GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE

Transcription

1 GOODNIGHT MRS. PALSGRAF WHEREVER YOU ARE W. DENNIS DUGGAN, J.F.C. OCTOBER 2003 August 24, 1924, was a hot Sunday in New York City. Helen Palsgraf should have stayed in bed. Instead, she decided to take her two youngest children to Rockaway Beach. In the process, she became the most famous tort plaintiff in American legal history, made so by the most famous common law judge in American legal history (Palsgraf v. Long Island Railroad, 248 NY 339 [1928]). What makes a review of Palsgraf so topical is that Judge Alvin K. Hellerstein of the Federal District Court in the Southern District of New York issued an opinion on September 9, 2003, holding that as to the Port Authority, the airlines, the airport operators, the security companies and Boeing Company, a duty was owed to the plaintiff victims of the 9-11 tragedy and that the risk was foreseeable. (In re September 11 Litigation, 21 MC 97 [AKH]). All of the issues regarding duty and foreseeability that were raised and discussed in the 9-11 case were raised and discussed over seventy years ago in Palsgraf. So, what was Cardozo talking about when he stated, what is perhaps one of just two or three phrases from a law school case that all lawyers still remember: the risk Page 1

2 reasonably to be foreseen defines the duty to be obeyed. Was Helen Palsgraf a foreseeable plaintiff to whom the Long Island Railroad owed a duty? Was the explosion that caused the scale to topple into her causing her injuries a foreseeable risk? And who were those Italian guys carrying the fireworks that set the whole thing off? Helen Palsgraf was 43, a mother of three girls ages 17, 15 and 12. She lived in a basement apartment at 238 Irving Avenue in the Ridgewood section of Brooklyn. She did janitorial work in the building where she lived to reduce her rent and she did similar work during the day. She probably earned about $450 per year. No mention was ever made of her husband and she was most likely separated. On the day of the incident, she and her two youngest children, Elizabeth and Lillian, arrived at the East New York Railroad station around mid-morning and purchased tickets to Rockaway Beach. She went out onto the platform to wait with Elizabeth and sent Lillian to buy the Sunday paper. As a train bound for another destination was pulling out of the station a loud explosion turned the platform into pandemonium. According to Mrs. Palsgraf; Flying glass a ball of fire came, and we were choked in smoke, and I says Elizabeth turn your back, and with that the scale blew and hit me on the side. It was later determined that Mrs. Palsgraf suffered a stammer, induced by the physical and psychological trauma of th explosion, which continued for at least the three years up to the time of trial. Just prior to the explosions, two or three men ran toward the departing train. The first jumped onto the train without incident. The second needed some help. The conductor on the train helped him from that end while a guard on the platform pushed from the back. (Why did they have a guard?) This passenger was carrying a package which was knocked from his grasp by the Railroad employee and it fell to the tracks below. The package exploded, rocking the car, blowing out its windows, damaging the platform and injuring thirteen persons, including Helen Palsgraf. The New York Times, the next day, reported that the explosion was heard several blocks away. The article stated that there were three men, each carrying large wrapped packages. The packages were about sixteen inches in diameter and contained several bombs and other smaller fireworks and firecrackers. One of the packages was dropped by one of the other men and did not explode. The police learned, according to the Times, that the three men were probably Italians who were bound for an Italian celebration somewhere on Long Island, where fireworks and bombs were to play an important role. The three Italians were never to be identified. (Were these just party Page 2

3 guys or was there something else afoot?) Most likely, the explosion was caused by a wheel of the train running over the dislodged package. At trial (two and one-half years after the law suit was commenced), Helen Palsgraf was represented by Matthew W. Wood, a sole practitioner with twenty-one years of legal experience but who advertised himself as a bankruptcy attorney. The railroad was represented by house counsel, William McNamara. The case was tried in less than two days before Supreme Court Justice Burt Jay Humphrey, age sixty-four, and a twenty-five year veteran of the bench. The Plaintiff produced seven witnesses: herself, her two daughters; a husband and wife who had been on the platform; Dr. Parshall, Mrs. Palsgraf s personal physician; and Dr. Graeme M. Hammond, a neurologist who had been retained the day before the trial. The Defendants produced no witnesses. After about thirty minutes of deliberation, the jury returned a verdict of $6,000. This was the equivalent of twelve years of wages for Helen Palsgraf and equal to the then annual salary of a Supreme Court Justice. It would equal about $50,000 in today s dollars. Not a bad day s work for Matthew Wood. The case went to the Appellate Division and was affirmed, 3-2 (222 AD 166). The majority had little trouble finding a duty owed to Helen Palsgraf and were little bothered about a problem of foreseeability or proximate cause. The Appellate Division correctly noted: It must be remembered that the plaintiff was a passenger of the defendant and entitled to have the defendant exercise the highest degree of care required by common carriers. The Court of Appeals reversed the Appellate Division, 4-3. Thirteen judges had looked at this case and seven held in favor of Helen Palsgraf and six held against her. Of course, one of those judges was Benjamin Nathan Cardozo and, in the end, his was the only vote that counted. Cardozo has obtained the status of deification in the American judicial pantheon with, perhaps, only Marshall and Holmes as companions. His decisions have taken on the aura of Papal Bulls. If it s Cardozo, it must be right, right? Well, not so fast, let s go to the video tape. Cardozo, spends just 182 words to describe the events that made the Palsgraf case so famous but he leaves out a few important details. He never mentions that as a passenger on a common carrier, Mrs. Palsgraf was owed the highest standard of care. He states that the package was of small size, about fifteen inches long, but never mentions the evidence in the record to support that assertion of distance. The Times reported that the scale was more than ten feet away (which, all things considered, would still be quite close to the platform edge). But what exactly is many feet Page 3

