Palsgraf v. Long Island Railroad Co.

The East New York station of the Long Island Rail Road, seen in 2008

Sunday, August 24, 1924, was a warm summer day in Brooklyn, and Helen Palsgraf, a 40-year-old janitor and housekeeper, was taking her two daughters, Elizabeth and Lillian, aged 15 and 12, to Rockaway Beach. Having paid the necessary fare, they were on the platform at the East New York station of the LIRR on Atlantic Avenue in Brooklyn, when a train, not theirs, pulled in. As it began to move again, two men raced for the train, and one made it without incident, as the doors had not closed. The other, a man carrying a package, leapt aboard, with the help of a platform guard pushing him from behind as a member of the train's crew pulled him into the car. But in the process, the man lost the package, which dropped and exploded, for it apparently contained fireworks. Either the force of the explosion or the panicking of those on the platform caused a tall, coin-operated scale to topple onto Helen Palsgraf. No one was hurt enough to spend the night in the hospital, though several people, Palsgraf among them, were listed as injured.[2][3]

Contemporaneous accounts and witnesses at trial described the man as Italian in appearance, and there was speculation that the package was being taken for use at an Italian-American celebration of some sort; no great effort was made to identify the owner. Palsgraf's injury was listed in The New York Times as shock; she also suffered bruising. The distance between Helen Palsgraf and the explosion was never made clear in the trial transcript, or in the opinions of the judges who ruled on the case, but the distance from the explosion to the scale was described in the Times as "more than ten feet away" (3 metres).[2][3] Several days after the incident, she developed a bad stammer, and her doctor testified at trial that it was due to the trauma of the events at East New York station. She had not recovered from the stammer when the case came to court.[4]

Palsgraf brought suit against the railroad in the Supreme Court of New York, Kings County, a trial-level court, in Brooklyn on October 2, 1924. The summons was served the following month, and the defendant filed its answer on December 3. The case was heard on May 24 and 25, 1927, with Justice Burt Jay Humphrey presiding.[5] Humphrey had served for over twenty years on the county court in Queens before unexpectedly being nominated for election to the Supreme Court in 1925; he was noted for his courteous and friendly manner.[6] Manhattan lawyers tried the Brooklyn case: Matthew W. Wood, who worked from 233 Broadway (the Woolworth Building) represented Palsgraf, while Joseph F. Keany, whose office was at Pennsylvania Station, was for the railroad, along with William McNamara.[5] Wood was an experienced solo practitioner with two degrees from Ivy League schools; Keany had headed the LIRR's legal department for twenty years—McNamara, who tried the case, was one of the department's junior lawyers, who had advanced from clerk to counsel after graduation from law school.[7] At trial, Palsgraf testified that she had been hit in the side by the scale, and had been treated at the scene, and then took a taxicab home. She testified to trembling then for several days, and then the stammering started. Her health forced her to give up her work in mid-1926.[8] Wood called Herbert Gerhardt, an engraver, who had seen the man with the package hurry towards the train, and whose wife had been hit in the stomach in the man's rush. He testified that the scale had been "blown right to pieces".[9]

On the second day of the trial, Wood called Dr. Karl A. Parshall, Palsgraf's physician. He testified that he had treated Palsgraf occasionally for minor ailments before the incident at East New York, but on the day after found her shaken and bruised. He gave it as his opinion that Palsgraf's ills were caused by the accident.[10] Grace Gerhardt, Herbert's wife, was the next witness. She testified to being hit by one of "the two young Italian fellows" who were racing to make the train, and how one made it unaided and the other only with the help of two LIRR employees. She had nothing to say about the scale or Palsgraf, having seen neither.[11] Elizabeth and Lillian Palsgraf, the elder and younger daughter of the plaintiff, were next to testify and spoke of what they had seen. Wood indicated his only remaining witness was a neurologist, an expert witness, and McNamara for the LIRR moved to dismiss the case on the ground that Palsgraf had failed to present evidence of negligence, but Justice Humphrey denied it. The neurologist, Graeme M. Hammond of Manhattan, had examined Palsgraf two days before, observing her stammering, speaking only with difficulty. She told him of depression and headaches. He diagnosed her with traumatic hysteria, for which the explosion was a plausible cause, and said the hysteria was likely to continue as long as the litigation did, for only once it was resolved were the worries connected with it likely to vanish.[12]

