly Rogers as a state- read is most Notably, the standard. Mis- the FELA causation ment of Rogers Supreme that a FELA did not doubt Court in souri including negli- might multiple railroad injury causes, employee negligence. 2d, at 472 gence 284 S. W. language). part” (reciting But the or in FELA’s “in whole part, according indirect, too court, was to the state railroad’s req- sufficiently probable,” the to establish very “natural and not reasoning is the causation. Ibid. That uisite reasoning rejected Rogers. in CSX asks It also Court tous resurrect. statutory history understanding by the
Our is informed precedent Rogers Before FELA drew. was on which state common rules of law enacted, “harsh technical” injured impossible” recovery for “made or had difficult even Virginia Virginia ex rel. railroad workers. Trainmen [rail- “[Dissatisfied Bar, with the 1,3 State road’s] U. S. Congress sought “supplan[t] duty,” to common-law duty duty paying [FELA's] more drastic far damages at due whole or work death Rogers, employer’s negligence.” at S., to Rogers court and Yet, observed, the Missouri other lower “significan[t]”departures ignore FELA’s to courts continued negligence” “ordinary scheme, to rein- common-law from involving “proba- of causation sert common-lawformulations litigants right consequently “deprive of their bilities,” and Aiming jury Id., 509-510. determination.” purpose, Rog- disregard congressional end lower court “any part” “single” repeatedly test the Court ers called inquiry determining Id., FELA cases. causation added). argument (emphasis that the short, In CSX’s e., i. plaintiff allowing comparative negligence, form of particular modified “slight” while the railroad’s prevail was showing that her Post, conveyed. what To “gross.” at 713-714. That is repeat, Rogers instructed [under FELA] ease “the test of any part, slight- simply even employer negligence played ... whether est, producing injury.” at 506. *10 Rogers standard concerns responsibility division only and not more among actors, causation multiple generally, misses thrust of the our decision in that case. in in the “any the
Tellingly, announcing producing part... Rogers Coray Co., Southern test, v. injury” cited Pacific (1949), U. S. decision that FELA had emphasizing parted from traditional of causation. common-law formulations What as or cause in qualified legally sufficient “proximate” Coray FELA cases, had was determined the explained, or which statutory phrase “resulting in whole in Con- part,” ... gress “selected to fix in that was language liability” Id., and direct.” at “simple 524. That straightforward Coray was with phrase, observed, “dialectical incompatible subtleties” common-law courts determine employed whether a particular cause was sufficiently “substantial” Id., constitute a proximate cause. at 523-524.3 Rogers Our decisions subsequent have confirmed an nounced a general standard for cases, causation not one addressed exclusively injuries involving multiple cognizable The potentially causes. was ann very day ouneed, we its applied instruction in a case in “any part” which sole the causation issue the directness foresee ability of the connection between the carrier’s Ferguson Moore- and the plaintiff’s injury. Lines, McCormack Inc., (1957) S. 523-524 (plural ity opinion). dissent, The while variety of recognizing “the formulations” courts employed “proximate cause,” post, say define at does not many which of the applicable formulations would declare in FELA cases. regard phrase
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“The fourth element whether an injury plaintiff to the or in whole from resulted employees agents. of the railroad or its negligence play part, In other words, did such even slightest, plain about an to the Jury tiff?” L. Sand et al., Modern Federal Instruc (2010) ¶ pp. tions-Civil 89.02, 89-38, 89-40, and comment (hereinafter Sand). shortly charges
Since after decided, of this order accepted have been as federal model. W. See Mathes & *12 Jury Devitt, E. Federal Practice §84.12, and Instructions (1965) (under p. proximately 517 FELA, “is caused by” negligence “played any the defendant’s if the part, actually no matter how small, about or employed lower courts have years. it for over 60 To unsettle the law as urges the diasent would rospeot principio show scant for the of stars decisis. 5 Moody Co., (CA1 See v. 693,696 1987); Maine General R. 823 F. 2d 696 (CA2 Co., 64, 1996); v. Metro-North Commuter R. 3d 77 F. 68 Hines Ulfik 1991); v. (CA3 Consolidated Corporation, 262, 267 Rail F. 2d 926 Hernan (CA4 v. Mae, Inc., 432, dez Trawler 1999); Miss Vertie 187 F. 3d 436 Niv (CA5 Co., 114, 118 1970); ens v. St. Louis Southwestern R. 425 F. Tyree 2d (CA6 v. New Co., 524, 1967);Nordgren York R. Central 382 F. 2d v. 527 Co., (CA8 Burlington 1246, 1249 1996); No. R. F. v. Burling 101 3d Claar (CA9 499, 1994); ton No. R. 29 F. 3d v. 503 Missouri Summers Pacific (CA10 System, Serv., R. 1997); 132 F 3d 606-607 Sea-Land v. Inc. Sellan, (CA11 2000); 231 F. 3d 851 v. National Railroad Little Pas senger (CADC 1988) (table). Corporation, F. 2d 865 1329