4 away? He never describes the magnitude of the explosion, the damage to the railroad car, or the injuries suffered by the twelve other bystanders. As for the scales, no description was supplied. It should be not4ed that this incident was treated with a front page, above the fold article in the New York Times. A description of a contemporary incident, rendered in similar Cardozian style, might be as follows: The plaintiff had purchased a latte in the lobby of the World Trade Center just as an airplane piloted by terrorists flew into the building. As a result of the explosion, the building was thrown down around the plaintiff causing injuries for which she sues. In his essay, Law and Literature, Cardozo states: I suppose there can be little doubt that in matters of literary style the sovereign virtue for the judge is clearness...[however], there is an accuracy that defeats itself by the over-emphasis of details. I often say that one must permit oneself, and that quite advisedly and deliberately, a certain margin of misstatement. Hmm? (emphasis added) So, is Palsgraf about an unforeseeable harm, proximate cause, or zones of danger? What made this case so famous? The only thing that is clear, is that the legal conclusion in this case was that Helen Palsgraf, as a matter of law, had no case. This determination was so clear, as a matter of law, that of the thirteen judges who examined the question only six agreed with that result! Don t read the Palsgraf decision more than once. The more you read it the more confusing it becomes. Though the holding may be fuzzy, it is clear that Cardozo is making a statement about duty and wants to anchor his decision spatially (or geographically). He speaks of the orbit of danger and the orbit of duty. He makes analogies about wrong [s] to another far removed. He speaks of the range of apprehension. He talks of the non-invasion of the rights of others standing at the outer fringe... He mentions the bounds of [the plaintiff s] immunity... The conduct of the [Railroad s] guard was not a wrong in relation to the plaintiff standing far away. Relatively to her it was not negligence at all. (340) This is an incredible statement by Cardozo. First, because there is no basis in the record that the Plaintiff was standing far away. Justice Andrews, in his dissent, says, Mrs. Palsgraf [Cardozo never mentions her by name or the fact that she was with her two daughters] was standing some distance away. How far cannot be told from the record apparently twenty-five or thirty feet. Perhaps less. Would the result have been different if Helen Palsgraf had been standing next to the train door? Probably not, because for Cardozo, the wrong committed in this case Page 4

5 was to the jumping traveler s package (the jumping traveler never got hurt) and there was nothing about the package itself that had in it the potency for peril. But this misses the point. Most peril that is contained in an object is hidden, like low tensile bolts holding up a pedestrian walkway that fails. Also, Cardozo has misdescribed the package to make it sound like a small bundle of fireworks when, in reality, it was large enough to rock a railway car and also, of course, knock over a large scale next to Mrs. Palsgraf standing, according to Cardozo, far, far away. In the trial, record the package was described as fifteen inches long and fifteen to twenty inches in diameter. (Record 909) This would have made it about as big as a rolled up sleeping bag (or a small keg of gunpowder). The idea that Mrs. Palsgraf is not a foreseeable plaintiff is absurd. She was a ticketed customer standing on the Defendant s railway platform. How much more foreseeable could she get? She was also entitled to the highest degree of care as the passenger of a common carrier, a point Cardozo never mentions. The Defendant s station guards were obviously negligent. Passengers should not be shoved onto a moving train and when they are it is obvious that bad things can happen. It is also clear that the negligence of the Railroad s employees was the proximate cause of Mrs. Palsgraf s injuries. They shoved a passenger which cause his package to fall to the rails, which caused an explosion which knocked over a scale which injured the Plaintiff. But for the pushing of the passenger by the train guard, Mrs. Palsgraf would not have been injured. Palsgraf is really about the train guard going home that night and saying to his wife, How was I supposed to know the stupid package was loaded with explosives. Good question, and this is Cardozo s strongest point. This point could have slipped through on a failure of the pretrial discovery process, if there was any. The Code of the City of New York contained a provision that required a permit to transport fireworks valued at more than $10 (about $90 in today s money) (Chap. 10, Art. 6, Sec. 92(6)). Wouldn t the Railroad have had some policy regarding fireworks being transported on their trains, if the City required a permit for public possession of these inherently dangerous materials? We don t know the answer to this question so we can t assess how reasonable it would have been for the Railroad to foresee such a risk. However, since all of these risk limiting and risk spreading legal rules involve the courts exercising their common law social policy setting jurisdiction, why was it not reasonable to make a common carrier responsible to all of its passengers for its employees negligence, regardless of whether they could foresee the particular risk or exactly how the accident would Page 5

