« on: December 13, 2007, 01:36:57 AM »
Just wanted to clarify some of what was said above.
First, at its core Palsgraff is a DUTY case. Yes Andrews dissent discusses proximate cause, but primarily as a mechanism to limit duty, which he believes everyone owes to "all the world" (his words) and not simply to "foreseeable plaintiffs". It should be clear that in the negligence analysis, "foreseeability" is used to establish both whether or not a duty existed and, if so, whether or not it was foreseeable per proximate cause.
Second, someone above said that "Polemis is concerned with unforeseeable extent of harm" and made a reference to the "eggshell plaintiff" rule. This is dead wrong. Polemis stands for the now generally defunct "Direct Cause" test in determining proximate cause. (Anyone read the Wagonmound cases?)The direct test establishes proximate case as long as there is NO intervening cause at all between the alleged negligence and resulting injury. That is why the plaintiff's in Polemis "defined the negligence" as a falling plank of wood rather than the fact that the charters of the boat allowed its chambers to fill with benzine gas. Consider, had the alleged negligence been "boat filled with gas", then the falling plank of wood that caused the spark with resulting explosion would have been an intervening cause and proximate cause would not be established.
A simpler example:
1.) Blasting company leaves a canister of nitroglycerin in a deserted rock area. Kids approach and the heat of the sun causes the canister to explodes, causing injury. No intervening cause = proximate cause under the Direct Test.
2.) Same facts as above, except a child kicks the canister, causing it to explode with resulting injury. Under the direct test, the child's kick is an intervening cause that cuts off liability. Proximate cause is not established. Under the foreseeability test, the risk of a child kicking the canister, especially a young child, is foreseeable. It would be an intervening, but not superseding cause and proximate cause would be established.