Tuesday, March 13, 2018
Benjamin Cardozo's 1921 opinion for the Court of Appeals of New York in Wagner v. International Railway Co. has been called the "seminal case imposing liability on a tortfeasor for harm suffered by a person who came to the rescue of another." The case is indeed seminal, but it did not become so on its own. Rather, in Wagner, Cardozo took a question on which there already was substantial precedent, and re-answered the question in a new, inimitable, and memorable way. As Cardozo put it in a now-canonical phrase, "Danger invites rescue." Then, precisely by virtue of the way Cardozo did this re-answering, Wagner became the leading decision on the subject. In this Article we analyze Cardozo's accomplishment, and show how his opinion in Wagner foreshadowed what he later accomplished in his even more celebrated opinion in Palsgraf v. Long Island R.R. Co.