CSX TRANSPORTATION v. MCBRIDE

Opinion of the Court

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preliminary print of the United States Reports. Readers are requested to
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SUPREME COURT OF THE UNITED STATES
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No. 10–235

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CSX TRANSPORTATION, INC., PETITIONER v.

ROBERT MCBRIDE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 23, 2011]

JUSTICE GINSBURG delivered the opinion of the Court, except as to Part III–A.*

This case concerns the standard of causation applicable in cases arising under the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq. FELA renders rail ­ roads liable for employees’ injuries or deaths “resulting in whole or in part from [carrier] negligence.” §51. In accord with the text and purpose of the Act, this Court’s decision in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), and the uniform view of federal appellate courts, we con ­ clude that the Act does not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions. The charge proper in FELA cases, we hold, sim ­ ply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.

I Respondent Robert McBride worked as a locomotive engineer for petitioner CSX Transportation, Inc., which operates an interstate system of railroads. On April 12, 2004, CSX assigned McBride to assist on a local run be ­ tween Evansville, Indiana, and Mount Vernon, Illinois. The run involved frequent starts and stops to add and remove individual rail cars, a process known as “switch ­ ing.” The train McBride was to operate had an unusual engine configuration: two “wide-body” engines followed by three smaller conventional cabs. McBride protested that the configuration was unsafe, because switching with heavy, wide-body engines required constant use of a hand ­ operated independent brake. But he was told to take the train as is. About ten hours into the run, McBride injured his hand while using the independent brake. Despite two surgeries and extensive physical therapy, he never re ­ gained full use of the hand.

Seeking compensation for his injury, McBride com ­ menced a FELA action against CSX in the U. S. District Court for the Southern District of Illinois. He alleged that CSX was twice negligent: First, the railroad required him to use equipment unsafe for switching; second, CSX failed to train him to operate that equipment. App. 24a–26a. A verdict for McBride would be in order, the District Court instructed, if the jury found that CSX “was negligent” and that the “negligence caused or contributed to” McBride’s injury. Id., at 23a.

CSX sought additional charges that the court declined to give. One of the rejected instructions would have required “the plaintiff [to] show that . . . the defendant’s negligence was a proximate cause of the injury.” Id., at 34a. Another would have defined “proximate cause” to mean “any cause which, in natural or probable sequence, produced the injury complained of,” with the qualification that a proxi ­ mate cause “need not be the only cause, nor the last or nearest cause.” Id., at 32a.

Instead, the District Court employed, as McBride re ­ quested, the Seventh Circuit’s pattern instruction for FELA cases, which reads: “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.” Id., at 31a. For this instruction, the Seventh Circuit relied upon this Court’s decision in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). The jury returned a verdict for McBride, setting total damages at $275,000, but reducing that amount by one-third, the percentage the jury attributed to plaintiff’s negligence. App. 29a.

CSX appealed to the Seventh Circuit, renewing its ob ­ jection to the failure to instruct on “proximate cause.” Before the appellate court, CSX “maintain[ed] that the correct definition of proximate causation is a ‘direct rela ­ tion between the injury asserted and the injurious conduct alleged.’ ” 598 F. 3d 388, 393, n. 3 (2010) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992)). A properly instructed jury, CSX con ­ tended, might have found that the chain of causation was too indirect, or that the engine configuration was unsafe because of its propensity to cause crashes during switch ­ ing, not because of any risk to an engineer’s hands. Brief for Defendant-Appellant in No. 08–3557 (CA7), pp. 49–52.

The Court of Appeals approved the District Court’s instruction and affirmed the judgment entered on the jury’s verdict. Rogers had “relaxed the proximate cause requirement” in FELA cases, the Seventh Circuit con ­ cluded, a view of Rogers “echoed by every other court of appeals.” 598 F. 3d, at 399. While acknowledging that a handful of state courts “still appl[ied] traditional formula­ tions of proximate cause in FELA cases,” id., at 404, n. 7, the Seventh Circuit said it could hardly declare erroneous an instruction that “simply paraphrase[d] the Supreme Court’s own words in Rogers,” id., at 406.

We granted certiorari to decide whether the causation instruction endorsed by the Seventh Circuit is proper in FELA cases. 562 U. S. ___ (2010). That instruction does not include the term “proximate cause,” but does tell the jury defendant’s negligence must “pla[y] a part—no matter how small—in bringing about the [plaintiff’s] injury.” App. 31a.

II

A

The railroad business was exceptionally hazardous at the dawn of the twentieth century. As we have recounted, “the physical dangers of railroading . . . resulted in the death or maiming of thousands of workers every year,” Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542 (1994), including 281,645 casualties in the year 1908 alone, S. Rep. No. 61–432, p. 2 (1910). Enacted that same year in an effort to “shif[t] part of the human overhead of doing business from employees to their employers,” Gottshall, 512 U. S., at 542 (internal quotation marks omit ­ ted), FELA prescribes:

“Every common carrier by railroad . . . shall be li ­ able 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 car ­ rier . . . .” 45 U. S. C. §51 (emphasis added).

Liability under FELA is limited in these key respects: Railroads are liable only to their employees, and only for injuries sustained in the course of employment. FELA’s language on causation, however, “is as broad as could be framed.” Urie v. Thompson, 337 U. S. 163, 181 (1949). Given the breadth of the phrase “resulting in whole or in part from the [railroad’s] negligence,” and Congress’ “hu ­ manitarian” and “remedial goal[s],” we have recognized that, in comparison to tort litigation at common law, “a relaxed standard of causation applies under FELA.” Gottshall, 512 U. S., at 542–543. In our 1957 decision in Rogers, we described that relaxed standard as follows: “Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” 352 U. S., at 506.

As the Seventh Circuit emphasized, the instruction the District Court gave in this case, permitting a verdict for McBride if “[railroad] negligence played a part—no matter how small—in bringing about the injury,” tracked the language of Rogers. If Rogers prescribes the definition of causation applicable under FELA, that instruction was plainly proper. See Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation . . . .”). While CSX does not ask us to disturb Rogers, the railroad contends that lower courts have overread that opinion. In CSX’s view, shared by the dissent, post, at 9– 10, Rogers was a narrowly focused decision that did not touch, concern, much less displace common-law formula ­ tions of “proximate cause.”

Understanding this argument requires some back ­ ground. The term “proximate cause” is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §42, p. 273 (5th ed. 1984) (hereinafter Prosser and Keeton). “What we . . . mean by the word ‘proximate,’ ” one noted jurist has explained, is simply this: “[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162 N. E. 99, 103 (1928) (Andrews, J., dissenting). Common-law “proximate cause” formulations varied, and were often both constricted and difficult to comprehend. See T. Cooley, Law of Torts 73–77, 812–813 (2d ed. 1888) (describing, for example, prescriptions pre ­ cluding recovery in the event of any “intervening” cause or any contributory negligence). Some courts cut off liability if a “proximate cause” was not the sole proximate cause. Prosser and Keeton §65, p. 452 (noting “tendency . . . to look for some single, principal, dominant, ‘proximate’ cause of every injury”). Many used definitions resembling those CSX proposed to the District Court or urged in the Court of Appeals. See supra, at 2–3 (CSX proposed key words “natural or probable” or “direct” to describe required relationship between injury and alleged negligent con ­ duct); Prosser and Keeton §43, pp. 282–283.

Drawing largely on Justice Souter’s concurring opinion in Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158, 173 (2007), CSX contends that the Rogers “any part” test displaced only common-law restrictions on recovery for injuries involving contributory negligence or other “multi ­ ple causes.” Brief for Petitioner 35 (internal quotation marks omitted).1 Rogers “did not address the requisite directness of a cause,” CSX argues, hence that question continues to be governed by restrictive common-law for ­ mulations. Ibid.

B

To evaluate CSX’s argument, we turn first to the facts of Rogers. The employee in that case was injured while burning off weeds and vegetation that lined the defen ­ dant’s railroad tracks. A passing train had fanned the flames, which spread from the vegetation to the top of a culvert where the employee was standing. Attempting to escape, the employee slipped and fell on the sloping gravel covering the culvert, sustaining serious injuries. 352 U. S., at 501–503. A Missouri state-court jury returned a verdict for the employee, but the Missouri Supreme Court reversed. Even if the railroad had been negligent in fail ­ ing to maintain a flat surface, the court reasoned, the employee was at fault because of his lack of attention to the spreading fire. Rogers v. Thompson, 284 S. W. 2d 467, 472 (Mo. 1955). As the fire “was something extraordi ­ nary, unrelated to, and disconnected from the incline of the gravel,” the court felt “obliged to say [that] plaintiff’s injury was not the natural and probable consequence of any negligence of defendant.” Ibid.

We held that the jury’s verdict should not have been upset. Describing two potential readings of the Missouri Supreme Court’s opinion, we condemned both. First, the court erred in concluding that the employee’s negligence was the “sole” cause of the injury, for the jury reasonably found that railroad negligence played a part. Rogers, 352 U. S., at 504–505. Second, the court erred insofar as it held that the railroad’s negligence was not a sufficient cause unless it was the more “probable” cause of the in­ jury. Id., at 505. FELA, we affirmed, did not incorporate any traditional common-law formulation of “proximate causation[,] which [requires] the jury [to] find that the defendant’s negligence was the sole, efficient, producing cause of injury.” Id., at 506. Whether the railroad’s negli ­ gent act was the “immediate reason” for the fall, we added, was “an irrelevant consideration.” Id., at 503. We then announced the “any part” test, id., at 506, and reiterated it several times. See, e.g., id., at 507 (“narro[w]” and “single inquiry” is whether “negligence of the employer played any part at all” in bringing about the injury); id., at 508 (FELA case “rarely presents more than the single question whether negligence of the employer played any part, how ­ ever small, in the injury”).2

Rogers is most sensibly read as a comprehensive state ­ ment of the FELA causation standard. Notably, the Mis ­ souri Supreme Court in Rogers did not doubt that a FELA injury might have multiple causes, including railroad negligence and employee negligence. See 284 S. W. 2d, at 472 (reciting FELA’s “in whole or in part” language). But the railroad’s part, according to the state court, was too indirect, not sufficiently “natural and probable,” to estab ­ lish the requisite causation. Ibid. That is the very reason ­ ing the Court rejected in Rogers. It is also the reasoning CSX asks us to resurrect.

Our understanding is informed by the statutory history and precedent on which Rogers drew. Before FELA was enacted, the “harsh and technical” rules of state common law had “made recovery difficult or even impossible” for in­ jured railroad workers. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1, 3 (1964). “[D]issatisfied with the [railroad’s] common-law duty,” Congress sought to “sup­ plan[t] that duty with [FELA’s] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers, 352 U. S., at 507. Yet, Rogers observed, the Missouri court and other lower courts continued to ignore FELA’s “sig ­ nifican[t]” departures from the “ordinary common-law negligence” scheme, to reinsert common-law formulations of causation involving “probabilities,” and consequently to “deprive litigants of their right to a jury determination.” Id., at 507, 509–510. Aiming to end lower court disregard of congressional purpose, the Rogers Court repeatedly called the “any part” test the “single” inquiry determining causation in FELA cases. Id., at 507, 508 (emphasis added). In short, CSX’s argument that the Rogers stan ­ dard concerns only division of responsibility among multi ­ ple actors, and not causation more generally, misses the thrust of our decision in that case.

Tellingly, in announcing the “any part . . . in producing the injury” test, Rogers cited Coray v. Southern Pacific Co., 335 U. S. 520 (1949), a decision emphasizing that FELA had parted from traditional common-law formula ­ tions of causation. What qualified as a “proximate” or legally sufficient cause in FELA cases, Coray had ex ­ plained, was determined by the statutory phrase “result ­ ing in whole or in part,” which Congress “selected . . . to fix liability” in language that was “simple and direct.” Id., at 524. That straightforward phrase, Coray observed, was incompatible with “dialectical subtleties” that common-law courts employed to determine whether a particular cause was sufficiently “substantial” to constitute a proximate cause. Id., at 523–524.3

Our subsequent decisions have confirmed that Rogers announced a general standard for causation in FELA cases, not one addressed exclusively to injuries involving multiple potentially cognizable causes. The very day Rogers was announced, we applied its “any part” instruc ­ tion in a case in which the sole causation issue was the directness or foreseeability of the connection between the carrier’s negligence and the plaintiff’s injury. See Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 523– 524 (1957) (plurality opinion).

A few years later, in Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108 (1963), we held jury findings for the plaintiff proper in a case presenting the following facts: For years, the railroad had allowed a fetid pool, containing “dead and decayed rats and pigeons,” to accumulate near its right-of ­ way; while standing near the pool, the plaintiff-employee suffered an insect bite that became infected and required amputation of his legs. Id., at 109. The appellate court had concluded there was insufficient evidence of causation to warrant submission of the case to the jury. Id., at 112. We reversed, reciting the causation standard Rogers announced. Id., at 116–117, 120–121. See also Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164, 166–167 (1969) (contrasting suit by railroad employee, who “is not required to prove common-law proximate causation but only that his injury resulted ‘in whole or in part’ from the railroad’s violation,” with suit by nonemployee, where “definition of causation . . . [is] left to state law”); Gottshall, 512 U. S., at 543 (“relaxed standard of causation applies under FELA”).4 In reliance on Rogers, every Court of Appeals that re ­ views judgments in FELA cases has approved jury in ­ structions on causation identical or substantively equiva ­ lent to the Seventh Circuit’s instruction.5 Each appellate court has rejected common-law formulations of proximate cause of the kind CSX requested in this case. See supra, at 2–3. The current model federal instruction, recognizing that the “FELA causation standard is distinct from the usual proximate cause standard,” reads: “The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in whole or part from the negligence of the railroad or its employees or agents. In other words, did such negligence play any part, even the slightest, in bringing about an injury to the plaintiff?” 5 L. Sand et al., Modern Federal Jury Instructions–Civil ¶89.02, pp. 89–38, 89–40, and com ­ ment (2010) (hereinafter Sand). Since shortly after Rogers was decided, charges of this order have been accepted as the federal model. See W. Mathes & E. Devitt, Federal Jury Practice and Instruc ­ tions §84.12, p. 517 (1965) (under FELA, injury “is proxi ­ mately caused by” the defendant’s negligence if the negli ­ gence “played any part, no matter how small, in bringing about or actually causing the injury”).6 The overwhelming majority of state courts7 and scholars8 similarly compre ­ hend FELA’s causation standard.

