Palsgraf v Long Island Railroad Co – Reasonably Foreseeable?

By Legal Eagle

One of the things you learn in law is that truth is stranger than fiction. I’m teaching Torts this year, and I’ve just had occasion to revisit Palsgraf v Long Island Railroad Co 248 NY 339; 162 NE 99 (1928). Gee, it’s a fantastic case. It’s generated debate for almost 100 years now, and to be honest, I’m still conflicted about it myself.

For the non-lawyers and those lawyers who have forgotten Tort, a short introduction is needed. In a grossly simplified version of the law, to establish the tort of negligence, you have to establish first, that there is a duty of care, secondly , that the duty of care has been breached and thirdly, that the breach caused the injury. Then you decide whether there are any relevant defences, and what the damage is. At each of the first three stages you have to decide whether the injury was reasonably foreseeable. At each stage the test gets more specific and difficult to establish.

The facts of Palsgraf are as follows. Mrs Palsgraf was waiting for a train at one end of the Long Island Railroad Co’s platform. At the other end of the platform, a train was just pulling out when two men ran to catch it. They tried to jump aboard. One man got on successfully, but the second could not quite get up. Two of the railway company’s guards attempted to help the man, one pushing the man up from behind, and the other holding out his arm to assist the man up. One of the guards dislodged a parcel that one of the men was carrying under his arm. The parcel was about 15 inches long and covered by newspaper. It looked harmless, but it actually contained fireworks. When the parcel fell onto the platform, the fireworks exploded. In the wake of the explosion, some metal scales next to where Mrs Palsgraf was standing were dislodged and fell and hit her. It is not really clear whether the scales were dislodged by the explosion or by the panicking passengers, but the court presumes the former. Mrs Palsgraf was injured as a result.

Now really, you couldn’t invent facts as crazy as that! It reads like an exam hypothetical. The test for reasonable foreseeability at the duty of care stage is whether the defendant and plaintiff are placed in such a relation to one another that it is reasonably foreseeable that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter (see Minister Administering the Environmental Planning and Assessment Act v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295 per Glass JA).

The question in Palsgraf is thus whether it was reasonably foreseeable that Mrs Palsgraf would suffer the injuries she did. Clearly the chain of events was pretty crazy. Cardozo J of the New York Court of Appeals delivered a famous judgment in favour of the defendant (and ultimately, he made up the majority). He said:

Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station.. If the guard had thrown it down knowingly and wilfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. …[B]odily  security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not wilful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.

But it was a narrow win. The seven judges were split 4:3, and in the intermediate court preceding this, a majority of the court had gone in the other direction (3:2). The trial judge and jury had also found in the plaintiff’s favour.

William Prosser wrote a very famous article in the 1953 Michigan Law Review entitled ‘Palsgraf Revisited’. It’s still a great article. Prosser makes the point that ‘reasonable foreseeability’ is not actually a very effective or coherent limitation on tortious liability. He has some great examples of courts finding that some prima facie foreseeable events are not foreseeable (eg, it is not reasonably foreseeable that a mother will suffer ‘nervous shock’ as a result of seeing her child run over in front of her – reminiscent of the Australian case on this issue – Chester v Waverley Municipal Council (1939) 62 CLR 1). Then he has some marvellous examples of the most bizarre series of events which have been held to be reasonably foreseable. The first is a case where a collision forced a taxi over the footpath into a building, thus loosening a stone in the building. It was reasonably foreseeable that the stone would be dislodged and kill a bystander when the taxi was removed twenty minutes later by a tow truck. The second case involved a mudhole left by the defendant in the highway. It was held to be reasonably forseeable that the mudhole would cause a car to stall, that a rescuer attempting to tow it out would get his wooden leg stuck in the mud, and that a loop in the tow rope would lasso his good leg and break it.

