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Supreme Court Decision Update - Norfolk Southern Railway Co. v. Sorrell

railroad.jpgEvery time I think I’m out, they pull me back in!

I thought that once I was done writing up yesterday’s three Supreme Court opinions I’d be done for the day. But no sir! We’ve got one more from today, Norfolk Southern Railway Co. v. Sorrell (PDF of the opinion here). But most of you don’t need to worry about it much, as it really only applies to cases where there’s a negligence lawsuit between a railroad employee and railroad. Or rather, I assume most of you don’t need to worry about it - I guess it’s possible that many QuizLaw readers, unbeknownst to me, have strong ties to the railroad industry.

QuizLaw Analysis: When there’s a railroad workplace injury subject to a lawsuit under the Federal Employers’ Liability Act, the same standard of causation applies to determining whether the railroad is liable and whether the employee had any contributory negligence. Now as for what that standard actually is, the Supremes aren’t saying. “It must be the same,” say the Supremes, “but we’re not telling what it is, ‘cause much like Bobby Brown, it’s our prerogative.”

Railroad injuries? Yes sir. Timothy Sorrell was injured while working for Norfolk Southern Railway Company (he got in a truck accident in 1999, veering off the road and into a ditch). He sued in state court under the Federal Employers’ Liability Act (“FELA”), claiming that his injury was due to Norfolk’s negligence. Norfolk, meanwhile, claimed that it was Sorrell’s own negligence that was the root of the accident. Now FELA says that railroad companies are liable for employee injuries which resulted from railroad negligence, regardless of whether that negligence was in whole or in part. FELA also says that the employees themselves may be found to be contributorily negligent (that is, that their negligence played some part in the injury) and where that’s the case, the damages get reduced in proportion to the employee’s negligence. Most states apply the same standard of causation for both types of negligence. But Missouri, where this case was, does not. So during Sorrell’s trial, the jury was given instructions with different standards - Sorrell was to be found contributorily negligent if his negligence directly contributed to his injury. But Norfolk could be found liable if its negligence contributed in whole or in part to Sorrell’s injury. So the standard is more lenient as to the railroad company, since there’s no requirement that its negligence “directly” contribute.

Norfolk appealed these instructions because, unsurprisingly, it doesn’t like getting this looser standard while Sorrell gets the tougher one, and it believes that FELA requires that everyone get the same standard. The Missouri Court of Appeals affirmed the trial court’s rejection of this argument and the state Supreme Court then denied to review the matter, and so the case moved on up to the Supremes.

If we’re getting into the opinion, can you tell me who wrote it? This one comes from Chief Justice Johnny. Everyone joined him except for Justice Ginsburg, who filed a separate opinion concurring in the judgment. Justice Souter also filed a concurring opinion, joined by Alito and The Scalia.

Ok. So what’s Chief Justice Johnny have to say about this? Well before getting to the meat, Chief Justice Johnny says that Norfolk also wants the Court to say what, exactly, the standard of causation under FELA is. But the Supremes did not grant certiorari to decide what the standard is, they merely granted cert to address whether the standards should be the same. So the Court’s not going to go there for a variety of reasons, particularly because it is “typically reluctant to permit parties to smuggle additional questions into a case before us after the grant of certiorari.”

Now, whatever the causation standard is under FELA, it should apply equally to railroads and employees. To understand the elements of a FELA claim, Chief J Johnny says we should look to the common law. And this gets great weight unless the common law is expressly rejected by the actual text of FELA. And if we look to the common law at the time FELA was enacted, it’s pretty clear that the same causation standard applied to both negligence and contributory negligence. Nothing in FELA says we should look at this otherwise now, so that’s strong evidence that Missouri is doing things wrong. Plus, if Congress had departed from this common law practice, it would’ve been weird because FELA says the damages the railroad must pay should be reduced “in proportion” to any negligence of the employee. And it would be rather difficult to figure out that proportion if the employee’s contributory negligence is figured out in a different way from the railroad’s.

Norfolk says that there is a change from the common law because FELA says that the railroad can be liable “in whole or in part,” while there’s no similar language with regard to contributory negligence. But this distinction, says Chief J Johnny, is just common sense - “if the employee’s contributory negligence contributed ‘in whole’ to his injury, there would be no recovery against the railroad in the first place.” So it makes sense to use this language with regard to the railroad, to clarify that it could be liable even if it was only partially at fault.

So the case is ordered to back down to Missouri, where the Court of Appeals needs to look at whether this error was harmless or whether Norfolk is entitled to a new trial.

So what’s Souter’s concurrence about? Well as I said, Souter concurred and was joined in his concurring opinion by Alito and The Scalia. Souter agrees that the same standard applies in both instances. But he thinks the Supremes should have looked at what the standard actually is - even though the issue wasn’t covered in depth by the Missouri courts, the parties adequately briefed and argued it before the Supremes. He goes on to discuss a relevant Supreme Court case on this matter, from 1957, and how he thinks that plays into the whole issue, concluding that the standard is actually well established and left unchanged by the majority opinion.

And Ginsburg? She also filed a separate opinion, all by her lonesome, concurring in the judgment. She also agrees that the standards are the same. And she then explains, for slightly different reasons than Souter and company, that she also thinks the standard itself is well established by precedent and that today’s decisions does not “cast a shadow of doubt on the matter.”