NORFOLK SOUTHERN RAILWAY CO. v. SORRELL

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158 OCTOBER TERM, 2006
Syllabus
NORFOLK SOUTHERN RAILWAY CO. v. SORRELL
certiorari to the court of appeals of missouri
No. 05–746. Argued October 10, 2006—Decided January 10, 2007
Respondent Sorrell was injured while working for the petitioner railroad
(Norfolk), and sought damages for his injuries in Missouri state court
under the Federal Employers’ Liability Act (FELA), which makes a
railroad liable for an employee’s injuries “resulting in whole or in part
from [the railroad’s] negligence,” Section 1. FELA reduces any dam
ages awarded to an employee “in proportion to the amount [of negli
gence] attributable to” the employee, Section 3. Missouri’s jury in
structions apply different causation standards to railroad negligence and
employee contributory negligence in FELA actions. An employee will
be found contributorily negligent if his negligence “directly contributed
to cause” the injury, while railroad negligence is measured by whether
the railroad’s negligence “contributed in whole or in part” to the injury.
After the trial court overruled Norfolk’s objection that the instruction
on contributory negligence contained a different standard than the rail
road negligence instruction, the jury awarded Sorrell $1.5 million. The
Missouri Court of Appeals affirmed, rejecting Norfolk’s contention that
the same causation standard should apply to both parties’ negligence.
Held:
1. Norfolk’s attempt to expand the question presented to encompass
what the FELA causation standard should be, not simply whether the
standard should be the same for railroad negligence and employee con
tributory negligence, is rejected. This Court is typically reluctant to
permit parties to smuggle additional questions into a case after the
grant of certiorari. Although the Court could consider the question of
what standard applies as anterior to the question whether the standards
may differ, the substantive content of the causation standard is a sig
nificant enough issue that the Court prefers not to address it when it
has not been fully presented. Pp. 163–165.
2. The same causation standard applies to railroad negligence under
FELA Section 1 as to employee contributory negligence under Sec
tion 3. Absent express language to the contrary, the elements of a
FELA claim are determined by reference to the common law, Urie v.
Thompson, 337 U. S. 163, 182, and unless common-law principles are
expressly rejected in FELA’s text, they are entitled to great weight,
Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 544. The
prevailing common-law view at the time FELA was enacted was that

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Syllabus
the causation standards for negligence and contributory negligence
were the same, and FELA did not expressly depart from this approach.
This is strong evidence against Missouri’s practice of applying different
standards, which is apparently unique among the States. Departing
from the common-law practice would in any event have been a peculiar
approach for Congress to take in FELA: As a practical matter, it is
difficult to reduce damages “in proportion” to the employee’s negligence
if the relevance of each party’s negligence is measured by a different
causation standard. The Court thinks it far simpler for a jury to con
duct the apportionment FELA mandates if the jury compares like with
like. Contrary to Sorrell’s argument, the use of the language “in whole
or in part” with respect to railroad negligence in FELA Section 1, but
not with respect to employee contributory negligence in Section 3, does
not justify a departure from the common-law practice of applying a sin
gle causation standard. It would have made little sense to include the
“in whole or in part” language in Section 3; if the employee’s contribu
tory negligence contributed “in whole” to his injury, there would be no
recovery against the railroad in the first place. The language made
sense in Section 1, however, to clarify that there could be recovery
against the railroad even if it were only partially responsible for the
injury. In any event, there is no reason to read the statute as a whole
to encompass different causation standards, since Section 3 simply does
not address causation. Finally, FELA’s remedial purpose cannot com
pensate for the lack of statutory text: FELA does not abrogate the
common-law approach. A review of FELA model instructions indicates
that there are a variety of ways to instruct a jury to apply the same
causation standard to railroad negligence and employee contributory
negligence. Missouri has the same flexibility as other jurisdictions in
deciding how to do so, so long as it now joins them in applying a single
standard. On remand, the Missouri Court of Appeals should address
Sorrell’s argument that any error in the jury instructions was harmless,
and should determine whether a new trial is required. Pp. 165–172.
170 S. W. 3d 35, vacated and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined.
Souter, J., filed a concurring opinion, in which Scalia and Alito, JJ.,
joined, post, p. 172. Ginsburg, J., filed an opinion concurring in the judg
ment, post, p. 177.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were Stephen B. Kinnaird, Eric A. Shum
sky, Laura D. Hunt, James W. Erwin, and David Dick.

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160 NORFOLK SOUTHERN R. CO. v. SORRELL
Opinion of the Court
Mary L. Perry argued the cause for respondent. With
her on the brief were Jerome J. Schlichter, Roger C. Denton,
and Kathleen M. Sullivan.*
Chief Justice Roberts delivered the opinion of the
Court.
Timothy Sorrell, respondent in this Court, sustained neck
and back injuries while working as a trackman for petitioner
Norfolk Southern Railway Company. He filed suit in Mis
souri state court under the Federal Employers’ Liability Act
(FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51–60, which
makes railroads liable to their employees for injuries “result
ing in whole or in part from the negligence” of the railroad,
§ 51. Contributory negligence is not a bar to recovery under
FELA, but damages are reduced “in proportion to the
amount of negligence attributable to” the employee, § 53.
Sorrell was awarded $1.5 million in damages by a jury; Nor
folk objects that the jury instructions reflected a more
lenient causation standard for railroad negligence than for
employee contributory negligence. We conclude that the
causation standard under FELA should be the same for both
categories of negligence, and accordingly vacate the decision
below and remand for further proceedings.
I
On November 1, 1999, while working for Norfolk in Indi
ana, Sorrell was driving a dump truck loaded with asphalt to
be used to repair railroad crossings. While he was driving
between crossings on a gravel road alongside the tracks, an
other Norfolk truck approached, driven by fellow employee
Keith Woodin. The two men provided very different ac
counts of what happened next, but somehow Sorrell’s truck
*Daniel Saphire filed a brief for the Association of American Railroads
as amicus curiae urging reversal; Frank S. Ravitch and Brent O. Hatch
filed a brief for the American Train Dispatchers Association et al. as
amici curiae.

