The Illinois Supreme Court has derailed a Downstate appellate ruling, saying a railroad employee, who sued his employer under a federal liability law for injuries suffered in an accident, cannot collect damages from the railroad if a third party was completely at fault.

 The Feb. 17 opinion was penned by Justice Anne Burke, with concurrence from Justices Mary Jane Theis, Robert Thomas, Rita Garman, Charles Freeman, Lloyd Karmeier and special concurrence from Thomas Kilbride.

 The decision affirmed a judgment by a St. Clair County judge, which had been overturned by the Illinois Fifth District Appellate Court in January 2016. The case involves the Federal Employers’ Liability Act, which is the means by which railroad employees can sue their employers for injuries.

Christopher Wardwell was employed by Union Pacific Railroad. On Aug. 9, 2008, Wardwell was a passenger in a van being driven by a woman, hired as a driver by Union Pacific, to a work site. The van was rear-ended by another vehicle on Route 3 near St. Louis, causing “severe back injury” to Wardwell. The other driver was drunken, according to court papers.

 Wardwell sued the intoxicated driver and reached a settlement. Wardwell also brought suit against Union Pacific under FELA, alleging the van driver, as the railroad’s agent, contributed to the collision by negligently cutting in front of the other vehicle. The railroad countered the drunken driver was solely to blame. The matter went to trial in 2013, with the jury deciding in Union Pacific’s favor.

 Wardwell asked for a new trial, contending Union Pacific should not have been allowed to use a “sole-cause defense,” because such a defense was not proper in a FELA action. The circuit court judge denied the new trial request, leading Wardwell to appeal.

 The appellate court, in a 2-1 ruling, supported Wardwell and overturned the circuit court decision. Union Pacific then took the case to the Illinois Supreme Court.

 Justice Burke pointed out FELA required Wardwell to prove his injuries were caused “in whole or in part” by the railroad, and if the railroad was even barely at fault, the railroad had to pay full damages. In such a scenario, the railroad could then seek contribution from the drunken driver. However, Burke noted the jury found Union Pacific wasn’t at fault at all.

 “Under FELA, the employee cannot recover unless the railroad was a cause, at least in part, of the plaintiff’s injuries,” Burke observed.

 The state high court threw out the appellate ruling and reinstated the circuit court decision.

 In an aside to the state Supreme Court’s opinion, Justice Kilbride noted the instruction the judge gave the Wardwell jury, in regard to FELA, was satisfactory. However, he suggested Illinois courts follow the example of federal and most state courts, which provide the more specific Rogers form of FELA instruction that stresses the “low threshold” for liability.

 The Rogers instruction was the focus of the 1957 U.S. Supreme Court ruling in Rogers v. Missouri Pacific Railroad Co. The nation’s high court has recommended the Rogers instruction as the pattern for proper FELA jury instruction.

 “The causation issue is critical in FELA cases,” Kilbride said. “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.”

 Wardwell was represented by attorney Mark DuPont, of Big Fork, Mt. Union Pacific was defended by the firm of Thompson Coburn, of Belleville. 

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