GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE · GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE ... (Palsgraf...

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Page 1 GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE W. DENNIS DUGGAN, J.F.C. © OCTOBER 2003 August 24, 1924, was a hot Sunday in New York City. Helen Palsgraf should have stayed in bed. Instead, she decided to take her two youngest children to Rockaway Beach. In the process, she became the most famous tort plaintiff in American legal history, made so by the most famous common law judge in American legal history (Palsgraf v. Long Island Railroad, 248 NY 339 [1928]). What makes a review of Palsgraf so topical is that Judge Alvin K. Hellerstein of the Federal District Court in the Southern District of New York issued an opinion on September 9, 2003, holding that as to the Port Authority, the airlines, the airport operators, the security companies and Boeing Company, a duty was owed to the plaintiff victims of the 9-11 tragedy and that the risk was foreseeable. (In re September 11 Litigation, 21 MC 97 [AKH]). All of the issues regarding duty and foreseeability that were raised and discussed in the 9-11 case were raised and discussed over seventy years ago in Palsgraf. So, what was Cardozo talking about when he stated, what is perhaps one of just two or three phrases from a law school case that all lawyers still remember: “the risk

Transcript of GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE · GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE ... (Palsgraf...

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GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE

W. DENNIS DUGGAN, J.F.C.© OCTOBER 2003

August 24, 1924, was a hotSunday in New York City. HelenPalsgraf should have stayed in bed.Instead, she decided to take her twoyoungest children to RockawayBeach. In the process, she becamethe most famous tort plaintiff inAmerican legal history, made so bythe most famous common law judgein American legal history (Palsgrafv. Long Island Railroad, 248 NY339 [1928]).

What makes a review ofPalsgraf so topical is that JudgeAlvin K. Hellerstein of the FederalDistrict Court in the SouthernDistrict of New York issued anopinion on September 9, 2003,

holding that as to the Port Authority,the airlines, the airport operators,the security companies and BoeingCompany, a duty was owed to theplaintiff victims of the 9-11 tragedyand that the risk was foreseeable.(In re September 11 Litigation,21 MC 97 [AKH]). All of the issuesregarding duty and foreseeabilitythat were raised and discussed inthe 9-11 case were raised anddiscussed over seventy years ago inPalsgraf.

So, what was Cardozo talkingabout when he stated, what isperhaps one of just two or threephrases from a law school case thatall lawyers still remember: “the risk

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reasonably to be foreseen definesthe duty to be obeyed.” Was HelenPalsgraf a foreseeable plaintiff towhom the Long Island Railroad oweda duty? Was the explosion thatcaused the scale to topple into hercausing her injuries a foreseeablerisk? And who were those Italianguys carrying the “fireworks” thatset the whole thing off?

Helen Palsgraf was 43, amother of three girls ages 17, 15and 12. She lived in a basementapartment at 238 Irving Avenue inthe Ridgewood section of Brooklyn.She did janitorial work in thebuilding where she lived to reduceher rent and she did similar workduring the day. She probablyearned about $450 per year. Nomention was ever made of herhusband and she was most likelyseparated.

On the day of the incident, sheand her two youngest children,Elizabeth and Lillian, arrived at theEast New York Railroad stationaround mid-morning and purchasedtickets to Rockaway Beach. Shewent out onto the platform to waitwith Elizabeth and sent Lillian to buythe Sunday paper. As a train boundfor another destination was pullingout of the station a loud explosionturned the platform intopandemonium. According to Mrs.Palsgraf; “Flying glass—a ball of firecame, and we were choked insmoke, and I says ‘Elizabeth turnyour back,’ and with that the scaleblew and hit me on the side.” It waslater determined that Mrs. Palsgraf

suffered a stammer, induced by thephysical and psychological trauma ofth explosion, which continued for atleast the three years up to the timeof trial.

