Causation Issues in FELA and Jones Act Cases in the Wake of McBride

David W. Robertson | Article

The Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, was enacted in 1908 to provide railway workers with a federal cause of action against their employers for negligently inflicted workplace injuries and illness. In 1920, the Jones Act, 46 U.S.C. § 30104, followed suit, giving seamen a negligence cause of action against their employers by incorporating FELA. The United States Supreme Court has frequently declared that “the Jones Act adopts ‘the entire judicially developed doctrine of liability’ under [FELA].” Although on four occasions the Supreme Court has held that the Jones Act is sometimes more plaintiff-friendly than FELA, there is nevertheless a presumption that FELA jurisprudence governs Jones Act cases, and vice versa.

“Absent express [statutory] language to the contrary, the elements of a FELA claim are determined by reference to the common law [of negligence].” In explicit language, FELA departs from the common law of Negligence in four respects: “It abolished the fellow servant rule, rejected contributory negligence in favor of comparative negligence, prohibited employers from contracting around the Act, and abolished the assumption of risk defense.” All four of these departures involve affirmative defenses to Negligence liability. This Article addresses the legitimacy and meaning of a fifth departure that was recently spotlighted in CSX Transportation, Inc. v. McBride. Unlike the four well-accepted FELA abolitions of affirmative defenses, the McBride departure–one that is destined to remain somewhat controversial–goes to the heart of a FELA plaintiff’s prima facie case in Negligence.

To establish a prima facie case under the common law cause of action in Negligence, the plaintiff must satisfy five elements: duty, breach of duty (substandard conduct, lack of reasonable care, “negligence”), factual causation, legal or proximate causation (scope of liability), and damages. McBride dealt primarily with the fourth element, proximate cause (scope of liability), but may have some potential bearing on the third element, cause-in-fact, as well.

McBride rests on the Supreme Court’s 1957 decision in Rogers v. Missouri Pacific Railroad Co. Rogers was hurt by a combination of his own and his employer’s conduct. In Rogers’s FELA action against the employer railroad, the Missouri Supreme Court reversed a judgment on a jury verdict in Rogers’s favor on the basis of the common law doctrine of proximate cause. The U.S. Supreme Court could not tell for sure just what the Missouri Supreme Court had reasoned. On one reading, the Missouri court held that despite the defendant-employer’s having been guilty of causal negligence, the plaintiff-employee’s negligence was the sole proximate cause of his injuries (such reasoning would be egregiously wrong, because FELA section 3 abolishes the contributory negligence doctrine). On another reading, the Missouri court held that plaintiff should lose because, on the evidence presented, the plaintiff’s negligence was at least as probable a proximate cause of the accident as any negligence of the defendant. This, too, would be wrong, for the reasons set forth just below.

In holding that both aspects of the Missouri court’s evident reasoning were wrong, the Rogers Court emphasized that FELA section 1 “expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence.” The Court paraphrased the statutory “in whole or in part” language as imposing FELA liability when the worker’s injury “resulted at least in part from the [employer’s] negligence,” again as imposing liability when “employer negligence played any part, even the slightest, in producing the injury,” yet again as imposing liability when “negligence of the employer played any part at all in the injury,” and one more time as imposing liability whenever “negligence of the employer played any part, however small, in the injury.”

Because of the uncertainty regarding the Missouri Supreme Court’s reasoning and the plethora of unfocused causation language in the U.S. Supreme Court’s opinion, Rogers was an unclear decision, and its meaning has been intermittently controversial. Negligence law’s factual and proximate causation doctrines are complex and murky enough to lend several different shades of meaning to the Rogers Court’s causation language. Rogers has been cited in more than fifty Supreme Court decisions and in countless lower court decisions for a variety of propositions. Often, Rogers is sweepingly summarized as simply having held “that a relaxed standard of causation applies under FELA.” McBride now underscores that message and considerably clarifies the meaning of the Rogers construction of FELA section 1. But uncertainties remain. Below, we will try to see what is now clear and what is still not.