● Note: Identical structure of facts to Polemis, but opposite conclusion. ● 315, Note 1A: When D served “foul smelling” shrimp, it was reasonably foreseeable that patron would become ill, but not that it would cause someone else to slip on her vomit. ● Professor Keeton: General rule - “a negligent actor is legally responsible for that harm, and only that harm, of which the negligent aspect of his conduct is a cause in fact.” 18
19 Palsgraf v. Long Island R.R. Co. - “The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation.” In order for D to be liable, P must be a foreseeable victim within the zone of danger created by D’s act. Ex Ante. Unforeseeable P is owed no duty. ● Facts: D pushed man onto train, causing his wrapped box of fireworks to dislodge and explode. A scale at the other end of the platform fell over and hit P. ● Cardozo majority: Question of duty for the judge. P cannot recover because she was an unforeseeable P who was owed no duty. Duty is relative, owed to those in orbit of danger ● Andrews’ Dissent: Question of causation for jury. Liability extends to all proximately harmed by negligent act, even outside danger zone, regardless of foreseeability. Duty is owed to world at large. Natural and continuous sequence between cause and effect (but there are pragmatic boundaries) Overseas Tankship v. Miller Steamship Co. (“Wagon Mound No. 2”) - If a reasonable man would have foreseen and prevented risk, then he is liable for foreseeable damages, even if the consequences are remote and manner is unforeseeable. ● Facts: 2 of P’s ships were damaged while docked at wharf when oil in water ignited. ● Outcome: Engineer could/should have foreseen that oil could ignite on water. D should have weighed risk against difficulty of eliminating risk (unburdensome here) ● E&E: D allows employee to clean machine with gasoline in a small room. A rat, drenched with gasoline runs into machine and causes explosion. While the manner in which the accident took place was unusual, an explosion was exactly the type of damage to be anticipated from using a volatile, flammable liquid in a small room with an open flame. D is liable. Enright v. Eli Lilly & Co. - The court can limit causation despite it being foreseeable if liability would be outside manageable limits in light of public policy. Common law rule: a later-conceived child cannot recover from original tortfeasor for a preconception tort committed against mother - temporal, generational remoteness. ● Facts: P, granddaughter of woman who took DES, suffers from cerebral palsy because her mother had reproductive abnormalities as a result of her in utero exposure to DES. ● Outcome: P has no cause of action. Court must limit liability to those who ingested DES or were exposed to it in utero.
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