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                                     Supreme Court                              Date: 2018.01.16
                                                                                12:09:14 -06'00'




                     Wardwell v. Union Pacific R.R. Co., 2017 IL 120438




Caption in Supreme      CHRISTOPHER WARDWELL, Appellee, v. UNION PACIFIC
Court:                  RAILROAD COMPANY, Appellant.



Docket No.              120438



Filed                   February 17, 2017



Decision Under          Appeal from the Appellate Court for the Fifth District; heard in that
Review                  court on appeal from the Circuit Court of St. Clair County, the Hon.
                        Vincent J. Lopinot, Judge, presiding.



Judgment                Appellate court judgment reversed.
                        Circuit court judgment affirmed.


Counsel on              Thompson Coburn LLP, of Chicago (Thomas E. Jones and Crystal M.
Appeal                  Campbell, of counsel), for appellant.

                        Mark P. Dupont, of Bigfork, Montana, for appellee.

                        Robert E. Harrington III, of Harrington, Thompson, Acker &
                        Harrington, Ltd., of Chicago, for amicus curiae Illinois Trial Lawyers
                        Association.
     Justices                  JUSTICE BURKE delivered the judgment of the court, with opinion.
                               Chief Justice Karmeier and Justices Freeman, Thomas, Garman, and
                               Theis concurred in the judgment and opinion.
                               Justice Kilbride specially concurred, with opinion.

                                                 OPINION

¶1         At issue in this appeal is whether, in an action brought under the Federal Employers’
       Liability Act (45 U.S.C. § 51 et seq. (2006)), a defendant railroad may argue to the jury that a
       third party was the only person whose negligent conduct caused the plaintiff’s injuries. For the
       reasons that follow, we hold that it may.

¶2                                           BACKGROUND
¶3         In 2008, the plaintiff, Christopher Wardwell, was employed by the defendant, Union
       Pacific Railroad Company, as a switchman, brakeman, and conductor on freight trains. On
       August 9, 2008, plaintiff and another employee were riding in a van owned by defendant,
       going from a railway yard near East St. Louis to one of defendant’s trains farther south. The
       van was being driven by defendant’s agent, Regina Goodwin. While the van was heading south
       in the right lane of Illinois Route 3, it was rear-ended by a vehicle driven by Erin Behnken.
       Plaintiff suffered a severe back injury in the accident and is no longer able to perform his job
       duties. He is currently employed by defendant as a security guard at significantly reduced
       wages.
¶4         Plaintiff brought the instant action against defendant under the Federal Employers’
       Liability Act (FELA) (45 U.S.C. § 51 et seq. (2006)), alleging that Goodwin had negligently
       cut in front of Behnken and that Goodwin’s negligence was a cause of the accident. The matter
       proceeded to trial before a jury in St. Clair County circuit court.
¶5         At trial, evidence was presented that, in the early morning hours of August 9, 2008,
       Goodwin was driving defendant’s van in the left lane of Route 3, with plaintiff and another
       employee as passengers. After letting a truck-trailer combination go ahead of her on the right,
       Goodwin activated her turn signal, checked her side mirror, confirmed there was no other
       vehicle on her right, and then made a lane change to the right lane. At the time she made the
       lane change, Goodwin was not speeding or violating any traffic laws. None of the occupants of
       the van saw any car or any car’s headlights in the right lane prior to the collision.
¶6         Approximately 20 seconds after making the lane change, defendant’s van was struck from
       behind by a vehicle driven by Behnken. At trial, Behnken testified that she was drunk at the
       time of the collision, that she was arrested at the scene of the accident for driving under the
       influence, and that she was found to be legally intoxicated two hours later when she took a
       breath test. Behnken stated that she did not see the van before she hit it and that she either “fell
       asleep or was blacked out” prior to the collision. She did not know if she had her headlights on.
       Further evidence indicated that Behnken was travelling 60 to 65 miles per hour, which was 10
       to 15 miles per hour over the posted speed limit. The jury, after hearing this evidence, returned
       a verdict in favor of defendant.



