Resuscitating Palsgraf

67 Pages Posted: 10 Aug 2004  

Peter M. Gerhart

Case Western Reserve University School of Law

Date Written: August 2004

Abstract

Although derided by many, Justice Cardozo's opinion in Palsgraf shows his deep understanding of the normative content of negligence law. An actor who has not created a risk (the risk of explosion) may not be held responsible for harm coming from the risk unless the actor is connected in some way with the risk; that is true even if the actor's negligent conduct contributes to an explosion. Proof that the railroad took an unreasonable risk that a package might fall is not, by itself, evidence that the railroad created an unreasonable risk of an explosion, for the railroad's risk-taking does not tell us how the railroad would have acted had it known of the risk of explosion. Because all agree that the railroad was not culpable in failing to know what was in the package, the railroad breached no standard of care with respect to the risk of explosion. Not only is this an important substantive statement about what negligence law requires, but Cardozo's opinion also demonstrates that both duty and proximate cause must themselves relate to the normative content of the concept of unreasonable risk-taking.

Keywords: Risk, Duty, Standard of Care, Proximate Cause, Negligence, Innocent Wrongdoers, Torts, Legal Philosophy, Palsgraf v. Long Island Railroad Company, 248 N.Y. 339 (1928)

JEL Classification: K13

Suggested Citation

Gerhart, Peter M., Resuscitating Palsgraf (August 2004). Case Legal Studies Research Paper No. 04-11. Available at SSRN: https://ssrn.com/abstract=574201 or http://dx.doi.org/10.2139/ssrn.574201

Peter M. Gerhart (Contact Author)

Case Western Reserve University School of Law ( email )

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Cleveland, OH 44106-7148
United States
216-368-5469 (Phone)
216-368-2086 (Fax)

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