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Is it just that cardozo looks at foreseeable risk in determining liability and the dissent says liability should extend to everyone?
I read it quickly and i'm sure there is some stuff I missed...anything would be appreciated

It's value comes more from the ruminations than from the holding. It's one of the great discourses on causation.

trey wrote:Is it just that cardozo looks at foreseeable risk in determining liability and the dissent says liability should extend to everyone?
I read it quickly and i'm sure there is some stuff I missed...anything would be appreciated

Both the dissent and the majority are important in Palsgraf, but for different reasons. You are incorrect in saying that the majority says that liability can be cut off and the dissent says it extends to everyone, because in actuality, both say that liability can be cut off at a certain point.

Majority: Cardozo's opinion says that a duty should be extended only to those who could be reasonably foreseen to be within the scope of danger if a person were to act negligently. You cannot have a duty to those whom you cannot perceive to be in danger of your actions, or as he says, "The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or to others within the range of apprehension."

Dissent: Andrews says that people have duties to society as a whole, and if one is negligent, then a duty existed no matter what. However, Andrews does believe that negligence can be cut off via proximate cause, and an actor is only liable for the damages that resulted out of his negligence.

So why the splitting of hairs? It all comes down to the connection between proximate cause and duty. Both serve as a means of cutting off a defendant's liability, but they operate in slightly different manners. And the difference is not a mere formality, because the judge determines duties and the jury determines proximate cause. Andrews is not saying that D is liable to P; he is simply arguing that a duty existed and that duty was breached, and thus it is up to the jury to decide if his actions were the proximate cause of the injury.

Takeaway? You cannot be the vicarious beneficiary of a duty of due care owed to another.

Cardozo limits duty to 'those like Mrs. Palsgraf,' while Andrews extends it to 'someone.'

In states that follow Andrews, judges limit liability (via cause) for public policy reasons. In other words, courts are going to limit liability - it's just a matter of whether they use duty (Cardozo) or cause (Andrews) to do it.

At least thats what I'm told.

koeni082 wrote:Cardozo limits duty to 'those like Mrs. Palsgraf,' while Andrews extends it to 'someone.'

In states that follow Andrews, judges limit liability (via cause) for public policy reasons. In other words, courts are going to limit liability - it's just a matter of whether they use duty (Cardozo) or cause (Andrews) to do it.

At least thats what I'm told.

Right, but normally proximate cause is a question of fact (for the jury) while duty is a question of law (for the judge).

Also, while Andrews loses on the issue of "Is a duty owed?", he does provide a pretty good explanation of what proximate cause is that has been influential in the development of the concept. In like the 5th or 6th paragraph to the end (in my Prosser book anyways... it is the paragraph that starts "There are some hints that may help us..."), he gives a pretty decent overview of what proximate cause is.

Proximate cause = foreseeability under the majority (Cardozo) rule

the two tests (andrews and cardozo)... i think that's it, at least for exam purposes.

The takeaway really depends on your prof and his/her personal take on the entire tort of Negligence and the alignment of the elements.

When Palsgraf was decided, the rule for Proximate Cause was still the Directness test; so there was no foreseeability or harm-within-the-risk tests at that point. Palsgraf was basically Cardozo's using the "duty" element to talk about Proximate Cause as a question of "was the harm within the risk". If the elements didn't line up properly, then there can be no negligence. Also, his theory of tort law is that it is supposed to be a way of providing redress for those who have been wrong or their specific rights have been violated specifically at the hands of the defendant.

Andrews dissent directly talked about proximate cause, but remember, his view of duty is that everyone owes a duty to everyone else; and that proximate cause is basically just a tool to use in order to limit liability. For Andrews, negligence is essentially about proof of injury, the reasonable person and actual cause. Proximate Cause and Duty are just excuses for a free-form policy argument. There are jurisdictions (CA being one) that apply the Andrews version of tort law/negligence.

Palsgraf is not useful for anything. Professors just keep going through the motions of teaching it because it's a "classic" but there's absolutely nothing enlightening about studying it in the context of modern tort law.

reverendt wrote:It's value comes more from the ruminations than from the holding. It's one of the great discourses on causation.

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prezidentv8 wrote:

reverendt wrote:It's value comes more from the ruminations than from the holding. It's one of the great discourses on causation.

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The other great discourses on causation, of course, being largely erotic pirate paperbacks.

blsingindisguise wrote:Palsgraf is not useful for anything. Professors just keep going through the motions of teaching it because it's a "classic" but there's absolutely nothing enlightening about studying it in the context of modern tort law.

That's something important in and of itself, because, like romo said, this is really about judge/jury politics. It's a pretty fundamental legal policy debate.

Is that going to be tested? Maaaaybe but I doubt it. I got the impression our torts guy isn't going to, given the total contempt he has for Cardozo.

There are important fundamental legal/policy debates about proximate cause and/or duty (as another poster pointed out, the same thing can easily be placed under one or the other heading); I just don't think Palsgraf illuminates them, and in fact seems to confuse them.

Such highbrow conversation taking place here. Too bad I'm not taking torts right now.

prezidentv8 wrote:

reverendt wrote:It's value comes more from the ruminations than from the holding. It's one of the great discourses on causation.

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Just me me LOL. Teacher just looked at me.

prezidentv8 wrote:

reverendt wrote:It's value comes more from the ruminations than from the holding. It's one of the great discourses on causation.

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Probably the greatest response to one of my posts on any message board ever!