NORFOLK v. AYERS
Norfolk’s view of this railroad asbestos case

Norfolk’s asbestos view also runs counter to a century of FELA jurisprudence. No FELA decision made by this Court so much as hints that the statute mandates apportionment of damages among potentially liable tortfeasors.

Also significant, there is scant lower court authority for the proposition that the FELA contemplates apportionment, and this Court has repeatedly stated that joint and several liability is the traditional rule, see, e.g., The “Atlas,” 93 U. S. 302, 315. Norfolk contends that the modern trend is to apportion damages be-tween multiple tortfeasors. The state of affairs when the FELA was enacted, however, is the more important guide. See, e.g., Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 336–339.

At any rate, many States retain full joint and several liability, even more retain it in certain circumstances, and most of the recent changes away from the traditional rule have come through legislative enactments rather than judicial development of common-law principles. Congress, how-ever, has not amended the FELA. Finally, reading the FELA to re-quire apportionment would handicap plaintiffs and could vastly complicate adjudications.

Once an employer has been adjudged negligent with respect to a given injury, it accords with the FELA’s overarching purpose to require the employer to bear the burden of identifying other responsible parties and demonstrating that some of the costs of the injury should be spread to them. Pp. 23–28.

Courtesy of Supreme Court of the United States: NORFOLK & WESTERN RAILWAY CO. v. AYERS ET AL