The general rule of duty depends on foreseeability. Where harms are foreseeable, both moral and legal notions suggest that it is proper to prevent them unless the costs or risks of doing so outweigh the costs or risks of not doing so. Efficiency, fairness, deterrence and compensation are all powerful rationales for pinning duty to foreseeability—in theory. In practice, determining what is foreseeable has commonly been an exercise in judicial policymaking with lines drawn that sometimes seem coherent and principled and other times seem outcome-driven or poorly reasoned.
Foreseeability has often played a role in constricting the scope of liability but it expanded the scope of duty with respect to landlord liability. Were landlords liable to their tenants and their guests, when third parties committed crimes for which the landlords were not directly responsible? The common law answer was no, reflecting the default to “no duty.” However, a landmark case in 1970, Kline v. 1500 Massachusetts Ave., signaled courts growing willingness to shifting toward finding a duty in some cases of landlord responsibilities to prevent third-party crimes. The following case also provides a helpful overview of the changing notions of duty over time.
Note: The case mentions a sexual assault in the background of the fact pattern but does not dwell on or recount it beyond that.
[The legal question is: Does New Hampshire law impose a duty on landlords to provide security to protect tenants from the criminal attacks of third persons?]
On December 13, 1988, the plaintiff, Deanna Walls, was sexually assaulted in her vehicle, which was parked on the premises of the Bay Ridge Apartment Complex in Nashua. The plaintiff lived with her mother, who leased an apartment at Bay Ridge. Gerard Buckley was arrested and subsequently convicted of sexually assaulting the plaintiff. Bay Ridge is owned by defendant Nashua–Oxford Bay Associates Limited Partnership (Nashua–Oxford), and managed by defendant Oxford Management Company, Inc. (Oxford). It consists of 412 apartments located in fourteen buildings. During the two years prior to the assault, the Bay Ridge complex had been the site of a number of crimes directed against property, including eleven automobile thefts, three attempted automobile thefts, and thirty-one incidents involving criminal mischief/theft. No sexual assaults or similar attacks against persons had been reported.
The plaintiff brought this action in federal court, charging that the defendants “had a duty to hire and contract with a competent management company, had a duty to provide reasonable security measures for the protection of residents of Bay Ridge, a duty to warn residents of its lack of security, as well as a duty to warn residents of the numerous criminal activities which had taken place on the premises of Bay Ridge and in the vicinity of Bay Ridge.”
The plaintiff alleges that the defendants breached these duties, and that the breach was a proximate cause of the sexual assault. *656
1. Landlord’s Duty to Secure Tenants Against Criminal Attack
The issues raised by the first question [before] the court at the confluence of two seemingly contradictory principles of law. On one hand lies the accepted maxim that all persons, including landlords, have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm. See Sargent v. Ross, 113 N.H. 388, 391 (1973). On the other hand, a competing rule holds that private persons have no general duty to protect others from the criminal acts of third persons. See Restatement (Second) Of Torts § 314 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 33, at 201 (5th ed. 1984).
Claims for negligence “rest primarily upon a violation of some duty owed by the offender to the injured party.” [c] Absent a duty, there is no negligence. Whether a duty exists in a particular case is a question of law. [cc] Only after a court has determined that a defendant owed a plaintiff a duty, and identified the standard of care imposed by that duty, may a jury consider the separate question of whether the defendant breached that duty. [c]
While of paramount importance to the analysis of a claim for negligence, duty “is an exceedingly artificial concept.” Libbey v. Hampton Water Works Co., 118 N.H. 500, 502, (1978). In some cases, a party’s actions give rise to a duty. [c] A party who does not otherwise have a duty, but who voluntarily renders services for another, has been held to a duty of reasonable care in acting. [c] Restatement (Second) Of Torts, supra §§ 323, 324. In other cases, a duty to act exists based on a special relationship between two parties. [c] In either case, the scope of the duty imposed is limited by what risks, if any, are reasonably foreseeable. [c] As a general rule, “a defendant will not be held liable for negligence if he could not reasonably foresee that his conduct would result in an injury or if his conduct was reasonable in light of what he could anticipate.”
*657 When charged with determining whether a duty exists in a particular case, we necessarily encounter the broader, more fundamental question of “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Libbey, 118 N.H. at 502 (quotation omitted). The decision to impose liability ultimately rests on “a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability.” Libbey, 118 N.H. at 502. See generally Keeton, supra § 54, at 358 (duty not sacrosanct in itself, but only expression of sum total of policy considerations).
