Torts
Class Notes
More
on Palsgraf
This
case throws us off from the ordinary way we look at negligence cases. Cardozo seems to view the question of whether
or not the plaintiff is foreseeable in terms of whether the defendant has a
duty to the plaintiff. Some courts will
analyze this question as a duty question, and others will analyze it as a
proximate cause question.
This
plaintiff was unforeseeable. If the railroad had a duty to
anyone, it was the person they were helping on to the train. But the railroad didn’t have a duty to Mrs.
Palsgraf.
Proper
incentives are created if the defendant is found not liable in this case. There’s no way to get the railroad to change
their behavior with respect to people they can’t foresee. Reasonable people will try to foresee the
risks of their activities and avoid risks that may harm foreseeable plaintiffs. Unforeseeable plaintiffs are left out in the
cold. However, we generally don’t
require defendants to take care and watch out for unforeseeable accidents (but
insurance is great for that).
Cardozo
says that there’s no duty and thus no breach.
Andrews,
on the other hand, would like to see liability for the natural consequences of
the defendant’s negligence. Andrew would
ask: what is the natural sequence of events following from the defendant’s
conduct? There are many factors that
will go into the proximate cause question, and Andrews would leave this question
to the discretion of the jury.
Recall
that the elements of a negligence cause of action are: (1) a duty of the defendant
to the plaintiff, (2) a breach of that duty, (3) a causal connection between
the breach of duty and the harm, and (4) actual damages.
If
the Palsgraf issue is a duty issue, the judge decides the issue and the
case will be over because there is no negligence to the plaintiff. On the other hand, if the Palsgraf
issue is a proximate cause issue, there is negligence and the jury shall decide
whether the defendant’s negligence proximately caused the plaintiff’s injury.
For
example, if you drive negligently and cause an accident, causing a big pile-up
accident is foreseeable.
Kinsman
Yesterday,
we talked about unforeseeable plaintiffs and foreseeable risks. If negligence is found, the question is
whether the harm that actually occurred was a foreseeable result of that negligence.
If
you only have economic harm to claim, there will be so many claimants in a
given situation that courts will bar recover as a matter of public policy. The defendants would never be able to afford
to pay.
Chang
was in a van with his daughter, Yun.
They had a spare tire attached to the back of their van. The spare tire came off and rolled to the
left side of the road. The van came to a
stop on the right side of the road, and Chang ran across to get the tire. When he ran back, he was hit by a car and
died. Yun sued everybody, including
Ford, the company that attached the spare tire, the service station that
changed the van’s oil, and the driver and owner of the car that hit Chang.
Yun
decided not to repair the spare tire assembly and was warned about this by the
garage she went to. This is potential
contributory negligence on the part of the plaintiff. The fact that she is comparatively negligent
should be taken into account in this case.
What
are the foreseeable risks of the failure to properly install a tire
assembly? It might fall off the car and
hit another car. It seems that all
foreseeable risks involve people inside a vehicle.
What
is the bearing of United States
v. Carroll Towing Co. on this case?
How does the Hand formula apply? It
would be cheap to make the support assembly in such a way that the spare tire
would not come off. There may be strict
liability.
Chang
was negligent in deciding to risk his life to recover a tire. He had plenty of viable alternatives, such as
calling the police to help them retrieve the tire.
The
point of this case is that proximate cause is very difficult. The majority finds that the harm done was
totally unforeseeable (that’s sort of the Cardozo view) while the minority
takes the view that it’s up to the jury (sort of like Andrews, but with an
additional element of foreseeability).
The New Jersey Supreme Court ends up finding that the jury should decide
the proximate cause issue. It’s a tough
issue about which reasonable minds can disagree.
Derdiarian v. Felix Contracting
Corp.
Why
is Derdiarian suing the contractor? He
wasn’t an employee of the contractor, but rather a subcontractor. Why doesn’t he sue the subcontractor instead
of the general contractor? You can’t sue
the subcontractor because you can’t sue your own employer under worker’s
compensation statutes.
What
risks are created by the failure to make the workplace safe? There is no barrier, so there is a risk that
a car might come into the workplace.
That in fact happened. It does
not matter that it happened due to an epileptic seizure. The precise manner in which an event occurs need
not be anticipated, so long as the harm is the harm which we expected.
The
car entering the work site is a foreseeable intervening cause. A reasonable person would put a barrier up at
the work site to prevent this foreseeable act.
Watson
v.
The
railroad spilled some oil into the street.
Someone either intentionally or negligently threw a match onto the oil, causing
an explosion in which the plaintiff was injured.
What risks were created by the negligent spilling of the oil? There might be the risk that someone will
slip on oil. Someone might negligently
drop a match on the ground. However,
intervening criminal acts of a third party are seen as unforeseeable. The exception to the rule is when you foresee
that criminal activity might happen. In
that case, the criminal act is not a superseding cause, but a foreseeable
intervening act.