There was a warning sign on the boat, but the owner was too lazy to get rid of it and the condo association didn’t get rid of it either Attractive nuisance: It is long established that children are attracted to objects on propertyThe modern rule- you don’t even have to see the boat, but if there is reason to believe thatthe kid would go on the land to play with the boat, its an attractive nuisanceRULE: KIDS ARE OWED A DUTY OF CARE WHEN IT COMES TO REASONABLYATTRACTIVE NUISANCEThe sign is not enough- therefore they are breaching their dutyThe trial court: rules that it was a reasonably foreseeable danger Palmer argues that they were working on the boat not playing on it Mimicking adult behavior It was reasonably foreseeable The supreme court: that the foreseeability did not apply The highest court the plaintiff won (won, lost, won)Was it reasonably foreseeable? Yes This was not what they were trying to protect against it The argument that flows thru this is "what kind of person was this kid who got hurt"He was trying to fix the boat that no one else was trying to fix He acts on his dream and fixes the boat that no one else fixes takes initiative The notion of using reasonable foreseeabilityPalsgraf v. Long Island Railroad1928Main takeaway/Rule:Using foreseeability and scope of the risk test We only find a duty when there is a reasonably foreseeable riskThis means that if there was no duty, there can be no breach, therefore they are not liable We basically measure proximate cause to see if there is a duty (see separate document for case brief on Palsgraf)Judge CardozoThere is but for cause, but What about proximate cause?Andrews: would say there is proximate cause Because of the policy of rough sense of justice- this is practical politics The jury doesn’t because there is a long chain of causation Today we would say, that andrews MAY BE RIGHT that there was a duty owed to her BUT NO PROXIMATE CAUSE BECAUSE IT DOES NOT PASS THE SCOPE OF THE RISK TEST 31
Today we would say NO proximate causeIf we are going to look at this as Andrews did, maybe he is wrong In saying there is prox cause BC IT DOES NOT PASS THE TESTAndrews thinks this is a prox cause caseBut we disagreeBecause today we use scope of the risk test We don’t disagree on a moral value senseWe just disagree bc this does not pass a scope of the risk testThe duty is owed to REASONABLY FORESEEABLE VICTIMSIT IS HARD TO BELIEVE THERE IS NO DUTY OWED TO PALSGRAFBut there was no BREACH- if there was no duty, then there was no breach, then not liableThe duty and breach must be aligned with each other Negligent conduct- but only as to package guy Not to Ms. Palsgrafb. Defenses:1. Superseding Cause (use this as a defense)Superseding cause Doctrine"A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.