The (Un)Foreseen Effects of Abrogating Proximate Causation in CSX Transportation, Inc. v. McBride: The New Role of Foreseeability under FELA and the Jones Act

INTRODUCTION Every year at law schools across the country, first-year law students grapple with the famous debate between Benjamin N. Cardozo and William S. Andrews contained in Palsgraf v. Long Island Railroad Co. (1) The case is especially useful pedagogically for articulating the foreseeability test in relation to the elements of duty, breach, and proximate causation. The facts of the case are worth recounting: Plaintiff [Palsgraf] was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. (2) Given the package's apparent innocuousness and Mrs. Palsgraf's relative distance from the departing train, Judge Cardozo found that the Long Island Railroad Company did not breach its duty of care with respect to Mrs. Palsgraf, (3) and therefore, he set aside the question of causation. (4) More simply put, Judge Cardozo found that Mrs. Palsgraf did not fall within the zone of danger that a reasonable person would have foreseen, so the railroad company owed her no duty as a matter of law. Judge Andrews took a different approach. Relying upon a far more expansive definition of duty, (5) Judge Andrews would have used foreseeability further down the line-up of tort elements, using proximate causation rather than duty as the gatekeeper of liability. (6) Judge Cardozo's insistence upon using foreseeability in a duty determination is significant: for Andrews, the case would have been for the jury, and not the judge, to decide. (7) In June 2011, the United States Supreme Court heard yet another railroad case, this time involving an employee-plaintiff suing under the Federal Employers' Liability Act ("FELA"), (8) the federal statute controlling negligence claims of railroad workers against their employers. In CSX Transportation, Inc. v. McBride, g Justice Ginsburg--writing for a 5-4 majority--held that FELA, as well as the Jones Act, (10) do "not incorporate 'proximate cause' standards developed in nonstatutory common-law tort actions." (11) While Justice Ginsburg and the majority abrogated proximate causation in the FELA context, they explicitly refused to reject the foreseeability test entirely. Rather, the majority--resembling Judge Cardozo's approach in Palsgraf--relied upon foreseeability to act as an arbiter of liability by acknowledging that "reasonable foreseeability of harm" is proper to the determination of negligence. (12) This Note discusses whether the McBride majority's insistence upon a foreseeability test at the duty and breach determinations offers as much defensive relief to the railroad industry as implied by the majority. In doing so, the Note proceeds in three parts: Part I offers an overview of FELA's text, legislative history, and policy justifications as well as landmark FELA cases culminating in the McBride litigation which forms the basis of this Note; Part II analyzes the central question of whether and how foreseeability functions as a defensive tactic for railroads at the duty and breach stages as well as whether and how foreseeability functions differently in duty and breach decisions as compared to proximate cause determinations; and Part III proposes model jury instructions that reflect a balanced reading of McBride alongside the backdrop of FELA's history and this Note's conclusions. …