Expert answer:Case analysis
Solved by verified expert:One of the most discussed and controversially interpreted cases used in the academic study of tort
law is the case of Helen Palsgraf v. The Long Island Railroad Company, as argued in the Court of
Appeals of New York (the highest state court in New York) in 1928. It has been used in years since
to illustrate principles in tort law having to do with negligence, particularly the concepts of duty,
proximate cause and foreseeability.The case was decided in a 4-3 decision by the court against the Appellant (Mrs. Palsgraf). The
review of the bizarre events that took place in the station is brief, and Chief Justice Cardozo writes
the opinion of the majority which becomes the “law” that is to be extracted from this case.
The dissenting opinion, written by Justice Andrews, represents the minority of the court who
disagreed with the court’s decision.
Write a paper addressing the following questions:
Be sure to discuss how the two opinions (Cardozo and Andrews) differ on these questions.
1) How is legal duty to be imposed on the defendant? How is the extension of legal duty
determined?
2) What does the principle of foreseeability have to do with whether or not liability for
negligence exists? What is ultimately necessary in order to show that the defendant is liable to
the plaintiff for negligence?
Writing Specifications
Write this as a narrative, academic paper; NOT a case brief.
Generally use an APA Format style for references and citation formatting. (If you do not
know what that is, look it up.) That means no footnotes. Most of what that means for this
paper is stated below.
Provide one additional reference and include the case itself, for a total of two
references. When citing a web reference be sure to give title, author, publication, etc.; as
well as the URL. Just the URL alone will not be enough.
Paper should be typed, double-spaced with cover page and reference page. Approximately
6 pages should suffice (not including the cover page and reference page.)
Cite your references within the text of your paper following those items that require
reference, and enclose your reference in parentheses; i.e., (Palsgraf v. Long Island Railroad,
248 N.Y. 339). NO footnotes.
Your second reference should be from a secondary source; i.e., an article or book about the
case, or referring to the case in discussing similar issues or circumstances, etc. Be sure it is
a reliable, academically acceptable source.
PLEGAL 1
Palsgraf Assignment
palsgraf_v._lirr.pdf
Unformatted Attachment Preview
HELEN PALSGRAF, Respondent,
v.
The LONG ISLAND RAILROAD COMPANY, Appellant.
Court of Appeals of New York
248 N.Y. 339, 162 N.E. 99
May 29, 1928
CARDOZO, Ch. J.
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to
Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward
to catch it. One of the men reached the platform of the car without mishap, though the train was
already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady
as if about to fall. A guard on the car, who had held the door open, reached forward to help him
in, and another guard on the platform pushed him from behind. In this act, the package was
dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and
was covered by a newspaper. In fact it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the
explosion threw down some scales at the other end of the platform, many feet away. The scales
struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package,
was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not
negligence at all. Nothing in the situation gave notice that the falling package had in it the
potency of peril to persons thus removed. Negligence is not actionable unless it involves the
invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so
to speak, will not do” (Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf.
Salmond, Torts [6th ed.], p. 24). “Negligence is the absence of care, according to the
circumstances” (WILLES, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven,
Negligence [4th ed.], 7; Paul v. Consol. Fireworks Co., 212 N. Y. 117; Adams v. Bullock, 227 N.
Y. 208, 211; Parrott v. Wells-Fargo Co., 15 Wall. [U. S.] 524). The plaintiff as she stood upon
the platform of the station might claim to be protected against intentional invasion of her bodily
security. Such invasion is not charged. She might claim to be protected against unintentional
invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such
invasion would ensue. These, from the point of view of the law, were the bounds of her
immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of
liability, where conduct is held to be at the peril of the actor (Sullivan v. Dunham, 161 N. Y. 290).
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least
to outward seeming, with reference to her, did not take to itself the quality of a tort because it
happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with
reference to some one else. “In every instance, before negligence can be predicated of a given act,
back of the act must be sought and found a duty to the individual complaining, the observance of
which would have averted or avoided the injury” (McSHERRY, C. J., in W. Va. Central R. Co. v.
State, 96 Md. 652, 666; cf. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159; Hughes v.
Boston & Maine R. R. Co., 71 N. H. 279, 284; U. S. Express Co. v. Everest, 72 Kan. 517; Emry v.
Roanoke Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute,
51 N. Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; 1 Shearman & Redfield on
Negligence, § 8, and cases cited; Cooley on Torts [3d ed.], p. 1411; Jaggard on Torts, vol. 2, p.