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¶7         Thereafter, plaintiff filed a motion for a new trial. In this motion, plaintiff alleged that
       defendant had improperly been allowed to argue to the jury that the sole cause of his injuries
       was the negligent conduct of Behnken. According to plaintiff, this “sole-cause defense” was
       not permissible in a FELA action. The circuit court denied plaintiff’s motion.
¶8         A divided appellate court reversed and remanded. 2016 IL App (5th) 140461. A majority
       of the appellate court held that the FELA does not allow a defendant railroad to argue that a
       third-party’s negligent conduct was the sole cause of the employee’s injuries. Justice Moore,
       dissenting, would have held that the jury properly determined the railroad was not a cause of
       the accident.
¶9         We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶ 10                                            ANALYSIS
¶ 11        Plaintiff’s principal contention on appeal is that the circuit court erred in denying his
       motion for a new trial. “ ‘[O]n a motion for a new trial a court will weigh the evidence and set
       aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the
       evidence.’ ” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992) (quoting Mizowek v. De Franco,
       64 Ill. 2d 303, 310 (1976)). A verdict is against the manifest weight of the evidence where the
       opposite conclusion is clearly evident or where the findings of the jury are unreasonable,
       arbitrary, and not based upon any of the evidence. Id. A circuit court’s ruling on a motion for a
       new trial is afforded considerable deference and will only be reversed in those instances where
       it is affirmatively shown that the court clearly abused its discretion. Id. at 455.
¶ 12        Enacted in 1908, the FELA is the exclusive means by which railroad employees can
       recover for injuries against their employers. The FELA provides, in relevant part, that “[e]very
       common carrier by railroad while engaging in commerce *** shall be liable in damages to any
       person suffering injury while he is employed by such carrier in such commerce *** 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 (2006). In order to recover damages under the
       FELA, a plaintiff must show that the railroad was engaged in interstate commerce, that the
       plaintiff was an employee in interstate commerce acting in the scope of his employment, that
       his employer was negligent, and that his injury resulted “in whole or in part” from his
       employer’s negligence. Id.; see, e.g., Myers v. Illinois Central R.R. Co., 629 F.3d 639, 642 (7th
       Cir. 2010) (“[A]n employee must prove that the railroad was negligent and that the railroad’s
       negligence caused the injury at issue.”).
¶ 13        Although the FELA follows a general tort law framework, the statute does not incorporate
       the various formulations of “proximate cause” found in nonstatutory common-law actions.1
       CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011). In this context,
                 “[t]he term ‘proximate cause’ is shorthand for a concept: Injuries have countless
                 causes, and not all should give rise to legal liability. See W. Keeton, D. Dobbs, R.
                 Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 42, p. 273 (5th ed. 1984)
                 (hereinafter Prosser and Keeton). ‘What we . . . mean by the word “proximate,” ’ one

           Illinois cases generally use the term “proximate cause” to refer to both “cause in fact” and “legal
           1

       cause.” See, e.g., Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 23. In FELA cases, the United States
       Supreme Court’s use of “proximate cause” is synonymous with “legal cause.”

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                noted jurist has explained, is simply this: ‘[B]ecause of convenience, of public policy,
                of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond
                a certain point.’ Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162 N. E. 99, 103
                (1928) (Andrews, J., dissenting).” (Emphasis in original.) CSX Transportation, 564
                U.S. at 692-93.
¶ 14        Thus, while a plaintiff in a FELA action must establish that a defendant’s negligent
       conduct was a cause in fact of his injuries, he need not establish the “foreseeability” or
       “probability” of the injury that might be required at common law under the doctrine of
       “proximate cause.” Id. at 703-04. Instead, the test “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.” Rogers v. Missouri Pacific R.R.
       Co., 352 U.S. 500, 506 (1957). Causation issues are generally to be left to the jury, which can
       use its “ ‘common sense’ ” in reviewing the evidence to avoid awarding damages in “far out
       ‘but for’ scenarios.” CSX Transportation, 564 U.S. at 704.
¶ 15        In this case, the jury was given instructions that correctly incorporated the FELA statutory
       standard on causation. Having heard the evidence, the jury returned a verdict in favor of
       defendant. The appellate court concluded, however, that the verdict had to be set aside because
       defendant was permitted to argue to the jury that the only person whose negligent conduct
       played a causal role in plaintiff’s injuries was Behnken. We disagree.
¶ 16        The jury cannot make a factual determination regarding whether the defendant railroad
       was at least “in part” a cause of the accident, as FELA requires, if it is not allowed to consider
       all of the circumstances surrounding the accident, including whether another party’s negligent
       conduct was the only negligent conduct that caused the accident. In this case, for example,
       Goodwin testified to the jury that she changed lanes as much as 20 seconds before the
       collision. Although there was conflicting evidence on this point, the jury was entitled to accept
       Goodwin’s testimony. Based on this testimony, the jury could readily have concluded that any
       negligence on Goodwin’s part, such as not checking her blind spot before changing lanes, did
       not play any part in causing plaintiff’s injuries, not “even the slightest” (Rogers, 352 U.S. at
       506). Instead, the only party whose negligent conduct caused the accident was Behnken. To
       hold that the jury could not even consider the role that Behnken’s negligent conduct played in
       the accident would render the events surrounding the accident incomprehensible to the jury
       and, as Justice Moore noted in dissent below, “would eviscerate the standard in FELA that the
       railroad be a cause, at least in part, of the accident.” 2016 IL App (5th) 140461, ¶ 40 (Moore, J.,
       dissenting).
¶ 17        We note, too, that other courts, including the Supreme Court, have repeatedly held that, in
       FELA actions, the plaintiff cannot recover if his own negligence was the sole cause of his
       accident. Rogers, 352 U.S. at 504-05 (the jury was instructed to return a verdict for the
       respondent if it was found that negligence of the petitioner was the sole cause of his mishap);
       Taylor v. Illinois Central R.R. Co., 8 F.3d 584, 586 (7th Cir. 1993) (citing Southern Ry. Co. v.
       Youngblood, 286 U.S. 313, 317 (1932)). We can discern no basis for, on the one hand, denying
       a finding of liability when the plaintiff is the sole cause of the accident but, on the other hand,
       allowing a finding of liability when a third party is the sole cause of the accident. See also, e.g.,
       Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140 (1959) (implicitly recognizing that a



