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¡PROF.  CRAIG CHARLES BELES
¡Seattle, Washington, USA

Justice Cardozo Held in Pasgraf  v. Long Island RR (NY 1928): “ The conduct of the defendant’s
guard, if a wrong in relation to the holder of the package, was not a wrong in its relation 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’.”
Because Mrs. Palsgraf was not a foreseeable victim of the railroad’s apparent negligent handling of
the package, Cardozo determined that the jury verdict had to be reversed.
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1.DUTY TO PL? – NECESSARY RELATIONSHIP BETWEEN PL & D
2.
2.STANDARD OF CARE – REQUISITE LEVEL OF CONDUCT
3.
3.BREACH OF DUTY – FAILURE TO MEET STANDARD
4.
4.CAUSE IN FACT – BREACH OF DUTY RELATES TO INJURY
5.
5.PROXIMATE CAUSE – POLICY RE EXTENT OF LIABILITY
6.
6.INJURY – REQUISITE HARM

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Rejected Cardozo’s view that a duty is owed only to foreseeable victims.  He contended that where
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.”
Duty, according to Andrews, did not serve as a limit on liability.  He recognized the need for some
restriction beyond cause in fact, however, he viewed proximate cause as the element that serves as
the ultimate brake on the scope of liability.

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Both “Duty” and “Proximate Cause” Serve to Limit Liability in All Negligence Cases
“Duty” is Question of Law to Be Determined by Judge
“Proximate Cause” is Question of Fact to be Determined by Jury

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European Group on Tort Law (1992)
20 Notable Scholars (e.g., Lubos Tichy’)
Drafting “Principles of European Tort Law” (PETL)
Resumed Work in 2009
Similar to U.S. Restatement of Torts
Not Law
Common Framework for Further Harmonized European Law

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“Where an Activity is a Cause . . , Whether and to What Extent Damage May Be Attributed to a Person
Depends on Factors Such As:
a)  Foreseeability of the Damage to a Reasonable Person, Taking Into Account in Particular the
Closeness in Time or Space Between the Damaging Activity and Its Consequence . . . .
b)  The Nature and Value of the Protected Interest
c)  The Basis of Liability
d)  The Extent of the Ordinary Risks of Life
e)  The Protective Purpose of the Rule Violated

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DEPENDENT ON STATUS OF ENTRANTS:
TRESPASSER – One Who Enters or Remains on the Property in the Possession of Another Without the
Express or Implied Consent of the Land Occupier
LICENSEE – One Who Enters the Land With the Express or Implied Consent of the Land Occupier
INVITEE –
BUSINESS  – One Who is Invited on the Land for the Potential Financial Benefit of the Land Occupier
PUBLIC  – One Who is Invited on the Land as a Member of the Public at Large

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TRESPASSERS – Refrain From Willfully Harming
FREQUENT OR KNOWN TRESPASSERS – Duty to Warn of Known Hidden Artificial Serious Dangers
CHILDREN TRESPASSERS -  Liable for Artificial Condition if:
a) Possessor Knows Children Trespass Near Condition
b) Possessor Knows Condition Creates Serious Risk of Harm
c) Children Do Not Appreciate Danger Due to Age
d) B < P X L
e) Possessors Fails to Exercise Reasonable Care

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LICENSEES – Duty to Warn of Known Hidden Artificial & Natural Dangers
INVITEES – Full Duty of Due Care That May, Depending on Circumstances, Include Affirmative Steps to
Discover Dangers and Either Warn or Remedy.
MINORITY RULE – Abandoned Status Rules in Favor of Reasonable Person Under the Same or Similar
Circumstances.

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1)  EMOTIONAL DISTRESS
2)  WRONGFUL DEATH & SURVIVAL
3)  WRONGFUL CONCEPTION, BIRTH & LIFE
4)  PURE ECONOMIC LOSS

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EMOTIONAL DISTRESS
PARASITIC  TO PHYSICAL HARM
PARASITIC TO PHYSICAL CONTACT
ZONE OF DANGER + PHYSICAL MANIFESTATIONS
BYSTANDER – LIMITED TO ZONE OF DANGER
MINORITY
Near Accident
Sees Accident
Close Family Member

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WRONGFUL DEATH – AVAILABLE TO CLOSE FAMILY MEMBERS AND/OR THOSE FINANCIALLY DEPENDENT ON DECEASED
DAMAGES – MOSTLY PECUNIARY LOSS, i.e., SUMS PLs WOULD HAVE RECEIVED FROM DECEASED
SURVIVAL ACTION – CONTINUATION OF VICTIM’S CAUSE OF ACTION BROUGHT BY ADMINISTATOR OF ESTATE FOR
BENEFIT OF ESTATE
D’s ACTION DOESN ‘T NEED TO BE CAUSE OF DEATH
DAMAGES SAME AS DECEASED WOULD HAVE OBTAINED
Except Some Courts Bar Emotional Distress as Windfall

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WRONGFUL CONCEPTION – PARENTS’ ACTION FOR HEALTHY UNWANTED CHILD
WRONGFUL BIRTH – PARENTS’ ACTION FOR WANTED CHILD WHO WAS NOT KNOWN TO BE UNHEALTHY
WRONGFUL LIFE – CHILD’S ACTION FOR NEGLIGENLY CAUSED BIRTH

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MORE PROBABLY THAN NOT, THE D’s CONDUCT WAS A “BUT FOR” CAUSE OF PL’s INJURY
EUROPE (PETL) – AN ACTIVITY OR CONDUCT IS A CAUSE OF THE VICTIM’S DAMAGE IF, IN THE ABSENCE OF THE
ACTIVITY, THE DAMAGE WOULD NOT HAVE OCCURRED.
D’s CONDUCT NEED NOT BE THE SOLE CAUSE.
ADDITIONAL TEST – “SUBSTANTIAL FACTOR”
UNIQUE SITUATIONS:
SUMMERS v. TICE (CA 1948)
SINDELL v. ABBOTT LABS (CA 1980)