TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, November 29, 2021

Kaye on Duty

Tim Kaye has posted to SSRN The Identity Criterion:  Resuscitating a Cardozian, Relational Approach to Duty of Care in Negligence.  The abstract provides:

Everyone agrees that the canonical case in American negligence law is Palsgraf v. Long Island Railroad Co. In his famous majority opinion in the New York Court of Appeals, Chief Judge Benjamin Cardozo held that the outcome of the case turned on whether the plaintiff, Mrs. Palsgraf, had been owed a duty of care by the Long Island Railroad. He declared that the answer to this question depended on whether the parties had a relevant relationship at the time of the conduct under consideration. “Negligence, like risk,” he said, is “a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.”

Over ninety years have passed since then. One thing that everyone agrees upon (including Judge Charles Andrews, who wrote the almost equally famous dissent in Palsgraf) is that not everyone who sustains an injury as the result of someone else’s negligence is entitled to compensation in a court of law. In Andrews’s words, “because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Yet torts lawyers continue to search in vain for a full articulation of a relational approach to duty of care that tells us where that point is. This paper seeks to fill that void.

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