Just prior to the explosions,two or three men ran toward thedeparting train. The first jumpedonto the train without incident. Thesecond needed some help. Theconductor on the train helped himfrom that end while a guard on theplatform pushed from the back.(Why did they have a guard?) Thispassenger was carrying a packagewhich was knocked from his graspby the Railroad employee and it fellto the tracks below. The packageexploded, rocking the car, blowingout its windows, damaging theplatform and injuring thirteenpersons, including Helen Palsgraf.The New York Times, the next day,reported that the explosion washeard several blocks away. Thearticle stated that there were threemen, each carrying large wrappedpackages. The packages were aboutsixteen inches in diameter andcontained several “bombs” and othersmaller fireworks and firecrackers.One of the packages was dropped byone of the other men and did notexplode. The police learned,according to the Times, “that thethree men were probably Italianswho were bound for an Italiancelebration somewhere on LongIsland, where fireworks and bombswere to play an important role.” Thethree “Italians” were never to beidentified. (Were these just party

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guys or was there something elseafoot?) Most likely, the explosionwas caused by a wheel of the trainrunning over the dislodged package.

At trial (two and one-halfyears after the law suit wascommenced), Helen Palsgraf wasrepresented by Matthew W. Wood, asole practitioner with twenty-oneyears of legal experience but whoadvertised himself as a bankruptcyattorney. The railroad wasrepresented by house counsel,William McNamara. The case wastried in less than two days beforeSupreme Court Justice Burt JayHumphrey, age sixty-four, and atwenty-five year veteran of thebench. The Plaintiff produced sevenwitnesses: herself, her twodaughters; a husband and wife whohad been on the platform; Dr.Parshall, Mrs. Palsgraf’s personalphysician; and Dr. Graeme M.Hammond, a neurologist who hadbeen retained the day before thetrial. The Defendants produced nowitnesses.

After about thirty minutes ofdeliberation, the jury returned averdict of $6,000. This was theequivalent of twelve years of wagesfor Helen Palsgraf and equal to thethen annual salary of a SupremeCourt Justice. It would equal about$50,000 in today’s dollars. Not abad day’s work for Matthew Wood.The case went to the AppellateDivision and was affirmed, 3-2 (222AD 166). The majority had littletrouble finding a duty owed to HelenPalsgraf and were little bothered

about a problem of foreseeability orproximate cause. The AppellateDivision correctly noted: “It must beremembered that the plaintiff was apassenger of the defendant andentitled to have the defendantexercise the highest degree of carerequired by common carriers.”

The Court of Appeals reversedthe Appellate Division, 4-3. Thirteenjudges had looked at this case andseven held in favor of Helen Palsgrafand six held against her. Of course,one of those judges was BenjaminNathan Cardozo and, in the end, hiswas the only vote that counted.Cardozo has obtained the status ofdeification in the American judicialpantheon with, perhaps, onlyMarshall and Holmes as companions.His decisions have taken on the auraof Papal Bulls. If it’s Cardozo, it mustbe right, right? Well, not so fast,let’s go to the video tape.

Cardozo, spends just 182words to describe the events thatmade the Palsgraf case sofamous—but he leaves out a fewimportant details. He nevermentions that as a passenger on acommon carrier, Mrs. Palsgraf wasowed the highest standard of care.He states that “the package was ofsmall size, about fifteen incheslong,” but never mentions theevidence in the record to supportthat assertion of distance. TheTimes reported that the scale wasmore than ten feet away (which, allthings considered, would still bequite close to the platform edge).But what exactly is “many feet

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away?” He never describes themagnitude of the explosion, thedamage to the railroad car, or theinjuries suffered by the twelve otherbystanders. As for the scales, nodescription was supplied. It shouldbe not4ed that this incident wastreated with a front page, above thefold article in the New York Times.A description of a contemporaryincident, rendered in similarCardozian style, might be as follows:The plaintiff had purchased a latte inthe lobby of the World Trade Centerjust as an airplane piloted byterrorists flew into the building. Asa result of the explosion, thebuilding was thrown down aroundthe plaintiff “causing injuries forwhich she sues.”

In his essay, “Law andLiterature,” Cardozo states: “Isuppose there can be little doubtthat in matters of literary style thesovereign virtue for the judge isclearness. . .[However], there is anaccuracy that defeats itself by theover-emphasis of details. I oftensay that one must permit oneself,and that quite advisedly anddeliberately, a certain margin ofmisstatement.” Hmm? (emphasisadded)

So, is Palsgraf about anunforeseeable harm, proximatecause, or zones of danger? Whatmade this case so famous? The onlything that is clear, is that the legalconclusion in this case was thatHelen Palsgraf, as a matter of law,had no case. This determinationwas so clear, as a matter of law,

that of the thirteen judges whoexamined the question only sixagreed with that result!