826; Wharton, Negligence, § 24; Bohlen, Studies in the Law of Torts, p. 601). “The ideas of
negligence and duty are strictly correlative” (BOWEN, L. J., in Thomas v. Quartermaine, 18 Q.
B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the
vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard
stumbles over a package which has been left upon a platform. It seems to be a bundle of
newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is
abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end
of the platform protected by the law against the unsuspected hazard concealed beneath the waste?
If not, is the result to be any different, so far as the distant passenger is concerned, when the guard
stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far
away, if the victim of a wrong at all, has a cause of action, not derivative, but original and
primary. His claim to be protected against invasion of his bodily security is neither greater nor
less because the act resulting in the invasion is a wrong to another far removed. In this case, the
rights that are said to have been violated, the interests said to have been invaded, are not even of
the same order. The man was not injured in his person nor even put in danger. The purpose of the
act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which
may very well be doubted, it was a wrong to a property interest only, the safety of his package.
Out of this wrong to property, which threatened injury to nothing else, there has passed, we are
told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of
another order, the right to bodily security. The diversity of interests emphasizes the futility of the
effort to build the plaintiff’s right upon the basis of a wrong to some one else. The gain is one of
emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the
danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who
jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe
when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man
who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have
to be made over, and human nature transformed, before prevision so extravagant can be accepted
as the norm of conduct, the customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as “wrong”
and “wrongful,” and shares their instability. What the plaintiff must show is “a wrong” to herself,
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i. e., a violation of her own right, and not merely a wrong to some one else, nor conduct
“wrongful” because unsocial, but not “a wrong” to any one. We are told that one who drives at
reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a
wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense
that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of
vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a
race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the
duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of
apprehension (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v.
Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a
destructive force is always relieved of liability if the force, though known to be destructive,
pursues an unexpected path. “It was not necessary that the defendant should have had notice of
the particular method in which an accident would occur, if the possibility of an accident was clear
to the ordinarily prudent eye” (Munsey v. Webb, 231 U. S. 150, 156; Condran v. Park & Tilford,
213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as
shooting, are so imminently dangerous to any one who may come within reach of the missile,
however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even
today, and much oftener in earlier stages of the law, one acts sometimes at one’s peril (Jeremiah
Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol.
1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent,
an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101
Mich. 370, 374) These cases aside, wrong is defined in terms of the natural or probable, at least
when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.]
524). The range of reasonable apprehension is at times a question for the court, and at times, if
varying inferences are possible, a question for the jury. Here, by concession, there was nothing in
the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would
spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he
would not have threatened the plaintiff’s safety, so far as appearances could warn him. His
conduct would not have involved, even then, an unreasonable probability of invasion of her
bodily security. Liability can be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things
related, is surely not a tort, if indeed it is understandable at all (BOWEN, L. J., in Thomas v.
Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission
of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are
told, the right to be protected against interference with one’s bodily security. But bodily security
is protected, not against all forms of interference or aggression, but only against some. One who
seeks redress at law does not make out a cause of action by showing without more that there has
been damage to his person. If the harm was not willful, he must show that the act as to him had
possibilities of danger so many and apparent as to entitle him to be protected against the doing of
it though the harm was unintended. Affront to personality is still the keynote of the wrong.
3
Confirmation of this view will be found in the history and development of the action on the case.
Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of
English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, pp. 189, 190). For damage to
the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression,
and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol.
1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does
or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450,
457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal
History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant
of trespass, an offshoot of the parent stock. This appears in the form of action, which was known
as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892;
Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of
subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of
action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence
[12th ed.], p. 328). He sues for breach of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The
question of liability is always anterior to the question of the measure of the consequences that go
with liability. If there is no tort to be redressed, there is no occasion to consider what damage
might be recovered if there were a finding of a tort. We may assume, without deciding, that
negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for
any and all consequences, however novel or extraordinary (Bird v. St. Paul F. & M. Ins. Co., 224
N. Y. 47, 54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Smith v. London & S. W. Ry. Co., L.
R. 6 C. P. 14; 1 Beven, Negligence, 106; Street, op. cit. vol. 1, p. 90; Green, Rationale of
Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly
Review, 142). There is room for argument that a distinction is to be drawn according to the
diversity of interests invaded by the act, as where conduct negligent in that it threatens an
insignificant invasion of an interest in property results in an unforseeable invasion of an interest
of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We
do not go into the question now. The consequences to be followed must first be rooted in a
wrong. The judgment of the Appellate Division and that of the Trial Term should be reversed,
and the complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting). Assisting a passenger to board a train, the defendant’s servant
negligently knocked a package from his arms. It fell between the platform and the cars. Of its
contents the servant knew and could know nothing. A violent explosion followed. The concussion
broke some scales standing a considerable distance away. In falling they injured the plaintiff, an
intending passenger.