699 overwhelming majority causing injury”).6 of state The similarly comprehend FELA’s scholars8 causa- courts'7 and standard. tion Rogers understanding affirm we here “has sum,
In accepted IBP, law for several decades.” Inc. been as settled (2005). [more “Congress had has Alvarez, 546 U. S. years 50] have corrected our decision in which it could than [Rogers] disagreed chosen to if and has not do it, Railways Comm’n, Public Hilton v. South Carolina so.” (1991). judges have instructed 502 U. S. Countless Rogers. juries language To from drawn discard countless Rogers ill now would serve the restrict instruction or goals “stability” “predictability” that doctrine statutory S., at 202. to ensure. 502 U. stare decisis aims
III cap- causation, as nonetheless insists CSX requested, charge is a CSX con- tured in the and definitions sounding negligence. cept The to actions fundamental “any opens Rogers part” the door to unlimited instruction liability inviting juries impose liability, worries, CSX The dissent shares these the basis of “but for” causation. century’s ex- But a half Post, 710-711, 719-720. fears. pattern FELA causation published instruc All five Circuits rathor than traditional language use of the otatutc tions Academy of Bail Labor Attor See Brief common-law formulations. Curiae 19-20. Amicus neys as instructions). id., pattern 21-22, (collecting cases and 25-27 agree all there are no dispute figures, but more than parties The the exact found “[a]t The Circuit most” three. exceptions. a handful of Seventh 388, 404, F. 3d n. 7 Employers' g., e. See, DePareq, Supreme and the Federal Court *13 (1957); 145, 2 Rev. 154-155 Liability Act, Term, 36 L. J. 1956-57 Texas §24:2, Liability Litigation Lindahl, & B. Tort Law: Lee Modern Larson, (2d L. Larson's Workers' 2005); 9 Larson & pp. 24-2 to 24-5 ed. A. (2010); 147.07[7], § 147-20 Prosser and Compensation 147-19 to pp. Law §80, p. Keeton
700 perienee Rogers gives with us little cause for concern: CSX’s identify briefs did not even one trial in which the instruction generated an absurd or untoward award.9 has dis- Nor (cit- managed sent Post, to uncover such case. at 717-718 ing conjuring up images falling pianos no actual case but coffee). spilled Rogers
While some courts have said that eliminated the concept proximate cause in we cases,10 think it recognize Rogers “more accurate ... describes the applicable test for causation in FELA suits.” concurring Sorrell, judg- 549 U. atS., J., in (Ginsburg, 178 ment). understanding expressed by That was the drafters of the 1965 federal model at instructions, see 698-699: proximately FELA, Under “is caused” the rail- any part “played road’s if that . . . causing injury.” Avoiding in .. . “dialectical subtleties” attempts convey intelligibly juries just that confound “proximate Coray, what means, cause” see at 524, everyday instruction uses words contained comprehend the statute itself. can Jurors those words and apply light experience them in of their and common sense. Congress good Unless and until otherwise, see no orders we tamper reason to tied an instruction text, FELA’s point Pressed on this argument, at oral CSX directed us to two cases Corporation, ito amicus. cited Richards Consolidated Rail In v. (CA6 428, 431, F. 2003), 3d route, a defective brake malfunctioned en employee injured and tho inspecting was while underneath the train to problem; locate tho the Sixth to jury. Circuit In sent caae Norfolk Schumpert, Southern R. Co. v. 782, 783-786, 270 Ga. E. App. 608 S. 2d (2004), employee 238 230 injured while replacing coupling dc foil ground vice that to the negligently pin; bocauoc of a absent the court upheld view, hardly award. In our the causal link these cases is farfetched; fact, both, the lower courta observed evidence Richards, did 3d, not show mere “but for” F. at causation. See 5; Schumpert, 2d, n. App., 270 Ga. 608 S. E. at 239. 10See, Summers, e.g., 606; Oglesby 3d, Southern Pacific 132 F. Transp. (CA9 1993). 6 F. 3d *14 hardly long employed and shown be un- courts, lower unworkable, or fair
A phrase “prox- 692-693, the As see noted, we judgment policy-based imate cause” is shorthand for contributing injury an should be all factual causes explain: cognizable legally Keeton “In Prosser and causes. go consequences philosophical of an act forward sense, eternity, go back to the of event dawn and the causes an prevent beyond.” p. 264. To events, §41, legislatures appropriately human of and liability,” ibid., “infinite courts may support
place recov- limits on chain causation that of any ery particular on claim. hardly “proximate is essential to the term cause” itself confusing. notoriously
imposition It term such limits. is (“The ‘proximate’ legacy g., p. §42, e. word See, id., in his time committed other Bacon, Lord Chancellor who entirely places word, an It an which sins. ... unfortunate physical wrong emphasis upon or mechanical the factor perhaps ‘legal or even cause’ closeness. For this reason (foot- ‘responsible appropriate term.” cause’ would be more omitted)). *15 plaintiff’s injury “a demonstration that the from resulted wrongful way probable, conduct in a natural, that was Arg. foreseeable.” Tr. of Oral 9-10.