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veered off the road and tipped on its side, injuring him. Ac
cording to Sorrell’s testimony, Woodin forced Sorrell’s truck
off the road; according to Woodin, Sorrell drove his truck
into a ditch.
On June 18, 2002, Sorrell filed suit against Norfolk in Mis
souri state court under FELA, alleging that Norfolk failed
to provide him with a reasonably safe place to work and that
its negligence caused his injuries. Norfolk responded that
Sorrell’s own negligence caused the accident.
Missouri purports to apply different standards of causa
tion to railroad and employee contributory negligence in its
approved jury instructions for FELA liability. The in
structions direct a jury to find an employee contributorily
negligent if the employee was negligent and his negligence
“directly contributed to cause” the injury, Mo. Approved
Jury Instr., Civ., No. 32.07(B), p. 519 (6th ed. 2002), while
allowing a finding of railroad negligence if the railroad was
negligent and its negligence contributed “in whole or in
part” to the injury, id., No. 24.01.1
When Sorrell proposed the Missouri approved instruction
for employee contributory negligence, Norfolk objected on
the ground that it provided a “different” and “much more
exacting” standard for causation than that applicable with
respect to the railroad’s negligence under the Missouri in
structions. App. to Pet. for Cert. 28a–29a. The trial court
overruled the objection. App. 9–10. After the jury re
1 Missouri in the past directed a jury to find a railroad liable if the rail
road’s negligence “directly resulted in whole or in part in injury to plain
tiff.” Mo. Approved Jury Instr., Civ., No. 24.01 (1964). This language
persisted until 1978, when the instruction was modified to its present ver
sion. Ibid. (2d ed. 1969, Supp. 1980). The commentary explains that the
word “direct” was excised because, under FELA, “the traditional doctrine
of proximate (direct) cause is not applicable.” Id., No. 24.01, p. 187 (Com
mittee’s Comment (1978 new)). Cf. Leake v. Burlington Northern R. Co.,
892 S. W. 2d 359, 364–365 (Mo. App. 1995). The contributory negligence
instruction, on the other hand, has remained unchanged. Mo. Approved
Jury Instr., Civ., No. 32.07(B) (6th ed. 2002).

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turned a verdict in favor of Sorrell, Norfolk moved for a new
trial, repeating its contention that the different standards
were improper because FELA’s comparative fault system re
quires that the same causation standard apply to both cate
gories of negligence. Id., at 20. The trial court denied the
motion. The Missouri Court of Appeals affirmed, rejecting
Norfolk’s contention that “the causation standard should be
the same as to the plaintiff and the defendant.” App. to Pet.
for Cert. 7a, judgt. order reported at 170 S. W. 3d 35 (2005)
(per curiam). The court explained that Missouri procedural
rules require that where an approved instruction exists, it
must be given to the exclusion of other instructions. Ibid.;
see Mo. Rule Civ. Proc. 70.02(b) (2006).
After the Missouri Supreme Court denied discretionary
review, App. to Pet. for Cert. 31a, Norfolk sought certiorari
in this Court, asking whether the Missouri courts erred in
determining that “the causation standard for employee con
tributory negligence under [FELA] differs from the causa
tion standard for railroad negligence.” Pet. for Cert. i.
Norfolk stated that Missouri was the only jurisdiction to
apply different standards, and that this conflicted with sev
eral Federal Court of Appeals decisions insisting on a single
standard of causation for both railroad and employee negli
gence. See, e. g., Page v. St. Louis Southwestern R. Co., 349
F. 2d 820, 823 (CA5 1965) (“[T]he better rule is one of a single
standard”); Ganotis v. New York Central R. Co., 342 F. 2d
767, 768–769 (CA6 1965) (per curiam) (“We do not believe
that [FELA] intended to make a distinction between proxi
mate cause when considered in connection with the carrier’s
negligence and proximate cause when considered in connec
tion with the employee’s contributory negligence”). In re
sponse, Sorrell did not dispute that Missouri courts apply
“different causation standards . . . to plaintiff ’s and defend
ant’s negligence in FELA actions: The defendant is subject
to a more relaxed causation standard, but the plaintiff is sub

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ject only to the traditional common-law standard.” Brief in
Opposition 2. We granted certiorari. 547 U. S. 1127 (2006).
In briefing and argument before this Court, Norfolk has
attempted to expand the question presented to encompass
what the standard of causation under FELA should be, not
simply whether the standard should be the same for railroad
negligence and employee contributory negligence. In par
ticular, Norfolk contends that the proximate cause standard
reflected in the Missouri instruction for employee contribu
tory negligence should apply to the railroad’s negligence as
well.
Sorrell raises both a substantive and procedural objection
in response. Substantively, he argues that this Court de
parted from a proximate cause standard for railroad negli
gence under FELA in Rogers v. Missouri Pacific R. Co., 352
U. S. 500 (1957). There we stated:
“Under [FELA] the test of a jury case is simply
whether the proofs justify with reason the conclusion
that employer negligence played any part, even the
slightest, in producing the injury or death for which
damages are sought.
. . . . .
“[F]or practical purposes the inquiry in these cases
today rarely presents more than the single question
whether negligence of the employer played any part,
however small, in the injury or death which is the sub
ject of the suit.” Id., at 506, 508.
Sorrell argues that these passages from Rogers have been
interpreted to mean that a plaintiff ’s burden of proof on the
question whether the railroad’s negligence caused his injury
is less onerous than the proximate cause standard prevailing
at common law, citing cases such as Consolidated Rail Cor
poration v. Gottshall, 512 U. S. 532, 542–543 (1994); Holbrook
v. Norfolk Southern R. Co., 414 F. 3d 739, 741–742 (CA7
2005); Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F. 3d