In sum, the understanding of Rogers we here affirm “has been accepted as settled law for several decades.” IBP, Inc. v. Alvarez, 546 U. S. 21, 32 (2005). “Congress has had [more than 50] years in which it could have corrected our decision in [Rogers] if it disagreed with it, and has not chosen to do so.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991). Countless judges have instructed countless juries in language drawn from Rogers. To discard or restrict the Rogers instruction now would ill serve the goals of “stability” and “predictability” that the doctrine of statutory stare decisis aims to ensure. Ibid.

III

CSX nonetheless insists that proximate causation, as captured in the charge and definitions CSX requested, is a concept fundamental to actions sounding in negligence. The Rogers “any part” instruction opens the door to unlim ­ ited liability, CSX worries, inviting juries to impose liabil ­ ity on the basis of “but for” causation. The dissent shares these fears. Post, at 5–6, 15–16. But a half century’s experience with Rogers gives us little cause for concern: CSX’s briefs did not identify even one trial in which the instruction generated an absurd or untoward award.9 Nor has the dissent managed to uncover such a case. Post, at 13–14 (citing no actual case but conjuring up images of falling pianos and spilled coffee).

While some courts have said that Rogers eliminated the concept of proximate cause in FELA cases,10 we think it “more accurate . . . to recognize that Rogers describes the test for proximate causation applicable in FELA suits.” Sorrell, 549 U. S., at 178 (GINSBURG, J., concurring in judgment). That understanding was expressed by the drafters of the 1965 federal model instructions, see supra, at 11–12: Under FELA, injury “is proximately caused” by the railroad’s negligence if that negligence “played any part . . . in . . . causing the injury.” Avoiding “dialectical subtleties” that confound attempts to convey intelligibly to juries just what “proximate cause” means, see Coray, 335 U. S., at 524, the Rogers instruction uses the everyday words contained in the statute itself. Jurors can compre ­ hend those words and apply them in light of their ex ­ perience and common sense. Unless and until Congress orders otherwise, we see no good reason to tamper with an instruction tied to FELA’s text, long employed by lower courts, and hardly shown to be unfair or unworkable.

A

As we have noted, see supra, at 5–6, the phrase “proxi ­ mate cause” is shorthand for the policy-based judgment that not all factual causes contributing to an injury should be legally cognizable causes. Prosser and Keeton explain: “In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.” §41, p. 264. To prevent “infinite liability,” ibid., courts and legislatures appropriately place limits on the chain of causation that may support recovery on any particular claim.

The term “proximate cause” itself is hardly essential to the imposition of such limits. It is a term notoriously confusing. See, e.g., Prosser and Keeton §42, p. 273 (“The word ’proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins. . . . It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate term.” (footnotes omitted)).

And the lack of consensus on any one definition of “proximate cause” is manifest. Id., §41, p. 263. Common ­ law formulations include, inter alia, the “immediate” or “nearest” antecedent test; the “efficient, producing cause” test; the “substantial factor” test; and the “probable,” or “natural and probable,” or “foreseeable” consequence test. Smith, Legal Cause in Actions of Tort, 25 Harv. L. Rev. 103, 106–121 (1911); Smith, Legal Cause in Actions of Tort (Concluded), 25 Harv. L. Rev. 303, 311 (1912).

Notably, CSX itself did not settle on a uniform definition of the term “proximate cause” in this litigation, nor does the dissent. In the District Court, CSX requested a jury instruction defining “proximate cause” to mean “any cause which, in natural or probable sequence, produced the injury complained of.” App. 32a. On appeal, “CSX main ­ tain[ed] that the correct definition . . . is a ‘direct relation between the injury asserted and the injurious conduct alleged.’ ” 598 F. 3d, at 393, n. 3. Before this Court, CSX called for “a demonstration that the plaintiff’s injury resulted from the wrongful conduct in a way that was natural, probable, and foreseeable.” Tr. of Oral Arg. 9–10.

Lay triers, studies show, are scarcely aided by charges so phrased. See Steele & Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N. C. L. Rev. 77, 88–92, 110 (1988) (85% of actual and potential jurors were unable to understand a pattern proximate cause instruc ­ tion similar to the one requested by CSX); Charrow & Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1353 (1979) (nearly one quarter of subjects misunderstood proximate cause to mean “approximate cause” or “estimated cause”). In light of the potential of “proximate cause” instructions to leave jurors at sea, it is not surprising that the drafters of the Restatement (Third) of Torts avoided the term altogether. See 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 (2005) (confining liability to “harms that result from the risks that made the actor’s conduct tortious”); id., Comment b.

Congress, it is true, has written the words “proximate cause” into a number of statutes.11 But when the legisla ­ tive text uses less legalistic language, e.g., “caused by,” “occasioned by,” “in consequence of,” or, as in FELA, “resulting in whole or in part from,” and the legislative purpose is to loosen constraints on recovery, there is little reason for courts to hark back to stock, judge-made proximate-cause formulations. See Smith, Legal Cause in Actions of Tort (Continued), 25 Harv. L. Rev. 223, 235 (1912).

B

FELA’s language is straightforward: railroads are made answerable in damages for an employee’s “injury or death resulting in whole or in part from [carrier] negligence.” 45 U. S. C. §51. The argument for importing into FELA’s text “previous judicial definitions or dicta” originating in non ­ statutory common-law actions, see Smith, Legal Cause in Actions of Tort (Continued), supra, at 235, misapprehends how foreseeability figures in FELA cases.

“[R]easonable foreseeability of harm,” we clarified in Gallick, is indeed “an essential ingredient of [FELA] negligence.” 372 U. S., at 117 (emphasis added). The jury, therefore, must be asked, initially: Did the carrier “fai[l] to observe that degree of care which people of ordinary pru ­ dence and sagacity would use under the same or similar circumstances[?]” Id., at 118. In that regard, the jury may be told that “[the railroad’s] duties are measured by what is reasonably foreseeable under like circumstances.” Ibid. (internal quotation marks omitted). Thus, “[i]f a per ­ son has no reasonable ground to anticipate that a par ­ ticular condition . . . would or might result in a mishap and injury, then the party is not required to do anything to correct [the] condition.” Id., at 118, n. 7 (internal quota­ tion marks omitted).12 If negligence is proved, however, and is shown to have “played any part, even the slightest, in producing the injury,” Rogers, 352 U. S., at 506 (empha ­ sis added),13 then the carrier is answerable in damages even if “the extent of the [injury] or the manner in which it occurred” was not “[p]robable” or “foreseeable.” Gallick, 372 U. S., at 120–121, and n. 8 (internal quotation marks omitted); see 4 F. Harper, F. James, & O. Gray, Law of Torts §20.5(6), p. 203 (3d ed. 2007); 5 Sand 89–21.

Properly instructed on negligence and causation, and told, as is standard practice in FELA cases, to use their “common sense” in reviewing the evidence, see Tr. 205 (Aug. 19, 2008), juries would have no warrant to award damages in far out “but for” scenarios. Indeed, judges would have no warrant to submit such cases to the jury. See Nicholson v. Erie R. Co., 253 F. 2d 939, 940–941 (CA2 1958) (alleged negligence was failure to provide lavatory for female employee; employee was injured by a suitcase while looking for a lavatory in a passenger car; applying Rogers, appellate court affirmed lower court’s dismissal for lack of causation); Moody v. Boston and Maine Corp., 921 F. 2d 1, 2–5 (CA1 1990) (employee suffered stress-related heart attack after railroad forced him to work more than 12 hours with inadequate breaks; applying Rogers, appel ­ late court affirmed grant of summary judgment for lack of causation). See also supra, at 13 (Rogers has generated no extravagant jury awards or appellate court decisions).

In addition to the constraints of common sense, FELA’s limitations on who may sue, and for what, reduce the risk of exorbitant liability. As earlier noted, see supra, at 4, the statute confines the universe of compensable injuries to those sustained by employees, during employment. §51. Hence there are no unforeseeable plaintiffs in FELA cases. And the statute weeds out the injuries most likely to bear only a tenuous relationship to railroad negligence, namely, those occurring outside the workplace.14

There is a real risk, on the other hand, that the “in natural or probable sequence” charge sought by CSX would mislead. If taken to mean the plaintiff’s injury must probably (“more likely than not”) follow from the railroad’s negligent conduct, then the force of FELA’s “resulting in whole or in part” language would be blunted. Railroad negligence would “probably” cause a worker’s in ­ jury only if that negligence was a dominant contributor to the injury, not merely a contributor in any part.

* * *

For the reasons stated, it is not error in a FELA case to refuse a charge embracing stock proximate cause termi ­ nology. Juries in such cases are properly instructed that a defendant railroad “caused or contributed to” a railroad worker’s injury “if [the railroad's] negligence played a part—no matter how small—in bringing about the injury.” That, indeed, is the test Congress prescribed for proximate causation in FELA cases. See supra, at 9, 13. As the courts below so held, the judgment of the U. S. Court of Appeals for the Seventh Circuit is Affirmed. * JUSTICE THOMAS joins all but Part III–A of this opinion.

1 In Sorrell, the Court held that the causation standard was the same for railroad negligence and employee contributory negligence, but said nothing about what that standard should be. 549 U. S., at 164–165.

2 In face of Rogers’ repeated admonition that the “any part . . . in pro­ ducing the injury” test was the single test for causation under FELA, the dissent speculates that Rogers was simply making a veiled ref­ erence to a particular form of modified comparative negligence, i.e., allowing plaintiff to prevail on showing that her negligence was “slight” while the railroad’s was “gross.” Post, at 9–10. That is not what Rogers conveyed. To repeat, Rogers instructed that “the test of a jury case [under FELA] is simply whether . . . employer negligence played any part, even the slightest, in producing the injury.” 352 U. S., at 506.

3 The dissent, while recognizing “the variety of formulations” courts have employed to define “proximate cause,” post, at 2, does not say which of the many formulations it would declare applicable in FELA cases. We regard the phrase “negligence played a part—no matter how small,” see Rogers, 352 U. S., at 508, as synonymous with “negligence played any part, even the slightest,” see id., at 506, and the phrase “in producing the injury” as synonymous with the phrase “in bringing about the injury.” We therefore approve both the Seventh Circuit’s instruction and the “any part, even the slightest, in producing the injury” formulation. The host of definitions of proximate cause, in contrast, are hardly synonymous.

4 CSX and the dissent observe, correctly, that some of our preRogersdecisions invoked common-law formulations of proximate cause. See, e.g., Brady v. Southern R. Co., 320 U. S. 476, 483 (1943) (injury must be “the natural and probable consequence of the negligence” (internal quotation marks omitted)). Indeed, the “natural or probable” charge that CSX requested was drawn from Brady, which in turn relied on a pre-FELA case, Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 475 (1877). But other pre-Rogers FELA decisions invoked no common­ law formulations. See, e.g., Union Pacific R. Co. v. Huxoll, 245 U. S. 535, 537 (1918) (approving instruction asking whether negligence “con ­ tribute[d] ‘in whole or in part’ to cause the death”); Coray v. Southern Pacific Co., 335 U. S. 520, 524 (1949) (rejecting use of common-law “dialectical subtleties” concerning the term “proximate cause,” and ap­ proving use of “simple and direct” statutory language). We rely on Rogers not because “time begins in 1957,” post, at 7, but because Rogers stated a clear instruction, comprehensible by juries: Did the railroad’s “negligence pla[y] any part, even the slightest, in producing [the plain­ tiff ’s] injury”? 352 U. S., at 506. In so instructing, Rogers replaced the array of formulations then prevalent. We have repeated the Rogers instruction in subsequent opinions, and lower courts have employed it for over 50 years. To unsettle the law as the dissent urges would show scant respect for the principle of stare decisis.

5 See Moody v. Maine Central R. Co., 823 F. 2d 693, 695–696 (CA1 1987); Ulfik v. Metro-North Commuter R., 77 F. 3d 54, 58 (CA2 1996); Hines v. Consolidated R. Corp., 926 F. 2d 262, 267 (CA3 1991); Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F. 3d 432, 436 (CA4 1999); Nivens v. St. Louis Southwestern R. Co., 425 F. 2d 114, 118 (CA5 1970); Tyree v. New York Central R. Co., 382 F. 2d 524, 527 (CA6 1967); Nordgren v. Burlington No. R. Co., 101 F. 3d 1246, 1249 (CA8 1996); Claar v. Burlington No. R. Co., 29 F. 3d 499, 503 (CA9 1994); Summers v. Missouri Pacific R. System, 132 F. 3d 599, 606–607 (CA10 1997); SeaLand Serv., Inc., v. Sellan, 231 F. 3d 848, 851 (CA11 2000); Little v. National R. Passenger Corp., 865 F. 2d 1329 (CADC 1988) (table).