Lay scarcely charges triers, studies show, are aided so 6; phrased. Jury Thornburg, See Steele A Instructions: 88-92, Persistent Failure To L. Communicate, 77, 67 N. C. Rev. (1988)(85% jurors potential of actual and were unable 110 pattern proximate-cause to understand instruction similar requested by CSX); to Making the one Charrow, Charrow & Legal Language Psycholinguistic Study A Understandable: (1979) Jury of Instructions, 79 1306, Colum. L. Rev. 1353 (nearly one-quarter subjects misunderstood cause”). “approximate cause to mean cause” or “estimated light potential In “proximate cause” instructions to jurors leave surprising sea, it is not that the drafters of (Third) the Restatement of Torts the term avoided alto gether. (Third) Liability See 1 Restatement of Torts: for Physical (2005) § (confiningliability and Emotional 29 Harm to “harms that result from the risks that made the actor’s tortious”); conduct id., Comment b.
Congress, “proximate it is has true, written the words cause” legislative into a number of statutes.11 But when the legalistic language, g., by,” text uses less e. “caused “occa- by,” consequence sioned “resulting “in in of,” or, FELA, as part legislative purpose whole or in from,” and the is to recovery, loosen constraints on there little reason for e.g., 11 See, (United Sept. 7, Act of 458, § 1, ch. 39 Stat. 742-743 States injured not liable employee ... proxi whose “intoxication is the mate injury”); § cause of 105, 306, Act Oct. ch. Stat. 407 (United States postdiseharge liable member of for Armed Forces dis ability that “proximately predischarge] injury”); resulted] from Act of [a 5, 1924, (United June 261, 2,43 § ch. “any States liable for Stat. disease proximately employment). caused” federal proximate-cause judge-made stock, hark back courts Legal in Actions of Tort Cause Smith, formulations. (Continued), 223, Harv. L. Rev.
B straightforward: are language made Railroads FELA’s “injury employee’s damages death for an answerable negligence.” [carrier] resulting from in whole or importing § argument FELA’s text into C. 51. The U. S. originating judicial in non- “previous or dicta” definitions Legal statutory Cause Smith, actions, common-law see misapprehends (Continued), supra, of Tort Actions foreseeability figures in FELA cases. how foreseeability “[Reasonable we clarified in Gal harm,” ingredient neg [FELA] lick, is indeed “an essential added). jury, ligence” (emphasis *16 initially: “fai[l] carrier Did the to therefore, asked, must be ordinary pru degree people of observe of care which sagacity or similar cir use the same dence and would under may regard, cumstances[?]” In that Id., at 118. railroad’s] “[the measured are what be told that duties reasonably circumstances.” Ibid. under like is foreseeable omitted). (internal person “[i]f quotation a has Thus, marks particular anticipate ground a con no reasonable to mishap injury, might and a . . result in dition . would or anything [the] party required correct is to do then the not (internal quotation omitt 7 marks Id., 118, at condition.” n. ed).12 negligence proved, and shown to however, If is is slightest, producing “played part, even the added),13 Rogers, (emphasis injury,” then S.,U. 352 negligence per however, safety statute, A railroad’s violation Dredging U. S. See Kernan v. American se. only require showing protests would “de 13 Thedissent that we Post, at under place.” 717. But negligent in the first fendant was jury must find that Rogers, pattern and the instructions based on how small —in matter “played in fact defendant’s —no (Seventh Circuit 698-699 supra, injury.” about the See instructions). pattern federal instruction and model damages carrier if extent of answerable even “the [injury] or the manner in which occurred” was “probable” or Gallick, atS., 120-121, “foreseeable.” (internal quotation omitted); Harper, n. 8 marks see F. (3d Gray, §20.5(6), p. F. & James, O. Law of ed. Torts 2007);5 Sand 89-21.