4
Upon these facts may she recover the damages she has suffered in an action brought against
the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it
a relative concept—the breach of some duty owing to a particular person or to particular persons?
Or where there is an act which unreasonably threatens the safety of others, is the doer liable for
all its proximate consequences, even where they result in injury to one who would generally be
thought to be outside the radius of danger? This is not a mere dispute as to words. We might not
believe that to the average mind the dropping of the bundle would seem to involve the probability
of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to
one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis we
have to inquire only as to the relation between cause and effect. We deal in terms of proximate
cause, not of negligence.
Negligence may be defined roughly as an act or omission which unreasonably does or may
affect the rights of others, or which unreasonably fails to protect oneself from the dangers
resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I
comment on the word “unreasonable.” For present purposes it sufficiently describes that average
of conduct that society requires of its members.
There must be both the act or the omission, and the right. It is the act itself, not the intent of
the actor, that is important. (Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co., 217 N.
Y. 475.) In criminal law both the intent and the result are to be considered. Intent again is
material in tort actions, where punitive damages are sought, dependent on actual malice— not on
merely reckless conduct. But here neither insanity nor infancy lessens responsibility. (Williams v.
Hays, 143 N. Y. 442.)
As has been said, except in cases of contributory negligence, there must be rights which are
or may be affected. Often though injury has occurred, no rights of him who suffers have been
touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that
the land be made safe. (Meiers v. Koch Brewery, 229 N. Y. 10.) Where a railroad is required to
fence its tracks against cattle, no man’s rights are injured should he wander upon the road because
such fence is absent. (Di Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not
demand immunity from personal harm. (Drobner v. Peters, 232 N. Y. 220.)
But we are told that “there is no negligence unless there is in the particular case a legal duty
to take care, and this duty must be one which is owed to the plaintiff himself and not merely to
others.” (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the
unreasonable act, and some right that may be affected there is negligence whether damage does or
does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are
negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It
is a wrong not only to those who happen to be within the radius of danger but to all who might
have been there— a wrong to the public at large. Such is the language of the street. Such the
5
language of the courts when speaking of contributory negligence. Such again and again their
language in speaking of the duty of some defendant and discussing proximate cause in cases
where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co.,
219 N. Y. 60.) As was said by Mr. Justice HOLMES many years ago, “the measure of the
defendant’s duty in determining whether a wrong has been committed is one thing, the measure of
liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172
Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary
danger, not to protect A, B or C alone.
It may well be that there is no such thing as negligence in the abstract. “Proof of negligence
in the air, so to speak, will not do.” In an empty world negligence would not exist. It does involve
a relationship between man and his fellows. But not merely a relationship between man and those
whom he might reasonably expect his act would injure. Rather, a relationship between him and
those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a
mile away as surely as it does those on the scene. We now permit children to recover for the
negligent killing of the father. It was never prevented on the theory that no duty was owing to
them. A husband may be compensated for [*350] the loss of his wife’s services. To say that the
wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts
to theory. An insurance company paying a fire loss recovers its payment of the negligent
incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of
words is the fact they hide, that the act, wrongful as to the insured, has also injured the company.
Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we
consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.],
463.)
In the well-known Polemis Case (1921, 3 K. B. 560), SCRUTTON, L. J., said that the
dropping of a plank was negligent for it might injure “workman or cargo or ship.” Because of
either possibility the owner of the vessel was to be made good for his loss. The act being
wrongful the doer was liable for its proximate results. Criticized and explained as this statement
may have been, I think it states the law as it should be and as it is. (Smith v. London &
Southwestern Ry. Co., [1870-71] 6 C. P. 14; Anthony v. Slaid, 52 Mass. 290; Wood v. Penn. R. R.
Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)
The proposition is this. Every one owes to the world at large the duty of refraining from
those acts that may unreasonably threaten t …
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