Torts Class Notes 10/28/03




The original rule for proximate cause is captured in Polemis: the direct causation rule.  In Polemis, a sailor is negligently carrying a plank which is dropped onto petrol vapors and a fire results.  It doesn’t matter that the ship catching on fire is not foreseeable, it only matters that dropping the plank let to the ship burning.


Thus, the Polemis test is:


1.     Was the defendant negligent?

2.     Was the defendant’s negligence a direct cause of the damages?


Under Polemis, Wagon Mound No. 1 would have come out differently.


Instead, the court adopted a new test: Ex ante, before the accident happens, what would a reasonable person foresee as the kinds of harms that might occur stemming from that negligent conduct?  An explosion due to a negligently carried plank is not foreseeable harm.  Thus, by the rule of Wagon Mound No. 1, Polemis would have gone the other way.


In Wagon Mound No. 1, you can look at the circumstances surrounding the accident to find out if the risk was really foreseeable.  Wagon Mound No. 2 comes out a different way based on different lawyering.


Typically, you would think that the risk of spilling oil would be fouling the dock, but not burning it.


You have to draw the line somewhere.  But if all you have to claim is economic harm, you’re very unlikely to recover under foreseeability analysis.


If you say that one of the foreseeable risks of doing X is Y and Y actually somehow occurs, then you’ll have liability.


You don’t have to foresee the intentional criminal acts of third parties unless there is reason to be on notice that such behavior occurs.


Should it matter whether the manner of the occurrence of the harm is different than what we expected?  It doesn’t matter how it happens as long as we could foresee that it would happen.


What will a reasonable person want to avoid?  Say, for example, burns and falls.  Therefore, they won’t leave paraffin lanterns around a manhole.  What courts say is that if expected things happen in an unexpected manner, you’re still liable.  We want defendants to prevent things that might cause harm.


Palsgraf v. Long Island R.R. Co.


Everybody’s most favorite and most famous first-year case in the world!


What did the railroad do wrong?  What’s their negligence?  Was it negligent to assist the fireworks guy on the train?  Perhaps the negligence was the railroad worker who pushes the guy onto the train, or perhaps the negligence was the person who pulled him on the train.  There is some dispute about this between reputable scholars.  It wasn’t so much that they were negligent about what was in the package.


Why is it important that the package was nondescript?  What does Cardozo say the issue is here?  Cardozo wants to know whether the railroad worker had a duty to the plaintiff.  That’s not a proximate cause issue at all.  Cardozo finds that the defendant has no duty to the plaintiff related to falling scales.


What are the risks of the defendant’s negligent conduct?  Maybe the fireworks guy could fall off the train.  Maybe the package could be damaged.  The risks from the defendant’s negligent conduct basically all involve the falling down fireworks guy.  The defendants couldn’t have foreseen the explosion and the way the injury occurred to Mrs. Palsgraf.  Cardozo says that she is an “unforeseeable plaintiff”.


What relationship does the defendant have to this plaintiff?  The defendant must consider the risks to Mrs. Palsgraf that are foreseeable.  Is it even clear that the railroad workers acted unreasonably anyway?


Is there the possibility of transferred negligence?  What does the court say about this theory?


What distinguishes crimes and intentional torts from negligence?


Most of the time, the package won’t contain fireworks, and even if it is, most of the time the scales won’t fall (and maybe they didn’t anyway).


We want to draw lines so we can create incentives for appropriate behavior.


One thing doesn’t come up in this case: the railroad is a common carrier.  Therefore, the railroad has a duty to Mrs. Palsgraf.  That would have been an alternative way to litigate this case.


What would be the result of this case under Polemis?  There was a natural sequence of events leading to Mrs. Palsgraf’s injury.  Therefore, under the old rule, the railroad would be liable.


The Andrews dissent is famous.  What does Andrews propose?  He gets more into the causation issue.  Andrews introduced the concept of the “zone of danger”.  If you’re within the “zone of danger” created by the defendant’s negligent conduct, then the defendant will be liable for your harm.


The Andrews view is not the dominant view.  Many people are concerned that there are many potential plaintiffs who are not allowed to recover under the majority rule that ought to be able to recover.


Cardozo analyzes the case as a question of duty (which is a question for the judge), while Andrews analyzes the case as a question of causation (which is a question for the jury).  Determinations of duty are based on precedent and are thus more predictable.


What is the defendant’s duty?  Liability follows duty.  The question is whether there is a legally recognizable relationship between the defendant and the plaintiff.  The risk reasonably to be perceived defines the duty to be obeyed.


In the dissent, Andrews says that proximate causation, rather than duty, should be the rule.


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