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164 NORFOLK SOUTHERN R. CO. v. SORRELL
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432, 436 (CA4 1999); and Summers v. Missouri Pacific R.
Co., 132 F. 3d 599, 606–607 (CA10 1997).
Norfolk counters that Rogers did not alter the established
common-law rule of proximate cause, but rather simply re
jected a flawed and unduly stringent version of the rule, the
so-called “sole proximate cause” test. According to Norfolk,
while most courts of appeals may have read Rogers as Sor
rell does, several State Supreme Courts disagree, see, e. g.,
Chapman v. Union Pacific R. Co., 237 Neb. 617, 626–629,
467 N. W. 2d 388, 395–396 (1991); Marazzato v. Burlington
Northern R. Co., 249 Mont. 487, 490–491, 817 P. 2d 672, 674
(1991), and “there is a deep conflict of authority on precisely
that issue.” Reply Brief for Petitioner 20, n. 10.
Sorrell’s procedural objection is that we did not grant cer
tiorari to determine the proper standard of causation for rail
road negligence under FELA, but rather to decide whether
different standards for railroad and employee negligence
were permissible under the Act. What is more, Norfolk is
not only enlarging the question presented, but taking a posi
tion on that enlarged question that is contrary to the position
it litigated below. In the Missouri courts, Norfolk argued
that Missouri applies different standards, and that the less
rigorous standard applied to railroad negligence should also
apply to employee contributory negligence. Thus, Norfolk
did not object below on causation grounds to the railroad
liability instruction, but only to the employee contributory
negligence instruction. App. 9–10. Now Norfolk wants to
argue the opposite—that the disparity in the standards
should be resolved by applying the more rigorous contribu
tory negligence standard to the railroad’s negligence as well.
We agree with Sorrell that we should stick to the question
on which certiorari was sought and granted. We are typi
cally reluctant to permit parties to smuggle additional ques
tions into a case before us after the grant of certiorari. See
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips
Corp., 510 U. S. 27, 31–34 (1993) (per curiam). Although

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Norfolk is doubtless correct that we could consider the ques
tion of what standard applies as anterior to the question
whether the standards may differ, the issue of the substan
tive content of the causation standard is significant enough
that we prefer not to address it when it has not been fully
presented. We also agree with Sorrell that it would be un
fair at this point to allow Norfolk to switch gears and seek a
ruling from us that the standard should be proximate cause
across the board.
What Norfolk did argue throughout is that the instruc
tions, when given together, impermissibly created different
standards of causation. It chose to present in its petition
for certiorari the more limited question whether the courts
below erred in applying standards that differ. That is the
question on which we granted certiorari and the one we de
cide today.
II
In response to mounting concern about the number and
severity of railroad employees’ injuries, Congress in 1908
enacted FELA to provide a compensation scheme for rail
road workplace injuries, pre-empting state tort remedies.
Second Employers’ Liability Cases, 223 U. S. 1, 53–55 (1912).
Unlike a typical workers’ compensation scheme, which pro
vides relief without regard to fault, Section 1 of FELA pro
vides a statutory cause of action sounding in negligence:
“[E]very common carrier by railroad . . . shall be liable
in damages to any person suffering injury while he is
employed by such carrier . . . for such injury or death
resulting in whole or in part from the negligence of any
of the officers, agents, or employees of such carrier . . . .”
45 U. S. C. § 51.
FELA provides for concurrent jurisdiction of the state and
federal courts, § 56, although substantively FELA actions
are governed by federal law. Chesapeake & Ohio R. Co. v.
Stapleton, 279 U. S. 587, 590 (1929). Absent express lan

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166 NORFOLK SOUTHERN R. CO. v. SORRELL
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guage to the contrary, the elements of a FELA claim are
determined by reference to the common law. Urie v.
Thompson, 337 U. S. 163, 182 (1949). One notable deviation
from the common law is the abolition of the railroad’s
common-law defenses of assumption of the risk, § 54; Tiller
v. Atlantic Coast Line R. Co., 318 U. S. 54, 58 (1943), and, at
issue in this case, contributory negligence, § 53.
At common law, of course, a plaintiff ’s contributory negli
gence operated as an absolute bar to relief. W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Law of Torts § 65, pp. 461–462 (5th ed. 1984) (hereinafter
Prosser & Keeton); 1 D. Dobbs, Law of Torts § 199, p. 494
(2001) (hereinafter Dobbs). Under Section 3 of FELA, how
ever, an employee’s negligence does not bar relief but instead
diminishes recovery in proportion to his fault:
“In all actions [under FELA], the fact that the em
ployee may have been guilty of contributory negligence
shall not bar a recovery, but the damages shall be dimin
ished by the jury in proportion to the amount of negli
gence attributable to such employee . . . .” 45 U. S. C.
§ 53.
Both parties agree that at common law the causation
standards for negligence and contributory negligence were
the same. Brief for Respondent 40–41; Tr. of Oral Arg. 46–
48. As explained in the Second Restatement of Torts:
“The rules which determine the causal relation between
the plaintiff ’s negligent conduct and the harm resulting
to him are the same as those determining the causal
relation between the defendant’s negligent conduct and
resulting harm to others.” § 465(2), p. 510 (1964).
See also Prosser & Keeton § 65, at 456; Dobbs § 199, at 497
(“The same rules of proximate cause that apply on the issue
of negligence also apply on the issue of contributory negli
gence” (footnote omitted)). This was the prevailing view
when FELA was enacted in 1908. See 1 T. Shearman & A.

