For Want Of A Nail? It's Worse Than That (If You're A Railroad Company)
The Supreme Court decided CSX v. McBride and here's our take. The majority held that whatever proximate cause might be it isn't a hurdle an FELA plaintiff must clear. Instead, without saying so, the court concluded that such a plaintiff has only the causation obstacle set out by the dissent in Palsgraf to deal with. Specifically, "but for", or counterfactual, causation plus the act of a not ordinarily prudent railroad company (requiring foreseeability of some, though not necessarily the, harm). A railroad company thus owes a duty not to the whole world but to its employees' whole future. Put another way, should a railroad do something "wrong" that produces not the harm the apprehension of which would have counseled a different course but which instead puts the employee in a place he otherwise wouldn't be so that he subsequently suffers a completely unforeseeable injury, the railroad is on the hook for the damages.
We are sad of course that the Court didn't take the opportunity to consider legal causation to be properly understood as "but for" causation plus risk. However, given the fact that the Court was interpreting a statute half a century old (one that Congress, by its steadfast refusal to change the Act's language regarding the causation standard, apparently doesn't consider to be the source of absurd or unjust results) the outcome isn't surprising. And it didn't help that the jury instruction on causation requested by CSX, "any cause which, in natural or probable sequence, produced the injury complained of", would shed no light on the distinction between pure "but for" causation and legal causation anyway. Most if not all proximate cause instructions indeed appear to be little more than, as one of our mock jurors muttered of the instruction, "typical lawyer BS".
Had Ms Palsgraf been an employee of the Long Island RR (and had the FELA's "played any part" causation standard been around) she would have prevailed. Bad news for the railroads but good news for anyone else not stuck with the FELA causation standard since whatever the court thinks proximate cause might be at least it's more than "played any part".