Properly causation, told, instructed practice as is standard their“common cases, use reviewing 2008), (Aug. sense” in evidence, Tr. 205 see juries damages would have no in far out warrant award judges “but for” scenarios. Indeed, would have no warrant jury. to submit such eases R. to the See Nicholson Erie (CA2 1958)(alleged negligence Co.,253F. 2d 939, 940-941 was provide lavatory employee; employee failure to for female injured by looking lavatory passen a suitcase while in a for ger applying Rogers, appellate car; court affirmed lower causation); Moody court's dismissal lack of v. Boston & (CA1 1990) Corp., (employee Maine 921 F. 2d 2-5 suffered stress-related heart attack after railroad forced him to work inadequate applying Rogers, more than 12hours with breaks; appellate grant summary judgment court affirmed for lack causation). (Rogers supra, gener also 699-700 has decisions). extravagant jury ated no appellate awards court In addition to the sense, constraints of common FELA’s may limitations on who sue, and for reduce the what, risk of liability. exorbitant noted, earlier As see at 691, compensable injuries statute confines the universe by employees, §51. during employment. those sustained Hence plaintiffs there are no unforeseeable in FELA cases. *17 injuries likely the And statute weeds out the most to bear only a relationship negligence, namely, tenuous to railroad occurring workplace.14 those outside the 14CSX observes, post, dissent, as 708-709, does the that we have applied traditional proximate notions of under causation Racketeer Corrupt Influenced and Act, antitrust, Organizations and securities fraud statutes. But those potential injuries statutes cover classes of broader “in hand, the other natural risk, is a real There charge sought sequence” probable CSX mislead. would (“more injury probably plaintiff’s must If taken mean not”) negligent likely conduct, railroad’s from the than follow “resulting part” in lan- whole or in the force FELA’s then negligence “prob- guage would be Railroad would blunted. ably” injury only if that was a cause a worker’s merely injury, not contributor contributor to dominant any part. in
[*] [*] [*] in a FELA case to stated, it is error For the reasons charge embracing proximate-cause terminol- stock refuse ogy. properly that a de- instructed such cases are Juries to” a railroad work- or contributed fendant railroad “caused played railroad’s] [the “if er’s —no injury.” That, in- about matter how small—in prescribed proximate Congress for causation deed, test 696, 700. As the courts in FELA cases. See Appeals judgment U. S. Court of held, below so Seventh Circuit Affirmed. whom Scalia, Justice Roberts, Chief Justice join, dissenting. and Justice Alito Kennedy, Justice [the common] principle law, “It is well established it to the in all of loss we are attribute cases proxima re causa non cause, and remote cause: not to spectatur.” Louisville Ins. Merchants’ mota Waters v. J.). (1837) today (Story, holds Court Pet. apply principle under Fed- to actions does not this liability language akin to FELA’o assign complainants. And none added). §51 (emphasis par?’ whole or “resulting standard. Corporation, 503 U. 265- v. Securities Investor Protection S.
Holmes Cal., Carpenters, Inc. (1992); v. Associated Gen. Contractors of Broudo, Pharmacouticals, Inc. S. (1983); Dura S.U. 529-535 336, 342-346 *18 706 Employers’ liability (FELA), suing
eral Act and that those may injuries under that statute recover for that were not proximately negligence employers. caused of their though generally This even we have FELA held that follows expressly provides law, the common unless the Act other- though abrogated expressly even wise; FELA law common respects, nothing proxi- rules in four other but said about years though cause; mate and even cases, our for 50 own passage recognized prox- repeatedly after FELA, required recovery imate cause was for under that statute. wrong dispense The Court is with that familiar element seeking recovery negligence, of an action for an element “generally thought necessary liability,” to be a limitation (1996). Co., Exxon S. A. Inc., U. v. Sofec, 517 U. S. 838 The test the Court would substitute —whether played any part, slightest, injury— even producing simply limit Nothing no It all. “but for” causation. itself, FELA our decision v. Missouri Pacific (1957), R. 352 supports theory 500 U. S. such boundless liability. respectfully I dissent.
I typical compensation “Unlike workers’ scheme, which provides regard provides relief without fault,... statutory sounding negligence.” cause of action Norfolk (2007). Southern R. v. Sorrell, Co. U. When S. Congress creates such a “we start tort, federal from the premise” Congress “adopts background general Hospital, tort law.” Staub v. Proctor S.
(2011).
respect
particular,
With
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we have ex-
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plained
express
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to the
elements
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reference to
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Sorrell,
165-166;
law.”
see Erie v.