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Redfield, Law of Negligence § 94, pp. 143–144 (5th ed. 1898)
(“The plaintiff ’s fault . . . must be a proximate cause, in the
same sense in which the defendant’s negligence must have
been a proximate cause in order to give any right of action”).
Missouri’s practice of applying different causation stand
ards in FELA actions is apparently unique. Norfolk claims
that Missouri is the only jurisdiction to allow such a dispar
ity, and Sorrell has not identified another.2 It is of course
2 A review of model and pattern jury instructions in FELA actions re
veals a variety of approaches. Some jurisdictions recommend using the
“in whole or in part” or “in any part” formulation for both railroad negli
gence and plaintiff contributory negligence, by using the same language
in the respective pattern instructions, including a third instruction that
the same causation standard is applied to both parties, or including in
commentary an admonition to that effect. See, e. g., 5 L. Sand, J. Siffert,
W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instr.—Civil
¶¶ 89.02–89.03, pp. 89–7, 89–44, 89–53 (3d ed. 2006); 4 Fla. Forms of Jury
Instr. §§ 161.02, 161.47, 161.60 (2006); Cal. Jury Instr., Civ., Nos. 11.07,
11.14, and Comment (2005); 3 Ill. Forms of Jury Instr. §§ 91.02[1], 91.50[1]
(2005); 3 N. M. Rules Ann., Uniform Jury Instr., Civ., Nos. 13–905, 13–909,
13–915 (2004); Model Utah Jury Instr., Civ., Nos. 14.4, 14.7, 14.8 (1993);
Manual of Model Civil Jury Instr. for the District Courts of the Eighth
Circuit § 7.03, and n. 7 (2005); Eleventh Circuit Pattern Jury Instr. (Civil
Cases) § 7.1 (2005). Other jurisdictions use the statutory formulation (“in
whole or in part”) for railroad negligence, and do not contain a pattern
instruction for contributory negligence. See, e. g., Mich. Non-Standard
Jury Instr., Civ., § 12:53 (Supp. 2006 ). Both Alabama and Virginia use
formulations containing language of both proximate cause and in whole or
in part. 1 Ala. Pattern Jury Instr., Civ., Nos. 17.01, 17.05 (2d ed. 1993)
(railroad negligence “proximately caused, in whole or in part”; plaintiff
contributory negligence “proximately contributed to cause”); 1 Va. Jury
Instr. §§ 40.01, 40.02 (3d ed. 1998) (railroad negligence “in whole or in part
was the proximate cause of or proximately contributed to cause”; plaintiff
negligence “contributed to cause”). In New York, the pattern instruc
tions provide that railroad causation is measured by whether the injury
results “in whole or in part” from the railroad’s negligence, and a plaintiff ’s
contributory negligence diminishes recovery if it “contributed to caus[e]”
the injury. 1B N. Y. Pattern Jury Instr., Civ., No. 2:180 (3d ed. 2006).
Montana provides only a general FELA causation instruction. Mont.
Pattern Instr., Civ., No. 6.05 (1997) (“[A]n act or a failure to act is the

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possible that everyone is out of step except Missouri, but we
find no basis for concluding that Congress in FELA meant
to allow disparate causation standards.
We have explained that “although common-law principles
are not necessarily dispositive of questions arising under
FELA, unless they are expressly rejected in the text of the
statute, they are entitled to great weight in our analysis.”
Gottshall, 512 U. S., at 544. In Gottshall we “cataloged” the
ways in which FELA expressly departed from the common
law: It abolished the fellow servant rule, rejected contribu
tory negligence in favor of comparative negligence, prohib
ited employers from contracting around the Act, and abol
ished the assumption of risk defense. Norfolk & Western
R. Co. v. Ayers, 538 U. S. 135, 145 (2003); Gottshall, supra, at
542–543. The fact that the common law applied the same
causation standard to defendant and plaintiff negligence, and
FELA did not expressly depart from that approach, is strong
evidence against Missouri’s disparate standards. See also
Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 337–
338 (1988) (holding that, because FELA abrogated some
common-law rules explicitly but did not address “the equally
well-established doctrine barring the recovery of prejudg
ment interest, . . . we are unpersuaded that Congress in
tended to abrogate that doctrine sub silentio”).
Departing from the common-law practice of applying a sin
gle standard of causation for negligence and contributory
cause of an injury if it plays a part, no matter how small, in bringing about
the injury”). Kansas has codified instructions similar to Missouri’s, Kan.
Pattern Instr. 3d, Civ., No. 132.01 (2005) (railroad liable when injury “re
sults in whole or in part” from railroad’s negligence); id., No. 132.20 (con
tributory negligence is negligence on the part of the plaintiff that “contrib
utes as a direct cause” of the injury), but the commentary to these
instructions cites cases and instructions applying a single standard, id.,
No. 132.01, and Comment, and in practice the Kansas courts have used the
language of in whole or in part for both parties’ negligence, see Merando
v. Atchison, T. & S. F. R. Co., 232 Kan. 404, 406–409, 656 P. 2d 154, 157–
158 (1982).

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negligence would have been a peculiar approach for Con
gress to take in FELA. As one court explained, under
FELA,
“[a]s to both attack or defense, there are two common
elements, (1) negligence, i. e., the standard of care, and
(2) causation, i. e., the relation of the negligence to the
injury. So far as negligence is concerned, that standard
is the same—ordinary prudence—for both Employee
and Railroad alike. Unless a contrary result is impera
tive, it is, at best, unfortunate if two standards of causa
tion are used.” Page, 349 F. 2d, at 823.
As a practical matter, it is difficult to reduce damages “in
proportion” to the employee’s negligence if the relevance of
each party’s negligence to the injury is measured by a differ
ent standard of causation. Norfolk argues, persuasively we
think, that it is far simpler for a jury to conduct the appor
tionment FELA mandates if the jury compares like with
like—apples to apples.
Other courts to address this question concur. See Fash
auer v. New Jersey Transit Rail Operations, Inc., 57
F. 3d 1269, 1282–1283 (CA3 1995); Caplinger v. Northern Pa
cific Terminal, 244 Ore. 289, 290–292, 418 P. 2d 34, 35–36
(1966); Page, supra, at 822–823; Ganotis, 342 F. 2d, at
768–769.3 The most thoughtful treatment comes in Page, in
which the Fifth Circuit stated: “[W]e think that from the
3 See also Bunting v. Sun Co., Inc., 434 Pa. Super. 404, 409–411, 643
A. 2d 1085, 1088 (1994); Hickox v. Seaboard System R. Co., 183 Ga. App.
330, 331–332, 358 S. E. 2d 889, 891–892 (1987). An exception is a Texas
case that no court has since cited for the proposition, Missouri-Kansas-
Texas R. Co. v. Shelton, 383 S. W. 2d 842, 844–846 (Civ. App. 1964), and
that the Texas model jury instructions, which instruct the jury to deter
mine plaintiff or railroad negligence using a single “in whole or in part”
causation standard, at least implicitly disavow. See 10 West’s Texas
Forms: Civil Trial and Appellate Practice § 23.34, p. 27 (3d ed. 2000) (“Did
the negligence, if any, of the [plaintiff or railroad] cause, in whole or in
part, the occurrence in question?”).