But how should we decide these cases? Surely there has to be some kind of limit on the damage for which a defendant is liable? Should the Railway Company in Palsgraf have been liable or not, in your opinion? If not, why not? On the one hand, it seems illogical to hold the defendant liable for its employee dislodging a parcel which it could not have known contained fireworks. On the other hand, surely they shouldn’t have had scales in a position such that they would fall on someone if there was a disturbance which would dislodge them.


  1. Posted February 7, 2011 at 6:53 pm | Permalink

    Ah, the unforeseeable plaintiff…

  2. Posted February 8, 2011 at 6:23 am | Permalink

    I dunno. It seems to me that there is a such a thing as an accident, and this is an example of one. They’re usually the result of a string of events which have nothing to do with each other (like this one), and that’s why New Zealand established an Accident Compensation Scheme. It’s not perfect, but in general no-fault insurance has a lot going for it, to my (note, non-legal) mind.

  3. RipleyP
    Posted February 8, 2011 at 6:49 am | Permalink

    I always found Torts to be one of the more difficult areas of law to get my head around. I enjoyed it a lot as it does have some of the best anti-miracles.

    The oil was spilt just there, the guard rail was loose just here and the forklift was passing just then. Even though it isn’t nice it is still miraculous. (Not an original line)

    There is such a balance in Torts between the duty of care for others and the duty of care for ones self. The so called “Liability Crisis” of 2001 has clouded the issue with inaccurate reports of liability rates and payouts. I think we lost sight of the truth behind torts for a while there.

    I must admit I tend to be a bit of a personal responsibility fan and the volenti defense. Of course being in a position to obtain personal insurance and income protection does tend to bias my position somewhat.

  4. Posted February 8, 2011 at 6:58 pm | Permalink

    An international version of reasonably forseeable gentle macchia? Can nation states sue other states?

  5. Posted February 8, 2011 at 8:15 pm | Permalink

    [email protected] – One that should really comes to mind – chernobyl: it’s easy to foresee what happens with an unmaintained reactor, and if nothing else, there could be a hard value put against the farm produce that had to be dumped or not grown for x yearsu, and there could be added costs of health care extrapolated to reasonable accuracy – at least lower bounds. I’m assuming that the reactor was state-owned which should make responsibility easy to assign, as easy as war reparations.

  6. Posted February 9, 2011 at 4:59 am | Permalink

    [email protected] There are some amazing stories about Chernobyl. Apart from the fact it was built without a containment vessel — it would never have been legal anywhere in the West. The stories I have heard are (1) the safety manuals had been rated secret beyond the clearance of the actual staff (2) they were experimenting with what happened when you turn all the safety features off (possibly to build there own in-house safety manual). Sounds utterly bizarre, but sadly plausible if one is aware of the bizarre chaos that is a command economy.

  7. RipleyP
    Posted February 9, 2011 at 7:01 am | Permalink

    Legal Eagle @ 5 – It is the quixotic nature that I find the most difficult to reconcile. The citizen is expected to reasonably foresee something that the court will judge in hindsight.

    One aspect of interest for me has been the realm of economic loss. For my own situation had I suffered a catastrophic injury at age 30 my earning potential would have netted a very small return in a compensation payout.

    A few short years later after a trip to university my earning potential was increased dramatically. Although I have struggled to imagine a way to factor in a calculation of this nature I have never come up with even the smallest idea to implement it.

    As I am a believer in improvement and redemption, what you are today is not necessarily what you will be into the future. Things can change. Thus compensation schemes make me a little sad as the snap shot of your life at the time of injury is what will determine your future.

    Thanks LE I don’t think about this stuff enough, too much concern with the practicalities rather than the jurisprudence behind it.

  8. Patrick
    Posted February 9, 2011 at 7:03 am | Permalink

    The day that states can sue each other for negligence is the day that I check out to my farm (which I haven’t even bought yet) with my animals, my crops, my generator and yes, my arsenal (which I will procure for this purpose).

    My farm or my asteroid, depending on when this happens.

