Monday

Week Twelve, Part 1 - Torts: Palsgraf

Before we launch into the most famous torts case ever, Palsgraf v. Long Island Railroad, Professor Charles Rice makes an announcement. “On Thursday there will be no Torts anywhere.” He’s flying to Rome to view the induction of a former student into the Legion of Christ.

I hear happy murmurs around the classroom. Unlike other profs, Rice doesn’t make up missed classes. In our closed universe of study, class, and Notre Dame football, we now have eight hours of unexpected time.

Rice starts Palsgraf by saying, "This whole deal was pretty bizarre."

He’s right. The facts amaze us all.

Mrs. Palsgraf, the plaintiff, purchased a ticket from the Long Island Railroad. While she was waiting on the platform, two men ran to catch a train as it was pulling away. The first man jumped aboard. A railroad attendant helped the second by pushing him onto the train. In the process, the man dropped a package of fireworks which exploded. The blast shook the area, causing some scales to fall on Mrs. Palsgraf at the other end of the platform.

Palsgraf sued and was awarded damages for her injuries. The railroad appealed and won.

Rice calls on a student near me. Louise stands up. She’s wearing a jean jacket and matching pants. Around her waist hangs a tie-dyed wrap, purple and white. Her hair is pulled back in a gold clip and glitter barrettes.

Rice asks her, "Why did the railroad win?"

"Because the injury was not foreseeable," she says.

"Was it a matter of fact or of law?"

Louise hesitates and Rice stares at her, his "guess antennae" twitching.

"Of law," she says.

"Good. Whether or not there's a duty is a question of law." On the board he writes the elements of negligence, DTY, BRCH, CSTN, DMGS, then points at the first group of letters. "According to Justice Cardozo, a duty is owed only to the foreseeable plaintiff. So it's a limited duty. Have the courts generally picked up this aspect?"

"I believe so," Louise says.

"Yes, they have. Now, what was foreseeable when the railroad worker helped the terrorist with the package?" Rice asks.

"That he might drop it or break something."

"What about the firecrackers?"

"Unforeseeable," says Louise.

"Good. In Cardozo's opinion there are two issues: duty and causation. He's strict on foreseeability and injury. But once you have breached duty, causation is practically unlimited."

Louise sits down.

"No, no." Rice barks. "Keep playing. This case is an intellectual toy."

Louise stands back up and we turn our attention to the minority opinion.

Rice says that we have the same two issues with Justice Andrews: duty and causation. "What's his position on each?"

Louise rubs her chin with slender fingertips. She wears no make-up or nail polish. "As to duty and causation, Andrews is the opposite of Cardozo."

Rice smiles at the truism. "You're right," he says. "Andrews is broad on duty, restrictive on causation. Sum up Andrews on duty."

"If somebody gets hurt through your conduct, you owe them a duty."

"Good. But as to causation, how does Andrews limit it?"

"By but-for?"

"Is that a guess?" Rice asks.

"An educated one," she says. Her chutzpah draws a laugh.

"What is this, Jeopardy? Some day in New York Municipal Court are you going to answer a judge with a question?" Rice stares at Louise until her head drops. "Look at the shopping list on the bottom of page 210," he says.

"It's limited by proximate cause."

"Keep going."

She reads, "Whether the causation is but-for, natural and continuous, direct, foreseeable, or remote in time or space."

"Have courts picked up on this?"

"I'm not sure," she says. Rice has tamed Louise, at least for the moment.

"Just as courts tend to treat duty and foreseeability according to Cardozo," Rice says, "they tend to make the Andrews catalog a test for causation."

Rice steps back to the podium and leafs through his notebook. Louise sits down.

Rice thrusts his chin her way. "Now, Louise." She stands back up. "Here's an old New York case. A driver swerves off the highway and tears down part of a pasture fence. He's negligent. The cattle stray. That evening the farmer goes to round them up. He falls in a hole. Was his injury foreseeable in terms of proximate cause?"

"No."

"No? What are you, some kind of flinty, stone-eyed Ayn Rand afficionado? Don't you want this man to be whole?"

She laughs. "Falling in a hole doesn't seem foreseeable."

"The trial court agreed and threw him out, citing Palsgraff," Rice says. "But the appellate court reversed.

"So I was right either way?" she asks.

I'm amazed at her moxy.

"Or wrong," he says. "How ‘bout this one. The defendant, a man, operates his auto in a negligent manner and causes head injuries to a three-year-old boy. The boy becomes emotionally disturbed. Seven years later, he shoots the plaintiff. Is there proximate cause?"

"Definitely not. Remote in time or space."

Rice agrees. "One more. The defendant negligently obstructs the sidewalk. Plaintiff is a pedestrian – not a mountain goat. He walks around the obstruction and gets hit by a car. What other facts do we need to know, Louise?"

"Was there another way around?"

"No, there wasn’t," says Rice.

"Was it a country road?"

"No, 34th Street in New York.”

Rice never does tell us how the case came out. Class ends with us still trying to ferret out the facts. "Make sure you know the Andrews list of ingredients for causation," Rice calls as we pack up.

I tell Louise she did great.

"Worst experience of my life. I was standing up for years."

"But you're golden for the rest of the semester. Rice won’t call on you again."

"If he does, there’ll be a new member of the castrati."

* * *

1 Comments:

Anonymous Anonymous said...

Hey, great site! I ran across it doing a google search for Dutile's criminal law class, which I am taking right now. Funny how little things change in 10 years -- even his jokes! I do wish I could have taken a class or two with Professor Rice.

I hope you'll keep posting regularly. I take it these are journal entries from your 1L year?

11:35 AM  

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