In order to recover damages under the Federal Employers’ Liability Act, an employee of a railroad must show that the railroad operated in interstate commerce, that the plaintiff was injured in the scope of his or her duties, and that the injury resulted “in whole or in part” from the employer’s negligence. What this means, the U.S. Supreme Court has held, is that if the railroad is responsible for the injury even slightly, the railroad is entirely liable. As a result, evidence which purports to show joint tortfeasors which would routinely be introduced in other tort cases never comes in in railroad cases.
But can the railroad try to prove that a third party was solely responsible for the employee’s injury? Last month, the Illinois Supreme Court unanimously held in Wardwell v. Union Pacific Railroad Company that the answer is “yes.”
Plaintiff was riding in a van owned by his railroad employer and driven by an agent of the railroad. The van was rear-ended by a vehicle driven by a third party, and the plaintiff suffered disabling injuries. Plaintiff filed a FELA suit, alleging that his vehicle had negligently cut in front of the third party, causing the accident at least in part. At trial, the driver of the plaintiff’s vehicle testified that she activated her turn signal, checked her side mirror, and then made a lane change. The van was hit twenty seconds later. The third party driver testified at trial that she was intoxicated at the time of the collision, was arrested at the scene, and that she had not seen the van – she either “fell asleep or was blacked out” prior to the collision. Further evidence suggested that the third party was traveling ten to fifteen miles per hour over the speed limit.
The jury returned a verdict for the railroad. The plaintiff moved for a new trial, arguing that the defendant had been allowed to argue that the third party was the sole cause of the accident, and that the “sole cause defense” was not permitted in a FELA action. The trial court denied the motion, but the Appellate Court reversed.
The Supreme Court reversed the Appellate Court. The problem with the Appellate Court’s holding, the Court said, was that in order to determine whether the railroad was even to a smallest degree responsible for an accident, the jury would have to consider all the evidence – including the possibility that a third party was entirely responsible. Keeping the jury from considering the third party’s negligence would render the circumstances incomprehensible and all but eviscerate the FELA standard of liability. The Court noted that its holding was consistent with the holdings of several other courts, including the U.S. Supreme Court, that no recovery is possible under FELA where the plaintiff is completely responsible for his or her own injury.
Justice Kilbride filed a special concurrence, arguing that the standard federal instruction for causation under FELA, which emphasizes the scope of the potential liability of the defendant, should be given in Illinois.