6 All five Circuits that have published pattern FELA causation in ­ structions use the language of the statute or of Rogers rather than traditional common-law formulations. See Brief for Academy of Rail Labor Attorneys as Amicus Curiae 19–20.

7 See id., at 21–22, 25–27 (collecting cases and pattern instructions). The parties dispute the exact figures, but all agree there are no more than a handful of exceptions. The Seventh Circuit found “[a]t most” three. 598 F. 3d 388, 404, n. 7 (2010).

8 See, e.g., DeParcq, The Supreme Court and the Federal Employers’ Liability Act, 1956–57 Term, 36 Texas L. Rev. 145, 154–155 (1957); 2 J. Lee & B. Lindahl, Modern Tort Law: Liability and Litigation §24:2, pp. 24–2 to 24–5 (2d ed. 2002); A. Larson & L. Larson, 9 Larson’s Workers’ Compensation Law §147.07[7], pp. 147–19 to 147–20 (2010); Prosser and Keeton §80, p. 579.

9 Pressed on this point at oral argument, CSX directed us to two cases cited by its amicus. In Richards v. Consolidated Rail Corp., 330 F. 3d 428, 431, 437 (CA6 2003), a defective brake malfunctioned en route, and the employee was injured while inspecting underneath the train to locate the problem; the Sixth Circuit sent the case to a jury. In Norfolk Southern R. Co. v. Schumpert, 270 Ga. App. 782, 783–786, 608 S. E. 2d 236, 238–239 (2004), the employee was injured while replacing a coupling device that fell to the ground because of a negligently absent pin; the court upheld a jury award. In our view, the causal link in these cases is hardly farfetched; in fact, in both, the lower courts observed that the evidence did not show mere “but for” causation. See Richards, 330 F. 3d, at 437, and n. 5; Schumpert, 270 Ga. App., at 784, 608 S. E. 2d, at 239.

10 See, e.g., Summers, 132 F. 3d, at 606; Oglesby v. Southern Pacific Transp. Co., 6 F. 3d 603, 609 (CA9 1993).

11 See, e.g., Act of Sept. 7, 1916, ch. 458, §1, 39 Stat. 742–743 (United States not liable to injured employee whose “intoxication . . . is the proximate cause of the injury”); Act of Oct. 6, 1917, ch. 105, §306, 40 Stat. 407 (United States liable to member of Armed Forces for post ­ discharge disability that “proximately result[ed] from [a pre-discharge] injury”); Act of June 5, 1924, ch. 261, §2, 43 Stat. 389 (United States liable for “any disease proximately caused” by federal employment).

12 A railroad’s violation of a safety statute, however, is negligence per se. See Kernan v. American Dredging Co., 355 U. S. 426, 438 (1958).

13 The dissent protests that we would require only a showing that “defendant was negligent in the first place.” Post, at 13. But under Rogers and the pattern instructions based on Rogers, the jury must find that defendant’s negligence in fact “played a part—no matter how small—in bringing about the injury.” See supra, at 2–3, 11–12 (Sev ­ enth Circuit pattern instruction and model federal instructions).

14 CSX observes, as does the dissent, post, at 4, that we have applied traditional notions of proximate causation under the RICO, antitrust, and securities fraud statutes. But those statutes cover broader classes of potential injuries and complainants. And none assign liability in language akin to FELA’s “resulting in whole or in part” standard. §51 (emphasis added). See Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 265–268 (1992); Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 529–535 (1983); Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 342–346 (2005).

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–235

_________________

CSX TRANSPORTATION, INC., PETITIONER v.

ROBERT MCBRIDE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT

[June 23, 2011]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO join, dissenting.

“It is a well established principle of [the common] law, that in all cases of loss we are to attribute it to the proxi ­ mate cause, and not to any remote cause: causa proxima non remota spectatur.” Waters v. Merchants’ Louisville Ins. Co., 11 Pet. 213, 223 (1837) (Story, J.). The Court today holds that this principle does not apply to actions under the Federal Employers’ Liability Act (FELA), and that those suing under that statute may recover for inju ­ ries that were not proximately caused by the negligence of their employers. This even though we have held that FELA generally follows the common law, unless the Act expressly provides otherwise; even though FELA expressly abrogated common law rules in four other respects, but said nothing about proximate cause; and even though our own cases, for 50 years after the passage of FELA, repeat ­ edly recognized that proximate cause was required for recovery under that statute.

The Court is wrong to dispense with that familiar ele ­ ment of an action seeking recovery for negligence, an ele ­ ment “generally thought to be a necessary limitation on liability,” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 838 (1996). The test the Court would substitute—whether negligence played any part, even the slightest, in produc ­ ing 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.

I respectfully dissent.

I

“Unlike a typical workers’ compensation scheme, which provides relief without regard to fault, . . . FELA provides a statutory cause of action sounding in negligence.” Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158, 165 (2007). When Congress creates such a federal tort, “we start from the premise” that Congress “adopts the background of general tort law.” Staub v. Proctor Hospital, 562 U. S. ___, ___ (2011) (slip op., at 5). With respect to FELA in par ­ ticular, we have explained that “[a]bsent express language to the contrary, the elements of a FELA claim are deter ­ mined by reference to the common law.” Sorrell, supra, at 165–166; see Urie v. Thompson, 337 U. S. 163, 182 (1949).

Recovery for negligence has always required a showing of proximate cause. “ ‘In a philosophical sense, the con ­ sequences of an act go forward to eternity.’ ” Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 266, n. 10 (1992) (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §41, p. 264 (5th ed. 1984)). Law, however, is not philosophy, and the concept of proximate cause developed at common law in response to the perceived need to distinguish “but for” cause from those more direct causes of injury that can form the basis for liability at law.

The plurality breaks no new ground in criticizing the variety of formulations of the concept of proximate cause, ante, at 14–15; courts, commentators, and first-year law students have been doing that for generations. See Exxon, supra, at 838. But it is often easier to disparage the prod ­ uct of centuries of common law than to devise a plausible substitute—which may explain why Congress did not at ­ tempt to do so in FELA. Proximate cause is hardly the only enduring common law concept that is useful despite its imprecision, see ante, at 14. It is in good company with proof beyond a reasonable doubt, necessity, willfulness, and unconscionability—to name just a few.

Proximate cause refers to the basic requirement that before recovery is allowed in tort, there must be “some direct relation between the injury asserted and the injuri ­ ous conduct alleged,” Holmes, 503 U. S., at 268. It ex ­ cludes from the scope of liability injuries that are “too remote,” “purely contingent,” or “indirect[ ].” Id., at 268, 271, 274. Recognizing that liability must not attach to “every conceivable harm that can be traced to alleged wrongdoing,” proximate cause requires a “causal connec­ tion between the wrong and the injury,” Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 536, 533, n. 26 (1983), that is not so “tenuous . . . that what is claimed to be consequence is only fortuity,” Exxon, supra, at 838 (internal quotation marks omitted). It limits liabil ­ ity at some point before the want of a nail leads to loss of the kingdom. When FELA was passed, as now, “[t]he question whether damage in a given case is proximate or remote [was] one of great importance. . . . [T]he determi ­ nation of it determines legal right,” 1 T. Street, Founda ­ tions of Legal Liability 110 (1906) (reprint 1980).

FELA expressly abrogated common law tort principles in four specific ways. See Sorrell, supra, at 166, 168; Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542–543 (1994). As enacted in 1908, the Act abolished the common law contributory negligence rule, which barred plaintiffs whose negligence had contributed to their inju ­ ries from recovering for the negligence of another. See Act of Apr. 22, §3, 35 Stat. 66. FELA also abandoned the so ­ called fellow-servant rule, §1, prohibited an assumption of risk defense in certain cases, §4, and barred employees from contractually releasing their employers from liability, §5.

But “[o]nly to the extent of these explicit statutory alterations is FELA an avowed departure from the rules of the common law.” Gottshall, supra, at 544 (internal quo ­ tation marks omitted). FELA did not abolish the familiar requirement of proximate cause. Because “Congress ex ­ pressly dispensed with [certain] common-law doctrines” in FELA but “did not deal at all with [other] equally well ­ established doctrine[s],” I do not believe that “Congress intended to abrogate [the other] doctrine[s] sub silentio.” Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 337–338 (1988).

We have applied the standard requirement of proximate cause to actions under federal statutes where the text did not expressly provide for it. See Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 342–346 (2005) (securities fraud); Holmes, supra, at 268–270 (Racketeer Influenced and Corrupt Organizations Act); Associated Gen. Contractors of Cal., Inc., supra, at 529–535 (Clayton Act); cf. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766, 774 (1983) (“the terms ‘environmental ef ­ fect’ and ‘environmental impact’ in [the National Envi ­ ronmental Policy Act of 1969 should] be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue . . . . like the familiar doctrine of proximate cause from tort law”).

The Court does not explicitly rest its argument on its own reading of FELA’s text. The jury instruction on cau ­ sation it approves, however, derives from Section 1 of FELA, 45 U. S. C. §51. See ante, at 1, 16–17. But nothing in Section 1 is similar to the “express language” Congress employed elsewhere in FELA when it wanted to abrogate a common law rule, Sorrell, supra, at 165–166. See, e.g., §53 (“the fact that the employee may have been guilty of contributory negligence shall not bar a recovery”); §54 (“employee shall not be held to have assumed the risks of his employment”).

As the very first section of the statute, Section 1 simply outlines who could be sued by whom and for what types of injuries. It provides that “[e]very common carrier by railroad . . . shall be liable in damages to any person suf ­ fering 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.” §51. The Court’s theory seems to be that the words “in whole or in part” signal a departure from the historic requirement of proximate cause. But those words served a very different purpose. They did indeed mark an important departure from a common law principle, but it was the principle of contributory negligence—not proxi ­ mate cause.

As noted, FELA abolished the defense of contributory negligence; the “in whole or in part” language simply re ­ flected the fact that the railroad would remain liable even if its negligence was not the sole cause of injury. See Sorrell, 549 U. S., at 170. The Congress that was so clear when it was abolishing common law limits on recovery elsewhere in FELA did not abrogate the fundamental principle of proximate cause in the oblique manner the Court suggests. “[I]f Congress had intended such a sea change” in negligence principles “it would have said so clearly.” Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., 563 U. S. ___, ___ (2011) (slip op., at 14).

The language the Court adopts as an instruction on causation requires only that negligence have “ ‘played any part, even the slightest, in producing the injury.’ ” Ante, at 17 (quoting Rogers, 352 U. S., at 506; emphasis deleted); see also ante, at 18–19 (“Juries in such cases are properly instructed that a defendant railroad ‘caused or contributed to’ a railroad worker’s injury ‘if [the railroad’s] negligence played a part—no matter how small—in bringing about the injury’ ”). If that is proved, “then the carrier is an ­ swerable in damages even if the extent of the [injury] or the manner in which it occurred was not ‘[p]robable’ or ‘foreseeable.’ ” Ante, at 17 (some internal quotation marks omitted). There is nothing in that language that requires anything other than “but for” cause. The terms “even the slightest” and “no matter how small” make clear to juries that even the faintest whisper of “but for” causation will do.

At oral argument, counsel for McBride explained that the correct standard for recovery under FELA is “but-for plus a relaxed form of legal cause.” Tr. of Oral Arg. 44. There is no “plus” in the rule the Court announces today. In this very case defense counsel was free to argue “but for” cause pure and simple to the jury. In closing, counsel informed the jury: “What we also have to show is defen ­ dant’s negligence caused or contributed to [McBride’s] injury. It never would have happened but for [CSX] giving him that train.” App. to Pet. for Cert. 67a (emphasis added).

At certain points in its opinion, the Court acknowledges that “[i]njuries have countless causes,” not all of which “should give rise to legal liability.” Ante, at 5. But the causation test the Court embraces contains no limit on causation at all.

II

This Court, from the time of FELA’s enactment, under ­ stood FELA to require plaintiffs to prove that an em ­ ployer’s negligence “is a proximate cause of the accident,” Davis v. Wolfe, 263 U. S. 239, 243 (1923). See, e.g., ibid. (“The rule clearly deducible from [prior] cases is that . . . an employee cannot recover . . . if the [employer’s] failure . . . is not a proximate cause of the accident . . . but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury”); Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430, 435 (1949) (“if the jury determines that the defendant’s breach is a contributory proximate cause of injury, it may find for the plaintiff” (internal quotation marks omitted)); O’Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384, 394 (1949) (“plaintiff was entitled to a[n] . . . instruction . . . which rendered defendant liable for injuries proximately resulting therefrom”).

A comprehensive treatise written shortly after Congress enacted FELA confirmed that “the plaintiff must . . . show that the alleged negligence was the proximate cause of the damage” in order to recover. 1 M. Roberts, Federal Li ­ abilities of Carriers §538, p. 942 (1918). As Justice Souter has explained, for the half century after the enactment of FELA, the Court “consistently recognized and applied proximate cause as the proper standard in FELA suits.” Sorrell, supra, at 174 (concurring opinion).

No matter. For the Court, time begins in 1957, with our opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500.