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very nature of comparative negligence, the standard of cau
sation should be single. . . . Use of the terms ‘in proportion
to’ and ‘negligence attributable to’ the injured worker ines
capably calls for a comparison. . . . [I]t is obvious that for a
system of comparative fault to work, the basis of comparison
has to be the same.” 349 F. 2d, at 824. See also Restate
ment (Third) of Torts: Apportionment of Liability § 3, Re
porters’ Note, p. 37, Comment a (1999) (“[C]omparative re
sponsibility is difficult to administer when different rules
govern different parts of the same lawsuit”). We appreciate
that there may well be reason to “doubt that such casuistries
have any practical significance [for] the jury,” Page, supra,
at 823, but it seems to us that Missouri’s idiosyncratic ap
proach of applying different standards of causation unduly
muddies what may, to a jury, be already murky waters.
Sorrell argues that FELA does contain an explicit statu
tory alteration from the common-law rule: Section 1 of
FELA—addressing railroad negligence—uses the language
“in whole or in part,” 45 U. S. C. § 51, while Section 3—cover
ing employee contributory negligence—does not, § 53. This,
Sorrell contends, evinces an intent to depart from the
common-law causation standard with respect to railroad neg
ligence under Section 1, but not with respect to any em
ployee contributory negligence under Section 3.
The inclusion of this language in one section and not the
other does not alone justify a departure from the common
law practice of applying a single standard of causation. It
would have made little sense to include the “in whole or in
part” language in Section 3, because if the employee’s con
tributory negligence contributed “in whole” to his injury,
there would be no recovery against the railroad in the first
place. The language made sense in Section 1, however, to
make clear that there could be recovery against the railroad
even if it were only partially negligent.
Even if the language in Section 1 is understood to address
the standard of causation, and not simply to reflect the fact

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171 Cite as: 549 U. S. 158 (2007)
Opinion of the Court
that contributory negligence is no longer a complete bar to
recovery, there is no reason to read the statute as a whole to
encompass different causation standards. Section 3 simply
does not address causation. On the question whether a dif
ferent standard of causation applies as between the two par
ties, the statutory text is silent.
Finally, in urging that a higher standard of causation for
plaintiff contributory negligence is acceptable, Sorrell in
vokes FELA’s remedial purpose and our history of liberal
construction. We are not persuaded. FELA was indeed
enacted to benefit railroad employees, as the express abroga
tion of such common-law defenses as assumption of risk, the
contributory negligence bar, and the fellow servant rule
make clear. See Ayers, 538 U. S., at 145. It does not follow,
however, that this remedial purpose requires us to interpret
every uncertainty in the Act in favor of employees. See
Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per
curiam) (“[I]t frustrates rather than effectuates legislative
intent simplistically to assume that whatever furthers the
statute’s primary objective must be the law”). FELA’s text
does not support the proposition that Congress meant to
take the unusual step of applying different causation stand
ards in a comparative negligence regime, and the statute’s
remedial purpose cannot compensate for the lack of a statu
tory basis.
We conclude that FELA does not abrogate the common
law approach, and that the same standard of causation ap
plies to railroad negligence under Section 1 as to plaintiff
contributory negligence under Section 3. Sorrell does not
dispute that Missouri applies different standards, see Brief
for Respondent 40–41; see also Mo. Approved Jury Instr.,
Civ., No. 24.01, Committee’s Comment (1978 new), and ac
cordingly we vacate the judgment below and remand the
case for further proceedings.
The question presented in this case is a narrow one, and
we see no need to do more than answer that question in

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172 NORFOLK SOUTHERN R. CO. v. SORRELL
Souter, J., concurring
today’s decision. As a review of FELA model instructions
indicates, n. 2, supra, there are a variety of ways to instruct
a jury to apply the same causation standard to railroad negli
gence and employee contributory negligence. Missouri has
the same flexibility as the other States in deciding how to do
so, so long as it now joins them in applying a single standard.
Sorrell maintains that even if the instructions improperly
contained different causation standards we should nonethe
less affirm because any error was harmless. He argues that
the evidence of his negligence presented at trial, if credited
by the jury, could only have been a “direct” cause, so that
even with revised instructions the result would not change.
This argument is better addressed by the Missouri Court of
Appeals, and we leave it to that court on remand to deter
mine whether a new trial is required in this case.
The judgment of the Missouri Court of Appeals is vacated,
and the case is remanded for further proceedings not incon
sistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Scalia and Jus
tice Alito join, concurring.
I agree that the same standard of causal connection con
trols the recognition of both a defendant-employer’s negli
gence and a plaintiff-employee’s contributory negligence in
Federal Employers’ Liability Act (FELA) suits, and I share
the Court’s caution in remanding for the Missouri Court of
Appeals to determine in the first instance just what that
common causal relationship must be, if it should turn out
that the difference in possible standards would affect judg
ment on the verdict in this case. The litigation in the Mis
souri courts did not focus on the issue of what the shared
standard should be, and the submissions in this Court did
not explore the matter comprehensively.
The briefs and arguments here did, however, adequately
address the case of ours with which exploration will begin,