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       third party drunk driver was the sole cause of an accident since any negligence “on the part of
       the railroad could have played no part in the petitioner’s injury”).
¶ 18        In holding that defendant could not argue that Behnken’s negligent conduct was the only
       negligent conduct that caused the accident, the appellate court majority relied primarily on
       Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135 (2003). In that case, the Supreme Court held
       that the FELA embodies the common-law doctrine of joint and several liability. This doctrine
       provides, as a general matter, “that when two or more defendants tortiously contribute to the
       same, indivisible injury, each defendant may be held jointly and severally liable for the entire
       injury.” Best v. Taylor Machine Works, 179 Ill. 2d 367, 423 (1997). Because the FELA
       incorporates the common law of joint and several liability, damages cannot be apportioned
       among multiple, concurring tortfeasors in FELA cases. Instead, when a defendant railroad is
       found to have caused the employee’s injuries either “in whole or part,” it must pay full
       damages to the employee and then seek contribution from the other tortfeasor. Norfolk, 538
       U.S. at 165-66.
¶ 19        In this case, however, the jury concluded that defendant was not liable to plaintiff in the
       first instance. The jury determined that defendant did not cause plaintiff’s injuries either “in
       whole or in part.” Apportionment of damages was, therefore, never at issue. Plaintiff settled his
       claim against Behnken before trial, and the jury was properly instructed to determine whether
       defendant was the cause, even in the slightest, of plaintiff’s injuries. At no point did defendant
       ask the jury to apportion damages between it and Behnken as joint tortfeasors.
¶ 20        Finally, plaintiff contends that the circuit court abused its discretion when it instructed the
       jury on defendant’s sole cause defense and refused various instructions offered by plaintiff,
       which challenged that defense. However, we have concluded that it was permissible for the
       jury to consider the entirety of the circumstances surrounding the accident, including whether
       Behnken’s negligent conduct was the only negligent conduct that caused the accident. We find
       no error in the circuit court’s instructions.
¶ 21        Under the FELA, the employee cannot recover unless the railroad was a cause, at least in
       part, of the plaintiff’s injuries. In this case, after considering all the evidence, the jury agreed
       with defendant that it was not. There is no basis for disturbing that determination.

¶ 22                                         CONCLUSION
¶ 23       For the foregoing reasons, the judgment of the appellate court is reversed. The judgment of
       the circuit court is affirmed.

¶ 24      Appellate court judgment reversed.
¶ 25      Circuit court judgment affirmed.

