It's the result of a defect in the decision model used by courts to
determine negligence.  Reasonable foreseeability is part of the decision
about duty and scope of duty, and is also part of the proximate cause
analysis.  Some courts discuss foreseeability at one point, some at the
other some at both points, some treat foreseeability separately and relate
to the two points. It just is not not a well designed model.
 
John Allison
 
At 05:31 PM 11/20/97 -0800, you wrote:
>Colleagues,
>
>Why is Cardozo's opinion in Palsgraf in many of our legal environment
>textbooks used to illustrate proximate cause?
>
>A careful reading will reveal that the majority opinion discussed only the
>issue of whether the Long Island RR owed a duty of care to Mrs. Palsgraf:
>"'[B]efore negligence can be predicated on a given act, back of the act
>must be sought and found a duty to the individual complaining.... The ideas
>of  negligence and duty are strictly correlative.' The plaintiff sues in
>her own right...and not as the vicarious bneficiary of a breach of duty to
>another"  In fact, Cardozo explicitly rejected causation as being the
>issue: "The law of causation, remote or proximate, is...foreign to the case
>before us." It is Andrews in his dissent (after rejecting Cardozo's
>position that duty depends on foreseeability) who discusses proximate
>cause!
>
>So, students read Cardozo's opinion in the proximate cause section of the
>text and wonder...and wonder...and wonder.... And I do too.
>
>Somebody, please, help us get out of Casablanca!
>
>Keith
>
>---------------------------------------------------------------------
>Professor Keith A. Maxwell            |  Voice:         253 756 3703
>Legal and Ethical Studies             |  Fax:           253 756 3500
>University of Puget Sound             |  Internet:    [log in to unmask]
>
>
>                 "Sacred cows make the best hamburgers." Mark Twain
>
John R. Allison
Graduate School of Business
University of Texas at Austin