Copyright 1965, American Law Institute
§ 281 STATEMENT OF THE ELEMENTS OF A CAUSE OF ACTION FOR NEGLIGENCE
The actor is liable for an invasion of an interest of another, if:
(a) the interest invaded is protected against unintentional invasion, and
(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and
(c) the actor's conduct is a legal cause of the invasion, and
(d) the other has not so conducted himself as to disable himself from
bringing an action for such invasion.
COMMENTS & ILLUSTRATIONS: Comment:
a. Clauses (a) and (b) state the conditions necessary to make the actor's conduct negligent. Clauses (c) and (d) state the conditions which are necessary to make negligent conduct actionable.
Comment on Clause (a):
b. This Clause states the requirement that the interest which is invaded must be one which is protected, not only against acts intended to invade it, but also against unintentional invasions. The extent to which particular interests are protected is considered in those Chapters which deal with the various interests, and no catalogue is here given of the interests which are protected against unintentional invasions and those which are not so protected.
Comment on Clause (b):
c. Risk to class of which plaintiff is member. In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons -- as, for example, all persons within a given area of danger -- of which the other is a member. If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.
1. A, a passenger of the X Railway Company, is attempting to board a train while encumbered with a bulky and apparently fragile package. B, a trainman of the Company, in assisting A, does so in such a manner as to make it probable that A will drop the package. A drops the package, which contains fireworks, although there is nothing in its appearance to indicate it. The fireworks explode. The force of the explosion knocks over a platform scale thirty feet away, which falls upon C, another passenger waiting for a train, and injures her. X Railway Company is not liable to C.
2. A is driving a car down the street. He drives so carelessly that he collides with another car. The second car contains dynamite. A is ignorant of this and there is nothing in its appearance or in the circumstances to give him reason to suspect it. The collision causes an explosion which shatters a window of a building on an intersecting street, half a block away, inflicting serious cuts upon B, who is working at a nearby desk. The explosion also harms C, who is walking on the sidewalk near the point where the collision occurs. It also shatters the windows in the building opposite, injuring D at work therein. A is not negligent toward B, since he had no reason to believe that his conduct involved any risk of harming anyone at the point where B is injured. A is negligent toward C since he should have realized that careless driving might result in an accident which would affect the safety of those traveling upon the sidewalk, and the fact that the harm occurred in a different manner from that which might have been expected does not prevent his negligence from being in law the cause of the injury. Whether or not A is negligent toward D depends upon whether A as a reasonable man should have expected that the manner in which he drove the car might cause harm to persons in D's situation.
d. There are situations in which the obvious probability of harm to one class of persons may be considered in determining whether an act is negligent to a person of a different class, although the risk of harm to persons of the latter class is so slight that the actor's conduct might otherwise not be negligent as to them. (See § 294.)
e. The hazard problem. Conduct is negligent because it tends to subject the interests of another to an unreasonable risk of harm. Such a risk may be made up of a number of different hazards, which frequently are of a more or less definite character. The actor's negligence lies in subjecting the other to the aggregate of such hazards. In other words, the duty established by law to refrain from the negligent conduct is established in order to protect the other from the risk of having his interest invaded by harm resulting from one or more of this limited number of hazards.
In some cases the duty to refrain from certain conduct may be established solely to protect the other from the risk of harm arising from one particular hazard. As to harm resulting from that hazard, the conduct is negligent. Thus in some situations the locking of a securely closed door may be required only for the purpose of protecting goods within the room or building from the risk of theft. When the thief appears on the scene, opens the unlocked door, and steals the goods within, the harm which results is the precise harm which the duty to lock the door was designed to prevent. (See § 449.)
