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          Fueling a controversy that has endured nearly 100 years, Judge Andrews wrote in his famous dissenting opinion in the Palsgraf case: It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there— a wrong to the public at large. … Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone. Id. at 349.

The decision was close – a narrow 4:3 split between the judges of New York State’s highest court. It took nearly four years for the case to make it’s way up the appellate ladder. In the end, Mrs. Palsgraf lost. Her case was dismissed. Id. at 347. She was standing too far away to be a plaintiff within a “range of danger”. The injury to her, resulting from a sequence of events acted out by a passenger and employees of the railroad, was not foreseeable.

Although an extremely significant decision, the rule in Palsgraf has not settled the law with respect to these questions related to duty and causation. Nearly forty years later, the U.S. Court of Appeals, 2nd Circuit, applying New York state law, found a way to broaden Judge Cardozo’s holding that limited recovery to foreseeable plaintiffs. In Petition of Kinsman Transit Co., 2d Cir. 1964, 338 F.2d 708, the operator of a 500’ vessel failed to properly moor its ship along the Buffalo River. Ice forced the vessel from its mooring, into another vessel. The two ships were then forced against a bridge by the moving water and ice. The bridge failed and the resulting wreckage of the bridge and drifting vessels created a dam, blocking the river. The river backed up, flooding a manufacturing area of the town. At what point does a defendant’s liability end? The court in Kinsman ruled that, if any harm to the plaintiff was foreseeable, then the defendant would be liable for all consequences to the plaintiff, even those consequences that were not foreseen.

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