Torts Class Notes 10/29/03


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 didnít have a duty to Mrs. Palsgraf.


Proper incentives are created if the defendant is found not liable in this case.Thereís no way to get the railroad to change their behavior with respect to people they canít 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 donít require defendants to take care and watch out for unforeseeable accidents (but insurance is great for that).


Cardozo says that thereís no duty and thus no breach.


Andrews, on the other hand, would like to see liability for the natural consequences of the defendantís negligence.Andrew would ask: what is the natural sequence of events following from the defendantís 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 defendantís negligence proximately caused the plaintiffís injury.


For example, if you drive negligently and cause an accident, causing a big pile-up accident is foreseeable.




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.


Yun v. Ford Motor Co.


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 vanís 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 (thatís sort of the Cardozo view) while the minority takes the view that itís 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.Itís a tough issue about which reasonable minds can disagree.


Derdiarian v. Felix Contracting Corp.


Why is Derdiarian suing the contractor?He wasnít an employee of the contractor, but rather a subcontractor.Why doesnít he sue the subcontractor instead of the general contractor?You canít sue the subcontractor because you canít sue your own employer under workerís 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. Kentucky & Indiana Bridge & R.R. Co.


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.


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