In other cases the number of hazards, although limited, may be large. Thus the duty to exercise reasonable care in driving an automobile down the highway is established for the protection of the persons or property of others against all of the unreasonable possibilities of harm which may be expected to result from collisions with other vehicles, or with pedestrians, or from the driver's own automobile leaving the highway, or from narrowly averted collisions or other accidents. When harm of a kind normally to be expected as a consequence of the negligent driving results from the realization of any one of these hazards, it is within the scope of the defendant's duty of protection.
f. Harm beyond the risk. Where the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor's conduct, the actor is ordinarily not liable. This is subject, however, to the qualification that where the harm which has resulted was itself within the risk created, the fact that it has been brought about in a manner which was not to be expected, or by the intervention of forces which were not within the risk, does not necessarily prevent the actor's liability. (See § 442 B.)
3. A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.
g. Flexibility of risk. In determining whether a particular harm or hazard is within the scope of the risk created by the actor's conduct, "risk" must be understood in the broader sense of including all of those hazards and consequences which are to be regarded as normal and ordinary. "Risk" is not limited to those hazards which a reasonable man would have in contemplation and take into account in planning his conduct. Thus one who drives an automobile through city streets at excessive speed may not, as a reasonable man, have in mind the possibility that he may endanger a child in the street and that one who attempts to rescue the child may suffer harm; that he may injure some one who will suffer further injury from negligent medical treatment, or from a fall while attempting to walk on crutches; or that the injured man may be left lying in the highway, where a second car will run over him. None of these possibilities is in itself sufficient to make the driver negligent, and none of them is sufficiently probable to influence the conduct of a reasonable man in his position, which will be determined without regard to them. Nevertheless, each of them is a normal, not unusual consequence of the hazardous situation risked by the driver's conduct, and each is justly attachable to the risk created, and so within its scope.
In determining whether such events are within the risk, the courts have been compelled of necessity to resort to hindsight rather than foresight. If an event appears to have been normal, not unusual, and closely related to the danger created by the actor's original conduct, it is regarded as within the scope of the risk even though, strictly speaking, it would not have been expected by a reasonable man in the actor's place.
h. Relation to legal cause. The problem which is involved in determining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the duty, and the intervening force is not a superseding cause. (See §§ 443-452.) A completely accurate analysis of the hazard element in negligence would require the material on superseding cause in Chapter 16 to be placed in this chapter. However, in the past the courts generally have discussed the effect of intervening forces in terms of causation. The solution of the problem of determining whether the presence of an intervening force should relieve the actor from liability for harm which his conduct was a substantial factor in bringing about (see § 440) is facilitated by an appreciation of the fact that the problem is a "hazard problem" rather than a problem of causation.
i. Application to violation of statutes. The statement in Comment e is most easily recognized in cases of violation of legislative enactments. The language of many statutes makes it clear that they are intended to prevent a very definite type of accident or class of accidents, the prevalence of which has led to the enactment of the statute. (See § 286, Clause (c), and Illustrations.) Many acts are prohibited or required by the common law for substantially the same reason, although the fact that this is so is less easy to recognize.
j. Risk to particular interest. Conduct may be negligent because it involves an unreasonable risk of invading only a particular interest of the plaintiff, or one of a particular species of interests, such as an interest of personality, but may involve no recognizable risk of invading another interest of the same species, or an interest of another species, such as an interest in land or chattels. If so, the fact that the interest to which harm results is a different interest, or a different kind of interest, from that which was threatened with harm, will not prevent the actor from being liable, so long as the interest in fact harmed is one entitled to legal protection against negligence. Thus where harm is threatened only to the plaintiff's land, and harm results instead to his person, or vice versa, the defendant is not relieved from liability by the unexpected nature of the result, or by the fact that an interest of a different kind has been invaded. The plaintiff is not subjected to fragmentation in terms of risk or harm to his foot, his hand, his eye, his chattels, or his land.
4. A, negligently shooting in the street, wounds B's dog. The dog, yelping with pain, runs into B's house and collides with B in the hallway, knocking B down and injuring him. A is subject to liability to B, not only for the harm to his dog but also for the harm to his person.