Recovery always required showing has philosophical cause. “Tn a sense, the con- *19 eternity.’” sequences go Holmes v. to of an forward act Corporation, 258, 503 U. S. Protection Investor Securities (1992)(quoting Keeton, Dobbs, Keeton, D. R. & n. 10 266, W. p. § 41, of Torts and Keeton on Law Owen, Prosser D. 1984)). philosophy,
(5th is not however, Law, ed. developed concept proximate at common law in re of cause distinguish perceived for” cause sponse “but to the need to injury that of can form those more causes from direct liability at basis for law. criticizing plurality ground in the vari- new breaks no concept proximate
ety cause, ante, of of formulations first-year law students 701-702;courts, commentators, at supra, doing generations. at Exxon, See been that disparage product of centu- it easier to 838. But is often plausible substitute— ries of common than to devise law Congress attempt may explain why so in did not do which hardly only enduring com- is FELA. Proximate cause imprecision, despite concept see its is useful mon law beyond proof company good ante, at It is in 701. necessity, unconscionabil- willfulness, and doubt, reasonable ity just a few. name —to requirement that be- to the basic Proximate cause refers recovery must be “some direct tort, is there fore allowed injurious and the con- between the asserted relation alleged,” at 268. It from Holmes, excludes duct “purely injuries scope liability remote,” “too are Recog- “indirect[].” 271, contingent,” Id., 268, “every nizing liability conceivable attach to must not wrongdoing,” proximate alleged that can harm be traced wrong requires connection between “causal injury,” Cal., Inc. v. Associated Gen. Contractors (1983), Carpenters, that is n. 519, 536, 459 U. S. consequence is claimed be . . . that what so “tenuous (internal quotation supra, only fortuity,” Exxon, omitted). point liability before the at some It limits marks kingdom. FELA When a nail leads loss want of passed, “[t]he question damage as now, whether given great [was] case one or remote importance. [T]he legal . . . determination of determines (1906) right,” Liability Legal 1 T. Street, Foundations 1980). (reprint expressly abrogated principles commonlaw tort ways. specific
four Sorrell, 168; Con Corporation Gottshall, solidated Rail 542- 512 U. S. As enacted in the Act abolished the contributory negligence common law rule, which barred plaintiffs injuries whose had to their contributed recovering from for the of another. See Act of § Apr. 22, 3,35 Stat. 66. FELA also abandoned so-called *20 § prohibited assumption rule, 1, fellow-servant an risk de of employees fense in cases, certain §4, barred from con tractually releasing § employers liability, their from 5. “[o]nly explicit statutory
But to the extent of these alter departure an ations FELA avowed from the rules of (internal supra, the common quota law.” Gottskall, omitted). tion marks FELA did not abolish the familiar requirement proximate “Congress of cause. Because ex pressly dispensed [certain] with common-law doctrines” in equally [other] FELA but “did not at all deal well- “Congress established doctrine[s],” I not do believe that in abrogate [the other] doctrine[s] tended to sub silentio.” Morgan, Monessen Southwestern R. v.Co. 486 U. S.
337-338 applied We requirement proximate the standard of cause to actions under federal statutes where the text did expressly provide for it. Pharmaceuticals, See Dura (2005) (securities Inc. Broudo, 544 U. S. 342-346 (Racketeer fraud); supra, Holmes, at 268-270 Influenced Corrupt Organizations Act); Associated Contrac- Gen. Act); (Clayton tors Cal., Inc., at 529-535 cf. of Metropolitan Against People Edison v.Co. Nuclear En- (1983) (“the ergy, U. S. terms ‘environmental impact’ [the National in Environ- and ‘environmental effect’ should] Policy be read include a re- Act of mental relationship reasonably quirement causal between a close physical change and the environment effect in the from . the familiar doctrine of issue . . like law”). tort argument explicitly on its rest its own
The Court does not reading on causation The instruction FELA’s text. approves, 1 of FELA, from Section however, derives § nothing But ante, at 703-704. in S. U. C. language” Congress “express em- 1 is similar to the Section abrogate ployed in when it wanted to elsewhere g., See, at 165-166. e. rule, Sorrell, common law (“the §53 may guilty employee have been fact that the (“em- § recovery”); contributory negligence shall not bar ployee of his shall not be held to have assumed risks employment”). very statute, section of the As the first Sec- simply whom and tion 1 who could be sued outlines “[e]very injuries. provides types It common what damages any carrier . . be liable railroad . shall employed by person suffering injury he is while such resulting or carrier for such death whole or ... agents, of the officers, from the §51. theory employees of such carrier.” Court’s part” signal whole or that the “in seems be words *21 departure requirement from the cause. historic They very purpose. did But those different words served a departure important from a common law an indeed mark contributory negli- principle, principle but it was the gence proximate cause. —not contributory As defense noted, abolished simply language negligence; part” re- “in or in whole if remain liable even fact that railroad would flected the injury. Sorrell, negligence cause of not the sole its Congress it so clear when was at that was 170. The recovery abolishing elsewhere in common law limits abrogate principle proxi- FELA did not fundamental oblique suggests. mate “[I]f cause in the manner the Court Congress change” negligence had intended such sea principles clearly.” “it would have so said Trust- Board of ees Leland Roche Junior Univ. v. Molecular Stanford Systems, Inc., 568 U. 776, S. language adopts the Court as an instruction on causa- only requires “'played any part, tion that have ” slightest, producing injury.’ even the at Ante, Rogers, deleted); (quoting emphasis 506; at see also (“Juries properly ante, at 705 in such are cases instructed that a defendant railroad 'caused or contributed to’ a railroad [the played part— railroad’s] 'if worker’s injury’”). no matter how small—in about the If proved, damages is “then the carrier is answerable in [injury] even if the extent of the or manner which '[p]robable’ occurred was Ante, 'foreseeable.’” (some omitted). quotation 703-704 internal marks is There nothing language requires anything in that other than slightest” “but for” cause. The terms “even the and “no juries matter how small” make clear that even the faintest whisper for” of “but causation will do. argument, explained
