Law school lite - law students depending on law outlines and summaries

Washington Monthly, Nov, 1989 by Daniel Pink

"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 life transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform."

None of the commercial outlines even mention, let alone quote, this commanding passage.

Cardozo next addresses what it means for an act to be "wrongful." Wrongfulness does not exist in a vacuum but depends on how much risk a situation presents. That's why driving fast on a crowded street is wrong but driving fast on a motor speedway is not. Cardozo uses that example to guide us back to Mrs. Palsgraf's predicament:

"If the guard had thrown [the package] down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearance 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."

I have that passage underlined in my torts book. Next to it I wrote, "Why is this point so persuasive?" Cardozo had taken me along on his journey, and though I wasn't sure exactly where we were going, I was seeing (and learning) a lot along the way.

Just when Cardozo has you convinced, along comes Judge Andrews. His spirited dissenting opinion, which receives short shrift in the commercial guides, is also compelling. Andrews believes individuals owe a duty of care not just to certain people, but "to the world at large for those acts that may unreasonably threaten the safety of others." That belief raises political and philosophical questions Legalines does not address.

Andrews's broad notion of duty leads him down a different path. Unlike Cardozo, he thinks the railroad did owe a "duty of care" to the people on the platform and that it breached that duty--the definition of negligence--when it bobbled the explosives. That means Andrews asks a question Cardozo doesn't reach: Did the railroad's negligence cause Mrs. Palsgraf's injury? He cautions, though, that:

"Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only an omniscience can say."

Steven Emanuel is not that omniscience.

Andrews then descends from these considerations to confront the crucial, earthier, question: Was the railroad's negligence so connected to Mrs. Palsgraf's injury that the railroad should be held liable? Andrews reasons that the explosion was a substantial factor in producing the harm; had it not occurred, Mrs. Palsgraf would not have been hurt. The blast directly and inevitably resulted in her injury; no other forces intervened. Now, to determine whether A proximately caused B is not always easy. "We draw an uncertain and wavering line," Andrews admits, "but draw it we must as best we can." He draws his line and concludes the railroad is liable for Mrs. Palsgraf's injuries.