¶ 26       JUSTICE KILBRIDE, specially concurring:
¶ 27       I agree with the majority’s analysis and decision. I write separately only to address the
       circuit court’s jury instruction on the standard for causation in this case arising under the
       Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2006)). In this case, the
       circuit court instructed the jury that:



                                                    -5-
                   “More than one person may be to blame for causing an injury. If you decide that the
               defendant was negligent and that its negligence was a cause of injury in whole or in part
               to the plaintiff it is not a defense that some third person who is not a party to the suit
               may also have been to blame. However, if you decide that the sole cause of the injury to
               the plaintiff was the conduct of some person other than the defendant then your verdict
               should be for the defendant.”
¶ 28       Jury instructions must convey the applicable law accurately. Taken together, the
       instructions must be sufficiently clear not to mislead, and they must state the law fairly and
       correctly. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13; Barth v. State Farm Fire &
       Casualty Co., 228 Ill. 2d 163, 170 (2008). The FELA states, in pertinent part:
                   “Every common carrier by railroad while engaging in commerce *** shall be liable
               in damages to any person suffering injury while he is employed by such carrier in such
               commerce *** 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 (2006).
       I agree with the majority that the jury instruction given by the circuit court incorporated the
       FELA standard on causation accurately and the circuit court did not err in instructing the jury.
¶ 29       Nonetheless, I note that federal courts offer different instructions on the causation standard
       applicable to FELA cases that emphasize the low threshold for imposing liability. The
       instructions given in federal courts and the overwhelming majority of state courts track the
       language from Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957), describing the
       relaxed FELA causation standard.
¶ 30       In CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011), the Supreme Court
       discussed at length jury instructions for the FELA causation standard. In that case, the district
       court instructed the jury with the Seventh Circuit’s pattern instruction, stating:
               “Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence
               played a part—no matter how small—in bringing about the injury. The mere fact that
               an injury occurred does not necessarily mean that the injury was caused by
               negligence.” (Internal quotation marks omitted.) CSX Transportation, 564 U.S. at 690.
¶ 31       In holding the instruction was proper, the Supreme Court observed that FELA’s language
       on causation “ ‘is as broad as could be framed.’ ” CSX Transportation, 564 U.S. at 691-92
       (quoting Urie v. Thompson, 337 U.S. 163, 181 (1949)). The Court stated that in Rogers,
       FELA’s causation standard was described as follows:
                   “ ‘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.’ ” CSX Transportation,
               564 U.S. at 692 (quoting Rogers, 352 U.S. at 506).
¶ 32       In reliance on Rogers, every court of appeals reviewing judgments in FELA cases has
       approved jury instructions identical or substantively equivalent to the Seventh Circuit’s
       instruction. CSX Transportation, 564 U.S. at 698. Further, the model federal instruction
       provides that:
               “ ‘The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in
               whole or 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 plaintiff?’ ” CSX Transportation, 564 U.S. at 698 (quoting 5 Leonard B. Sand et

                                                   -6-
                al., Modern Federal Jury Instructions (Civil) ¶ 89.02, at 89-38, 89-40 & Comment
                (2010)).
¶ 33       The Supreme Court asserted that “[c]ountless judges have instructed countless juries in
       language drawn from Rogers.” CSX Transportation, 564 U.S. at 699. The Court approved both
       the Seventh Circuit’s instruction and the model federal instruction because the phrase
       “negligence played a part—no matter how small” is synonymous with “negligence played any
       part, even the slightest.” (Internal quotation marks omitted.) CSX Transportation, 564 U.S. at
       696 n.3. “Rogers stated a clear instruction, comprehensible by juries: Did the railroad’s
       ‘negligence pla[y] any part, even the slightest, in producing [the plaintiff’s] injury?’ ” CSX
       Transportation, 564 U.S. at 697, n.4.
¶ 34       The causation issue is critical in FELA cases. “[F]or practical purposes the inquiry in
       [FELA] cases today rarely presents more than the single question whether negligence of the
       employer played any part, however small, in the injury or death ***.” Rogers, 352 U.S. at 508.
       Given the importance of the causation issue particularly when, as here, the defendant contends
       a third party’s conduct is the sole cause of the injuries, I believe the instruction approved by the
       Supreme Court and given by federal courts and the overwhelming majority of state courts
       should also be given in Illinois. In contrast to the instruction given by the circuit court, the
       Rogers instruction emphasizes that plaintiff may recover if the railroad’s negligence played
       any part, even the slightest, in bringing about the injury. I believe the jury instruction approved
       by the Supreme Court should be given in future FELA cases because it more clearly and fully
       states the causation standard from Rogers. Accordingly, I specially concur.




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