Comment on Clause (c):
k. The rules which determine whether the actor's conduct is in law a cause of the invasion of another's interest are stated in §§ 430-462.
Comment on Clause (d):
l. The rules which determine whether the other's conduct
is such as to disable him from bringing an action for an invasion of which
the actor's negligence is in law the cause, are stated in §§
REPORTERS NOTES: Clause (b): The leading case supporting Clause (b) is Palsgraf v. Long Island R. Co. 248 N.Y. 339, 162 N.E. 99, 59 ALR 1253 (1928), the facts of which are stated in Illustration 1. Illustration 2 is given as an illustration in the dissenting opinion of Andrews, J., in that case.
The Palsgraf Case is controversial. On facts that are at all closely analogous, the decisions are few, and divided. The case has been followed, and the rule stated in Clause (b) accepted, in Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951), in which bus struck pedestrian and threw his body off at an angle, against plaintiff behind vehicle in position of apparent safety, and in Tucker v. Collar, 79 Ariz. 141, 285 P.2d 178 (1955), in which seller who knew machinery belt sold to tenant had ignited held not liable to landlord unless jury find that harm to landlord was a foreseeable consequence.
The Palsgraf Case is also cited and followed in two other decisions, which may perhaps be distinguished as involving superseding causes under the rules stated in §§ 440 and 442: Kane v. Burrillville Racing Ass'n, 73 R.I. 264, 54 A.2d 401 (1947), negligently hung fire extinguisher, upset by a third person, gave forth a hissing noise and caused a stampede, in which plaintiff was injured; West v. Cruz, 75 Ariz. 13, 251 P.2d 311 (1952), motorist's negligent failure to have car standing still at the curb when patrol siren sounded led to collision with convoyed automobile traveling at high speed into an intersection in the nighttime on the wrong side of the road. The case last cited also involved a statute.
On the other hand, the application of the Palsgraf Case was rejected in Jackson v. B. Lowenstein & Bros., 175 Tenn. 535, 136 S.W.2d 495 (1940), rubber mat overlapping top step of department store stairway caused injury to customer around corner below; Pfeifer v. Standard Gateway Theater, 262 Wis. 229, 55 N.W.2d 29 (1952), defendant was negligent in policing its theater, and plaintiff was hit in the eye with a spitball. The case was also disapproved, at least in dictum, in Missouri Pacific R. Co. v. Johnson, 198 Ark. 1134, 133 S.W. 2d 33 (1939), in which smoke from a fire on railroad right of way aggravated plaintiff's bronchitis.
Before the Palsgraf Case there were other decisions which on their facts presented the issue of the plaintiff who was beyond the recognizable risk. Where the issue was dealt with in terms of duty, some courts held that there was no duty to one to whom no harm was to be foreseen. Boyd v. City of Duluth, 126 Minn. 33, 147 N.W. 710 (1914); Goodlander Mill Co. v. Standard Oil Co., 63 F. 400, 27 L.R.A. 583 (7 Cir. 1894); Trinity & B. V. R. Co. v. Blackshear, 106 Tex. 515, 172 S.W. 544, L.R.A. 1915D, 278 (1915). Other courts found a duty to the unforeseeable plaintiff. Stevens v. Dudley, 56 Vt. 158 (1883); Hollidge v. Duncan, 199 Mass. 121, 85 N.E. 186, 17 L.R.A. N.S. 982 (1908); Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 100 P. 971, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189 (1909); Wilson v. Northern Pacific R. Co., 30 N.D. 456, 153 N.W. 429, L.R.A. 1915E, 991 (1915); and see Poffenbarger, J., in Bond v. Baltimore & Ohio R. Co., 82 W. Va. 557, 96 S.E. 932, 5 A.L.R. 201, 19 N.C.C.A. 674 (1918).
