Week 2: DUTY OF CARE CONTINUED
PALSGRAPH V LONG ISLAND R. CO.
If the preceding case was about establishing a relationship, and finding a duty of care, this
case is about refining that duty, and clarifying the principle that a duty must be owed to the
plaintiff in the particular circumstances before liability will occur. The risk is relational, the
plaintiff must be a foreseeable plaintiff.
Although all of us are entitled to live our lives free from the risk of injury, the law will only
extract compensation for our injury from the defendant where there is fault. Fault in
negligence is failing to recognize a foreseeable harm, there is no duty if harm is not
This case also clearly establishes the order of the questions for liability in negligence. We
can’t simply say that because someone was injured, there must be liability, reasoning back
from damages and causation. This is a great case to see the stark contrast between the
majority and the dissenting opinion. The majority opinion stays true to negligence principles,
insisting on the duty of care to the particular plaintiff, insisting that without reasonable
foreseeability, there is no duty owed to the plaintiff. The defendant acted reasonably in the
The dissent, however, insists that foreseeability requires an almost prescient knowledge, that
if the defendant isn’t something like a fortune teller, he can’t be held liable. He reasons that
we all, as potential plaintiffs, possess a basic right to be free from wrongful injury. I suppose
we arguably have a right to be free from injury, but to use the word wrongful here is putting
the cart before the horse. We are trying, in a negligence analysis, to establish if the conduct
was wrong, we cannot presume it is wrong to establish it so. The dissenting opinion reasons
the conduct is wrong because the injuredplaintiff is an innocent person.
The dissenting opinion also holds that any time there is conduct causing damage, and there
was no wrongful act on the part of the injured party, then because there is injury the
defendant must be liable. This is wrong, exactly wrong. One cannot reason back from the
injury and causation alone is also insufficient.
So, the dissenting judge reasons backwards from harm, and finds liability, or “fixes the
blame”, on whoever caused it.
Dissenting Justice Andrews rejects foreseeability as the test for a duty of care, but goes on
to say that foreseeability can be used to determine the practical question of where you stop
paying for injury, as the consequences of a single act are potentially unlimited. Continued… PALSGRAPH V LONG ISLAND R. CO.
Facts: plaintiff standing on the platform at Rockaway Beach, two men ran to catch moving
train, def’s employees pulled and pushed second man to help him onto train, he dropped his
package, package exploded, some scales fell down, landing on the plaintiff and injuring her:
Held: at trial, and on appeal (state level), for the π
On appeal, case dismissed
1. no duty of care owed between def’s employee and π
2. p 1-19, not a wrong in relation to π - nothing in situation gave notice that
package was perilous
3. may be a wrong in relation to package guy, but not the π, 30 feet away
4. negligence once established extends to all damages caused, negligence is not
established in this case
5. act did not pose foreseeable danger to any person (* consider, if contents of
package were known, employee would not “push” person - advert to potential harm)
6. since harm was not “foreseeable”, def owed no duty to π
7. p 1-21, risk reasonably to be perceived defines the duty to be obeyed
8. p 1-21 “ the question of liability is always anterior to the question of the
measure of the consequences that go with liability” , no tort liability, no
measure of damages
9. this second statement at p 121 establishes the order in which the elements of a
negligence action must be addressed, the first being the Duty of Care
1. feels that act was a wrong to the world at large, def accepts all consequences
2. reasons back, if there is damage caused, obviously did something wrong
3. objects to “proximate cause” limitation, objects to foreseeability test
4. one should not have to foresee exact nature of mishap or those to be affected, it is
enough that they are affected
5. sees proximate cause as a limitation of practical utility, can’t make the def pay for
everything that happens
- foreseeability applies here at this point, to determine the extent or scope of how far Bourhill v Young
This case further refines the notion of foreseeability. Now we are discussing whether the kind
of injury is foreseeable. The plaintiff in this case is a bystander, her injury caused simply by
seeing the incident.
Facts: π a woman 8 months pregnant, standing 45’ from collision, motorcyclist was killed in
collision, π suffered nervous shock as witness to the collision, baby was still-born, sued
Held: for the def, def owed no duty of care to π, *def was negligent, but not in relation to π
- nervous shock suffered by the plaintiff is not a foreseeable injury
1. must be negligent to this π
2. * p 1-28, if the wrong is established, the wrongdoer must take the victim as he finds
him” - thin-skulled π rule, only applies after liability is established,
3. p 1-28, Q of liability is anterior to Q of measure of the consequences
This case qualifies the notion of foreseeability to say the “kind” of harm must be foreseeable.
This plaintiff sues for nervous shock, the court finds that nervous shock is not a foreseeable
If the injury is not foreseeable, there is no duty of care to this plaintiff.
The thin-skulled plaintiff rule:
The reference to the thin-skulled plaintiff rule tells us that until liability can be established,
through a duty of care owed, the rule will not apply.
The thin-skulled plaintiff rule takes away an argument that a lack of foreseeability might
otherwise give a defendant.
Consider this example. A defendant strikes a person who is, unknown to the defendant, a
hemophiliac, also referred to as a bleeder. An otherwise minor blow to someone without this
disease can have catastrophic consequences for the hemophiliac. The injured hemophiliac
might sue the defendant for her injuries.
The defendant might defend on the basis that he had no knowledge of the plaintiff’s
condition. He could argue that he should only have to pay for an injury that would be
sustained by a normal person, because the extent of injury was not foreseeable.
The thin-skulled plaintiff rule precludes this defence. The rule is that the tortfeaso