A railroad forking into two parallel tracks.

The Strange Case of Mrs. Palsgraf

Every lawyer knows the case of Palsgraf v. Long Island Railroad. It’s a staple of torts classes in every torts class in every law school: the one where a passenger attempted to board a moving train, assisted by a couple of railroad employees. 

The passenger was holding a newspaper but, unbeknown to the employees, this was just acting as a wrapper for some fireworks, which then dropped from the passenger’s grasp and exploded when they hit the ground.  

Mrs. P, meanwhile, was waiting innocently for her train, when she was struck by scales dislodged by the vibration caused by the explosion. She sued the railroad, alleging that it was vicariously liable for its employees’ negligence.  

More Strange Features

Apart from the facts themselves, Palsgraf is a case with at least two, additional strange features. And we can’t blame the judges for either. 

The first is the oddity of why the case was not dealt with as one of premises liability. The second is the extraordinary history of the subsequent interpretation of the case. 

Premises Liability

If Palsgraf had been treated as a case of premises liability, the outcome was surely obvious — and quite the opposite of how the case turned out. 

As an invitee (someone on the railroad’s premises for the latter’s economic benefit), Mrs. P was entitled to expect the railroad to take reasonable steps to keep her safe while on its premises. Since it had not secured the scales properly, the railroad had surely breached that duty, and Mrs. P would have therefore been entitled to compensation for her injuries. 

The actions of the railroad employees in trying to help the other passenger board a moving train — and what they did or did not know about the nature of that passenger’s parcel — should therefore have been quite beside the point. 

But the judges did not address the case as one concerned with premises liability. They did not so much as mention Mrs. P’s status as an invitee, and nor did they comment on the manner in which the scales had been secured. 

The case was simply not pleaded on that basis, though I cannot think of a reason why not. And so Mrs. Palsgraf lost when she should have won. 

Bizarre Interpretations

But that’s not the only strange feature of the case. And, again, neither Chief Judge Cardozo nor Judge Andrews — the two major protagonists on the bench of the New York Court of Appeals — has anything to do with it. 

Cardozo gave the majority opinion, in which he asserted that Mrs. P could bring her action only if she could establish that the railroad owed her a duty of care when its employees acted negligently. 

She could not claim a duty deriving from that which the employees undeniably owed to the passenger attempting to board the train. It had to be a duty owed to her

Zone of Danger

In order to establish whether Mrs. P was owed such a duty, Cardozo developed his famous “zone of danger” test. Only if she had been within the zone of danger could she have been owed a duty. 

Cardozo’s zone of danger depends on what lawyers call “objective” criteria. In other words, it is set by (a) the facts actually known by the defendant and (b) whatever is reasonably foreseeable to a reasonable person. 

Because the railroad employees could not have known that the passenger’s newspaper was covering fireworks, there was no way for them or the railroad to foresee how their conduct might be endangering Mrs. Palsgraf. She was simply too far away from where the action was taking place. 

Accordingly, she was not in the zone of danger and was, therefore, owed no duty by the railroad. 

Proximate Cause

Judge Andrews took a different tack. He argued that the employees and the railroad were under a duty to act reasonably. This was a duty that they owed to all the world, and so there could be no doubt that it was a duty owed to Mrs. Palsgraf. 

But Andrews did not conclude that this meant that Mrs. P should win. In his view, the jury should be left to determine whether the employees’ negligence was the “proximate cause” of her injuries. 

Who Writes History?

It has often been said that it is the victor who writes the history, but the history of Palsgraf has not been so straightforward. In fact, while almost every state in the nation has since claimed at some stage to have adopted the Palsgraf approach, the truth is that, until relatively recently, very few had. 

Perhaps even more bizarre, though, is the fact that many law professors (and some casebooks) continue to get the case wrong. 

Andrews for the Win?

Outside of New York, in fact, and for several decades, most states (and treatise writers) treated Palsgraf as being about proximate cause. 

But doing so presented them with a major problem. 

Andrews had emphasized throughout his judgment that liability could not be imposed indefinitely. That was the point of the qualifier, “proximate.” It was possible to have “A cause, but not the proximate cause,” when a plaintiff would still not succeed in a claim for compensation. 

But he had suggested no means of ascertaining when a cause was “proximate.” 

Undeterred, the courts and treatise writers engaged in skillful sleight of hand. They simply adopted Cardozo’s “zone of danger” formulation as the test for determining whether a cause is proximate! 

The Strange State of Legal Education

Generations of law students thus came to be educated that Palsgraf is a case about proximate cause — when it is not. 

They came also to be educated that Chief Judge Cardozo laid down the test for proximate cause — which he did not. 

And those same law professors then had the cheek to insist to their students that “thinking like a lawyer” means, among other things, being rigorous in case analysis — when they themselves were not. 

In fact, it is currently possible to identify the age of torts casebook authors simply by looking at their treatment of Palsgraf

A Change of Climate

Over the last few decades, pretty much every state in the nation, with the exception of Wisconsin, has effectively or expressly disavowed its previous interpretation of Palsgraf. Nearly all now treat it as a case where Cardozo laid down a test for determining duty — which it is. 

Three things have happened as a consequence, and they do not all suggest that practitioners and law professors have learned their lesson. 

One has been that some law professors have taken note of this change in the legal climate. Their casebooks thus treat Palsgraf with the same respect afforded to other leading cases in the canon of American common law. 

A second has been that, even while they now agree that duty is something that a personal injury plaintiff must prove, many courts have questioned the specific reasoning offered by Cardozo and Andrews in Palsgraf. Instead, they have gone on to develop their own jurisprudence that leaves Palsgraf effectively rejected as out of date. The Third Restatement of Torts takes a similar tack. 

So Palsgraf has regained respect only at the same time as being effectively put out to grass. 

A New Peculiarity

Moreover, as if that were not enough humiliation for the venerable old case, it is now increasingly subjected to a new peculiarity. 

It is now frequently cited as a case on premises liability! 

I am tempted to say, “You couldn’t make it up!” But that’s precisely what the lawyers continue to do.