"Mere 'But For' Causation"
Whether a plaintiff is required to prove proximate cause in a FELA case appears to be the essence of CSX Transportation, Inc. v. McBride; a case the US Supreme Court has recently chosen to review. Specifically, the question CSX raises in its brief is whether evidence of "mere 'but for' causation" coupled with some disconnected negligent act by the railroad is enough to satisfy the requirement that plaintiff prove that the railroad's negligence was the legal cause of his injuries. However, given the growing movement to rediscover and understand anew the foundations of tort law, to think of Torts as Wrongs rather than tools to (a) allocate losses; (b) regulate on an ad hoc basis "negative externalities"; or, (c) redistribute wealth, the Court's opinion has a chance to be a very big deal should its reasoning extend beyond the interpretation of a century old statute.
If not all "but for" causes are proximate causes where does the line get drawn and why does it get drawn there? For a very long while there was no line here in Texas. Take for example the case of Dryden v. Gulf States Utilities Company - a case I monitored as a summer associate. My firm represented the workers compensation carrier which had paid indemnity and medical and was on the hook for lifetime future medical bills. It had intervened in the case to assert a lien such that were Dryden to recover by way of his "third party" action for lost wages and medical bills it would get two thirds of its money back. We played no role in the case having stipulated before trial to the amount of the lien and our recovery.
Being green and stuffed full of idealized law rather than practical law I was shocked that such a seemingly meritless case had even made its way to trial. The plaintiff was a painter and he had used what they called a pic-board, a sort of hanging scaffold with a cleat on one end of the 2" x 12" board and a hole for a rope in the other. With this setup he could pivot around and reach more places in need of paint. The day before the accident his helper saw an old rope in a trash pile and, it being much closer to hand than the one back in their truck, he retrieved it and used it to suspend the plaintiff's scaffold thirty feet up - much easier than carrying the pic-board down several flights of metal stairs and stowing it. The next morning the plaintiff saw the old thin rope supporting the pic-board and decided it wasn't sufficient so he went back to his truck and retrieved the good rope. Then he walked out on the scaffold, suspended only by the thin rope from the trash, on his way to reinforce the thin rope with the new one. The obvious happened next and the plaintiff's arm was broken in several places.
Ok, even if it was somehow negligent to discard an old rope in a temporary trash pile on its own premises how does it follow "as a natural and continuous sequence of events" that someone would fish the rope out of the trash, use it for a wholly improper purpose, be recognized as a danger and still be relied upon by a journeyman painter to prevent him from falling thirty feet to the ground? The jury found it quite foreseeable and they popped the defendant rope-discarder for $654,000. Amazingly, the jury also found that the rope failing was not foreseeable to the plaintiff even though the whole purpose of his retrieval of the good rope and walk out to the end of the pic-board was to shore up the trash rope. The court of appeals affirmed
If such an accident is foreseeable (to the deep pocketed party anyway) one has to wonder what isn't foreseeable given the common thinking error known as hindsight bias. And by the way, what is foreseeability, really?
Duty and breach, and cause and effect, are opposite sides of two different coins. To connect the two coins and so complete the tort you have to establish proximate cause which can I think be thought of as a "but for" cause such that, if it meets some criterion or criteria, the jury is permitted to apportion fault and decide damages.
If the connection is too automatic, too natural and continuous a sequence, then things are easy and the tort may even be called an intentional one. But at the other end of the train station where a tile is falling towards Mrs Palsgraf's head connections between the law and the facts, via foreseeability or otherwise, are much more difficult unless they're thought about in terms of risk. Instead the courts dance around the issue and try to come up with names for where acts fall on the spectrum of risk. A botched surgery in which the wrong kidney is removed is the easy case. A botched surgery in which the wrong kidney is removed leading to a transplant which leads to a stroke demands foreseeability. A botched surgery in which the wrong kidney is almost removed but isn't yet because the plaintiff arrives in his cab, supplied by the hospital, at an intersection one minute later than he would have had the mix-up not caused a one minute delay in the surgery, just in time for a runaway 18-wheeler to crash into him - well, that requires CSX v. McBride because the risk, ex ante, was incalculably small.
In CSX v. McBride the plaintiff didn't even try to concoct a story about foreseeability. The railroad allegedly hooked up the locomotives in a fashion which increased the risk of derailment. That was the first coin of negligence - a duty to try to avoid derailments and a breach (by the way, there was no derailment). Elsewhere, the plaintiff was driving a locomotive with which he wasn't familiar. His hand tired at the brake and eventually his reach exceeded his grasp and he hit his hand on the brake causing swelling and pain - that was the second coin - his hand was tired from working the new instruments and consequently he hit it on an unyielding metal bar after overuse. He has thus duty/breach and cause/effect. Under his theory of FELA law no connection between the two is needed. Essentially the railroad has a duty of omniscience.
The Court could, of course, decide the case strictly on whether some connection, some nexus, between duty/breach and cause/effect is required under the FELA. It produces a nice binary result. Or it could delve deeper. It could as it did in Industrial Union Department, AFL-CIO v. American Petroleum Institute, et al recognize that we live in a world of inevitable risks. That "a man sits as many risks as he runs".
Were it to do so, were the Court to find that there exists a realm of de minimis risks far beyond the mark where injury would be expected, a realm in which Americans are free to act silly (in the eyes of some) as they want so long as they don't impose a significant risk on their fellow citizens, it would be utterly revolutionary.