Don’t read the Palsgrafdecision more than once. The moreyou read it the more confusing itbecomes. Though the holding maybe fuzzy, it is clear that Cardozo ismaking a statement about duty andwants to anchor his decisionspatially (or geographically). Hespeaks of “the orbit of danger” andthe “orbit of duty.” He makesanalogies about “wrong [s] toanother far removed.” He speaks of“the range of apprehension.” Hetalks of the non-invasion of “therights of others standing at the outerfringe. . .” He mentions “the boundsof [the plaintiff’s] immunity. . .”

“The conduct of the[Railroad’s] guard was not a wrongin relation to the plaintiff standingfar away. Relatively to her it wasnot negligence at all.” (340)

This is an incredible statementby Cardozo. First, because there isno basis in the record that thePlaintiff was standing far away.Justice Andrews, in his dissent, says,“Mrs. Palsgraf [Cardozo nevermentions her by name or the factthat she was with her twodaughters] was standing somedistance away. How far cannot betold from the record—apparentlytwenty-five or thirty feet. Perhapsless.” Would the result have beendifferent if Helen Palsgraf had beenstanding next to the train door?”Probably not, because for Cardozo,the wrong committed in this case

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was to the jumping traveler’spackage (the jumping traveler nevergot hurt) and there was nothingabout the package itself that “had init the potency for peril.” But thismisses the point. Most peril that iscontained in an object is hidden, likelow tensile bolts holding up apedestrian walkway that fails. Also,Cardozo has misdescribed thepackage to make it sound like asmall bundle of fireworks when, inreality, it was large enough to rock arailway car and also, of course,knock over a large scale next to Mrs.Palsgraf standing, according toCardozo, far, far away. In the trial,record the package was described asfifteen inches long and fifteen totwenty inches in diameter. (Record909) This would have made it aboutas big as a rolled up sleeping bag (ora small keg of gunpowder).

The idea that Mrs. Palsgraf isnot a foreseeable plaintiff is absurd.She was a ticketed customerstanding on the Defendant’s railwayplatform. How much moreforeseeable could she get? She wasalso entitled to the highest degree ofcare as the passenger of a commoncarrier, a point Cardozo nevermentions. The Defendant’s stationguards were obviously negligent.Passengers should not be shovedonto a moving train and when theyare it is obvious that bad things canhappen. It is also clear that thenegligence of the Railroad’semployees was the proximate causeof Mrs. Palsgraf’s injuries. Theyshoved a passenger which cause his

package to fall to the rails, whichcaused an explosion which knockedover a scale which injured thePlaintiff. But for the pushing of thepassenger by the train guard, Mrs.Palsgraf would not have beeninjured.

Palsgraf is really about thetrain guard going home that nightand saying to his wife, “How was Isupposed to know the stupidpackage was loaded withexplosives.” Good question, and thisis Cardozo’s strongest point. Thispoint could have slipped through ona failure of the pretrial discoveryprocess, if there was any. The Codeof the City of New York contained aprovision that required a permit totransport fireworks valued at morethan $10 (about $90 in today’smoney) (Chap. 10, Art. 6, Sec.92(6)). Wouldn’t the Railroad havehad some policy regarding fireworksbeing transported on their trains, ifthe City required a permit for publicpossession of these inherentlydangerous materials? We don’tknow the answer to this question sowe can’t assess how reasonable itwould have been for the Railroad toforesee such a risk. However, sinceall of these risk limiting and riskspreading legal rules involve thecourts exercising their common lawsocial policy setting jurisdiction, whywas it not reasonable to make acommon carrier responsible to all ofits passengers for its employees’negligence, regardless of whetherthey could foresee the particular riskor exactly how the accident would

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happen? What social policy wasadvanced by leaving Helen Palsgrafout in the cold?

