Tuesday’s Argument in Norfolk Southern v. Sorrell
on Oct 9, 2006 at 9:18 am
Perhaps the most interesting question in Norfolk Southern Railway Company v. Sorrell, (Docket 05-746, petition here) is whether the Court will decide the case at all. The case will be argued in an unusual afternoon argument session on Tuesday, October 10. Carter Phillips of Sidley Austin Brown & Wood will argue for petitioner. Mary Perry of Schlicter Bogard & Denton will argue for respondent.
[Disclosure: Howe & Russell consulted with respondent in this case briefly after cert. was granted, but played no role in the writing of the brief].
The Statute and the Facts
The case involves a question regarding the standards of causation under the Federal Employer’s Liability Act (FELA) which, despite its name, governs the liability of railroads (not federal employers) for the injuries sustained by their workers on the job. Respondent Timothy Sorrell was injured when the truck he was driving for petitioner Norfolk Southern went off the road and rolled over. Sorrell said he was essentially forced off the road by another Norfolk Southern truck, but the railroad said the accident was at least in part Sorrell’s fault because he unnecessarily pulled his truck too far off the road to let the other driver pass.
The case thus presented a classic claim of comparative negligence. Under the common law, the plaintiff in such a case had the obligation to prove that the defendant’s negligence was the cause of her injuries. The defendant, however, could escape any liability at all if it could show that the plaintiff’s negligence played a role in the accident. In each instance, there was a question of how closely the party’s negligence had to be connected to the accident in order for the other side to prevail. Traditionally, proximate cause was required in ordinary tort law, meaning that the negligence had to be the direct (rather than indirect) cause of the accident.
Everyone agrees that in enacting FELA, Congress changed at least some of the traditional tort rules in railroad employee injury cases. For example, all acknowledge that an employee’s contributory negligence is not a complete defense in a FELA case, but instead results in a reduction of damages in proportion to the plaintiff’s responsibility for the accident. The question in this case is whether Congress changed the standards of causation for the employee to prove negligence, the employer to prove contributory negligence, neither, or both. The Missouri courts held that Congress lowered the standard for the employee, but not the employer. That interpretation relied on the language of the employer’s liability provision — which makes the employer liable if its “negligence resulted in whole or in part in” an injury to the worker — and on the Supreme Court’s interpretation of that language in Rogers v. Missouri, 352 U.S. 500 (1957). That is, the Missouri court’s construed the “in whole or in part” language as vitiated the traditional proximate cause requirement of direct causation. The courts did not, however, also apply the lessened causation standard to the employer’s contributory negligence claims. Norfolk Southern was thus required to prove that Sorrell’s negligence was the direct cause of the accident in order to get any reduction in liability under the statute.
The jury concluded that Sorrell had met his burden, and that Norfolk Southern had not, awarding $1.5 million in damages.
The Proper Construction Of FELA
In its brief in the Supreme Court, Norfolk Southern argues that the traditional proximate cause standard applies to both the employee’s obligation to prove employer negligence and to the employer’s claim of contributory negligence. Petitioner points to the well-established presumption that when Congress enacts a statute against a common law background, it intends to incorporate traditional common law principles (like proximate causation) unless the statute makes clear that a different rule applies. It further notes that Congress explicitly abrogated a number of other common law principles in FELA, such as the rule that an employee’s contributory negligence is an absolute bar to recovery. If Congress took such care to be explicit about that departure from the traditional rule, petitioner argues, it should not easily be presumed to have intended to depart from the proximate cause requirement.
Norfolk Southern further argues that it would be particularly incongruous to hold that Congress intended to supplant the traditional proximate cause requirements only for the benefit of the employee and leave the traditional standard in place for the employer attempting to show contributory negligence. It points out that outside the FELA context, courts apply the same standard to both negligence and contributory negligence claims and says there is no reason to construe FELA’s provisions differently.
Petitioner further argues that the Court’s decision in Rogers did not hold otherwise and that, in fact, the Supreme Court has repeatedly described FELA as requiring proximate cause.