That opinion, however, “left this law where it was.” Sorrell, supra, at 174 (Souter, J., concurring). A jury in that case awarded Rogers damages against his railroad em ­ ployer, but the Supreme Court of Missouri reversed the jury verdict. As the Court explains today, we suggested in Rogers that there were “two potential readings” of the lower court’s opinion and that both were wrong. Ante, at 7. In doing so, we clarified the consequences of FELA’s elimination of the common law contributory negligence rule. We did not do what Congress chose not to do, and abrogate the rule of proximate cause.

First, we rejected the idea “that [Rogers’s] conduct was the sole cause of his mishap.” 352 U. S., at 504 (emphasis added); contra, Rogers v. Thompson, 284 S. W. 2d 467, 472 (Mo. 1955) (while “[Rogers] was confronted by an emer­ gency[,] . . . it was an emergency brought about by him ­ self”). There were, we explained, “probative facts from which the jury could find that [the railroad] was or should have been aware of conditions which created a likelihood that [Rogers] . . . would suffer just such an injury as he did.” 352 U. S., at 503. We noted that “[c]ommon experi ­ ence teaches both that a passing train will fan the flames of a fire, and that a person suddenly enveloped in flames and smoke will instinctively react by retreating from the danger.” Ibid. In referring to this predictable sequence of events, we described—in familiar terms—sufficient evi ­ dence of proximate cause. We therefore held that the railroad’s negligence could have been a cause of Rogers’s injury regardless of whether “the immediate reason” why Rogers slipped was the railroad’s negligence in permitting gravel to remain on the surface or some other cause. Ibid. (emphasis added).

Rogers thereby clarified that, under a statute in which employer and employee could both be proximate causes of an injury, a railroad’s negligence need not be the sole or last cause in order to be proximate. That is an application of proximate cause, not a repudiation of it. See Street 111 (“a cause may be sufficiently near in law to the damage to be considered its effective legal cause without by any means being the nearest or most proximate to the causes which contribute of the injury”); 1 D. Dobbs, Law of Torts §180, p. 445 (2001).

We then considered a second interpretation. The Mis ­ souri Supreme Court’s opinion could alternatively be read as having held that Rogers’s “conduct was at least as probable a cause for his mishap as any negligence of the [railroad],” and that—in those circumstances—“there was no case for the jury.” 352 U. S., at 505 (emphasis added). If this was the principle the court applied below, it was also wrong and for many of the same reasons.

Under a comparative negligence scheme in which multi ­ ple causes may act concurrently, we clarified that a rail ­ road’s negligence need not be the “sole, efficient, producing cause of injury,” id., at 506. The question was simply whether “employer negligence played any part, even the slightest, in producing the injury.” Ibid. “It does not matter,” we continued, “that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” Ibid. (emphasis added).

The Court today takes the “any part, even the slightest” language out of context and views it as a rejection of proxi ­ mate 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. The statute immediately preceding FELA, passed just two years earlier in 1906, moved part way from con ­ tributory to comparative negligence. It provided that “the fact that the employee may have been guilty of contribu ­ tory negligence shall not bar a recovery where his contrib ­ utory negligence was slight and that of the employer was gross in comparison.” Act of June 11, 1906, §2, 34 Stat. 232. Other statutes similarly made this halfway stop on the road from contributory to pure comparative negligence, again using the term “slight.” See Dobbs §201, at 503 (“One earlier [version of comparative fault] . . . allowed the negligent plaintiff to recover if the plaintiff’s negligence was slight and the defendant’s gross. . . . Mod ­ ern comparative negligence law works differently, reduc ­ ing the plaintiff’s recovery in proportion to the plaintiff’s fault”); V. Schwartz, Comparative Negligence §2.01[b][2], p. 33 (5th ed. 2010) (a “major form of modified comparative negligence is the ‘slight-gross’ system”); id. §3.04[b], at 75. In 1908, FELA completed the transition to pure com ­ parative negligence with respect to rail workers. See Dobbs §201, at 503. Under FELA, it does not matter whose negligence was “slight” or “gross.” 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. See Sorrell, 549 U. S., at 175 (Souter, J., concurring) (perti ­ nent language concerned “multiplicity of causations,” not “the necessary directness of . . . causation”).

The Court views Rogers as “describ[ing] the test for proximate causation” under FELA, ante, at 13 (internal quotation marks omitted), but Rogers itself says nothing of the sort. See 352 U. S., at 506 (describing its test as “the test of a jury case” (emphasis added)). Rogers did not set forth a novel standard for proximate cause—much less an instruction designed to guide jurors in determining causa ­ tion. Indeed, the trial court in Rogers used the term “proximate cause” in its jury instruction and directed the jury to find that Rogers could not recover if his injuries “were not directly . . . caused by” the railroad’s negligence. Id., at 505, n. 9 (internal quotation marks omitted). Our opinion quoted that instruction, ibid., but “took no issue with [it] in this respect,” Sorrell, supra, at 176 (Souter, J., concurring).

A few of our cases have characterized Rogers as holding that “a relaxed standard of causation applies under FELA.” Gottshall, 512 U. S., at 543; see Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164, 166 (1969). Fair enough; but these passing summations of Rogers do not alter its holding. FELA did, of course, change common law rules relating to causation in one respect: Under FELA, a railroad’s negligence did not have to be the exclusive cause of an injury. See Gottshall, supra, at 542–543 (“Congress did away with several common-law tort defenses . . . . Specifically, the statute . . . rejected the doctrine of con ­ tributory negligence in favor of that of comparative negli ­ gence”). And, unlike under FELA’s predecessor, the pro ­ portionate degree of the employee’s negligence would not necessarily bar his recovery. But we have never held— until today—that FELA entirely eliminates proximate cause as a limit on liability.

III

The Court is correct that the federal courts of appeals have read Rogers to support the adoption of instructions like the one given here. But we do not resolve questions such as the one before us by a show of hands. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 605 (2001); id., at 621 (SCALIA, J., concurring) (“The dissent’s insis ­ tence that we defer to the ‘clear majority’ of Circuit opin ­ ion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta”); cf. McNally v. United States, 483 U. S. 350, 365 (1987) (Stevens, J., dissenting) (pointing out that “[e]very court to consider the matter” had disagreed with the majority’s holding).

In addition, the Court discounts the views of those state courts of last resort that agree FELA did not relegate proximate cause to the dustbin. Those courts either reject the position the Court adopts today or suggest that FELA does not entirely eliminate proximate cause. See Ballard v. Union Pacific R. Co., 279 Neb. 638, 644, 781 N. W. 2d 47, 53 (2010) (“an employee must prove the employer’s negligence and that the alleged negligence is a proximate cause of the employee’s injury”); CSX Transp., Inc. v. Miller, 46 So. 3d 434, 450 (Ala. 2010) (“the jury in this case was properly instructed by the trial court that [re ­ spondent] could not be compensated for any injury not proximately caused by [petitioner’s] negligence”), cf. id., at 461 (quoting Rogers); Raab v. Utah R. Co., 2009 UT 61, ¶20, 221 P. 3d 219, 225 (“Rogers did not speak to the issue of proximate cause”); Gardner v. CSX Transp., Inc., 201 W. Va. 490, 500, 498 S. E. 2d 473, 483 (1997) (“we hold that to prevail on a claim under [FELA] . . . a plaintiff employee must establish that the defendant employer acted negligently and that such negligence contributed proximately, in whole or in part, to plaintiff’s injury”); Snipes v. Chicago, Central, & Pacific R. Co., 484 N. W. 2d 162, 164–165 (Iowa 1992) (stating that “[r]ecovery under the FELA requires an injured employee to prove that the defendant employer was negligent and that the negligence proximately caused, in whole or in part, the accident,” while noting that Rogers’s “threshold for recovery” is “low”); Marazzato v. Burlington No. R. Co., 249 Mont. 487, 491, 817 P. 2d 672, 675 (1991) (“plaintiff has the burden of proving that defendant’s negligence was the proximate cause in whole or in part of the plaintiff’s [death]”); Reed v. Pennsylvania R. Co., 171 Ohio St. 433, 436, 171 N. E. 2d 718, 721–722 (1961) (“such violation could not legally amount to a proximate cause of the injury to plaintiff’s leg”); see also Hager v. Norfolk & W. R. Co., No. 87553, 2006 WL 3634373, *6 (Ohio App., Dec. 14, 2006) (“the standard for proximate cause is broader under FELA than the common law” (internal quotation marks omitted)).

If nothing more, the views of these courts show that the question whether—and to what extent—FELA dispenses with proximate cause is not as “settled” as the Court would have it, ante, at 12 (internal quotation marks omit ­ ted). Under these circumstances, it seems important to correct an interpretation of our own case law that has run, so to speak, off its own rails.* Even the Court seems to appreciate that it is creating a troubling gap in the FELA negligence action and ought to do something to patch it over. The something it proposes is “[r]easonable foreseeability of harm,” ante, at 16 (inter ­ nal quotation marks omitted). Foreseeability as a test for proximate causation would be one thing; foreseeability has, after all, long been an aspect of proximate cause. But that is not the test the Court prescribes. It instead limits the foreseeability inquiry to whether the defendant was negligent in the first place.

The Court observes that juries may be instructed that a defendant’s negligence depends on “what a reasonably prudent person would anticipate or foresee as creating a potential for harm.” 5 L. Sand et al., Modern Federal Jury Instructions–Civil ¶89.10, p. 89–21 (2010); see ante, at 16– 17. That’s all fine and good when a defendant’s negligence results directly in the plaintiff’s injury (nevermind that no “reasonable foreseeability” instruction was given in this case). For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some ­ one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side ­ walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen “a mishap and injury,” ante, at 17 (emphasis added; internal quotation marks omitted)? Yes. Did my negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. But is it a legal cause? No.

In one respect the Court’s test is needlessly rigid. If courts must instruct juries on foreseeability as an aspect of negligence, why not instruct them on foreseeability as an aspect of causation? And if the jury is simply supposed to intuit that there should also be limits on the legal chain of causation—and that “but for” cause is not enough—why hide the ball? Why not simply tell the jury? Finally, if the Court intends “foreseeability of harm” to be a kind of poorman’s proximate cause, then where does the Court find that requirement in the test Rogers—or FELA—pre ­ scribes? Could it be derived from the common law?

Where does “foreseeability of harm” as the sole protec ­ tion against limitless liability run out of steam? An an ­ swer would seem only fair to the common law.

A railroad negligently fails to maintain its boiler, which overheats. An employee becomes hot while repairing it and removes his jacket. When finished with the repairs, he grabs a thermos of coffee, which spills on his now-bare arm, burning it. Was the risk that someone would be harmed by the failure to maintain the boiler foreseeable? Was the risk that an employee would be burned while repairing the overheated boiler foreseeable? Can the railroad be liable under the Court’s test for the coffee burn? According to the Court’s opinion, it does not matter that the “manner in which [the injury] occurred was not . . . foreseeable,” ante, at 17 (internal quotation marks omitted), so long as some negligence—any negligence at all—can be established.

The Court’s opinion fails to settle on a single test for answering these questions: Is it that the railroad’s negli ­ gence “pla[y] a part—no matter how small—in bringing about the [plaintiff’s] injury,” as the Court indicates on pages 5, 17 note 13, and 19, or that “negligence play any part, even the slightest, in producing the injury,” as sug ­ gested at pages 8 note 2, 11 note 4, and 17? The Court says there is no difference, see ante, at 9, n. 3, but I sus­ pect lawyers litigating FELA cases will prefer one instruc ­ tion over the other, depending on whether they represent the employer or the employee. In any event, if the Court’s test—whichever version—provides answers to these hypo ­ theticals, the Court keeps them to itself.

Proximate cause supplies the vocabulary for answering such questions. It is useful to ask whether the injury that resulted was within the scope of the risk created by the defendant’s negligent act; whether the injury was a natu ­ ral or probable consequence of the negligence; whether there was a superseding or intervening cause; whether the negligence was anything more than an antecedent event without which the harm would not have occurred.

The cases do not provide a mechanical or uniform test and have been criticized for that. But they do “furnish illustrations of situations which judicious men upon care ­ ful consideration have adjudged to be on one side of the line or the other.” Exxon, 517 U. S., at 839 (internal quo ­ tation marks omitted).

The Court forswears all these inquiries and—with them—an accumulated common law history that might provide guidance for courts and juries faced with causa ­ tion questions. See ante, at 1 (FELA “does not incorporate ‘proximate cause’ standards developed in nonstatutory common-law tort actions”); ante, at 18 (“it is not error in a FELA case to refuse a charge embracing stock proximate cause terminology”). It is not necessary to accept every verbal formulation of proximate cause ever articulated to recognize that these standards provide useful guidance— and that juries should receive some instruction—on the type of link required between a railroad’s negligence and an employee’s injury.

* * * 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.

I respectfully dissent. * The Court’s contention that our position would unsettle the law contrary to principles of stare decisis exaggerates the state of the law. As the court below noted, “[s]ince Rogers, the Supreme Court has not explained in detail how broadly or narrowly Rogers should be read by the lower federal courts.” 598 F. 3d 388, 397 (CA7 2010). See also Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158, 173 (2007) (Souter, J., concurring) (“Rogers did not address, much less alter, existing law governing the degree of causation necessary for redressing negligence as the cause of negligently inflicted harm”).

Print this transcript Transcript: 

ORAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next this morning in case 10-235, CSX Transportation v. McBride.

Mr. Rothfeld.

Mr. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:

In this case we find ourselves in the happy situation of having to try to convince the Court that its prior decisions were correct.

Just 5 years after the enactment of FELA, the Court declared that it was obvious that the statute contained a proximate cause requirement.