Well, what if the package thatwas dislodged contained a nucleardevice or a quantity of anthraxpowder and the result wasthousands of deaths far from thestation? Should the Railroadbecome an insurer of society? TheCourts have figured out these typesof problems a long time ago. Forexample, New York, in Ryan v. NewYork Central R. Co., (35 NY 210[1866]), limited the liability of arailroad that negligently started afire to the first adjoining building. InKansas, on the other hand, liabilityextended for at least four miles.(Atchison T. & S.F. R. Co. V.Sanford, 12 Kan. 354) Prosserexplains that these social policieswere determined primarily by thefact that in New York most propertywas insured and in Kansas therewere miles of uninsured wheatfields.

Palsgraf was decided wronglybecause Cardozo was too clever byhalf and he exceeded his “margin ofmisstatement in the interest ofjudicial clarity” principle cited above.No doubt that if the package hadfallen on someone’s foot theRailroad would have been liable. Orif it contained a vase and shards ofglass flew into someone’s eye tenfeet away, the Railroad would havebeen liable. Or, if it contained asharp object which careened intosomeone twenty feet away causinginjury, the Railroad would have been

liable. So why is Helen Palsgrafwithout remedy because she wasperhaps only five or ten feet furtheraway and her injury was caused byan explosion? I don’t know and Idon’t think Cardozo told us. Helen,you wuz robbed!

But the world does go around.In 1991, in Hamburg, NY, LisaNewell married J. Scott Garvey. Ms.Newell is a fourth degree first cousinof Benjamin Cardozo and Mr. Garveyis Helen Palsgraf’s great-grandson.

And what of those “ItalianGuys?” Court of Appeals JusticeAlbert M. Rosenblatt is not only ajudge of Holmesian dimension of theOliver Wendell sort but also of theSherlockian sort. He is a certifiedBaker Street Irregular. In an articlea few years ago in the New York LawJournal, he advanced a theory thatthe Italian Guys were not on theirway out to Long Island toassassinate the Prince of Wales ashe played polo. Two weeks earlier,eight of the Prince’s polo poniesarrived at the estate of James A.Burden on Long Island where thePrince would be staying with hisyounger brother Prince George andLord and Lady Mountbatten. JamesBurden was a steel industrymagnate and married to a greatgranddaughter of the Commodore,Cornelius Vanderbilt. So, theevidence for anarchists is what?Holmes would probably saysomething like this. “The report thatthere were three men and that theywere all of the same nationalitysuggests a unity of interest. The

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report that they were Italian drawsattention to the very active ItalianAnarchist community in New Yorkand the fact that two of theircompatriots, indeed heroes, Saccoand Vanzetti, were then sitting ondeath row in a Massachusetts prison.The reports that each of the threehad been carrying wrapped bundlesabout the size of five gallon bucketscontaining explosive devices soundslike they had intentions in mindmore serious than weekendfestivities. The fact that there wasno record of fireworks permits beingissued, which resembled thecircumstances of this case, suggeststhat the explosives were of an illegalnature. There were no reports ofany scheduled fireworks displaysthat Sunday on Long Island. Andwhere was that “other place” towhich their train was headed, as solaconically described by Cardozo?The fact that the New York StatePolice sent a special security detailto the Burden residence suggeststhat police intelligence waspredicting trouble. The fact that theBurdens and the Vanderbilts werepart of the American corporate

aristocracy, the frequent focus of theviolent fringe labor movementoccupied by the anarchists, andwould provide a tantalizing target,especially when the element ofEnglish royalty was added. Anyway,you can look it up.

SOURCES

Cardozo, Benjamin N. Cardozo Onthe Law. Irmingham: The LegalClassics Library, 1982.

Kaufman, Andrew L. CardozoCambridge: Harvard UniversityPress, 1998.

Noonan, John T. Jr. Persons andMasks of the Law. The Passengersof Palsgraf. Berkeley: University ofCalifornia Press, 2002.

Prosser, William L. “PalsgrafRevisited.” Michigan Law Review 52,no. 1 (November, 1953).

Rosenblatt, Albert M. “ ‘PalsgrafThrough the Eyes of SherlockHolmes.” New York Law Journal, p.2, col. 3 (November 30, 2000).