Respondent disagrees, arguing that the language of the FELA negligence provision directly addresses the standard of causation required and creates a standard explicitly more lenient than proximate cause, as it permits liability not only if the employer’s negligence directly caused the injury (proximate cause) but also if the negligence “resulted in whole or IN PART in” in the employee’s injury. Respondent further argues that in Rogers, the Supreme Court construed this language to permit liability if the “employer’s negligence played any part, even the slightest, in producing the injury or death.” 352 U.S. at 506. That departure from the common law, respondent argues, is consistent with the overall purpose of the statute, which was to shift the costs of railroad accidents from workers to the railroads.
At the same time, respondent says, nothing in the language of the statute indicates Congress’s intent to provide a similar dispensation to employers attempting to prove contributory negligence. That disparity in treatment, respondent argues, is again in keeping with the general intent of the statute to ensure that railroad workers are not left to bear the costs of railroad accidents by themselves.
The Rub
As interesting as all this is, the Supreme Court may never decide any of it, at least not if respondent has his way. Respondent directly urges the Court to dismiss the case as improvidently granted because the arguments Norfolk Southern is making to the Supreme Court, it says, are essentially the opposite of the arguments it made in the Missouri courts.
Respondent recounts that at trial, Norfolk Southern did not complain when the trial judge instructed the jury that Sorrell did not have to prove proximate cause to win his case. Instead, the railroad asked to be given the same lenient treatment on the contributory negligence claim. That is, in the lower courts, Norfolk Southern did indeed argue that the same standard should apply for both negligence and contributory negligence. But whereas it has told the Supreme Court that the uniform standard should be proximate cause, it told the Missouri courts the standard should be the lesser standard it now says is completely inappropriate. Even more, respondent says that the about-face took place after the Supreme Court granted certiorari, leading to the suggestion that Norfolk Southern’s lawyers have played a bait-and-switch with the Supreme Court. Respondent notes that this strategic decision runs into trouble with a number of the Court’s doctrines governing the kinds of cases and arguments it will hear, including the rule that it will not entertain an argument not made to the lower courts or hear an objection to a jury instruction not preserved at trial.
In its reply brief, Norfolk Southern argues that the Court can and should decide the case, and that it has not waived its current argument through the position it took below. It did not object to the negligence instruction below, it says, because it would have been pointless in light of settled state law precedent. Petitioner notes that although it is arguing now that the negligence instruction was erroneous, it is not asking the Court to directly review the liability determination (which was based on an instruction it did not object to below), but only the apportionment of damages under the contributory negligence provision (based on an instruction it did object to). And while it acknowledges that it is asking the Court to decide that question in a way that will render the liability-stage negligence instruction invalid, and will require (it says) a new trial on both the merits and on damages, it argues that there is nothing improper about that request. It is enough, petitioner argues, that it argued that the two standards should be the same and that the Missouri Supreme Court passed on the question of the proper negligence standard in its decision. Moreover, Norfolk Southern says that it clearly, if briefly, stated its position on the employer negligence standard in its petition and that respondent therefore waived any objection to the Court’s addressing it by not objecting in its brief in opposition.
Analysis
Why, one might ask, would Norfolk Southern switch positions so late in the case? The short answer is that I don’t know for sure, but I can speculate. The move might be understandable if petitioner had no chance of winning in the Supreme Court the argument it had been making below. But that does not seem to be the case here. Both below and in the Supreme Court, Norfolk Southern argues that the standard should be uniform, an argument that will likely have a strong intuitive appeal to many of the Justices. Arguing that this uniform standard should be less than proximate cause, as petitioner did in the state courts, would have avoided the need to confront the plaintiff-friendly language of Rogers yet still provided an avenue for reversing the lower court opinion in this case.
Instead, I think it most likely that Norfolk Southern is pursuing its larger interests as a repeat FELA defendant and has made a calculated gamble that the chance of reinstating a proximate cause standard for employer’s negligence is worth the risk of losing a chance to get a lower standard for contributory negligence. In fact, Norfolk Southern notes in its reply brief that it has asked the Court to review the standard for employer negligence under FELA on three prior occasions. The judgment below, while large for an individual, is small for a railroad compared to the amount of money it could likely save over time under a more onerous liability standard for injured workers.