The Court went on to repeat that conclusion over and over again in almost two dozen decisions over the next 40 years.

Our submission this morning is that the Court when it made these statements got it right.

Justice Anthony Kennedy: How did it happen that in FELA we have proximate cause light?

It's just a different proximate cause than we see in other -- in other torts cases.

How -- how did that come about?

Mr. Rothfeld: Well, we -- we -- our submission is that that is not correct, that that is not what FELA provides for at all.

And in the Court's initial decisions, the ones that I referred to, it stated very clearly that the ordinary proximate cause rule applies.

The -- the proximate cause test that the Court stated in cases like Brady was the traditional proximate cause standard.

Justice Anthony Kennedy: Can you read the cases as indicating that more deference is given to juries in FELA cases than in other cases?

Mr. Rothfeld: Well, that -- that's -- is a separate one from the one we have here.

I mean, we are talking here about the nature of the -- the elements of the cause of action that have to be demonstrated by -- by the plaintiff; and so there -- the question of how much of that evidence there has to be to get to the jury is a separate question that's not presented here.

Our submission, since you posed the question, is that there is no different standard; that FELA was not intended to depart from the ordinary common law procedural approaches in that respect, either.

But on the question that's presented--

Justice Antonin Scalia: But juries usually find against railroads anyway, right?

Mr. Rothfeld: --I -- I wouldn't want to commit myself to answering that question affirmatively, Your Honor.

The Court has said that -- that FELA was enacted to address particular problems in the administration of the common law prior to 1908.

Justice Ruth Bader Ginsburg: It also said that there's a relaxed standard of causation.

I think that's what Justice Kennedy is referring to when he said "proximate cause light".

But we have said in more than one case that there is a relaxed standard of causation in FELA cases.

Was that wrong?

Mr. Rothfeld: I think there are two ways to respond to that, Justice Ginsburg.

The first is that up until the Rogers decision, which is -- which is one of the ones which has created I think some confusion in this area, the Court was quite clear and unambiguous that proximate cause in FELA applied in the ordinary sense.

As I say, in cases like the Brady case the Court stated what proximate cause means; it stated in -- in entirely traditional terms that -- that the plaintiff had to demonstrate that the injury followed in a natural, probable foreseeable way from the wrongful conduct, and so that -- that was the standard.

The Rogers case, which was the source of some of the confusion in this area, in our view, as -- as we think Justice Souter correctly demonstrated in his opinion in Sorrell, and as we explain at some length in our brief, Rogers we think did not address causation at all.

The Rogers case was a situation in which there were a multiplicity of causes, and the question was what -- what should -- should the rule be when there are a number of -- of entities that contribute to the accident.

It had nothing to do with remoteness or directness of the cause, what we usually think about when we talk about proximate cause.

In -- in the years since Rogers was decided, when the Court -- got out of the business of deciding FELA cases on the facts, it had not had occasion on -- in any case to address specifically what proximate cause meant in the FELA context.

Justice Sonia Sotomayor: Counsel--

Justice Antonin Scalia: Well, we have used that language.

You -- you have not responded to -- to the question where -- where did this language that does appear in our -- in our cases about the relaxed standard, where -- where does that come from?

Mr. Rothfeld: That -- that comes from, Wsubmit, from sort of a loose description of what was going on in the Rogers case, which involved a multiplicity of causes rather than directness and remoteness of causes, and so the cases in which that language appears, which are the Crane case and the Gottshall case, did not involve causation at all.

The question of causation was not presented to the Court in those cases.

Justice Ruth Bader Ginsburg: It has nothing to do with the line of cases I think in the '40s in the FELA cases where the message of this Court seemed to be quite clear, FELA cases go to juries?

There are a number of cases with reverse dissents that seem to -- to say just that.

Mr. Rothfeld: Well, that -- that goes to the question that Justice Kennedy raised at the outset, which is how much evidence, whatever the standard of causation is, how much evidence must there be to go to the jury?

And our presentation here is that FELA did not change the ordinary standard on -- on that question.

But that -- but that is not the question that's presented in this case.

Justice Ruth Bader Ginsburg: Well, what -- can you explain to me -- I mean, here the judge charged in the words of the statute, and they are also the words used in the model Federal instruction: Did plaintiff's injury result in whole or in part from the railroad's negligence?

You would say: Was plaintiff's injury proximately caused.

And as you no doubt know, Mr. Rothfeld, that term "proximate cause", it just loses juries.

So considering that these cases go to the jury, what do you say to the instruction that's now given, based on the words of the statute,

"Did plaintiff's injury result in whole or part from the railroad's negligence? "

What should the judge charge instead of that?

Mr. Rothfeld: Well, I think there are -- there are two parts to your question, Justice Ginsburg.

One -- one is, what's wrong with the instruction that was given here; and the other is can juries understand proximate cause as a concept.

On -- on the first point, we have no objection to the instruction containing the language of the statute.

The problem is that to be comprehensible and intelligently applied by jurors, it has to say more than that.

Proximate cause we submit is an element of the cause of action and that has to be explained to a jury.

It couldn't be the case in a Sherman Act case, for example, that a judge could simply charge the jury: You are to determine whether there has been an unreasonable restraint of trade; now go to the jury room and answer that question.

There is a lot more that has to go into that cause of action, including, as it happens, proximate cause.

Justice Elena Kagan: Mr. Rothfeld, could you explain to me how it would have made a difference in this case, that instruction?

Mr. Rothfeld: It -- it would have made a difference I guess in two respects.

One is that the plaintiff's theory has never at any point been that there was proximate cause in this case.

He did not contend that there was before the -- the district court and he does not contend in his brief before this Court that there was proximate cause made out.

And so--

Justice Ruth Bader Ginsburg: Well, maybe explain the difference.

I mean, you were answering my question, and I asked how would you tell the jury?

You said it's okay to say: Did plaintiff's injury result in whole or in part from the railroad's negligence, but the judge must say something more.

So what is the something more?

Mr. Rothfeld: --The something more is what this Court said in its Brady decision, in which it described -- the decision in Brady, which is cited and discussed in our opening brief in -- in some detail.

Brady described what proximate cause means in the FELA context; and it means, the Court said, that there must be a demonstration that the plaintiff's injury resulted from the wrongful conduct in a way that was natural, probable, and foreseeable.

That -- that was a traditional statement, is still today a traditional statement of proximate cause.

Justice Ruth Bader Ginsburg: Natural, probable, and foreseeable?

Mr. Rothfeld: And foreseeable.

That -- that language was taken in the Brady case directly from the Court's decision, 1876 decision in the Kellogg decision, which we also cite in our brief, which states--

Justice Sonia Sotomayor: --Can you tell me -- there is an article that suggests that juries don't actually understand what "proximate cause" means; and I think, and Justice Ginsburg can correct me, that what does that mean to a jury -- natural, probable, and foreseeable?

Mr. Rothfeld: --Well--

Justice Sonia Sotomayor: Are the three phrases different?

And how much more detail do you have to get in to describe that difference in a comprehensible way?

Mr. Rothfeld: --Well, that -- that was the second part of Justice Ginsburg's question, and I got distracted, and I'm happy to address it.

I think most of the criticism of proximate cause as being confusion to the jury has actually been directed at the word "proximate", that commentators and some courts have said that's a confusing word, it suggests immediacy, it suggests closeness in time, it sounds like "approximate", and so juries find it confusing.

But there is -- once it's spelled out, I mean, the fact is juries have been applying proximate cause, which has been a fundamental, settled, universal, universally accepted part of common law of torts, in the medicine context in particular, and it has been settled for 150 years.

Justice Antonin Scalia: Apparently only FELA juries cannot understand it; all other juries find it okay.

Mr. Rothfeld: Well, I -- it is our submission that FELA juries would have no more difficulty applying it than do juries under the Sherman Act or RICO or the securities laws or, the other statutes that this Court has said include a proximate cause requirement, or that juries apply every day in courts across the country in court cases.

Chief Justice John G. Roberts: I just don't -- and maybe this has already been asked, but I'm not sure from a juror's perspective that it makes terribly much difference the exact formulation of this instruction.

I think a juror who sees an employee is suing the railroad, and it turns out that what the railroad did had very little or nothing to do with what happened to the employee, they don't need an instruction about natural, foreseeable causes.

They're just not going to give the awards, or they're going to give the awards even though the railroad didn't do anything that affected the employee.

It's a -- it's a nuance that I just don't think has any practical significance.

Mr. Rothfeld: Well, we have to assume that juries follow jury instructions.

That's the fundamental premise of the system, and there is no reason to doubt that in the ordinary case, in which the contents of proximate cause are -- are explained to the jury in an intelligent -- in a way that -- that people can comprehend.

Justice Antonin Scalia: Your client is entitled to have the jury disregard a proper instruction, right?

That's what you're arguing?

Mr. Rothfeld: If the -- if the jury--

Justice Antonin Scalia: Juries disregard instructions on probable cause, on proximate cause.

They probably do it in non-FELA cases, too.

Mr. Rothfeld: --Well, I -- I--

Justice Antonin Scalia: But you're entitled to have them disregard the correct instruction rather than an incorrect instruction, right?

Mr. Rothfeld: --I will endorse that.

Chief Justice John G. Roberts: My point is that I don't see much practical difference between what you argue is the correct instruction and what your friend argues is the correct instruction.

Mr. Rothfeld: Well, certainly, in terms--

Chief Justice John G. Roberts: I mean, law students, professors, and some judges have had trouble defining the concept of proximate cause for centuries.

I don't know why we expect a juror to be able to navigate through those nuances, either.

Mr. Rothfeld: --Well, I -- the -- the principle of proximate cause, the idea that there has to be some limitation beyond but-for causation on liability, has been universally recognized.

Recognized by -- by courts, by this Court, by commentators, by the Restatement.

The Third Restatement, just published, clearly endorsed it.

They use -- they quibble about the terminology, but they clearly endorsed the absolute necessity of a proximate cause limitation on liability.

Justice Anthony Kennedy: Do you think that over the last few decades, there's been an increasing emphasis on foreseeability as a component of proximate cause?

Mr. Rothfeld: There -- there probably has been.

I mean, I'll defer again to the Third Restatement, which has a very useful summary of the course of the law in this area.

And the principal tests that are now being used by courts are foreseeability and directness, which are closely related, I think.

I mean, clearly, as this Court stated just this month in the Stout case, it stated a test of proximate cause in terms of whether--

Justice Ruth Bader Ginsburg: Could you give some examples of what causes would be proximate and what causes would not so qualify?

Something that's -- you said but-for is no good.

So what would be a but-for cause but not a proximate cause?

Mr. Rothfeld: --A but-for cause in this context would be, there's a defective brake on -- on the locomotive and it comes to a sudden stop.

If the conductor, standing in the locomotive when the train stops, is thrown to the floor and injured, clearly that is proximate cause.

It -- it is -- it is an injury that is related to the risk that made the conduct actionable in the first place.

The reason that having defective brakes is negligent and gives rise to a cause of action is because it can cause an accident that will cause people to fall, cause the train to hit something, will cause derailment.

That's why it is negligent, and if the kind of injury that follows from the accident is related to that risk, that clearly is proximate cause.

The kind which is not would be, train stops because of the defective brake.

No one is injured.

Conductor gets off the train to walk along and see what's going on, trips and turns his leg, or is bitten by a snake.

Justice Elena Kagan: Mr. Rothfeld, are there any cases like that in the FELA world?

You know, I take it that this basic instruction that was given in this case is the instruction that's given in most cases.

If you look across the range of cases, do you find jurors awarding damages in the kind of situation that you're talking about?

In other words, is this a real-world problem?

Mr. Rothfeld: They did in precisely the case I just described, a case called Richards from the Sixth Circuit, which is cited in the amicus brief submitted by the Association of American Railroads.

The train stops because of a defective brake, the conductor gets off, walks along, turns his ankle and sues.

Clearly, the risk of someone getting off the train and having a fortuitous injury is not the kind of risk that gave rise to the negligence.

I mean, it's negligent to have a defective brake, but not because there's a bystander who might be bitten by a snake or turn -- turn his ankle.

Justice Stephen G. Breyer: Is there a case like that?

Mr. Rothfeld: As I said, the Richards case.

Justice Stephen G. Breyer: Yes, but I mean somebody might think that having to go off and patrol a thing in a rough area is something that happens with a sudden stop: You run a risk of turning your leg.

I agree with you about the snake.

Is there any case about the snake?

Mr. Rothfeld: I -- I can't cite you a snake case directly, but--

Justice Stephen G. Breyer: Okay.

So the furthest -- the furthest -- the furthest that you go is the case of sudden stop in the wilderness, gets off, rough area, and twists his ankle.

Mr. Rothfeld: --Or I'll -- I'll cite you--

Justice Stephen G. Breyer: I don't know.

Is that proximate cause or not?

Maybe it isn't.

Mr. Rothfeld: --I'll give you two answers to that, Your Honor.

First of all, there are other cases.

Another case, for example, cited in the amicus brief that I referred to is the Schlumpert case from Georgia, in which there's a defective coupling device lying on the ground.

If it had -- if it had fallen off the train because it was defective and fallen on someone's foot, clearly that's proximate cause.

But it's on the ground.

The employee comes along, picks it up, throws off -- throws off his -- throws out his back, and sues.

That is not the kind of -- of injury that one would foresee comes from having defective couplers.

Chief Justice John G. Roberts: And do you want -- what instruction would you give that would tell the jury to allow damages in one of those -- the first of the coupling cases, but not in the second?