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Souter, J., concurring
and I think it is fair to say a word about the holding in
Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). De
spite some courts’ views to the contrary,* Rogers did not
address, much less alter, existing law governing the degree
of causation necessary for redressing negligence as the cause
of negligently inflicted harm; the case merely instructed
courts how to proceed when there are multiple cognizable
causes of an injury.
Prior to FELA, it was clear common law that a plaintiff
had to prove that a defendant’s negligence caused his injury
proximately, not indirectly or remotely. See, e. g., 3 J. Law
son, Rights, Remedies, and Practice 1740 (1890) (“Natural,
*Recently, some courts have taken the view that Rogers smuggled prox
imate cause out of the concept of defendant liability under FELA. See,
e. g., Holbrook v. Norfolk Southern R. Co., 414 F. 3d 739, 741–742 (CA7
2005) (concluding that “a plaintiff ’s burden when suing under the FELA
is significantly lighter than in an ordinary negligence case” because
“a railroad will be held liable where ‘employer negligence played any part,
even the slightest, in producing the injury’ ” (quoting Rogers, 352 U. S., at
506)); Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606–607 (CA10
1997) (holding that, in Rogers, the Supreme Court “definitively aban
doned” the requirement of proximate cause in FELA suits); Oglesby v.
Southern Pacific Transp. Co., 6 F. 3d 603, 606–609 (CA9 1993) (same).
But several State Supreme Courts have explicitly or implicitly espoused
the opposite view. See Marazzato v. Burlington No. R. Co., 249 Mont.
487, 490–491, 817 P. 2d 672, 674–675 (1991) (Rogers addressed multiple
causation only, leaving FELA plaintiffs with “the burden of proving that
defendant’s negligence was the proximate cause in whole or in part of
plaintiff ’s [death]” (alteration in original)); see also Gardner v. CSX
Transp., Inc., 201 W. Va. 490, 500, 498 S. E. 2d 473, 483 (1997) (“[T]o prevail
on a claim under [FELA], a plaintiff employee must establish that the
defendant employer acted negligently and that such negligence contrib
uted proximately, in whole or in part, to plaintiff ’s injury”); Snipes v.
Chicago Central & Pacific R. Co., 484 N. W. 2d 162, 164 (Iowa 1992) (“Re
covery under the FELA requires an injured employee to prove that the
defendant employer was negligent and that the negligence proximately
caused, in whole or in part, the accident”); Chapman v. Union Pacific
R. Co., 237 Neb. 617, 627, 467 N. W. 2d 388, 395 (1991) (“To recover under
[FELA], an employee must prove the employer’s negligence and that the
alleged negligence is a proximate cause of the employee’s injury”).

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174 NORFOLK SOUTHERN R. CO. v. SORRELL
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proximate, and legal results are all that damages can be re
covered for, even under a statute entitling one ‘to recover
any damage’ ”); T. Cooley, Law of Torts 73 (2d ed. 1888)
(same). Defendants were held to the same standard: under
the law of that day, a plaintiff ’s contributory negligence was
an absolute bar to his recovery if, but only if, it was a proxi
mate cause of his harm. See Grand Trunk R. Co. v. Ives,
144 U. S. 408, 429 (1892).
FELA changed some rules but, as we have said more than
once, when Congress abrogated common law rules in FELA,
it did so expressly. Norfolk & Western R. Co. v. Ayers, 538
U. S. 135, 145 (2003); Consolidated Rail Corporation v.
Gottshall, 512 U. S. 532, 544 (1994); see also Second Employ
ers’ Liability Cases, 223 U. S. 1, 49–50 (1912) (cataloguing
FELA’s departures from the common law). Among FELA’s
explicit common law targets, the rule of contributory negli
gence as a categorical bar to a plaintiff ’s recovery was
dropped and replaced with a comparative negligence regime.
45 U. S. C. § 53; see Grand Trunk Western R. Co. v. Lindsay,
233 U. S. 42, 49 (1914). FELA said nothing, however, about
the familiar proximate-cause standard for claims either of
a defendant-employer’s negligence or a plaintiff-employee’s
contributory negligence, and throughout the half-century be
tween FELA’s enactment and the decision in Rogers, we con
sistently recognized and applied proximate cause as the
proper standard in FELA suits. See, e. g., Tennant v.
Peoria & Pekin Union R. Co., 321 U. S. 29, 32 (1944) (FELA
plaintiff must prove that “negligence was the proximate
cause in whole or in part” of his injury); see also Urie v.
Thompson, 337 U. S. 163, 195 (1949) (recognizing proxi
mate cause as the appropriate standard in FELA suits);
St. Louis-San Francisco R. Co. v. Mills, 271 U. S. 344 (1926)
( judgment as a matter of law owing to FELA plaintiff ’s fail
ure to prove proximate cause).
Rogers left this law where it was. We granted certiorari
in Rogers to establish the test for submitting a case to a jury

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175 Cite as: 549 U. S. 158 (2007)
Souter, J., concurring
when the evidence would permit a finding that an injury had
multiple causes. 352 U. S., at 501, 506. We rejected Mis
souri’s “language of proximate causation which ma[de] a jury
question [about a defendant’s liability] dependent upon
whether the jury may find that the defendant’s negligence
was the sole, efficient, producing cause of injury.” Id., at
506. The notion that proximate cause must be exclusive
proximate cause undermined Congress’s chosen scheme of
comparative negligence by effectively reviving the old rule
of contributory negligence as barring any relief, and we held
that a FELA plaintiff may recover even when the defend
ant’s action was a partial cause of injury but not the sole one.
Recovery under the statute is possible, we said, even when
an employer’s contribution to injury was slight in relation to
all other legally cognizable causes.
True, I would have to stipulate that clarity was not well
served by the statement in Rogers that a case must go to a
jury where “the proofs justify with reason the conclusion
that employer negligence played any part, even the slightest,
in producing the injury or death for which damages are
sought.” Ibid. But that statement did not address and
should not be read as affecting the necessary directness of
cognizable causation, as distinct from the occasional multi
plicity of causations. It spoke to apportioning liability
among parties, each of whom was understood to have had
some hand in causing damage directly enough to be what the
law traditionally called a proximate cause.
The absence of any intent to water down the common law
requirement of proximate cause is evident from the prior
cases on which Rogers relied. To begin with, the “any part,
even the slightest,” excerpt of the opinion (cited by respond
ent in arguing that Rogers created a more “relaxed” stand
ard of causation than proximate cause) itself cited Coray v.
Southern Pacific Co., 335 U. S. 520 (1949). See Rogers,
supra, at 506, n. 11. There, just eight years before Rogers,
Justice Black unambiguously recognized proximate cause as

