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A Complete and Prevalent Misstatement of Palsgraf

-- By RobLaser - 17 Apr 2010

Set-Up

Last term, my professor in Torts used Palsgraf as a fundamental case on the issue of proximate cause. He set the two opinions (the first by Cardozo, the second by Andrews) as opposites of each other with Cardozo claiming a foreseeability requirement and Andrews applying a directness test. Epstein also conspicuously places this case as his lynchpin in the causation chapter of his casebook and also only mentions it as the focus for the subsection "foreseeability" within the section of "causation" in his hornbook. The problem with this trend is the fact that Cardozo's opinion in Palsgraf rests in no way, and makes no addition to the law of causation. This is especially the case with regards to a foreseeability test in establishing proximate cause.

Cardozo's Opinion Rests on Duty grounds

"The law of causation, remote or proximate, is thus foreign to the case before us ... we do not go into the question now. The consequences to be followed must first be rooted in a wrong." Cardozo specifically points out in his opinion that since there was no breach of duty in the defendant's actions, causation does not even need to be examined. The often quoted passage regarding what the "eye of ordinary vigilance" foresees is not related to causation in any way, but instead is built into the construction of duty that is owed to particular classes of possible plaintiffs. In Cardozo's words, "the risk reasonably to be perceived defines the duty to be obeyed." Therefore, because the defendants in this case had no reason to apprehend harm to Palsgraf based on their actions, they had no duty to her to refrain from those actions. Whether there was a duty to a particular person was a calculation of whether there was an unreasonable risk in relation to that particular person, whether there was a duty to anyone else to refrain from the action(s) is immaterial.

Andrews's response

The main disagreement between Andrews and Cardozo in Palsgraf is whether the violation of a duty to one person would result in liability for the harms to a third person (proximately caused by the violation). Cardozo claims that allowing liability would let a plaintiff sue as "the vicarious beneficiary of a breach of duty to another." Andrews's response to Cardozo in his dissent is that while harm to Palsgraf may not have been foreseeable, it was foreseeable that harm could occur to either the passenger they assisted, or his property. Andrew combines this fact to the notion that due care is a universal duty, not relative like Cardozo asserts. If we recognize a foreseeable harm to any individual, then we have a duty to all individuals to refrain from causing it. Andrews cites In re Polemis as a decision that lays out his version of negligence.

Cardozo, Not Andrews follows Polemis

Andrews mischaracterizes Polemis. He claims that since there is foreseeable harm that would arise from the defendants' actions, it didn't matter who or what was actually harmed. This is incorrect. While Polemis does state that the type of harm is immaterial, it does not state in the opinion an explicit statement on whether the foreseeability of the entity harmed is essential. There is a clue though in the special verdict presented by the jury. When asked about foreseeable harm, the jury stated that the type was not foreseeable, but damage to the ship (which was the entity actually damaged) was foreseeable. Additionally, the opinion does state that "the act causing the plank to fall was in law a negligent act, because some damage to the ship might reasonably be anticipated." This could be support for the fact that the actual entity harmed must be foreseeable in order for a duty to arise. Which would mean that Cardozo, not Andrews would fall in line with Polemis.

Conclusion and Importance

Cited as the opinion that popularized the test of foreseeability in proximate cause, Cardozo is strikingly different minded from what current law professors make him out to be. He appears to support a test of foreseeability of victims within the conception of duty, not causation. In fact, Cardozo seems to accept the directness test of causation from Polemis when he says "we may assume, without deciding, that negligence ... in relation to the plaintiff would entail liability for any and all consequences, however novel or extraordinary." Therefore, for Cardozo negligence "is thus a term of relation" in which foreseeability of plaintiffs is essential, yet in causation he takes the exact opposite view, allowing for liability of all consequences directly caused by the negligence without any regard to whether or not they are foreseeable. This means that a new conception of the history and development of Tort Law is imperative and that the "great" professors of law may not be infallible after all. In fact, it is the clearness of the error that makes it so shocking.

It also is what gives me pause. How can this misconception continue when thousands of law students read the case every year? It creates the feeling that there must be something I am missing. Yet, I cannot continue to sit silently and look at this without saying that the scholars I have been exposed to this year at Columbia seem to have gotten Palsgraf seriously wrong.

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