Mr. Rothfeld: The instruction we ask for is the one this Court gave -- said should be given in the Brady case: Natural, foreseeable, and probable.

It is not--

Chief Justice John G. Roberts: Are jurors going to sit there and say, one of those is natural, foreseeable, and probable, but the other isn't?

Mr. Rothfeld: --I would -- I would say that it is--

Chief Justice John G. Roberts: I don't know what "natural" means.

You know, so it's not a supernatural situation?

[Laughter]

Mr. Rothfeld: --Well -- well, I'm just quoting the Court's language to you, Your Honor.

But -- but certainly, foreseeable and probable, one would say that--

Chief Justice John G. Roberts: It's not foreseeable that if you drop a coupling where it's not supposed to be, somebody will come along and try to pick it up and move it?

Mr. Rothfeld: --Well, but it's not foreseeable in the sense that it is unrelated to the risk that gave rise to -- to the cause of action in the first place.

I mean, it's foreseeable in the sense that anything is foreseeable.

If I give the classic example: I drive -- I drive you to New York, from Washington to New York, and I drive too fast, exceeding the speed limit.

That's negligent.

It's negligent because I run the risk, if I drive too fast, of hitting somebody, of hitting another car, of driving off the road.

And so if I do that and you're injured as I drive you to New York, you can sue me.

But that doesn't happen.

I drive -- I get to New York safely, you get out of the car, and as soon as you get out, you are struck by lightning.

It's a but-for cause of your being struck by lightning that I drove too fast.

You wouldn't have been there when the lightning struck.

Justice Stephen G. Breyer: You could have been bitten by a snake when you're getting out of t car.

[Laughter]

But there has been no such case, to your knowledge?

Mr. Rothfeld: Or -- or, more likely, you could have been hit -- hit by a car driving across Fifth Avenue too fast.

Justice Elena Kagan: Mr. Rothfeld, your instruction actually used the term "probable cause".

Are you -- "proximate cause".

Are you saying now that that's not necessary, that as long as you say "reasonable and foreseeable", you would be satisfied?

Mr. Rothfeld: Well, I think that it should include the term "proximate" simply because that has traditionally been the requirement.

That's what this Court has said in cases like Brady.

It's what the Court has said in cases applying other proximate cause -- other elements of proximate causation in other circumstances.

But it is the concept.

I mean, as I said, "proximate" is a confusing word.

That has been recognized sort of across the board.

So it has to be spelled out and unpacked.

Justice Elena Kagan: So why use it at all?

If you think that "reasonable" or "foreseeable" are less confusing words, why shouldn't we just tell the jury to use those words instead?

Mr. Rothfeld: I -- again, I don't think that it is essential that it use the word "proximate" if it spells out what is meant by "proximate" in -- in -- as--

Justice Ruth Bader Ginsburg: And the spelling out is natural, probable, and foreseeable?

Mr. Rothfeld: --Again, that is the term that this Court used in Brady, and that is -- is closely related--

Justice Anthony Kennedy: Although your proposed instruction didn't use the word "foreseeable"?

Mr. Rothfeld: --It did not use the word "foreseeable".

It used "natural and probable".

But we -- we endorse, again, the test that this Court has stated in the FELA context very clearly in the Brady case.

There are -- as has been noted in some of the questioning, there has been discussion between courts and commentators over the years about what the best way is to define proximate cause and explain it to the jury.

I mean, in terms of the question posed by the Chief Justice, does it actually make any difference, I think not only do we have to assume that it makes a difference, because juries are presumed to follow their instructions, but the kind of instruction that was given here was essentially a but-for instruction, that if you find that -- that in any respect, the injuries essentially would not have occurred but for the misconduct, for the -- for the negligence of the railroad--

Justice Samuel Alito: Could you explain how it might have made a difference in this particular case based on the facts of the case?

As I understand it, Mr. McBride's theory was that as a result of having to use the independent brake extensively over a long period of time with this wide-bodied cab, his hand got tired and it fell, and it hit the independent brake.

Is that -- that's the theory?

Mr. Rothfeld: --Well -- that -- that -- that's his explanation of the accident.

The theory of negligence, as I understand it, as it was presented to the jury by his expert was that the configuration of the train that he was driving was unsafe because it -- it could lead to derailments, it could lead to breaking of the couplers.

As explained by his expert, the -- the theory was not that there was something unsafe about the arrangement of the braking system, and so, I think that the -- the way in which a proximate cause instruction properly given here could have made a difference is that the jury could have found, well, yes, it was negligent to have these five locomotives arranged in the way that they were, but that had nothing to do, except in a but-for sense, with the fact that the -- the -- that Mr. McBride's hand was injured; that the jury could have made that determination and so it could have made a difference.

Now, I mean, the fact is there was no proximate cause argument made below because the instruction that was given by the district court excluded it.

And so, as I said before, the -- the theory of the case advanced by Mr. McBride below simply didn't take account of proximate cause.

Now, if the -- if we prevail here and the case goes back, he will be free to argue under a proper instruction that there was proximate cause, that somehow the configuration of the train affected his -- his handling of the brake.

Justice Sonia Sotomayor: You're really suggesting that the defense attorney here wouldn't have argued the concept of proximate cause in saying the negligence had nothing to do with him just deciding to hit the brake?

Mr. Rothfeld: The--

Justice Sonia Sotomayor: --I -- I -- I -- it's farfetched, don't you think, that because the judge refused to give a proximate cause charge that the idea of it wasn't argued to the jury: What we did didn't cause this.

Mr. Rothfeld: --Well, there -- there is no question that what the railroad did caused in the but-for sense.

Mr. McBride would not have been in the cab operating the brake system had it -- had it not been for the configuration of the -- of the locomotives.

And, so if we assume that the configuration of the locomotives was negligent, then but for the negligence of -- of the railroad, this would not have occurred.

And that in fact is -- is the terms in which the case was argued to the jury by Mr. McBride's lawyer, who said, in so many words: But for the negligence of the railroad, this would not have occurred.

Justice Antonin Scalia: So the -- but the question is, what was your argument?

What was your side's argument?

Did you argue, in effect, proximate cause?

Mr. Rothfeld: Our side argued that there was no negligence at all, that -- that -- that the configuration of the railroad was perfectly proper, and that -- the -- the -- there was a contributory negligence component to what was going on here.

In fact, the jury found that Mr. McBride was contributorily negligent in part, and that was part of the -- of the defense presentation, too.

But just two or three -- to take a step back to first principles, on the assumption that proximate cause -- that there is a difference between instructing the jury on proximate cause and not, because the court -- it has been a part of tort law, you know, for time immemorial on the assumption that it does make a difference and it has been an important part of tort law because it has been universally recognized by courts, by academics, by the Respondent that there has to be some limitation on liability beyond but-for causation.

If there is not, there is the danger of sort of infinite liability, of limitless liability, and particularly of fortuitous liability, because there is no way that the defendant in a situation like this can anticipate that it's going to be held liable for this kind of injury.

So proximate cause has been regarded as an essential component of the tort law.

And that being so, FELA creates a Federal cause of action for negligence, it creates a Federal tort.

It -- a fundamental principle of statutory interpretation, this Court has applied many times, most recently just this month in the Staub case, that when Congress creates a Federal tort, it means to adopt the general background of tort law, and Congress--

Justice Ruth Bader Ginsburg: Are there any -- any negligence-type statutes?

I mean this one, I mean, it's odd to say that the judge erred in reading to the jury the words of the statute, did plaintiff's injury result in whole or in part from railroad negligence.

All that Federal statutes, negligence statutes that use the word "proximate"--

Mr. Rothfeld: --There are -- there are Federal statutes that use the word "proximate".

I don't know that there are any negligence statutes.

So far as I understand from our review of the law, at the time that Congress enacted FELA in 1908, there -- there were no such statutes that made use of the term "proximate".

And the presumption then, as now, is that when Congress creates what amounted to a Federal tort, the assumption is that it intends to adopt a background of tort law.

That was true in the Sherman Act, it was true in RICO, it was true in securities laws, it was true just as earlier this month in the Staub case, a statute which did not use the term "proximate".

Justice Ruth Bader Ginsburg: --But you said your defense at trial was not about causation, it was no negligence, right?

Mr. Rothfeld: Well, that's -- that's right.

Given the instruction that the jury received, which does not -- did not include a proximate cause requirement, and given that if one assumes that there was negligence, there is no doubt that the -- that the injury here was the but-for product of that negligence, there sort of was no room for negligence to be argued to the jury on the defense side.

I mean, for proximate -- for -- for -- for causation to be argued on the defense side.

Justice Samuel Alito: Assume you could talk to the jury and the jury says to you: We found negligence, so we don't want to hear about that; and we've found but-for causation and we don't want to hear about that; now, explain to us why there isn't proximate cause here?

What more -- what -- what would you say?

Mr. Rothfeld: In -- in this case we would say the negligence that is being presented to you and that you have presumably found is that the configuration of these locomotives was dangerous because it could lead to derailment, it could lead to breaking of the couplers between the cars.

That is the negligence.

And proximate cause, properly understood, means that the injury on which the plaintiff is suing has to follow in a probable, natural, foreseeable way from that -- that negligence.

Justice Elena Kagan: But wasn't the theory different, Mr. Rothfeld?

Wasn't the theory that the configuration of the train made the braking and the switching much more difficult for the person in this position?

Mr. Rothfeld: Well, if I may, I'll answer that and then sit down.

That, as I say, was not the theory that was presented by the plaintiff's expert.

To the extent that that is -- is a viable theory, it could be presented on remand.

The argument can be made.

I think it's a difficult argument, but -- but it was not presented to the jury here because there was no proximate cause instruction, so there was no opportunity for the question to be -- be -- be vetted.

And with that, thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Frederick.

ORAL ARGUMENT OF DAVID C. FREDERICK ON BEHALF OF THE RESPONDENT

Mr. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

This case is a case that presents a non-existent problem and a solution that is in search of a non-existent problem, because there are no real reported cases where there have been problems arising under the Rogers instructions that have become the model instructions under the Federal Rules for over 50 years.

And if could I just begin, Justice Kennedy, with your question which opened this up, proximate cause serves two principal functions.

One is to limit the scope of the persons to whom the tortfeasor owes a duty; and the second is to limit the kinds of injuries that that person would be liable for.

The innovation in FELA that is so important to understand about why the relaxed causation standard became the accepted standard under FELA was that FELA, by its plain terms, did away with the first concept of proximate cause because it limited the duty to the employee by the employer.

There is no one outside of that relationship that can bring an action under FELA.

And the second thing that it did was it put into what is now section 51 that if the negligence results in, quote, "in whole or in part" from the negligence of the railroad, that is enough for injury.

At common law the proximate cause standard required that the railroad's negligence be the sole cause.

So the innovation that created the relaxation in the causation standard was the inclusion of these words in part, and so over time--

Justice Antonin Scalia: Of course, the other side says that what that meant, and -- and -- and the language of our cases seems to support that, FELA uses a -- a -- a comparative negligence standard.

Mr. Frederick: --And this Court has rejected that kind of approach almost from the beginning of the statute.

In Campbell in 1916, the Court asked whether [= FELA] has completely eliminated the idea of proximate cause.

The Court has eliminated and the plain language precludes the sole cause, immediate cause, direct cause, last cause, substantial factor--

Justice Antonin Scalia: Why doesn't "in whole or in part" apply to the elimination of contributory negligence?

Isn't that an adequate explanation for the language?

Mr. Frederick: --It's -- it's not one that's consistent with the Court's cases.

And let me point you back to the day Rogers was decided.

If we accept for purposes of argument -- and I'm only accepting it for these purposes -- that Rogers was only about multiple causes, on the very same day it decided two other cases that arguably were only about single causes.

It decided a case under the Jones Act, the Ferguson case, and it decided another case under FELA, the Webb case.

In both of those cases, there were no multiple causes, there was no contributory negligence; but what the Court said was that on today we are announcing this standard, we apply that standard to overturn directed verdicts where juries had come to the conclusion that the railroad's negligence had played a part, even a slight one, in producing the injury sustained by the worker.

Justice Anthony Kennedy: Do you think that the phrase in the statute "in whole or in part" allows juries to impose liability based on but-for causation?

Mr. Frederick: No.

The--

Justice Anthony Kennedy: Why -- why not?

Mr. Frederick: --As this Court put a gloss on that language in Rogers, it -- it construed those words to mean that the railroad's negligence has to be found to have played a role, however slight, in producing the injury.

Thus in Mr.--

Justice Antonin Scalia: That's what but-for cause means.

Tell me about the snake.

Is the snake covered?

Mr. Frederick: --No.

Justice Antonin Scalia: Why not?

Mr. Frederick: Because the railroad's negligence there--

Justice Antonin Scalia: Once you abandon a proximate cause requirement, however you want to define that, I don't see why the snake isn't covered, or the lightning on 42nd Street.

Mr. Frederick: --Because there the railroad's negligence played no part in producing the injury.

It's the producing aspect that provides a little bit more--

Justice Antonin Scalia: Sure it did.

The train wouldn't have stopped, the conductor wouldn't have gotten off, he wouldn't have been bitten by the snake.

If the -- if the car had not traveled to New York over the speed limit, the -- the passenger wouldn't have been on 42nd Street when the lightning struck.

I mean, how can you say it didn't play a part?

Of course it played a part.

Mr. Frederick: --It was certainly an element of the existence of the condition.

