(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CSX TRANSPORTATION, INC. v. MCBRIDE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 10–235. Argued March 28, 2011—Decided June 23, 2011
Respondent McBride, a locomotive engineer with petitioner CSX
Transportation, Inc., an interstate railroad, sustained a debilitating
hand injury while switching railroad cars. He filed suit under the
Federal Employers’ Liability Act (FELA), which holds railroads liable
for employees’ injuries “resulting in whole or in part from [carrier]
negligence.” 45 U. S. C. §51. McBride alleged that CSX negligently
(1) required him to use unsafe switching equipment and (2) failed to
train him to operate that equipment. A verdict for McBride would be
in order, the District Court instructed, if the jury found that CSX’s
negligence “caused or contributed to” his injury. The court declined
CSX’s request for additional charges requiring McBride to “show that
. . . [CSX’s] negligence was a proximate cause of the injury” and de
fining “proximate cause” as “any cause which, in natural or probable
sequence, produced the injury complained of.” Instead, relying on
Rogers v. Missouri Pacific R. Co., 352 U. S. 500, the court gave the
Seventh Circuit’s pattern FELA instruction: “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, CSX renewed its objection to the failure to instruct on
proximate cause, now defining the phrase to require a “direct relation
between the injury asserted and the injurious conduct alleged.” The
appeals court, however, approved the District Court’s instruction and
affirmed its judgment for McBride. Because Rogers had relaxed the
proximate cause requirement in FELA cases, the court said, an in
struction that simply paraphrased Rogers’ language could not be de
clared erroneous.
Held: The judgment is affirmed.
2 CSX TRANSP., INC. v. MCBRIDE
Syllabus
598 F. 3d 388, affirmed.
JUSTICE GINSBURG delivered the opinion of the Court with
respect to all but Part III–A, concluding, in accord with FELA’s text
and purpose, Rogers, and the uniform view of the federal appellate
courts, that FELA does not incorporate stock “proximate cause” stan
dards developed in nonstatutory common-law tort actions. The
charge proper in FELA cases simply tracks the language Congress
employed, informing juries that a defendant railroad “caused or con
tributed 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. Pp. 4–14, 16–19.
(a) CSX’s interpretation of Rogers is not persuasive. Pp. 4–12.
(1) Given FELA’s “broad” causation language, Urie v. Thompson,
337 U. S. 163, 181, and Congress’ “humanitarian” and “remedial
goal[s]” in enacting the statute, FELA’s causation standard is “re
laxed” compared to that applicable in common-law tort litigation,
Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542–543.
Rogers described that relaxed standard as “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 dam
ages are sought.” 352 U. S., at 506. Because the District Court’s in
struction tracked Rogers’ language, the instruction was plainly
proper so long as Rogers actually prescribes the causation definition
applicable under FELA. See Patterson v. McLean Credit Union, 491
U. S. 164, 172. CSX, however, contends that Rogers was a narrowly
focused decision that did not displace common-law formulations of
“proximate cause.” Drawing largely on Justice Souter’s concurrence
in Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158, 173, CSX urges
that Rogers’ “any part . . . in producing the injury” test displaced only
common-law restrictions on recovery for injuries involving contribu
tory negligence or other multiple causes, but did not address the req
uisite directness of a cause. Pp. 4–6.
(2) In Rogers, the employee was burning vegetation that lined his
employer’s railroad tracks. A passing train fanned the flames, which
spread to the top of the culvert where he was standing. Attempting
to escape, he slipped and fell on the sloping gravel covering the cul
vert, sustaining serious injuries. 352 U. S., at 501–503. The state
court jury returned a verdict for him, but the Missouri Supreme
Court reversed. Even if the railroad had been negligent in failing to
maintain a flat surface, the court reasoned, the employee was at fault
because of his lack of attention to the spreading fire. As the fire “was
something extraordinary, unrelated to, and disconnected from the in
cline of the gravel,” the court found that “plaintiff’s injury was not the
Cite as: 564 U. S. ____ (2011) 3
Syllabus
natural and probable consequence of any negligence of defendant.”
Ibid. This Court reversed. FELA, this Court affirmed, did not incor
porate any traditional common-law formulation of “proximate causa
tion[,] which [requires] the jury [to] find that the defendant’s negli
gence was the sole, efficient, producing cause of injury.” Id., at 506.
Whether the railroad’s negligent act was the “immediate reason” for
the fall, the Court added, was “irrelevant.” Id., at 503. The Court
then announced its “any part . . . in producing the injury” test, id., at
506.
Rogers is most sensibly read as a comprehensive statement of
FELA’s causation standard. The State Supreme Court there ac
knowledged that a FELA injury might have multiple causes, but con
sidered the respondent railroad’s part too indirect to establish the
requisite causation. That is the very reasoning this Court rejected in
Rogers. It is also the reasoning CSX asks this Court to resurrect.