Wood rested his case on behalf of the plaintiff; McNamara offered no evidence but again moved to dismiss, which Humphrey denied. The judge told the all-male jury that if the LIRR employees "omitted to do the things which prudent and careful trainmen do for the safety of those who are boarding their trains, as well as the safety of those who are standing upon the platform waiting for other trains, and that the failure resulted in the plaintiff's injury, then the defendant would be liable."[13] The jury was out for two hours and 35 minutes, including the lunch hour, and they awarded Palsgraf $6,000 ($93,600 today).[14] Pursuant to statute, she also recovered costs of $142, an amount added to the verdict.[15] A motion for a new trial was denied on May 27, 1927 by Justice Humphrey, who did not issue a written opinion, and a judgment was entered on the verdict on May 31, from which the LIRR appealed on June 14.[16] Once Palsgraf had gotten her jury verdict, the Gerhardts also sued the railroad, with Wood as their counsel.[17]

William H. Manz, in his article on the facts in Palsgraf, suggested that neither side spent much time preparing for trial. Wood did not contact his fact witnesses, the Gerhardts, until shortly before the trial, and Palsgraf was examined by Dr. Hammond the day before the trial started. McNamara, one of the most junior members of the LIRR's legal team, called no witnesses, and Manz suggested the entire defense strategy was to get the judge to dismiss the case.[18] In his later book, Judge Richard Posner indicated that the much-sued LIRR did not present a better case than the first-time plaintiff: "it put on a bargain-basement defense".

The LIRR's appeal took the case to the Appellate Division of the New York Supreme Court, for the Second Department,[19] the state's intermediate appeals court. In its briefs before the Appellate Division, the LIRR argued that the verdict had been contrary to the law and the evidence. It stressed that it had no foreknowledge that the package was dangerous, and that no law required it to search the contents of passenger luggage. The brief stated that given this, there was no negligence in helping a man make a train, and even if there was, that negligence was not the proximate cause of Palsgraf's injuries.[20] Wood, for Palsgraf, argued that the jury verdict finding negligence was supported by undisputed facts, and should not be questioned by the appellate courts. The plaintiff's brief also suggested that the failure of the railroad to call as witnesses the employees who had aided the man should decide any inferences of negligence against it. Wood deemed the trainmen guilty of a "dereliction of duty", misconduct that was the proximate cause of Palsgraf's injuries.[21]

The lawyers argued the case before the Appellate Division in Brooklyn on October 21, 1927.[15] On December 9, the Appellate Division affirmed the trial court's judgment, 3–2. Albert H. F. Seeger wrote the majority opinion for the five justices hearing the case, and was joined by Justices William F. Hagarty and William B. Carswell.[19] Seeger had been born in Stuttgart and came to the United States as a child; he had been elected to the Supreme Court in 1917 and was elevated to the Appellate Division by Governor Al Smith in 1926. Aged 68 at the time of Palsgraf, he could serve only two more years before mandatory retirement.[22] Justice Seeger ruled that the finding of negligence by the jury was supported by the evidence, and speculated that the jury might have found that helping a passenger board a moving train was a negligent act. He wrote that while the set of facts might be novel, the case was no different in principle from well-known court decisions on causation, such as the Squib case, in which an explosive (a squib) was lit and thrown, then was hurled away repeatedly by people not wanting to be hurt until it exploded near the plaintiff, injuring him; his suit against the man who had set the squib in motion was upheld. The majority also focused on the high degree of duty of care that the LIRR owed to Palsgraf, one of its customers.[23]

Presiding Justice Edward Lazansky (joined by Justice J. Addison Young) wrote a dissent.[19] Lazansky, the son of Czech immigrants, had been elected New York Secretary of State as a Democrat in 1910. Elected to the Supreme Court in 1917, he had been designated presiding justice of the Second Department by Governor Smith earlier in 1927.[22] Lazansky did not question the jury finding of negligence, but felt that the employees' conduct was not the proximate cause of Palsgraf's injuries, since the man's conduct in bringing a package that might explode to a crowded passenger station was an independent act of negligence, rendering the neglect by the railroad too remote in causation for there to be liability.[24]