At one time, landlords enjoyed considerable immunity from “simple rules of reasonable conduct which govern other persons in their daily activities.” Sargent, 113 N.H. at 391. A landlord owed no general duty to his tenants, and could be found liable for injuries caused by a defective or dangerous condition on leased property only if the injuries were “attributable to (1) a hidden danger in the premises of which the landlord but not the tenant [was] aware, (2) premises leased for public use, (3) premises retained under the landlord’s control, such as common stairways, or (4) premises negligently repaired by the landlord.” Id. at 392. In Sargent, however, this court abolished landlord immunity, and held that a landlord has a duty to act as a reasonable person under all the circumstances. Id. at 397. We acknowledged that “[c]onsiderations of human safety within an urban community dictate that the landowner’s relative immunity, which is primarily supported by values of the agrarian past, be modified in favor of negligence principles of landowner liability.” Id. at 396 (quotation omitted).
While we can state without reservation that landlords owe a general duty of reasonable care to their tenants, our efforts at resolving the first question presented are complicated by the competing common law rule that private citizens ordinarily have no duty to protect others from criminal attacks. See generally Restatement (Second) of Torts, supra § 314; Keeton, supra § 33, at 201; Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970). This rule is grounded in the fundamental unfairness of holding private citizens responsible for the unanticipated criminal acts of third parties. “Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the *658 law…. Although [crimes] do occur … they are still so unlikely that the burden of taking continual precautions against them almost always exceeds the apparent risk.” Keeton, supra § 33, at 201. In keeping with this rule, courts have largely refused to hold landlords to a general duty to protect tenants from criminal attack. [c]
We agree that as a general principle, landlords have no duty to protect tenants from criminal attack. Without question, there is much to be gained from efforts at curtailing criminal activity. Yet, we will not place on landlords the burden of insuring their tenants against harm from criminal attacks.
Our inquiry is not concluded, however, as we must further consider whether exceptions to the general rule against holding individuals liable for the criminal attacks of others apply to the landlord-tenant relationship. A review of the law in this area suggests four such exceptions. The first arises when a special relationship, such as that of innkeeper-guest, or common carrier-passenger, exists between the parties. See Restatement (Second) of Torts, supra § 314A. Courts have repeatedly held, however, that a landlord-tenant relationship is not a special relationship engendering a duty on the part of the landlord to protect tenants from criminal attack. [cc] But see Kline v. 1500 Massachusetts Avenue, 439 F.2d at 485 (finding landlord-tenant relationship analogous to that of innkeeper-guest).
A second exception arises where “an especial temptation and opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it.” Keeton, supra § 33, at 201 (emphasis added). This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent the risk from taking effect. Restatement (Second) of Torts, supra § 321; see also Restatement (Second) of Torts, supra § 448 (criminal act of third person is superseding cause of harm to another unless defendant could have foreseen that his negligent conduct increased risk of crime). Accordingly, in the majority of cases in which a landlord has *659 been held liable for a criminal attack upon a tenant, a known physical defect on the premises foreseeably enhanced the risk of that attack. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368, 377, 381 (1975) (defective deadbolt on apartment door); Aaron, 758 S.W.2d at 446 (broken window latch); Duncavage v. Allen, 147 Ill.App.3d 88 (1986) (inoperable lighting; ladder left unattended near unlocked window).
A third exception is the existence of overriding foreseeability. Some courts have held landlords to a duty to protect tenants from criminal attacks that were clearly foreseeable, even if not causally related to physical defects on the premises. See, e.g., Trentacost v. Brussel, 82 N.J. 214, 218 (1980) (criminal activity apparent in plaintiff’s neighborhood); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, 100 (Fla.App.1980) (apartment complex plagued by high incidence of serious crime); Kline v. 1500 Massachusetts Avenue, 439 F.2d at 483 (crimes perpetrated against tenants in common area of apartment complex); Johnston v. Harris, 387 Mich. 569, 573–74 (1972); Faheen By Hebron v. City Parking Corp., 734 S.W.2d 270, 273 (Mo.App.1987).