The interpretation adopted today is informed by the statutory his
tory, see Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1,
3, the precedents on which Rogers drew, see, e.g., Coray v. Southern
Pacific Co., 335 U. S. 520, 523–524, this Court’s subsequent deci
sions, see, e.g., Ferguson v. Moore-McCormack Lines, Inc., 352 U. S.
521, 523–524, the decisions of every Court of Appeals that reviews
FELA cases, and the overwhelming majority of state courts and
scholars. This understanding of Rogers “has been accepted as settled
law for several decades.” IBP, Inc. v. Alvarez, 546 U. S. 21, 32. To
discard or restrict the instruction now would ill serve stare decisis.
Pp. 6–12.
(b) CSX nonetheless worries that the Rogers “any part” instruction
opens the door to unlimited liability, inviting juries to impose liability
on the basis of “but for” causation. A half century’s experience with
Rogers gives little cause for concern: CSX has not identified even one
trial in which the instruction generated an absurd or untoward
award.
FELA’s “in whole or in part” language is straightforward.
“[R]easonable foreseeability of harm is an essential ingredient of
[FELA] negligence,” Gallick v. Baltimore & Ohio R. Co., 372 U. S.
108, 117 (emphasis added). 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, 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. Properly instructed on negligence and causa
tion, and told, as is standard practice in FELA cases, to use their
“common sense” in reviewing the evidence, juries would have no war
rant to award damages in far out “but for” scenarios, and judges
4 CSX TRANSP., INC. v. MCBRIDE
Syllabus
would have no warrant to submit such cases to the jury. Pp. 12–14,
16–19.
GINSBURG, J., delivered the opinion of the Court, except as to Part
III–A. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full,
and THOMAS, J., joined as to all but Part III–A. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA, KENNEDY, and ALITO, JJ., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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]
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
——————
* JUSTICE THOMAS joins all but Part III–A of this opinion.
2 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
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
4 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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,” Gott
shall, 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
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
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,
6 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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
——————
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.
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
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
8 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
(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. Vir
ginia 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
——————
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.
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
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 disre-
gard 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
——————
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.
10 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
announced a general standard for causation in FELA
cases, not one addressed exclusively to injuries involv-
ing 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 Fergu
son 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”); Gott
shall, 512 U. S., at 543 (“relaxed standard of causation
applies under FELA”).4
——————
4 CSX and the dissent observe, correctly, that some of our pre-Rogers
decisions 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,
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
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
——————
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. South-
ern 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); Her
nandez 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); Sea-
Land Serv., Inc., v. Sellan, 231 F. 3d 848, 851 (CA11 2000); Little v.
National R. Passenger Corp., 865 F. 2d 1329 (CADC 1988) (table).
12 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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 Rail
ways 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”
——————
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.
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
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
——————
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).
14 CSX TRANSP., INC. v. MCBRIDE
Opinion ofof the CourtJ.
Opinion GINSBURG,
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
Cite as: 564 U. S. ____ (2011) 15
Opinion ofof the CourtJ.
Opinion GINSBURG,
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.,
16 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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] neg
ligence.” 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
——————
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).
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
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
——————
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).
18 CSX TRANSP., INC. v. MCBRIDE
Opinion of the Court
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
——————
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 Corpo
ration, 503 U. S. 258, 265–268 (1992); Associated Gen. Contractors of
Cal., Inc. v. Carpenters, 459 U. S. 519, 529–535 (1983); Dura Pharma
ceuticals, Inc. v. Broudo, 544 U. S. 336, 342–346 (2005).
Cite as: 564 U. S. ____ (2011) 19
Opinion of the Court
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.
Cite as: 564 U. S. ____ (2011) 1
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
2 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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.” Nor
folk 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
Cite as: 564 U. S. ____ (2011) 3
ROBERTS, C. J., dissenting
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; Con
solidated 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
4 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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. Contrac
tors 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
Cite as: 564 U. S. ____ (2011) 5
ROBERTS, C. J., dissenting
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
6 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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
Cite as: 564 U. S. ____ (2011) 7
ROBERTS, C. J., dissenting
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.” Sor
rell, 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
8 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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
Cite as: 564 U. S. ____ (2011) 9
ROBERTS, C. J., dissenting
ple causes may act concurrently, we clarified that a rail
road’s negligence need not be the “sole, efficient, produc-
ing 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 con
tributory 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
10 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
“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 hold-
ing 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—
Cite as: 564 U. S. ____ (2011) 11
ROBERTS, C. J., dissenting
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 Buck
hannon 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
12 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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.*
——————
* 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
Cite as: 564 U. S. ____ (2011) 13
ROBERTS, C. J., dissenting
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
——————
as the cause of negligently inflicted harm”).
14 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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
Cite as: 564 U. S. ____ (2011) 15
ROBERTS, C. J., dissenting
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
16 CSX TRANSP., INC. v. MCBRIDE
ROBERTS, C. J., dissenting
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.