The Chief Judge of the Court of Appeals, Benjamin N. Cardozo, was a judge who was greatly respected; he later became a justice of the U.S. Supreme Court. After a standout legal career, Cardozo had been elected to the trial-level Supreme Court in 1913, but was quickly designated by the governor for service on the Court of Appeals. He was in 1917 appointed a judge of that court, and in 1926 was elected chief judge by the voters.[29] In Palsgraf, Cardozo wrote for a 4–3 majority of the Court of Appeals, reversing the appellate judgment and directing that the case be decided for the defendant, the LIRR.[30] Cardozo was joined by Judges Cuthbert W. Pound, Irving Lehman and Henry Kellogg.[31]

Despite being the longest statement of the facts in any of the four appellate opinions generated by the case,[32] Cardozo's was described by Posner as "elliptical and slanted".[33] It has also been deemed "highly abstract".[32] According to Professor Walter O. Weyrauch in his 1978 journal article, "Cardozo's famous opinion reduced the complicated facts of the case to a bare minimum. Mrs. Palsgraf was transformed into a 'plaintiff' without age, family status, or occupation. The opinion omitted the nature of her injury, the amount of damages that she sought, and the size of the jury award."[34] For example, Cardozo describes Palsgraf (whom he does not name, nor mention her daughters) as standing on the LIRR's platform, rather than waiting for a train, thus downplaying her status as a customer entitled to a high degree of care by the railroad. The explosive package is described as small, though the witnesses had described it as large. The scales are described as being "at the other end of the platform, many feet away" from the explosion, but the record does not support this statement.[35] This characterization may have been based on testimony by Lillian Palsgraf, who had gone to buy a paper from a newsstand "at the other end of the platform", but who was yet close enough to see the package fall. Cardozo's characterization of distance would be challenged by the plaintiff in her motion for reargument, which would be denied with the rejoinder that however close she was to the explosion, she was not so close as to bring her within the zone of foreseeable risk.[36]

Benjamin N. Cardozo, Chief Judge of the New York Court of Appeals and author of the majority opinion in Palsgraf (pictured in 1932 upon his appointment to the U.S. Supreme Court)

After the fact pattern, Cardozo began his discussion of the law with "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. Relative to her it was not negligence at all."[37] Cardozo quoted Pollock on Torts and cited several cases for the proposition that "proof of negligence in the air, so to speak, will not do."[37] Only if there is a duty to the injured plaintiff, the breach of which causes injury, can there be liability.[38] He defended his decision, "a different conclusion will involve us, and swiftly too, in a maze of contradictions."[37] Cardozo posed hypothetical situations: if a railway guard stumbles over a bundle of newspapers, and there are explosives within, will there be liability to an injured passenger at the other end of the platform? Will the result be different if the object containing the explosives is a valise instead? If there was negligence that day, Cardozo argued, it was only negligence that resulted in the fall and destruction of the package, and there was no wrong done by the railroad to Palsgraf for personal injury, "the diversity of incidents emphasizes the futility of the effort to build the plaintiff's right upon the basis of a wrong to some one else."[39] The chief judge instructed, "The risk reasonably to be perceived defines the duty to be obeyed".[40] Cardozo did not absolve the defendant who knowingly unleashes a destructive force, such as by shooting a gun, just because the bullet takes an unexpected path. This is not such a case, Cardozo held: even if the railway guard had thrown down the package intentionally, without knowing the contents he could not knowingly risk harm to Palsgraf, and would not be liable. Negligence cannot impose liability where an intentional act would not.[41]

Negligence, Cardozo emphasized, derives from human relations, not in the abstract. Negligence that does no one harm is not a tort. It is not enough, he found, to prove negligence by the defendant and damage to the plaintiff; there must be a breach of duty owed to the plaintiff by the defendant. He traced the history of the law of negligence, a concept not known in medieval times, and noted that it evolved as an offshoot of the law of trespass, and one could not sue for trespass to another. Had the railroad been negligent towards Palsgraf, it might have been liable, but "the consequences to be followed must first be rooted in a wrong", and there was no legal wrong done by the railroad to Palsgraf.[42] Thus, the lower courts were incorrect, and must be reversed, and the case dismissed, with Palsgraf to bear the costs of suit.[43]

