TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, November 13, 2014

Exam Advice: How to Explain the Unforeseeable Plaintiff?

Beau Baez (Charlotte) writes:

Here is my recurring problem around final exam time:  how to explain to students when they need to discuss the unforeseeable plaintiff.  In most cases, the plaintiff is foreseeable, so on the exam I really don't want students to waste time identifying and discussing a non-issue.  A seasoned lawyer will "know it when they see it," but just as that was not satisfactory in the old obscenity cases it's not a great response in this context either.  I am wondering how other torts professors explain this context within the essay exam context. 

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I think a good starting place is simply to ask, "Is it surprising that someone in this person's position was injured at all, in any way?" (I.e., regardless of whether the type of injury or the way it came about is what you might expect.)

Posted by: James Y. Stern | Nov 13, 2014 3:22:47 AM

If you teach Palsgraf, remind them to use Justice Cardozo's methodology to establish the "range of reasonable apprehension" and then to ask whether their plaintiff is within that range.

Posted by: Doriane Coleman | Nov 13, 2014 12:17:55 PM

I hope everyone is informing their students that the debate between Cardozo and Andrews in Palsgraf continues in the courts as well as in academia, that defendants continue to often be held liable to unforeseeable plaintiffs, and that the Restatement Third has switched from the “harm matches/within the risk” duty limitation advocated by Cardozo and the first and second Restatements to a “harm results from [the actual or anticipated realization and playing out of] the risks” scope of liability [not duty] limitation, which was also mentioned in the first and second Restatements albeit without any apparent recognition of the significant difference between the two limitations, is intermediate between Cardozo’s and Andrews’ views, does not require a foreseeable plaintiff or type of harm, and explains all the cases. In part V of my 2003 article in the San Diego Law Review, available on SSRN and at, I criticize the “harm matches the risk” limitation and elaborate and defend the “harm results from the risk” (or “risk playout”) limitation, on normative and descriptive grounds.

Posted by: Richard Wright | Nov 14, 2014 8:55:07 AM

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