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176 NORFOLK SOUTHERN R. CO. v. SORRELL
Souter, J., concurring
the standard applicable in FELA suits. 335 U. S., at 523
(“[P]etitioner was entitled to recover if this defective equip
ment was the sole or a contributory proximate cause of the
decedent employee’s death”). Second, the Rogers Court’s
discussion of causation under “safety-appliance statutes”
contained a cross-reference to Coray and a citation to Carter
v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430 (1949), a
case which likewise held there was liability only if “the jury
determines that the defendant’s breach is a ‘contributory
proximate cause’ of injury,” id., at 435. Rogers, supra, at
507, n. 13.
If more were needed to confirm the limited scope of what
Rogers held, the Court’s quotation of the Missouri trial
court’s jury charge in that case would supply it, for the in
structions covered the requirement to show proximate cause
connecting negligence and harm, a point free of controversy:
“ ‘[I]f you further find that the plaintiff . . . did not exer
cise ordinary care for his own safety and was guilty of
negligence and that such negligence, if any[,] was the
sole proximate cause of his injuries, if any, and that such
alleged injuries, if any, were not directly contributed to
or caused by any negligence of the defendant . . . then,
in that event, the plaintiff is not entitled to recover
against the defendant, and you will find your verdict in
favor of the defendant.’ ” 352 U. S., at 505, n. 9.
Thus, the trial judge spoke of “proximate cause” by plain
tiff ’s own negligence, and for defendant’s negligence used the
familiar term of art for proximate cause, in referring to a
showing that the defendant “directly contributed to or
caused” the plaintiff ’s injuries. We took no issue with the
trial court’s instruction in this respect, but addressed the
significance of multiple causations, as explained above.
Whether FELA is properly read today as requiring proof
of proximate causation before recognizing negligence is up
to the Missouri Court of Appeals to determine in the first

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177 Cite as: 549 U. S. 158 (2007)
Ginsburg, J., concurring in judgment
instance, if necessary for the resolution of this case on re
mand. If the state court decides to take on that issue, it
will necessarily deal with Rogers, which in my judgment is
no authority for anything less than proximate causation in
an action under FELA. The state court may likewise need
to address post-Rogers cases (including some of our own); I
do not mean to suggest any view of them except for the mis
reading of Rogers expressed here and there.
Justice Ginsburg, concurring in the judgment.
The Court today holds simply and only that in cases under
the Federal Employers’ Liability Act (FELA), railroad negli
gence and employee contributory negligence are governed
by the same causation standard. I concur in that judgment.
It should be recalled, however, that the Court has several
times stated what a plaintiff must prove to warrant submis
sion of a FELA case to a jury. That question is long settled,
we have no cause to reexamine it, and I do not read the
Court’s decision to cast a shadow of doubt on the matter.
In Consolidated Rail Corporation v. Gottshall, 512 U. S.
532, 543 (1994), we acknowledged that “a relaxed standard of
causation applies under FELA.” Decades earlier, in Crane
v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164 (1969), we
said that a FELA plaintiff need prove “only that his injury
resulted in whole or in part from the railroad’s violation.”
Id., at 166 (internal quotation marks omitted). Both deci
sions referred to the Court’s oft-cited opinion in Rogers v.
Missouri Pacific R. Co., 352 U. S. 500 (1957), which declared:
“Under [FELA] the test of a jury case is simply whether
the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing
the injury or death for which damages are sought.” Id., at
506 (emphasis added). Rogers, in turn, drew upon Coray v.
Southern Pacific Co., 335 U. S. 520, 524 (1949), in which the
Court observed: “Congress . . . imposed extraordinary safety
obligations upon railroads and has commanded that if a

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178 NORFOLK SOUTHERN R. CO. v. SORRELL
Ginsburg, J., concurring in judgment
breach of these obligations contributes in part to an employ
ee’s death, the railroad must pay damages.”
These decisions answer the question Norfolk sought to
“smuggle . . . into” this case, see ante, at 164 (majority opin
ion), i. e., what is the proper standard of causation for rail
road negligence under FELA. Today’s opinion leaves in
place precedent solidly establishing that the causation stand
ard in FELA actions is more “relaxed” than in tort litiga
tion generally.
A few further points bear emphasis. First, it is some
times said that Rogers eliminated proximate cause in FELA
actions. See, e. g., Crane, 395 U. S., at 166 (A FELA plain
tiff “is not required to prove common-law proximate causa
tion.”); Summers v. Missouri Pacific R. Co., 132 F. 3d 599,
606 (CA10 1997) (“During the first half of this century, it was
customary for courts to analyze liability under . . . FELA
in terms of proximate causation. However, the Supreme
Court definitively abandoned this approach in Rogers.” (cita
tion omitted)); Oglesby v. Southern Pacific Transp. Co., 6
F. 3d 603, 609 (CA9 1993) (“[Our] holding is consistent with
the case law of several other circuits which have found [that]
‘proximate cause’ is not required to establish causation under
the FELA.”). It would be more accurate, as I see it, to
recognize that Rogers describes the test for proximate causa
tion applicable in FELA suits. That test is whether “em
ployer negligence played any part, even the slightest, in pro
ducing the injury or death for which damages are sought.”
352 U. S., at 506.
Whether a defendant’s negligence is a proximate cause of
the plaintiff ’s injury entails a judgment, at least in part pol
icy based, as to how far down the chain of consequences a
defendant should be held responsible for its wrongdoing.
See Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162
N. E. 99, 103 (1928) (Andrews, J., dissenting) (“What we do
mean by the word ‘proximate’ is, that because of conven
ience, of public policy, of a rough sense of justice, the law

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179 Cite as: 549 U. S. 158 (2007)
Ginsburg, J., concurring in judgment
arbitrarily declines to trace a series of events beyond a cer
tain point.”). In FELA cases, strong policy considerations
inform the causation calculus.
FELA was prompted by concerns about the welfare of
railroad workers. “Cognizant of the physical dangers of
railroading that resulted in the death or maiming of thou
sands of workers every year,” and dissatisfied with the tort
remedies available under state common law, “Congress
crafted a federal remedy that shifted part of the human
overhead of doing business from employees to their employ
ers.” Gottshall, 512 U. S., at 542 (internal quotation marks
omitted); see also Wilkerson v. McCarthy, 336 U. S. 53, 68
(1949) (Douglas, J., concurring) (FELA “was designed to put
on the railroad industry some of the cost for the legs, eyes,
arms, and lives which it consumed in its operations.”). “We
have liberally construed FELA to further Congress’ reme
dial goal.” Gottshall, 512 U. S., at 543. With the motiva
tion for FELA center stage in Rogers, we held that a FELA
plaintiff can get to a jury if he can show that his employer’s
negligence was even the slightest cause of his injury.
The “slightest” cause sounds far less exacting than “proxi
mate” cause, which may account for the statements in judi
cial opinions that Rogers dispensed with proximate cause for
FELA actions. These statements seem to me reflective of
pervasive confusion engendered by the term “proximate
cause.” As Prosser and Keeton explains:
“The word ‘proximate’ is a legacy of Lord Chancellor
Bacon, who in his time committed other sins. The word
means nothing more than near or immediate; and when
it was first taken up by the courts it had connotations
of proximity in time and space which have long since
disappeared. It is an unfortunate word, which places
an entirely wrong emphasis upon the factor of physical
or mechanical closeness. For this reason ‘legal cause’
or perhaps even ‘responsible cause’ would be a more ap
propriate term.” W. Keeton, D. Dobbs, R. Keeton, & D.

