                                     2017 IL 120438



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 120438)

       CHRISTOPHER WARDWELL, Appellee, v. UNION PACIFIC RAILROAD
                        COMPANY, Appellant.


                             Opinion filed February 17, 2017.



        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.

¶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




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       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.

¶7         Thereafter, plaintiff filed a motion for 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 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 ***




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       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 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

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




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       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 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




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       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:

              “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;




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       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




                                              -8-
          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 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




                                                -9-
cases because it more clearly and fully states the causation standard from Rogers.
Accordingly, I specially concur.




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