But what the Court's cases, Justice Scalia, after Rogers have done, and I think this is an important part of the history, is that there are a couple of outlier cases, to be sure.

Courts have corrected them all by saying that the judge -- that the jury could not have reasonably found based on common experience that this snake bite or what have you was proximately related to -- played a part.

Justice Stephen G. Breyer: As I read the statute -- as I read the statute, it insists, as interpreted in Rogers, that the negligence has to play a part in producing, and in the snake case the negligence doesn't matter.

It's simply the timing, et cetera.

And is -- that's how I read it.

Mr. Frederick: Yes.

Justice Stephen G. Breyer: And I guess that's how courts have read it.

I'm not sure; you know.

And I suspect from the answers I've gotten so far there's never been a court that read it differently.

Mr. Frederick: That's correct.

Justice Antonin Scalia: Is that correct?

Mr. Frederick: Yes.

Justice Antonin Scalia: That negligence didn't play a part?

Mr. Frederick: Yes.

Justice Antonin Scalia: But for the negligence, the train would not have stopped.

How can you say the negligence didn't play a part?

Had the train not stopped, he wouldn't have been walking along and been bitten by the snake.

Mr. Frederick: Justice Scalia--

Justice Antonin Scalia: I mean do words mean anything?

How can you possibly say that negligence didn't play a part?

It obviously did.

It seems to me you're arguing for -- not the nonexistence of proximate cause.

Nobody in his right mind could argue for the nonexistence of proximate cause.

You are arguing for some different -- different definition of proximate cause, and I would like to know what that -- what that new definition is, as opposed to the definition that Mr. Rothfeld proposed.

Mr. Frederick: --Well, let me start with this by saying that the Court and the language of the statute have already eliminate six possibilities for proximate cause; and the question now is whether there's something additive to the words that Mr. Rothfeld now proposes for the first time, because this was not language that they proposed in their proffered jury instruction, which can be found in the red brief at page 11.

There they followed the Illinois proposed instruction which says "natural or probable sequence".

That language does not appear in Brady.

In Brady, a 1943 case from this Court, the words are used "natural and probable consequence", a consequence, of course, being a result, a sequence being an order of events.

Now, their instruction rests on the word "probable", which of course in common understanding and most juries would commonly understand, "probable" means more likely than not, which is directly in contention with the statutory words "in part", and directly contrary to the way courts had universally understood this language since Rogers.

Justice Stephen G. Breyer: I don't know if they said this, but I mean, as I read it, I thought the reason that negligence doesn't play a part is the act which was negligent played a part, of course; it was "but for"; but the fact that it is negligent is totally irrelevant, because it's not within the risk in any sense whatsoever.

Now as I -- you know the area.

I don't put -- don't just agree with me because I'm saying it.

Is that roughly the--

Mr. Frederick: That is correct, Justice Breyer.

And in the cases -- and there really are only a few cases where you can find these kind of outlier facts and these kind of, you know, FELA is only a compensatory damages statute.

It only addresses the actual injury and the compensation for the worker.

There are no punitive damages, there are no attorney's fees, there are no treble damages.

Justice Anthony Kennedy: You're in the jury room and a juror says: This wouldn't have happened but for the wide locomotive; therefore, there should be liability.

What -- and assume the jury has all of the Federal reports in there and the judge lets them read.

What -- what is there for another juror to say that this is wrong?

Mr. Frederick: The negligence theory here, Justice Kennedy, if I could go back to that, was not stated in a way that we would subscribe to by -- by Mr. Rothfeld.

Our theory of negligence at trial was twofold.

One was that these wide-boded locomotives were not appropriate for the switching exercise that the train men were doing on that day, and in fact the supervising engineer said this was the only time that he was aware in his long experience where these wide-body locomotives were used for this specific purpose which required a lot of braking activity.

The second theory of negligence was that Mr. McBride was put to this purpose without proper training.

He has complained on the day; he was uncomfortable and he didn't know whether he could operate that locomotive; and the jury was entitled reasonably to infer that that poor training was a--

Justice Sonia Sotomayor: How did any of those things cause his injury?

Mr. Frederick: --Because--

Justice Sonia Sotomayor: You've used the formulation negligence played a part in the injury.

So how did those things play a part?

Mr. Frederick: --His -- let's start with his poor training.

There was testimony that a person who was more skilled in the art of dealing with a wide-boded locomotive would be able to manipulate the independent brake with the automatic brake in a way that would not cause the repetitive stress that Mr. McBride suffered.

And there was further testimony that using a wide-body locomotive, which is more difficult to manipulate for the switching operations, and here we're talking about moving in and off main tracks to couple trains, train cars so that they can be used for a longer destination -- that that kind of equipment was not suited for the purpose.

Mr. McBride's testimony was when he had used the wide-body locomotive, he had done so on long trips over long distances that didn't require the same kind of ready, manipulative braking of the independent brake.

Justice Antonin Scalia: And you don't assert that that's a foreseeable consequence of the negligence of using a wide-body train?

Mr. Frederick: It's foreseeable if the railroad is using a piece of equipment without training the person.

Justice Antonin Scalia: Well, you -- you don't--

Mr. Frederick: For a purpose that it's not ordinarily used for.

Justice Antonin Scalia: --You say it doesn't have to be foreseeable.

Mr. Frederick: They didn't ask for foreseeability, Justice Scalia.

Justice Antonin Scalia: Oh, so you -- you conceded that it ought to be foreseeable.

Mr. Frederick: What I -- I would say this Court--

Justice Antonin Scalia: I'm trying to see what your case is because I can't believe you don't believe in proximate cause.

I just think you're -- you're giving a different definition of it, and I'm trying to figure out what your definition of it is.

Mr. Frederick: --My definition, what I think the Court did in Rogers was to try to end the debate over how confusing the word proximate cause is in these kind of cases by offering simple and direct instructions that juries could understand and apply, and that has been the case over the last 50 years.

Justice Antonin Scalia: Do it.

I'm still waiting to hear your instruction, which is supposedly something other than "but for".

Is it just "but for"?

Mr. Frederick: I would take the words of Rogers.

I think the jury here was properly instructed.

Justice Antonin Scalia: With -- what are the words?

Give me the words.

Mr. Frederick: The words are on page 10 of the red brief, Justice Scalia, and it follows the model form instruction that's used in all the Federal courts,

"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. "

Justice Antonin Scalia: You don't think that's "but for"?

Mr. Frederick: Whether you think it's "but for" or not I think is beside the point.

Justice Antonin Scalia: I don't care whether I think.

We've got words here.

What do those words mean?

Mr. Frederick: Those words mean that "but for" plus a relaxed form of legal cause associating the negligence in playing a part in produce the injury.

That's how Rogers understood it.

Justice Antonin Scalia: Negligence is a given; the negligence is not what I'm asking about.

I'm asking about causality, and what you have just read is "but for" cause.

Mr. Frederick: Well, I would disagree with that Justice Scalia, and I think the Rogers Court disagreed with that too, because after Rogers this Court upheld in Inman a case on a directed verdict where it concluded after the Rogers instructions had been used that nonetheless the negligence of the railroad had not played a part.

That's a case involving a drunk driver who hit a flag man at the site of where the flag man was operating.

Justice Sonia Sotomayor: Can I -- can I go back a second and perhaps follow up Justice Scalia's question in a slightly different way?

Do you believe a railroad can be held liable for a harm it could not reasonably foresee?

Mr. Frederick: Yes.

Justice Sonia Sotomayor: All right.

Now, perhaps, we can get to why, under what formulation, if it didn't know harm was going to happen or could happen.

Mr. Frederick: Well--

Justice Sonia Sotomayor: Reasonably foreseeable.

Mr. Frederick: --Yes.

I think that the concept of foreseeability is one that has alternated in and out of this Court's cases, but let's take the case of Gallick in 1963, where a fetid pool with vermin and rats were allowed to live by the railroad's negligence, and it was believed that an insect was growing -- insect bodies were growing in that fetid pool, and as a result of that insect bite, the injured worker's legs had to be amputated by the effect of this insect bite.

Now, many people would argue -- in fact, the lower court had concluded -- that it was not reasonably foreseeable that the railroad's negligence in allowing that stagnant pool to exist would nonetheless lead to the injury sustained by the worker.

Justice Sonia Sotomayor: It might not be reasonably foreseeable that an amputation would occur, but it was reasonably foreseeable that some injury to people would happen as a result of these infected insect bites, no?

That's what the court ultimately said.

Mr. Frederick: That's correct.

But what the court had also done was to rely on earlier cases in which it's saying these concepts really are relaxed because the purpose of FELA is to provide a substitute, if you will, for workers' compensation, where if you can establish negligence on the part of the railroad and it causes, in part, the injury, the railroad will be liable for that.

And that's why this -- these concepts of proximate cause really are getting at a different problem, which is that when these statutes are enacted, you're trying to guard the defendant's liability against the entire world.

And that's why it makes sense to impose some kind of restriction for foreseeability or for directness, because otherwise anybody could be liable to anybody else.

Here, that problem is removed, because the railroad is the only -- can only be sued, under FELA, by the employee, and only if its negligence plays a role in producing that injury.

If I could go back to the words that Mr. Rothfeld's trial counsel had proposed, the "probable sequence" word is now not even used anymore in Illinois.

So it would be very odd to think that you would reverse an instruction here, where the proffered instruction by the railroad doesn't even State what -- the proximate cause instruction in the model language.

Now the model language under Illinois calls for the natural and ordinary course of events.

That's how proximate cause is now done under the Illinois proposed instructions.

And it's hard to know how that language, Mr. Chief Justice, takes us any different from the common instruction that all juries are given, to use their common experience and their common sense in evaluating the evidence.

If what proximate cause now means under these types of standards is the ordinary course of events, all we're doing is asking juries to apply their common sense without introducing the word "proximate cause", which has been demonstrated to confuse juries because most of them, you know, many think that "proximate" means something like estimate or--

Justice Antonin Scalia: If the other side doesn't insist on that, the other side -- we'll give you that one.

Mr. Frederick: --And we're delighted with that concession, Your Honor.

Justice Ruth Bader Ginsburg: Mr. Frederick, suppose a juror says, We wouldn't -- goes to the judge and says, We would like to have an explanation of, what does it mean that the injury results in whole or in part from the railroad's negligence?

What would the judge respond?

Mr. Frederick: Justice Ginsburg, I'm not entirely sure how a trial judge would take a request for further clarification of this word's -- this Court's words that clarify the

"resulting in whole or in part from. "

I'm not aware of any cases where anyone challenged the use of the Rogers language on the ground that it wasn't simple and direct and therefore couldn't be understood.

Justice Antonin Scalia: Well, this jury found it, though.

What -- what would you tell the jury?

Mr. Frederick: I beg your pardon?

Justice Antonin Scalia: This jury found it unclear and asks you.

What would you say?

Mr. Frederick: I think -- and I've never served as a trial judge, but I think my -- my direction would be to go back and try again based on the words that are there, because the whole idea behind these words was to try to end the debate between this Court and many State courts that simply didn't grasp that FELA was intended to provide a remedial statute with a causation element that was a weaker causation element than in normal negligence cases.

And so this Court was taking dozens of cases under FELA between the 1930's and the 1950's in which the Court was looking at directed verdicts by State supreme courts that were overturning jury verdicts.

And the whole idea behind making this the language of what constitutes a jury case was to remove the appellate review process from a lot of these things and to leave these questions up to the common sense of the jury.

Justice Samuel Alito: Well, what if the jury says, Well, does it mean that but for the negligence, the injury would not have occurred?

Then what would the trial judge say?

Mr. Frederick: If the jury asked a question, I think the judge would write back and say, No, that's not correct, the words -- please focus on the words: The negligence playing a part, however small, in producing the injury.

I mean, I'm not aware if juries get to this but for versus what is a relaxed--

Justice Antonin Scalia: You think that eliminates but-for cause, to tell them that negligence plays a part, no matter how small, in the injury?

You think that eliminates but-for, rather than invites it?

Mr. Frederick: --No, Justice Scalia, our position is that it is but-for plus a relaxed form of legal cause that's been well-recognized in the cases and hasn't produced a problem.

Surely the burden is on the railroad to come up -- I would have thought that if they wanted to overturn the pattern instructions that have been used in nearly a half a million cases since Rogers was handed down, that they would have more than a case that they cite from one of their amici.

I mean, they don't even cite the Richards case in their main briefs.

And so surely -- you know, we're here to debate these hypotheticals, I would suppose, but they don't have any relation to the real world.

Justice Samuel Alito: Suppose the jury asks, Is it sufficient, is it necessary for the injury to be foreseeable?

What does the trial judge say then?

Mr. Frederick: I think the trial judge says, No, it is not necessary for it to be foreseeable in a direct -- if the negligence plays a part, however small, in producing the injury.

And that's why in cases like the Ferguson case, which was decided the same day as Rogers -- I mean, that's a very out-there set of facts, where the ship steward -- and remember, what you decide here also applies in the Jones Act for sea workers as well.

But in that case, the Court said it was a jury question, whether the failure to provide an appropriate to implement to scoop hardened ice cream from the freezer on the ship was foreseeable, whether or not the ship's steward, in serving the ice cream, would reach for a butcher knife to try to chip away and lead to the severing of two of his fingers.

I mean, we're talking about a dangerous situation, Justice Alito.

At the time that FELA was enacted, in a year prior to that, some 12,000 people died and there were hundreds of thousands of injuries, and the idea behind the statute was to provide a broad remedy so that rail workers could be compensated, not get extra damages like punitive damages, but just compensated for their injuries.

