The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm
34 Pages Posted: 27 May 2011
Date Written: 2011
The elements of the debate between Judges Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty — is it relational or act-centered?; (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause?; (3) Is court or jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf’s present-day incarnations also lends an invaluable birds-eye view of duty law, an area so rife with inconsistency and contradiction that it often bears more resemblance to constitutional law than the quintessential common-law doctrine that we expect from tort cases. This article melds the doctrinal with the theoretical. It is the first comprehensive survey of Palsgraf since Prosser’s Palsgraf Revisited, in 1953, and it is also a bottom-up inquiry into the “meaning” of duty in today’s courts. The most significant findings of the article are as follows: (1) Most courts have not bought into Cardozo’s relational view of duty — instead, courts are nearly unified in the view that duty is, at its core, a multi-factor policy analysis, although courts do not agree on the relevant factors; (2) Cardozo has overwhelmingly won the day on plaintiff-foreseeability’s place in duty versus proximate cause — a fact which contradicts Palsgraf’s common treatment in law school classrooms as well as the Restatement (Third) of Torts — although Cardozo’s directive that foreseeability is to be decided categorically has not been broadly adopted; and (3) In a bizarre twist, a majority of courts leave duty-foreseeability’s determination to the jury. This final discovery provides important insight into a hidden tension that has smoldered in courts’ negligence jurisprudence at least since Palsgraf was decided eighty-three years ago.
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