Palsgraf Revisited

Perhaps the most celebrated of all tort cases is Palsgraf v. Long Island Railroad Company. Certainly it is one of the most controversial. Thirteen judges in all passed upon the case, and seven of them were for the plaintiff, at least in the sense that they considered that the issue was one to be left to the jury. Four of the remaining six, sitting on the Court of Appeals of New York, had the :final word, and they set aside the verdict, dismissed the complaint, and ordered judgment for the defendant. The Advisers of the Restatement of Torts debated the question long and vigorously and approved the case by a narrowly divided vote. Subsequent decisions, even when they cite Palsgraf, have remained in a state of disagreement and confusion, and the problem presented cannot be said by any means to be settled and disposed of. The legal writers have galloped off in all directions, in a tangle of duty, negligence, foresight, hindsight, direct and intervening causes, the division and classification of interests and injuries, liability without fault or in excess of fault, social policy, the balancing of various claims to protection or immunity, and everything else that inevitably becomes involved in any discussion of “proximate cause.”