And so the result is that railmen know they're going to have to go before juries exercising their common sense, and juries have, in many, many cases, ruled in favor of the railroads.

And that system ought to be allowed to continue.

If I could go back to one last point, and that is the idea of statutory stare decisis.

We believe that because Rogers construed the "in whole or in part" language, it's entitled to statutory stare decisis where jury instructions have used that language.

And at some level, this case is not too far from the Hylton case, which was decided in the early '90s, except the difference is in Hylton, the Court had dealt with a case from the early 1960s called Parden.

And that case had had many of the underpinnings of -- of the question there that had been discredited or undercut by subsequent decisions.

Here, there are no cases since Rogers that suggest doubt on the general validity of the Rogers rule.

You have the cases that were decided in the immediate proximity of Rogers; you have Gallick in 1963--

Justice Ruth Bader Ginsburg: We have three justices of this Court that say Rogers is irrelevant because it had to do only with multiple causes.

Mr. Frederick: --And my answer to that, Justice Ginsburg, is that after Rogers, the Court applied the Rogers language to single cause cases.

We have Webb, we have Ferguson, we have Kernan, we have Gallick, we have the statement in Crane that comparing the actions of the nonemployee, the -- the explanation for why the nonemployee has to go to common law is because there are these special features of FELA, one of which is no common law proximate cause and the elimination of contributory negligence and assumption of the risk.

And then subsequently when the Court in Ayers and then in Gottshall says very clearly these are ways that FELA has departed from the common law and from the other statutes, in Gottshall the Court was very clear that it is relaxed causation and that this is one of the departures from normal common law standards.

It would seem odd to hold now that all of a sudden we're going to talk about common law standards for causation where the Court over a series of decision over the last hundred years has knocked out six of the prevailing versions of proximate cause that were then in vogue.

That would be a very odd way to -- to rule.

Justice Sonia Sotomayor: Mr. Frederick, go back again and tell me what a -- what a judge would say to a jury so he or she doesn't say but-for is not, not using those words, tell me in simple, plain language how a judge differentiates to a jury the difference between but-for and this causation.

What would a judge say?

Mr. Frederick: Okay, I would start with the language in Rogers, and then I would say--

Justice Sonia Sotomayor: The -- that negligence played a part in the injury?

Mr. Frederick: --Right.

In producing -- producing the injury.

Justice Sonia Sotomayor: Producing the injury?

Mr. Frederick: That's correct.

And that part of that played a part -- you know, rests on the common sense of whether or not a jury thinks that a particularly improbable set of -- of events is something that would be within the common experience of someone to view as--

Justice Antonin Scalia: It sounds like foreseeability you're talking.

Mr. Frederick: --It's a relaxed form of foreseeability in much the same way.

Justice Antonin Scalia: I thought you said no foreseeability?

Mr. Frederick: What I said was that this Court's cases go back and forth on the idea of foreseeability and whether or not it's necessary.

Justice Antonin Scalia: Do you want to go back or forth?

Which do you want?

[Laughter]

Mr. Frederick: I think it's foreseeable here in this case that using the wrong equipment with the wrong training would produce an injury like the one that my client suffered.

And so I would stand on that basis, and I would further stand on the ground that this Court--

Justice Anthony Kennedy: Well, at -- at -- at least that, it seems to me, is a jury question.

Mr. Frederick: --That's right, Justice Kennedy, and the jury here applied the statute the way it was intended.

It found fault with my client, and it found fault with the railroad and it apportioned damages accordingly.

Justice Anthony Kennedy: But -- but -- but it was not instructed on foreseeability?

Mr. Frederick: And they didn't ask for a foreseeability instruction.

So, you know, reversing when -- when they haven't asked for the correct statement of the law is not something this Court ordinarily does.

Justice Samuel Alito: Wasn't Mr.--

Justice Ruth Bader Ginsburg: They -- they -- they did ask for proximate cause?

Mr. Frederick: They defined proximate cause by saying natural or probable sequence, Justice Ginsburg.

That's how proximate cause was defined in their words, and the way they defined it didn't include the word "foreseeability".

Justice Antonin Scalia: That sounds like a good definition of foreseeable, doesn't it?

It's natural and probable.

Mr. Frederick: Probable, though, doesn't--

Justice Antonin Scalia: Could something be natural and probable and not foreseeable?

Mr. Frederick: --Justice Scalia, the word "probable" is more likely than not, which is the stronger standard, it's intention with the words "in part" in the statute.

Result in part is not something that is more likely than not.

For that reason, we believe the Court should adhere to the Rogers approach.

It's worked, it's allowed juries to exercise their common sense without being confused by these elusive proximate cause formulations.

The other side has failed to identify a problem, and there's not the slightest reason to think that any alternative formulation would work any better.

Justice Samuel Alito: --Could I just ask you this factual question?

Was it Mr. McBride's theory that his injury resulted from the repetitive use of the independent brake or was it that the -- as a result of the repetitive use his hand fell down and it hit the independent brake, and that was the cause of the injury?

Mr. Frederick: I think it's -- both theories were presented, and they were both based on the improper equipment that he was asked to use and his improper -- improper training he had been given, which are classic jury questions concerning negligence and causation.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Rothfeld, you have 4 minutes.

REBUTTAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER

Mr. Rothfeld: Thank you, Your Honor, just a few quick points.

First, although my friend Mr. Frederick has struggled valiantly, I think that he is unable to explain how his test is any different from a "but for" causation.

Justice Stephen G. Breyer: How about eggshell skull?

Mr. Rothfeld: That is a different kind of problem.

Justice Stephen G. Breyer: It is not foreseeable.

Mr. Rothfeld: It has been -- the rule of common law from--

Justice Stephen G. Breyer: You're just saying, it's all foreseeable, not foreseeable.

Mr. Rothfeld: --No.

The question is whether or not the kind of -- the risk of -- that there would be an injury follows from the -- the nature of the misconduct that gives rise to liability in the first place, and it is -- common law has always recognized that if you're risking a particular kind of injury, that someone is going to be hit, you take your victim as your find them, and that is put -- put in a different basket of -- of doctrine altogether.

So -- so first, again I -- there is no alternative to proximate cause, but "but for" cause; that's been universally recognized as an unacceptable basis for liability.

Second, if I could return to our snake just for a moment.

It has been recognized that the -- the nature of the protection that's provided by the tort law is related to the -- to the risk of injury that gives rise to liability in the first place.

If there -- the risk of injury is that a defective brake is going to lead to a derailment or an accident, injury that follows from that risk is compensable; injury that does not, like walking along and turning your leg or being bitten by a snake is in a different category, it's not predictable and foreseeable or natural in that sense.

Justice Sonia Sotomayor: Why not, if you know that there are snakes along this route, just like there's an infected vermin or insects or something else?

I--

Mr. Rothfeld: Well, the question would be one for the jury if it's properly instructed.

And in fact in the Gallick case, as I think Justice Sotomayor, you -- you have recognized, the Court said that that was foreseeable.

And the jury -- the issue can be posed to the jury, the jury can determine whether it is a natural problem.

Justice Sonia Sotomayor: --So it's not that it's a matter of law?

Mr. Rothfeld: No.

that's right.

Justice Sonia Sotomayor: That -- that's right, A matter of law, there was -- there could be no proximate cause.

You're arguing that a jury should determine whether or not they could anticipate somebody slipping on a slope?

Mr. Rothfeld: That -- that's generally right.

I mean, there will be circumstances, as the restatement says, that -- in which it's so clear that it is not a -- a probable, natural, foreseeable consequence of -- of the wrongful conduct, that it should not go to the jury.

And--

Justice Samuel Alito: Isn't -- isn't Mr. Frederick right in saying that asking whether something is probable is very different from asking whether it's foreseeable?

Mr. Rothfeld: --They -- clearly they are closely related.

I mean the Court in Brady stated that -- that test, as natural, probable, foreseeable.

If it is natural and probable, it is likely to be foreseeable.

And--

Justice Samuel Alito: Well, if it's probable it's foreseeable, but it can be foreseeable even though it's not probable.

Mr. Rothfeld: --Well, it -- but I think what probable means in this context it has to be foreseeable, not simply in the theoretical, I can foresee if I drive too fast in New York, maybe there will be a lightning strike -- I mean, I can imagine that.

But it has to have -- pass a certain threshold to--

Justice Antonin Scalia: If that's true, that -- everything that's natural and probable is foreseeable, but not everything that's foreseeable is natural and probable, you were requesting a jury instruction that didn't go as far to help you as was possible, but you were still requesting a jury instruction that was on the road.

Mr. Rothfeld: --That's -- to me the only question now here before this Court is whether we are entitled to a jury instruction that states properly the nature of the proximate cause test, and if the case goes back under that standard, then the arguments that have been suggested by Mr. Frederick can be presented to the jury.

But -- but as you say, Justice Scalia, that's right; and to the extent that there was anything wrong with the instruction, we would provide it.

Justice Antonin Scalia: This case go to the jury?

Mr. Rothfeld: I think it would be open to argue that it's so clear that -- that there was no proximate cause that it shouldn't; but that's a question to be posed on remand.

Justice Elena Kagan: I'm sorry, Mr. Rothfeld, I didn't understand what you just said, because the requested jury instruction that -- that you gave was any cause which in natural or probable sequence produced the injury.

Is that right?

Mr. Rothfeld: That was the requested instruction.

Justice Elena Kagan: So that's essentially saying that the jury has to say it's 51 percent likely to produce the injury, isn't that right?

Mr. Rothfeld: I -- it was not put in those terms.

I -- I would not think--

Justice Elena Kagan: Well, it says natural or probable, and probable means more likely than not, which is 51 percent.

Mr. Rothfeld: --I -- again, it was not -- unpacking those terms, and I would say it does not have to be -- the answer is -- is no.

The jury doesn't define that it is -- it is necessarily going to be the outcome, but it has to find that there is some substantial probability that it will be the outcome, before liability can attach, would be our -- our submission.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Mr. Rothfeld: Thank you, Your Honor.

Print this transcript Transcript: 

Justice Ruth Bader Ginsburg: The second case I have is CSX Transportation v. McBride.

This case concerns the causation standard applicable in lawsuits under the Federal Employers' Liability Act, today properly known as FELA.

Enacted in 1908, FELA renders railroads liable for a worker's injury or death resulting in whole or in part from the railroads negligence.

The question before us, does FELA incorporate by the Act's silence stock proximate cause formulations developed in common law tort actions, for example, in ones -- was in buggy and now automobile accident cases.

Or should get us causation instructions instead speak to the jury in the language of the statute?

The term proximate cause, first year law students learn, expresses in shorthand the concept that injuries have countless causes but those stretching that too far should not give rise to legal liability.

Common law courts having employed many different verbal formulations to convey to juries just what proximate cause means.

Often those formulations are restrictive.

For example, juries have been told that a plaintiff cannot recover if the causal link between defendant's conduct and plaintiff's injury was insufficiently substantial or if there was any intervening cause or if the relationship between cause and injury was not direct or natural or probable.

We hold that none of those formulations express the proper feel or causation standard.

The plaintiff in this case, Robert McBride, was injured while performing a switching operation for his employer CSX Transportation, an interstate railroad, and the petitioner here.

Alleging that CSX had provided unsafe equipment and inadequate training, McBride sued the railroad in Federal District Court in Illinois seeking compensation under FELA.

A verdict for McBride was in order, the District judge instructed, if the jury found that CSX was negligent and that the railroad's negligence cause or contributed to McBride's injury.

The railroad sought an additional instruction requiring McBride to show that the railroad's negligence was a proximate cause of his injury.

If the railroad proposed to define proximate cause to mean any cause, which in natural or probable sequence produced the injury complained off.

The District Court refused to give the instructions CSX requested and instead the District Court read to the jury, the Seventh Circuits have an instructions for causation in FELA cases.

Defendant -- 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 jury returned a verdict for McBride.

On appeal the railroad contended that the District Court should have instructed the jury as CSX requested on proximate causation.

The Seventh Circuit disagreed and affirmed the judgment entered on the jury's verdict.

The Appeals Court explained that the causation instruction the District Court gave paraphrase language from this Court's 1957 decision in Rogers v. Missouri, Missouri Pacific Railroad.

Roger stated under FELA, the test of the jury case is simply whether the proofs justified the conclusion that employer negligence played any part even the slightest in producing the injury.

We agree with the Seventh Circuit that FELA does not incorporate staff proximate cause instructions developed in non-statutory common law tort actions and we therefore affirmed the Court of Appeals judgment.

The railroad urges that Rogers addressed only the problem of injuries with multiple causes typically plaintiffs own negligence as well as the defendant's lack of due care.

For reasons set out only in the Court's opinion, we reject that in our reading and instead read Rogers to state comprehensively -- and comprehensively, the FELA causation standard for all cases.

Our understanding of FELA's causation standard tracks, the Acts text and is consistent with the legislation's history.

It also accords with the view of every Federal Court of Appeals that reviews FELA cases.

Failing to instruct on proximate cause, CSX worries will invite juries to impose limitless liability on railroads.

We see little cause for that concern, instructions like the one given at -- in McBride's case have been read to juries in countless cases over the last 50 years.

Yet the railroad road was unable to identify even a single trial in which such an instruction generated and outlined this award.

Justice Thomas joins all but Part III–A of the opinion.

The Chief Justice has filed the dissenting opinion in which Justices Scalia, Kennedy and Alito joined.