  9. Posted February 9, 2011 at 7:04 am | Permalink

    I’ll just second M-H @ 3’s view of the system in New Zealand. Strict liability has turned New Zealand into a high quality adventure playground for the simple reason that people know where they stand and can predict accordingly: it’s a poster child for Hayek’s arguments about certainty in the law. When individual people know what’s coming, they can plan, far better than any government, charity or corporation.

  10. desipis
    Posted February 9, 2011 at 8:29 am | Permalink

    One thing that would be challenging when considering these judgements would be putting yourselves in the shoes of someone in those times. As an engineer there’s a big red flag on the fireworks/explosives. From my point of view, the liability would depend on whether such goods were commonly transported or otherwise sanctioned on the trains. If such dangerous goods were regularly transported along with other passengers then I’d consider it reasonably foreseeable that something bad was eventually going to happen. If dangerous goods weren’t permitted on the trains and the men were going against convention then the liability would lie with them.

    it is not reasonably foreseeable that a mother will suffer ‘nervous shock’ as a result of seeing her child run over in front of her – reminiscent of the Australian case on this issue – Chester v Waverley Municipal Council (1939) 62 CLR 1)

    I have to wonder if the common knowledge of human psychology and emotion in the 1930’s would have been sufficient for that to be foreseeable. And again, perhaps its my engineering background, but as you described them, both the taxi case and the mudhole case seem to clearly involve creating hazards (and thus, in my mind, liability).

    An accident compensation scheme sounds like a good idea. You could then have the scheme sue any one who unreasonably contributed to the accident to the extent that they should be liable, where it makes economic sense to do so.

  11. Posted February 9, 2011 at 10:33 am | Permalink

    LE @ 5: Yes, of course. Four years ago I ripped apart my achilles tendon by tripping on a tree root. I was walking back from a sandwich shop at lunchtime, and was therefore covered by Workers Comp (even though I wasn’t on work premises at the time) and so surgery, a year’s physio and necessary time off were all covered at 100%, along with ongoing assessments and a return to work plan. If I’d done it at the weekend I would have got exactly nothing except some assistance with the surgery and physio from my medical insurance. Crazy-ass system.

  12. pete m
    Posted February 9, 2011 at 7:29 pm | Permalink

    Forgive me for not knowing of or reading the case under discussion.

    In my view either a breach of contract case or vicarious liability is a better answer to the factual scenaio raised. The railway ought to be strictly liable for the acts of their employees done in the course of their work. It is not a question, to me, of trying to establish some means by which they could have avoided the insult to her.

    re NZ – their system may sound great but is frankly bankrupt, with about $7 billion in unfunded ongoing claims only surviving because the taxpayer is standing behind it. If it were a non-profit enterprise it would have been liquidated in year 2.

    The only issue I have with torts is that insurance renders the meaning behind it a nullity. Torts were invented as a means of punishing the negligent party – to make them pay for the wrong but also to make them behave differently in future. Also to have others see the result and amend their ways too. Insurance or even worse no fault makes this meaningless. Sure an insurer may refuse the person insurance or increase their premiums, but it is nothing compared to the payout or future payouts.

    What is shameful is the lack of data exchange between insurers like Workcover in Qld and our Workplace health and safety.

    We have something like 250,000 injuries become claims for wages / treatment and unless the person required a night in hospital WHS doesn’t invesitgate it

    Re achilles – my Filipino client was told to get off her crutches and stop carrying on about the cut to her leg – 4 weeks later a physio said get a scan and she had a nearly complete achilles tear.

  13. pete m
    Posted February 12, 2011 at 4:25 am | Permalink

    haha LE – your despised reasonable person does wander thru contract law – just try arguing a term ought to be imputed!

    Or what is the ordinary meaning of words used in an oral contract.

    Sorry, the reasonable person, in the end, is just what the judge thinks about it all, hence the confusion, as judges change case by case.

    nasty accident – I do find some supermarkets still act nice up here in qld –

    What I find amazing is employers and schools who don’t bother to call ambulances etc

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