6 happen? What social policy was advanced by leaving Helen Palsgraf out in the cold? Well, what if the package that was dislodged contained a nuclear device or a quantity of anthrax powder and the result was thousands of deaths far from the station? Should the Railroad become an insurer of society? The Courts have figured out these types of problems a long time ago. For example, New York, in Ryan v. New York Central R. Co., (35 NY 210 [1866]), limited the liability of a railroad that negligently started a fire to the first adjoining building. In Kansas, on the other hand, liability extended for at least four miles. (Atchison T. & S.F. R. Co. V. Sanford, 12 Kan. 354) Prosser explains that these social policies were determined primarily by the fact that in New York most property was insured and in Kansas there were miles of uninsured wheat fields. Palsgraf was decided wrongly because Cardozo was too clever by half and he exceeded his margin of misstatement in the interest of judicial clarity principle cited above. No doubt that if the package had fallen on someone s foot the Railroad would have been liable. Or if it contained a vase and shards of glass flew into someone s eye ten feet away, the Railroad would have been liable. Or, if it contained a sharp object which careened into someone twenty feet away causing injury, the Railroad would have been liable. So why is Helen Palsgraf without remedy because she was perhaps only five or ten feet further away and her injury was caused by an explosion? I don t know and I don t think Cardozo told us. Helen, you wuz robbed! But the world does go around. In 1991, in Hamburg, NY, Lisa Newell married J. Scott Garvey. Ms. Newell is a fourth degree first cousin of Benjamin Cardozo and Mr. Garvey is Helen Palsgraf s great-grandson. And what of those Italian Guys? Court of Appeals Justice Albert M. Rosenblatt is not only a judge of Holmesian dimension of the Oliver Wendell sort but also of the Sherlockian sort. He is a certified Baker Street Irregular. In an article a few years ago in the New York Law Journal, he advanced a theory that the Italian Guys were not on their way out to Long Island to assassinate the Prince of Wales as he played polo. Two weeks earlier, eight of the Prince s polo ponies arrived at the estate of James A. Burden on Long Island where the Prince would be staying with his younger brother Prince George and Lord and Lady Mountbatten. James Burden was a steel industry magnate and married to a great granddaughter of the Commodore, Cornelius Vanderbilt. So, the evidence for anarchists is what? Holmes would probably say something like this. The report that there were three men and that they were all of the same nationality suggests a unity of interest. The Page 6

7 report that they were Italian draws attention to the very active Italian Anarchist community in New York and the fact that two of their compatriots, indeed heroes, Sacco and Vanzetti, were then sitting on death row in a Massachusetts prison. The reports that each of the three had been carrying wrapped bundles about the size of five gallon buckets containing explosive devices sounds like they had intentions in mind more serious than weekend festivities. The fact that there was no record of fireworks permits being issued, which resembled the circumstances of this case, suggests that the explosives were of an illegal nature. There were no reports of any scheduled fireworks displays that Sunday on Long Island. And where was that other place to which their train was headed, as so laconically described by Cardozo? The fact that the New York State Police sent a special security detail to the Burden residence suggests that police intelligence was predicting trouble. The fact that the Burdens and the Vanderbilts were part of the American corporate aristocracy, the frequent focus of the violent fringe labor movement occupied by the anarchists, and would provide a tantalizing target, especially when the element of English royalty was added. Anyway, you can look it up. SOURCES Cardozo, Benjamin N. Cardozo On the Law. Irmingham: The Legal Classics Library, Kaufman, Andrew L. Cardozo Cambridge: Harvard University Press, Noonan, John T. Jr. Persons and Masks of the Law. The Passengers of Palsgraf. Berkeley: University of California Press, Prosser, William L. Palsgraf Revisited. Michigan Law Review 52, no. 1 (November, 1953). Rosenblatt, Albert M. Palsgraf Through the Eyes of Sherlock Holmes. New York Law Journal, p. 2, col. 3 (November 30, 2000). Page 7