The (un)foreseen effects of abrogating proximate causation in CSX Transportation, Inc. v. McBride: the new role of foreseeability under FELA and the Jones Act.

• Author: Ubl, Kyle W.
• Position: Federal Employers' Liability Act - Case note

INTRODUCTION

Every year at law schools across the country, first-year law students grapple with the famous debate between Benjamin N. Cardozo and William S. Andrews contained in Palsgraf v. Long Island Railroad Co. (1) The case is especially useful pedagogically for articulating the foreseeability test in relation to the elements of duty, breach, and proximate causation. The facts of the case are worth recounting:

Plaintiff [Palsgraf] was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. (2) Given the package's apparent innocuousness and Mrs. Palsgraf's relative distance from the departing train, Judge Cardozo found that the Long Island Railroad Company did not breach its duty of care with respect to Mrs. Palsgraf, (3) and therefore, he set aside the question of causation. (4) More simply put, Judge Cardozo found that Mrs. Palsgraf did not fall within the zone of danger that a reasonable person would have foreseen, so the railroad company owed her no duty as a matter of law. Judge Andrews took a different approach. Relying upon a far more expansive definition of duty, (5) Judge Andrews would have used foreseeability further down the line-up of tort elements, using proximate causation rather than duty as the gatekeeper of liability. (6) Judge Cardozo's insistence upon using foreseeability in a duty determination is significant: for Andrews, the case would have been for the jury, and not the judge, to decide. (7)

In June 2011, the United States Supreme Court heard yet another railroad case, this time involving an employee-plaintiff suing under the Federal Employers' Liability Act ("FELA"), (8) the federal statute controlling negligence claims of railroad workers against their employers. In CSX Transportation, Inc. v. McBride, g Justice Ginsburg--writing for a 5-4 majority--held that FELA, as well as the Jones Act, (10) do "not incorporate 'proximate cause' standards developed in nonstatutory common-law tort actions." (11) While Justice Ginsburg and the majority abrogated proximate causation in the FELA context, they explicitly refused to reject the foreseeability test entirely. Rather, the majority--resembling Judge Cardozo's approach in Palsgraf--relied upon foreseeability to act as an arbiter of liability by acknowledging that "reasonable foreseeability of harm" is proper to the determination of negligence. (12)

This Note discusses whether the McBride majority's insistence upon a foreseeability test at the duty and breach determinations offers as much defensive relief to the railroad industry as implied by the majority. In doing so, the Note proceeds in three parts: Part I offers an overview of FELA's text, legislative history, and policy justifications as well as landmark FELA cases culminating in the McBride litigation which forms the basis of this Note; Part II analyzes the central question of whether and how foreseeability functions as a defensive tactic for railroads at the duty and breach stages as well as whether and how foreseeability functions differently in duty and breach decisions as compared to proximate cause determinations; and Part III proposes model jury instructions that reflect a balanced reading of McBride alongside the backdrop of FELA's history and this Note's conclusions.

1. AN OVERVIEW OF FELA's HISTORY AND ITS JUDICIAL INTERPRETATIONS

   FELA does not function in the manner of modern-day workers' compensation systems in which injured employees are automatically entitled to recovery for medical costs and lost wages in exchange for employers' immunity from negligence liability. (13) Rather FELA, originally enacted in 1908, allows railroad employees to sue their employer for any injury "resulting in whole or in part from the negligence" of the railroad. (14) Railroad employees suing under FELA experience an inverse of the give-and-take imposed by workers' compensation. That is, whereas workers' compensation claimants enjoy the guarantee of recovery confined to predetermined statutory caps, FELA plaintiffs receive the full amount of damages actually incurred but only if they show fault on the part of the employer. (15) Additionally, FELA removes certain barriers to plaintiffs' claims at common law, including the fellow-servant doctrine, (16) contributory negligence, (17) assumption of risk, (18) and liability-exempting contracts. (19)

   For the most part, FELA's modifications of these common law tort doctrines are textually clear and have presented relatively little controversy by way of judicial interpretation. But the same cannot be said of FELA's treatment of causation. A significant body of scholarship and litigation has been dedicated to the statutory language "resulting in whole or in part," (20) attempting to discern whether or not these words are a legislative modification of the common law requirement of actual and proximate causation. The remainder of Part I explores this debate.

   1. The Statutory Text and Interpretational Preliminaries

      FELA provides, in relevant part:

      Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... or, in case of the death of such employee, to his or her personal representative .... 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. (21) Perhaps the first question to be asked in approaching a statutory text is whether or not the statute bears a plain meaning. Here, as mentioned above, the controversy is centered on the italicized phrase "resulting in whole or in part." Justice Thomas--one of the Court's textualists--voted with the McBride majority. (22) To be fair, Justice Thomas did not file a separate concurring opinion. But his joining the majority suggests that--consistent with his interpretive philosophy--he was able to identify a plain meaning in those six words. This certainly is not an unreasonable literal reading on Justice Thomas's part. That is, the words "in any part" fairly suggest that liability should be imposed even when the defendant was a minute slice in the overall pie graph of causation. (23)

      However, other textualists on the Court voted in dissent. Chief Justice Roberts's dissenting opinion was based, in part, on textualist arguments, and was joined by Justices Alito and Scalia, who routinely ascribe to textualist theory. According to modern textualist theory, a phrase such as the one disputed here can be read either as an unambiguous term-of-art (an unlikely argument given the vast historic debate over the phrase) or as an ambiguous phrase that when read by an ordinary, reasonable speaker of the English language--still requires the application of a proximate causation test. (24) Chief Justice Roberts's dissenting opinion does not take this approach. Instead, he offers a different type of textualist argument by considering the overall structure of FELA. Observing that Congress devoted entire sections of FELA to the abrogation of the fellow-servant doctrine, contributory negligence, assumption of risk, and liability-exempting contracts, (25) Chief Justice Roberts relies on the interpretive canon expressio unius est exclusio alterius ("the express mention of one thing excludes all others") to argue that Congress would not have done away with proximate cause sub silentio. (26)

      Arguably, Chief Justice Roberts's very use of the statute's structure--as opposed to the relevant phrase--indicates that he could not find a plain meaning in those six words. Unable to find clear meaning themselves in the statute's text, the majority relied heavily on the statute's legislative purpose and history, to which Part I.B is dedicated.

   2. FELA's Legislative History and Early Interpretations

      While it may seem that workers in other more dangerous professions should also have a bite at the FELA apple, the railroad industry's unique place under FELA is a product of American industrial history. In the years before and after the Civil War, the federal government granted over 175 million acres of land to railroad owners. (27) By the early 1900s, the railroad industry had become the largest industrial employer in the United States and was responsible for a majority of the nation's passenger travel and freight shipping. (28) With these benefits came many perils: "The injury rate among railroad employees in the late nineteenth century was horrific--the average life expectancy of a switchman was seven years, and a brakeman's chance of dying from natural causes was less than one in five." (29) President Theodore Roosevelt nationalized the issue in a 1907 message to Congress: "The practice of putting the entire burden of loss to life or limb upon the victim or the victim's family is a form of social injustice in which the United States stands in unenviable prominence." (30) Legislative intervention was soon...