At oral for counsel McBride that the recovery correct plus standard for is under FELA “but-for legal Arg. form of relaxed cause.” Tr. of Oral 44. There “plus” no today. in the rule Court In announces this very argue case defense counsel was free to “but for” cause pure simple jury. closing, In counsel informed jury: we negli- “What also have show defendant’s gence caused injury. [McBride’s] or contributed It never happened would giving [CSX] but him that train.” App. added). (emphasis to Pet. for Cert. 67a points opinion, At certain acknowledges in its the Court “[injuries causes,” have countless not all of which give legal liability.” “should rise to Ante, 692. But the *22 no limit on contains causa- the Court embraces causation test at all. tion
II enactment, under time of FELA’s Court, This from the prove employer’s require plaintiffs to that an FELA to stood proximate accident,” of the Davis v. “is cause (“The (1923). g., e. See, ibid. rule 263 U. S. Wolfe, employee clearly [prior] that ... an deducible from cases is [employer’s]failure ... is not a cannot recover ... if the merely proximate . . but creates an cause of the accident . accident, which the incidental in other condition situation injury”); Carter v. Atlanta & caused, wise results in such (1949) (“if Bay 430, 435 Co., St. Andrews R. 338 U. S. contributory jury breach is determines that the defendant’s (inter plaintiff” proximate injury, may find for the cause of it omitted)); Elgin, quotation R. nal v. J & E. marks O'Donnell (1949)(“plaintiff a[n]... entitled Co., U. was 384, 394 338 S. injuries liable instruction . . . rendered defendant which therefrom”). proximately resulting shortly Congress comprehensive after
A written treatise plaintiff . “the must . . show that enacted FELA confirmed alleged negligence cause damage” Li- Roberts, 1 M. Federal in to recover. order p. As Justice Souter §538, abilities of Carriers century explained, after enactment of half has for the “consistently recognized applied proxi- FELA, the Court proper Sorrell, in FELA suits.” standard mate as the (concurring opinion). supra, begins with our Court, time
No matter. For the supra. Rogers R. opinion Missouri Pacific opinion, law where was.” however, “left this Sor That (Souter, concurring). juryA J., rell, against employer, damages Rogers his railroad awarded ease Supreme reversed the verdict. Court of Missouri but today, suggested explains we Court As the *23 potential readings” there were “two of the lower eourt’s opinion wrong. doing and Ante, that both were In consequences so, we clarified the of FELA’s of elimination contributory negligence the common law rule. We did not Congress abrogate do what chose not do, rule of proximate cause. rejected [Rogers’s]
First, we the idea “that conduct was mishap.” (emphasis the sole cause of S., his U. added); Rogers Thompson, contra, S. W. 2d 1955) (Mo. (while “[Rogers] by was confronted an emer- himself”). gency, emergency brought it ... anwas about explained, “probative There we were, facts from which [the railroad] could find that was should have been aware of conditions which created a likelihood that [Rogers]... just would suffer as he such an did.” 352 experience S., “[c]ommon at 503. We noted that teaches passing that a both train of a fire, will fan the flames person suddenly enveloped that a in flames and smoke will instinctively by retreating danger.” react from the Ibid. referring predictable sequence In to this events, of we de- proximate scribed—in familiar of terms—sufficient evidence negligence cause. We therefore held railroad’s Rogers’s injury regardless could have been a cause why Rogers slipped whether “the immediate reason” was permitting gravel the railroad’s to remain on Ibid, added). (emphasis surface or some other cause. Rogers thereby clarified that, under statute which em- ployer employee proximate could be both causes anof injury, a railroad’s need not be the sole or last proximate. application cause in order be That is an proximate repudiation cause, not a of it. See Street 111 (“a may sufficiently damage be near in law to the to be legal considered its effective cause without means being the nearest or most to the causes which injury”); § contribute of the 1 D. Dobbs, Law of Torts 180, p. 445 interpretation. The
We then considered a second Mis- alternatively Supreme opinion be read could as souri Court’s having proba- Rogers’s atwas least as held that “conduct any negligence [rail- mishap as ble a cause his circumstances —“there no road],” and that —in those added). (emphasis jury.” for the If case applied principle below, court was also this was the many wrong same reasons. and for multiple comparative negligence in which *24 scheme Under concurrently, may act we clarified railroad’s causes producing negligence efficient, cause “sole, need not be the simply injury,” question id., 506. The was whether of at slightest, “employer played any part, negligence even the in producing injury.” matter,” the “It does not we con- Ibid. jury may evidence, the also with tinued, “that, from the rea- grounds probability, the result attribute to other son, on of contributory nvyltywiwu.” includirty onvplugvu’a causes, Ibid, the added). (emphasis “any pari, slightest” today llie the even
The Court Lakes rejection proxi language it as a out of context and views of talking Rogers contributory about mate cause. But was language negligence it chose the confirms said so—and —it usage just “Slight” negligence familiar was in that. this immediately preceding passed FELA, The statute context. way years just from 1906,moved contrib two earlier in provided utory negligence. comparative It that “the to guilty contributory may employee have been that the fact recovery contributory negligence where his shall not bar employer gross slight negligence the was that of was comparison.” 34 Stat. 232. Other 11, 1906,§2, Act of June halfway stop similarly road from made this statutes using again negligence, contributory pure comparative to (“One [ver earlier “slight.” §201, at 503 term See Dobbs plaintiff negligent to comparative fault] allowed sion slight negligence plaintiff’s recover if comparative negligence law gross. . . . defendant’s Modern differently, works reducing plaintiff’s recovery propor- tion to the fault”); plaintiff’s Schwartz, Comparative V. Neg- (5th (a §2.01[b][2], 2010) ligence ed. form of mod- p. “major ified comparative system”); ‘slight-gross’ id., 3.04[b], at 75. § In 1908, FELA transition completed pure comparative railworkers. respect §201, See at Dobbs FELA, Under not matter does whose negligence was The use of the “slight” “gross.” term “even the Rogers makes sense slightest” perfect when the decision be about understood multiple causes —not about direct how must be. any particular Sorrell, See S., (Souter, J., concurring) (perti- nent language causations,” concerned not “multiplicity causation”). “the necessary directness of. ..
