Civil Procedure I, Pages 259–263

Erie Railroad v. Tompkins

Supreme Court of the United States, 1938


Plaintiff was walking alongside defendant's railroad tracks at a safe distance and was hit by an train car's open door. This knocked him onto the track where the train severed his right arm. Under Pennsylvania law, he was trespassing and had to prove wanton negligence. Under New York law, only regular negligence. Plaintiff sued in the federal District Court for the Southern District of New York.

Procedural History:

The district court instructed the jury to find defendant liable if guilty of "ordinary" negligence. The jury returned a verdict of $30,000 for plaintiff.


What state law applies in federal cases?


  • The Swift standard incorrectly assumes power not given.

  • Not abiding by state case law and giving judges discretion as to what law applies prevents the courts from being uniform.

  • There is no federal general common law. Interfering with states' common law is a denial of their independence.


All of a state's laws apply, including case law.


Reversed and remanded.

Concurring Opinion:

Should be reversed, but all that has changed is that "laws" now includes "decisions." That is all that needed to be said, and the rest of the majority's reasoning seems questionable.


Hesch: Federal courts must apply both state substantive and common law to substantive issues in diversity cases when the conflicting state law encourages “forum shopping.” The goal should be to replicate state practices regarding state substantive law when deciding a state law claim.