Does FELA Mandate Equal Causation Standards?

Norfolk Southern R. Co. v. Sorrell

Sorrell was injured when his truck veered of the road (whether by his fault or otherwise) and filed suit under the Federal Employee’s Liability Act (FELA), which provides a cause of action for negligence for failure to provide a “reasonably safe place to work.” The standard for employer negligence, applied to through model jury instructions, was different than that for the employee. FELA claims are controlled by common law, but FELA provides that contributory negligence should not be a defense, but rather should reduce recovery. The standard for negligence and contributory negligence in common law was the same, but FELA overturned a number of common law principles. The question here is whether the equality of standards for negligence and contributory negligence applies after FELA.

Since the statute employs comparative negligence it would at least be odd to compare the negligence of employer and employee as determined by different standards, and the application of a different rule “unduly muddies what may, to a jury, be already murky waters.” Employers are responsible if their actions are responsible “in whole or in part” for the injury, while employees’ liability is defined differently. The Court notes that if an employee were responsible “in whole” no action at all would be proper, and in any case, the difference in language does not indicate a congressional intent because it made sense in one section and not in another. Meanwhile, though the statute was enacted for the benefit of the railroad “it frustrates rather than effectuates legislative inetent simplistically to assume that whatever furthers the statues’s primary objective must be the law. Finally, even if harmless-error analysis is applicable here, that is a question for lower courts.

Justices Souter, Scalia, and Alito, concurring, argue that when Congress abrogated common law rules through FELA, it did so expressly, and that there is nothing about FELA that necessarily mandates a comparative negligence regime as opposed to a proximate cause regime. Why this is a concurrence, and not a dissent is a mystery to me.

Justice Ginsburg does not see, in this opinion, a divergence from any prior rule; that “the causation standard in FELA actions is more ‘relaxed’ than in tort litigation generally.’” Ginsubrg sees the proximate cause standard in Rogers as whether “employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Citing Palsgraf v. Long Island R.R., Ginsburg states that whether a defendants’ actions are a proximate cause depends, at leas in part, on “how far down the chain of consequences a defendant should be held responsible for its wrongdoing,” and characterizes the purpose as “remedial” as against the railroads. Justice Ginsburg concludes that the Federal jury instructions, which require “the same rule of causation” should control, if only for the sake of jurors’ comprehension and meanwhile would apply harmless-error-analysis.

I readily admit that I do not understand this decision.