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180 NORFOLK SOUTHERN R. CO. v. SORRELL
Ginsburg, J., concurring in judgment
Owen, Prosser and Keeton on Law of Torts § 42, p. 273
(5th ed. 1984) (footnotes omitted).
If we take up Prosser and Keeton’s suggestion to substitute
“legal cause” for “proximate cause,” we can state more
clearly what Rogers held: Whenever a railroad’s negligence
is the slightest cause of the plaintiff ’s injury, it is a legal
cause, for which the railroad is properly held responsible.1
If the term “proximate cause” is confounding to jurists, it
is even more bewildering to jurors. Nothing in today’s opin
ion should encourage courts to use “proximate cause,” or any
term like it, in jury instructions. “[L]egal concepts such as
‘proximate cause’ and ‘foreseeability’ are best left to argu
ments between attorneys for consideration by judges or jus
tices; they are not terms which are properly submitted to a
lay jury, and when submitted can only serve to confuse jurors
and distract them from deciding cases based on their merits.”
Busta v. Columbus Hospital Corp., 276 Mont. 342, 371, 916
P. 2d 122, 139 (1996). Accord Mitchell v. Gonzales, 54 Cal.
3d 1041, 1050, 819 P. 2d 872, 877 (1991) (“It is reasonably
likely that when jurors hear the term ‘proximate cause’ they
may misunderstand its meaning.”).2
Sound jury instructions in FELA cases would resemble
the model federal charges cited in the Court’s opinion.
Ante, at 167–168, n. 2. As to railroad negligence, the rele
vant instruction tells the jury:
1 I do not read Justice Souter’s concurring opinion as taking a position
on the appropriate causation standard as expressed in Consolidated Rail
Corporation v. Gottshall, 512 U. S. 532 (1994), and Crane v. Cedar
Rapids & Iowa City R. Co., 395 U. S. 164 (1969). See supra, at 177–178.
2 See also Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liabil
ity for Consequences, 54 Vand. L. Rev. 941, 987 (2001) (“[T]he inadequacy
and vagueness of jury instructions on ‘proximate cause’ is notorious.”);
Cork, A Better Orientation for Jury Instructions, 54 Mercer L. Rev. 1,
53–54 (2002) (criticizing Georgia’s jury instruction on proximate cause as
incomprehensible); Steele & Thornburg, Jury Instructions: A Persistent
Failure to Communicate, 67 N. C. L. Rev. 77 (1988) (demonstrating juror
confusion about proximate-cause instructions).

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181 Cite as: 549 U. S. 158 (2007)
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“The fourth element [of a FELA action] is whether an
injury to the plaintiff resulted in whole or in part from
the negligence of the railroad or its employees or agents.
In other words, did such negligence play any part, even
the slightest, in bringing about an injury to the plain
tiff?” 5 L. Sand, J. Siffert, W. Loughlin, S. Reiss, &
N. Batterman, Modern Federal Jury Instructions—Civil
¶ 89.02, p. 89–44 (3d ed. 2006).
Regarding contributory negligence, the relevant instruction
reads:
“To determine whether the plaintiff was ‘contributor
ily negligent,’ you . . . apply the same rule of causa
tion, that is, did the plaintiff ’s negligence, if any, play
any part in bringing about his injuries.” Id., ¶ 89.03,
p. 89–53.
Both instructions direct jurors in plain terms that they can
be expected to understand.
Finally, as the Court notes, ante, at 172, on remand, the
Missouri Court of Appeals will determine whether a new
trial is required in this case, owing to the failure of the trial
judge properly to align the charges on negligence and con
tributory negligence. The trial court instructed the jury to
find Norfolk liable if the railroad’s negligence “resulted in
whole or in part in injury to plaintiff.” App. 14. In con
trast, the court told the jury to find Sorrell contributorily
negligent only if he engaged in negligent conduct that “di
rectly contributed to cause his injury.” Id., at 15 (emphasis
added). At trial, Norfolk sought a different contributory
negligence instruction. Its proposed charge would have in
formed the jury that Sorrell could be held responsible, at
least in part, if his own negligence “contributed in whole or
in part to cause his injury.” Id., at 11.
Norfolk’s proposal was superior to the contributory negli
gence instruction in fact delivered by the trial court, for the

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182 NORFOLK SOUTHERN R. CO. v. SORRELL
Ginsburg, J., concurring in judgment
railroad’s phrasing did not use the word “directly.” 3 As Sor
rell points out, however, the instructional error was almost
certainly harmless. Norfolk alleged that Sorrell drove his
truck negligently, causing it to flip on its side. Under the
facts of this case, it is difficult to imagine that a jury could
find Sorrell negligent in a manner that contributed to his
injury, but only indirectly.
Norfolk urged in this Court, belatedly and unsuccessfully,
that the charge on negligence was erroneous and should have
been revised to conform to the charge in fact delivered on
contributory negligence. See ante, at 163. That argument
cannot be reconciled with our precedent. See supra, at 177–
178. Even if it could, it would be unavailing in the circum
stances here presented. Again, there is little likelihood that
a jury could find that Norfolk’s negligence contributed to
Sorrell’s injury, but only indirectly.
* * *
With the above-described qualifications, I concur in the
Court’s judgment.
3 Norfolk’s proposed instruction was, nevertheless, imperfect. As the
Court notes, if the employee’s negligence “contributed ‘in whole’ to his
injury, there would be no recovery against the railroad in the first place.”
Ante, at 170.