The fourth exception derives from the general tort principle that one who voluntarily assumes a duty thereafter has a duty to act with reasonable care. See Restatement (Second) of Torts, supra §§ 323, 324. Thus, landlords who gratuitously or contractually provide security have been found liable for removing the security in the face of a foreseeable criminal threat. [cc]
We hold that while landlords have no general duty to protect tenants from criminal attack, such a duty may arise when a landlord has created, or is responsible for, a known defective condition on a premises that foreseeably enhanced the risk of criminal attack. Moreover, a landlord who undertakes, either gratuitously or by contract, to provide security will thereafter have a duty to act with reasonable care. Where, however, a landlord has made no affirmative attempt to provide security, and is not responsible for a physical defect that enhances the risk of crime, we will not find such a duty. We reject liability based solely on the landlord-tenant relationship or on a doctrine of overriding foreseeability.
A finding that an approved exception applies is not dispositive of the landlord’s liability for a tenant’s injury. Where a landlord’s duty is premised on a defective condition that has foreseeably enhanced the risk of criminal attack, the question whether the defect *660 was a proximate or legal cause of the tenant’s injury remains one of fact. Moreover, where a landlord has voluntarily assumed a duty to provide some degree of security, this duty is limited by the extent of the undertaking. [c] Rowe, 125 Ill.2d at 218–19, 126 Ill. Dec. at 526. For example, a landlord who provides lighting for the exterior of an apartment building might be held liable for failing to insure that the lighting functioned properly, but not for failing to provide additional security measures such as patrol services or protective fencing.
The answer to the [***] question is no, subject to the pleading or proof, as appropriate, of facts supporting the approved exceptions.
Note 1. Revisiting the purposes of tort law—fairness, compensation, deterrence, efficiency and social justice—which of these are served (and disserved) by attaching tort liability to landlords for third-party criminal attacks suffered by their tenants?
Note 2. Whom does a blanket rule on this issue serve best? If tort liability does not attach to landlords for third-party criminal activity, what other incentives do landlords have to make their property safer for the benefit of their tenants? Do you think they are as effective as those that tort law ordinarily attempts to create? What are the effects, for tenants, of expanding the liability of landlords?
Expand On Your Understanding – Socratic Script: Walls v. Oxford Management
Question 1. What is the holding of the case?
Question 2. Why is a jury not involved in resolving the case?
Question 3. What tension in common law rules does the court identify in its reasoning? Another way of putting this question is that the court identifies a set of competing default rules; how does it frame those and how does it tailor its holding in light of them?
Question 4. What does the court mean when it states that it “will not place on landlords the burden of insuring their tenants against harm from criminal attacks”?
Question 5. What consequences might follow if courts routinely did find that landlords owed their tenants a general duty of care to prevent criminal attacks?
Tarasoff v. Regents of the University of California is that rare case that many non-lawyers recognize (and may fear). In the fields of medicine, psychology and social work, the case is routinely taught because of its impact on the duties of those who become aware of credible risks to specific third parties. The case surprised many by finding there was a duty on the part of a therapist to warn a specific third party who was not his client, even though that meant violating client confidentiality and even though he had no other relationship with that third party. His client, Prosenjit Poddar, had threatened harm to a young woman, Tatiana Tarasoff, and Poddar ultimately killed her. There is a troubling dynamic present in the case, of a mentally unstable young man who, in response to rejection by a female student, acts out his feelings in deadly violence. As you read, keep in mind what sorts of expectations the parties involved in such a scenario may have and try to imagine the impact of any alternative ruling the court could have handed down.
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.
Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend. This appeal ensued.
Plaintiffs’ complaints predicate liability on… defendants’ failure to warn plaintiffs of the impending danger…. Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana. The most important …consideration … in establishing duty is foreseeability. As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ …
Although … under the common law, as a general rule, one person owed no duty to control the conduct of another nor to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation … between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation … between the actor and the other which gives to the other a right of protection.’
Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others. …
Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. [***]
We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise’ that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances.’ …In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn. …Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist’s duty to protect the threatened victim.
The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime. …
The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the course of medical attendance … [u]nless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.” We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. [***]
The judgment of the superior court in favor of defendants … is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.
Note 1. Tarasoff provides the rule that “The protective privilege ends where the public peril begins.” Do you think it is clear to therapists when that public peril begins? What sorts of methods, or evidence, do you imagine being helpful to that determination?