The Court views
Rogers
as
the test
“describ[ing]
proxi-
(internal
FELA, ante,
mate
causation”
under
quota-
tion marks
omitted), but
itself
Rogers
says nothing
sort.
test
its
“the
as
test
(describing
added)).
case”
did
set
forth
(emphasis
a novel standard for
cause —much less an instruc-
tion
designed
guide jurors
causation.
In-
determining
*25
deed, the trial court
the term
Rogers
used
“proximate
cause” in its
the
jury
jury
instruction
to find
directed
that
could
if
“were
Rogers
not recover
his
not
injuries
Id.,
the
directly ... caused
by”
railroad’s negligence.
(internal
9
omitted).
n.
quotation
opinion
marks
Our
quoted
ibid.,
instruction,
but “took
no issue with
in this
[it]
Sorrell,
respect,”
(Souter, J.,
at 1.76
supra,
concurring).
A
of
few our cases have characterized
Rogers
as
holding
that “a relaxed standard of causation
under FELA.”
applies
Gottshall,
Raab v. Utah R. Co., ¶ 20, 2009 221 P. 3d 61, 219, UT 225 (“Rogers cause”); speak proximate did not to of the issue Transp., Gardner v. CSX 201 Va. 498 Inc., 490, 500, W. S. E. (1997)(“we 473, 2d prevail 483 to hold that on claim under [FELA] plaintiff employee ... that the must establish de employer negligently fendant that acted such proximately, part, plaintiff’s contributed to whole or injury”); Snipes Chicago, Co., v. & R. Central, 484 Pacific (Iowa 1992) (stating “[r]ecovery 2d N. W. 162, 164-165 that injured requires employee prove under an to that employer negligent negli defendant that gence proximately part, caused, in whole the accident,” or noting Rogers’s recovery” “low”); while “threshold for Burlington Marazzato v. Co., No. R. 249 487, 491, Mont. (1991)(“plaintiff proving 672, P. 2d has burden of proximate defendant’s was the cause in whole or plaintiff’s [death]”); Pennsylvania Reed v. (1961) R. Co.,171 433, Ohio St. 2d 436, 171 718, N. E. 721-722 (“such legally proximate violation could amount to plaintiff’s leg”); Hager see also Norfolk (Ohio App., W.R. No. *6 WL & (“the 2006) proximate Dec. standard for cause is broader (internal quotation under FELA than the common law” omitted)). marks nothing
If more, the views these courts show that the question dispenses whether —and to what extent —FELA cause not as “settled” as the Court would (internal omitted). quotation it, ante, marks important Under these circumstances, it seems correct an interpretation speak, run, our law has so own case off own its rails.*
* The position Court’s contention that our would unsettle the law con trary principles Gtanro dooisis exaggerates state the law. As noted, the court Rogers, Supreme below Court has not ex “[s]ince plained in narrowly broadly detail how bo should read (CA7 2010). lower federal courts.” F. 3d also Norfolk *27 creating appreciate that it is a Even the seems Court ought negligence troubling gap action and the something proposes something patch The it over. do (internal “[rjeasonable foreseeability ante, harm,” is omitted).- Foreseeability prox- quotation as a test for marks foreseeability thing; has, after be imate causation would one long aspect But that is cause. not been an all, prescribes. foresee- It instead limits the the test Court negligent ability inquiry was in the defendant to whether the place. first juries may instructed that a be
The Court observes reasonably pru- depends negligence a on “what defendant’s creating poten- anticipate person a or foresee as dent would Jury In- al., et Modern Federal tial for harm.” 5 L. Sand (2010); p. ¶ ante, at 89.10, 89-21 see structions-Civil negligence good a re- all fine defendant’s That’s and when (nevermind directly injury plaintiff’s that no in the sults given foreseeability” in this instruction was “reasonable case). drop piano from a window and it For if I a instance, negligent person, question I that was there is no
falls on piano hit would someone— could have that the and foreseen problem for the Court’s test arises fact, it as, in did. directly produce negligence does not when during piano; plaintiff: drop the sidewalk; it cracks I barreling repairs down the side- later a man sidewalk weeks bicycle repairmen placed have walk on hits cone injured. negligent Was I worksite, their around mishap piano dropping foreseen “a I could have because ibid, quotation injury,” (emphasis marks added; internal omitted)? mishap “[the] my negligence cause Yes. Did injury” depends what on is meant that resulted? It injury: My for” a “but cause. (2007) (Souter, J., Sorrell, concurring) 158, 173 R. 549 U. S. Southern Co. alter, existing governing de address, law (“Rogers did not much less negli the cause of necessary redressing as gree of causation harm”). gently inflicted dropped piano, bicyclist
If I had not not would legal it a crashed. But is No cause? . needlessly respect rigid.