William S. Andrews of Syracuse was a 69-year-old[44] judge, noted for his scholarship, who had been on the Court of Appeals since 1917. The son of Charles Andrews, a former Chief Judge of the Court of Appeals, William Andrews is best remembered today because he wrote an opinion in Palsgraf.[45] In that dissent, he was joined by Judges Frederick E. Crane and John F. O'Brien. Andrews began with a brief recitation of facts: that a railroad employee had negligently dislodged the package, the contents of which the trainman was unaware, and the subsequent explosion broke the scale and injured the plaintiff, "an intending passenger".[46] Andrews noted the fundamental difference among the judges concerning the law of negligence: whether there must be a duty to the plaintiff, the breach of which injured her, and whether, when there is an act that is a threat to the safety of others, the doer of it should be "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".[46] Andrews believed that if there was a negligent act, the proximate cause of injury to the plaintiff, that should establish liability.[47]

Andrews found Cardozo's reasoning too narrow, and felt that the focus should be on the unreasonable act: driving down Broadway at high speed is negligent whether or not an accident occurs. Such an act is wrong to the public at large, not only to those who might be injured. "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 ... 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 some one, it harms him a mile away as surely as it does those on the scene."[48]

Andrews pointed out that the law allows plaintiffs to recover from defendants who had no duty towards them: orphans may recover for their negligently killed parents; a bereaved person may recover for negligence in the death of a spouse. An insurance company may sue in subrogation and recover the sum paid out from the person who started the fire. "Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also harmed the company."[49]

An event may have many causes, Andrews noted, and only some may be deemed proximate. Liability for negligence may only be found where that proximate cause exists, a term that the judge admitted was inexact. He suggested the analogy of a river, made up of water from many sources, and by the time it wound to sea, fully intermixed. But for a time, after water from a muddy swamp or a clayey bed joins, its origin may be traced. Beyond a certain point, it cannot be traced, and such is proximate cause, "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."[50]

That point, beyond which there is no proximate cause, is drawn differently by different judges, and by different courts, Andrews explained. He listed factors that courts might consider, such as remoteness in time or space, and discussed some hypotheticals, such as a chauffeur who causes an accident, the noise of which startles a nursemaid into dropping a child, then returned to the case being decided,

Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently twenty-five or thirty 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.[51]

Given that, Andrews concluded, the jury verdict should be upheld. "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."[51]

• Record in Palsgraf v. Long Island Railroad Co (PDF). 1928.

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• Kaveny, Cathleen (2016). A Culture of Engagement: Law, Religion, and Morality. Washington, D.C.: Georgetown University Press. ISBN 978-1-62616-303-4.
• Little, Joseph W. (2007). "Palsgraf Revisited (Again)". Pierce Law Review. 6 (1): 75–110.
• Manz, William H. (Spring 2003). "Palsgraf: Cardozo's Urban Legend?". Dickinson Law Journal. 107: 785–844.
• Mars, David (September 1959). "Justice Benjamin Nathan Cardozo: His Life and Character". Publications of the American Jewish Historical Society. 49 (1): 5–15. JSTOR 43059078.
• Noonan, John T. (2002) [1976]. Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (reprint ed.). Berkeley, California: University of California Press. ISBN 978-0-520-23523-6.
• Owen, David (2009). "Figuring Foreseeability". Wake Forest Law Review. 44: 1277–1308.
• Polenberg, Richard (1997). The World of Benjamin Cardozo. Cambridge, Massachusetts: Harvard University Press. ISBN 978-0-674-96051-0.
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• Prosser, William L. (November 1953). "Palsgraf Revisited". Michigan Law Review. 52 (1): 1–32. doi:10.2307/1285361. JSTOR 1285361.
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• Weyrauch, Walter Otto (July 1978). "Law as Mask. Legal Ritual and Relevance". California Law Review. 66 (4): 699–726. doi:10.2307/3479965. JSTOR 3479965.