Note 2. What are the risks of placing the determination of “public peril” with a therapist? If a therapist did warn the third party and it caused worse harm, perhaps because the patient learned about it, or for other reasons, would the Tarasoff duty have been satisfied or breached? If a therapist were sufficiently concerned to warn a third party, should the duty also extend to warning the police? What about to family members of the therapist’s clients? Are there implications for the no-duty doctrine of receiving Tarasoff warnings from therapists?
Note 3. The Tarasoff rule has been limited in some cases (to specific or “identifiable victims”) and in some states, it has expressly been rejected (with such states reaffirming on the grounds of the no duty/special relationship rules that therapists have no duty to third-party victims). Before this case, the general rule was clear: there was no duty to warn arising out of the therapeutic relationship. On the contrary, there were professional norms and legal obligations of confidentiality to the patient. As discussed in the introduction to this section, the court uses the term “affirmative” to refer to duties against the backdrop of that “no-duty” common law default: “Such a relationship may support affirmative duties for the benefit of third persons.” It does so partly to announce a change in the law. Indeed, despite finding that there was no special relationship here that would ordinarily “ground” (or give rise to) a duty, the court finds one on the basis of foreseeability. “The most important …consideration … in establishing duty is foreseeability”; “a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’”
Tarasoff presents the unusual case in which a court makes a sharp change on the basis of particular facts and policy rationales, and then subsequent courts, legislators, and the professional or other entities affected by the ruling must make decisions to adopt, reject, respond in some other fashion or ignore the case. It is rare that a major ruling and a sudden significant change will be completely ignored, however. What changes would you recommend in a jurisdiction that had not yet adopted Tarasoff, and why?
One of the most famous cases you will read in law school, Palsgraf v. Long Island Railroad, concerns the scope of duty owed to an injured person whose injury you might not anticipate or be able to foresee. It is often taught as a case about proximate cause—which is how the dissent frames the issue—but in fact the opinion concerns the scope of responsibility to an unforeseeable victim and the holding is framed in terms of duty.
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341 him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock, Torts (11th Ed.) p. 455; Martin v. Herzog, 228 N. Y. 164, 170, Cf. Salmond, Torts (6th Ed.) p. 24. ‘Negligence is the absence of care, according to the circumstances.’ [c]
The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. *342 If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. ‘In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.’ [cc] The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343 which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed.
In this case, the rights that are said to have been violated, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. It there was a wrong to him at all, which may very well be doubted it was a wrong to a property interest only, the safety of his package.
Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to someone else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as ‘wrong’ and ‘wrongful,’ and shares their instability. What the plaintiff must *344 show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. 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. [cc]
This does not mean, of course, that one who launches a destructive force is always relieved of liability, if the force, though known to be destructive, pursues an unexpected path. ‘It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ [Citations omitted] Some acts, such as shooting are so imminently dangerous to any one who may come within reach of the missile however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even to-day, and much oftener in earlier stages of the law, one acts sometimes at one’s peril. [cc] Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B. Talmage v. Smith, 101 Mich. 370, 374 *345 These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional. Parrot v. Wells-Fargo Co. (The Nitro-Glycerine Case) 15 Wall. 524, 21 L. Ed. 206. The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.
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 willfully, 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. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. [c] Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily 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 willful, 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. [***] Confirmation of this view will be found in the history and development of the action on the case.
Negligence as a basis of civil liability was unknown to mediaeval law. 8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346 pp. 189, 190. For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal. [***] Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth. [cc] When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case. [cc] The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime. Holland, Jurisprudence (12th Ed.) p. 328. He sues for breach of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary [cc] There is room for *347 argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting).
Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling, they injured the plaintiff, an intending passenger.
Upon these facts, may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept—the breach of some duty owing to a particular person or to particular persons? Or, where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis, *348 we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.
Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect one’s self from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word ‘unreasonable.’ For present purposes it sufficiently describes that average of conduct that society requires of its members.
There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. [c] In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice—not one merely reckless conduct. But here neither insanity nor infancy lessens responsibility. [c] As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. [c] Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. [c] An unborn child may not demand immunity from personal harm. [c]
But we are told that ‘there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff *349 himself and not merely to others.’ Salmond Torts (6th Ed.) 24. This I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger, but to all who might have been there—a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. [c] As was said by Mr. Justice Holmes many years ago:
‘The measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another,’ Spade v. Lynn & B. R. Co., 172 Mass. 488, 491, (43 L. R. A. 832, 70 Am. St. Rep. 298).
Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone. It may well be that there is no such thing as negligence in the abstract. ‘Proof of negligence in the air, so to speak, will not do.’ In an empty world negligence would not exist. It does involve a relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene.
We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for *350 the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife, or insured will prevent recovery, it is because we consider the original negligence, not the proximate cause of the injury. Pollock, Torts (12th Ed.) 463.
In the well-known Polemis Case, [1921] 3 K. B. 560, Scrutton, L. J., said that the dropping of a plank was negligent, for it might injure ‘workman or cargo or ship.’ Because of either possibility, the owner of the vessel was to be made good for his loss. The act being wrongful, the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. [***]
The proposition is this: Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm, might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining, but this is not a duty to a particular individual because as to him harm might be expected. Harm to someone being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio Case we said that a breach of a *351 general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to everyone. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.
If this be so, we do not have a plaintiff suing by ‘derivation or succession.’ Her action is original and primary. Her claim is for a breach of duty to herself—not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.
The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property downstream. We are not liable if all this happened because of some reason other than the insecure foundation. But, when injuries do result from out unlawful act, we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen, and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former. These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or, if you please, a net. An analogy is of little aid. *352 Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.
Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last inevitably no trace of separation remains. They are so commingled that all distinction is lost. As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Sarajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.
A cause, but not the proximate cause. What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were *353 simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.
Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration: A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent. But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.
The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby, is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing—may have some bearing, for the problem *354 of proximate cause is not to be solved by any one consideration. It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of ‘the stream of events.’ We have asked whether that stream was deflected—whether it was forced into new and unexpected channels. [***] This is rather rhetoric than law. There is in truth little to guide us other than common sense.
There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. [c] Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned, the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration—the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can. Once again, it is all a question of fair judgment, always *355 keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.
Here another question must be answered. In the case supposed, it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion, although he had no reason to suppose it would follow a collision. ‘The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.’ But the natural results of a negligent act—the results which a prudent man would or should foresee—do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences, not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.
This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him; if it exploded *356 and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently 25 or 30 feet, perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief, ‘It cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.’ So it was a substantial factor in producing the result—there was here a natural and continuous sequence—direct connection. The only intervening cause was that, instead of blowing her to the ground, the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here, it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.
The judgment appealed from should be affirmed, with costs.
Note 1. You know it’s a famous case when there’s a Lego dramatization. You might appreciate this 5:24 minute Lego-figure parody and recreation of the facts and trial of Palsgraf (but beware that it takes liberties such as including an anachronistic TSA interview and televisual exhibit in the courtroom). It’s available here (full link: https://www.youtube.com/watch?v=mDEbTudkjhc)
Note 2. Palsgraf may be famous because of the oddly vivid facts, the socioeconomic context and the elevated language and reasoning of the majority and dissenting opinions by Justice Cardozo and Justice Andrews, respectively. These two justices are extremely well-respected for their analytic craft, especially Justice Cardozo, who would go on to become one of the most well-respected justices of the century (and a renowned expert on tort law). But it was also an important opinion because it featured a dispute over where in the negligence action the scope of the tort was to be defined—at the duty stage, as a matter of law for the judge, or at the later proximate cause stage, as a question of fact for the jury. The two justices are both trying to answer the same normative question: Should the court hold the defendant liable to this plaintiff? Given that, why might it matter whether a case like Palsgraf is decided by a judge versus a jury?
Note 3. If “foreseeability” is the driving consideration behind duty (and plays a role in many analyses of proximate cause), it ought to be a principle that can be conceptualized in terms of tort law’s purposes. How well does it serve compensation, deterrence, efficiency, fairness and social justice? What sorts of consequences do you imagine an emphasis on foreseeability could produce in the real world in terms of parties’ behavior and choices?
Check Your Understanding – Set 19
Doctrinal Synthesis. Learning in law school is cumulative and reviewing earlier doctrines regularly helps you both to recall and refine them. The following questions ask you to synthesize learning from earlier cases you’ve covered. For each one, answer whether the doctrine might be relevant on the facts of Palsgraf.