In one Court’s test If juries foreseeability aspect courts must instruct on as an negligence, why foreseeability instruct them as an *28 aspect simply supposed of causation? if And the to legal intuit that there should also be on chain limits the enough why causation—and that for” “but cause is not hide — Why simply jury? Finally, the ball? not tell if the the “foreseeability poor Court intends a harm” be kind of proximate cause, man’s then does find where the Court requirement prescribes? in the test —or FELA — it be Could derived the from commonlaw? “foreseeability protection
Where does of harm” the sole as against liability limitless run out of steam? An answer only would seem fair to the commonlaw. negligently
A railroad its boiler, fails to maintain which employee repairing overheats. An hot it becomes while jacket. repairs, removes his the When finished with he grabs spills thermos coffee, which on his now-bare arm, burning it. theWas risk that someone would be harmed the failure to maintain the boiler Was the foreseeable? risk employee repairing that an would be burned while the over- boiler heated the railroad be liable under foreseeable? Can According the Court’s for the test coffee burn? opinion, Court’s not does matter that the “manner in which
[the injury] occurred not . . . at foreseeable,” ante, was (internal quotation omitted), long negli- so marks as some gence any negligence at all—can established. be — opinion single The Court’s fails to settle test for an- swering questions: these Is it that the railroad’s “pla[y] matter how small—in about the —no [plaintiff’s]injury,” ante, 692, as at indicates, 703, Court any “negligence part, play n. or even the slightest, producing injury,” suggested at ante, as says 2,n. 4,n. and 704? Court there is no lawyers litigat- suspect I n. but ante, 696, 3, difference, see over the prefer other, instruction ing will one FELA cases employer they represent or depending on whether ver- employee. test —whichever if the event, Court’s In hypotheticals, the Court provides these answers to sion— keeps them itself. vocabulary answering supplies Proximate injury questions. whether ask such It is useful to scope created the de- of the risk was within the resulted negligent a natural or was whether the fendant’s probable consequence act; negligence; there whether was intervening superseding whether the cause; anything event without which more an antecedent than would not occurred. harm provide or uniform test a mechanical The cases do they “furnish that. But do illustra- have been criticized for upon judicious men careful consider- tions situations which adjudged the line or side of ation have be on one *29 (internal quotation marks Exxon, other.” omitted). inquiries and—with them— all
The Court these forswears might provide guid- history that an law accumulated common questions. juries causation ance for courts and faced (FELA incorporate 'proximate ante, “does nonstatutory developed common-lawtort cause’ standards (“it actions”); error in FELA is not case ante, proximate-cause embracing charge terminol- refuse stock accept every ogy”). necessary to verbal formula- It is not recognize tion cause ever articulated juries provide guidance these standards useful —and required type of link some should receive instruction —on employee’sinjury. an between a railroad’s [*] ijc [*] longer has But when comes to the
Law its limits. no resulting injury causal connection between covered FELA. A new replaced maxim has the old: Cae- lum terminus sky’s est—the the limit. respectfully
I dissent. notes “proxi- one And definition the lack consensus § p. 41, 263. Common-lawfor- Id., mate cause” is manifest. or alia, the “immediate” “nearest” include, inter mulations producing cause” test; test; “efficient, antecedent “probable,” “natural factor” “substantial test; Legal consequence Smith, probable,” test. or “foreseeable” L. Rev. 106-121 Harv. Tort, in Actions of Cause (Concluded), (1911); Legal of Tort in Actions Smith, Cause L. Rev. 25 Harv. Notably, aon uniform definition did not settle CSX itself litigation, “proximate this nor does term cause” in requested a in- Court, In the CSX dissent. District “any defining “proximate mean cause” struction injury produced sequence, probable in natural or which, complained App. appeal, maintain[ed] 32a. of.” “CSX On that the correct definition ... is a ‘direct relation between ” injurious alleged/ asserted and the conduct F. n. 3d, Court, this Before CSX called for