Most of the decisions before the Palsgraf Case treated the issue as one of "proximate" or legal causation. A few such decisions held that the unforeseeability of harm to the plaintiff prevented the harm from being "proximate." Wood v. Pennsylvania R. Co., 177 Pa. 306, 35 A. 699, 35 L.R.A. 199, 55 Am. St. Rep. 728 (1896); Ryan v. New York Central R. Co., 35 N.Y. 210, 91 Am. Dec. 49 (1866); Hoag v. Lake Shore & M. S. R. Co., 85 Pa. 293, 27 Am. Rep. 653 (1877). The majority of them held to the contrary. Ramsey v. Carolina-Tennessee Power Co., 195 N.C. 788, 142 S.E. 861, 28 N.C.C.A. 307 (1928); Walmsley v. Rural Tel. Ass'n, 102 Kan. 139, 169 P. 197 (1917); Jackson v. Galveston, H. & S. A. R. Co., 14 Tex. Civ. App. 685, 37 S.W. 786 (1896) affirmed, 90 Tex. 372, 38 S.W. 745; Wallin v. Eastern R. Co., 83 Minn. 149, 86 N.W. 76, 54 L.R.A. 481 (1901).
Recovery was allowed, on the issue of "proximate cause," for fires spreading to unforeseeable distances and burning the land of plaintiffs to whom no harm was to be anticipated, in Smith v. London & S. W. R. Co., L.R. 6 C.P. 14 (Ex. Cham.) (1870); Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362 (1874); Hoyt v. Jeffers, 30 Mich. 181 (1874); Kuhn v. Jewett, 32 N.J. Eq. 647 (1880); Poeppers v. Missouri, K. & T. R. Co., 67 Mo. 715, 29 Am. Rep. 518 (1878); Fent v. Toledo, P. & W. R. Co., 59 Ill. 349, 14 Am. Rep. 13 (1871); E. T. & H. K. Ide Co. v. Boston & Maine R. Co., 83 Vt. 66, 74 A. 401 (1909).
Recovery was also allowed, on the issue of "proximate cause," where the defendant's vehicle struck a person or thing in its path and threw it off at an angle, against a plaintiff regarded as unforeseeable. Alabama Great Southern R. Co. v. Chapman, 80 Ala. 615, 2 So. 738 (1886); Solomon v. Branfman, 175 N.Y.Supp. 835 (App. Term. 1919); Wolfe v. Checker Taxi Co., 299 Mass. 225, 12 N.E.2d 849 (1938); Robinson v. Standard Oil Co., 89 Ind. App. 167, 166 N.E. 160 (1929); Kommerstad v. Great No. Ry., 120 Minn. 376, 139 N.W. 713 (1913), affirmed in later appeal, 128 Minn. 505, 151 N.W. 177 (1915). Cf. Hammill v. Pennsylvania R. Co., 56 N.J.L. 370, 29 A. 151, 24 L.R.A. 531 (1894).
The Palsgraf Case has been cited with approval in a great many cases which on their facts appear to be distinguishable. Thus it has been cited where no harm to anyone was to be anticipated from the defendant's conduct, and it appears that there was simply no negligence at all. Birckhead v. Mayor & City Council of Baltimore, 174 Md. 32, 197 A. 615 (1938); Andreu v. Wellman, 144 Me. 36, 63 A.2d 926 (1949); Hetrick v. Marion-Reserve Power Co., 141 Ohio St. 347, 25 Ohio Op. 467, 48 N.E.2d 103 (1943); Williams v. State, 308 N.Y. 548, 127 N.E.2d 545 (1955).
The case has also been cited in support of the rule that a statute intended to protect only a particular class of persons, or to guard only against a particular risk or type of harm, creates no duty to any other class or risk. See § 288. Here the written law, and the policy of strict construction which refuses to go beyond the legislative purpose, may set statute apart from court-made rules. See Flynn v. Gordon, 86 N.H. 198, 165 A. 715 (1933); Chicago, B. & Q. R. Co. v. Murray, 40 Wyo. 324, 277 P. 703 (1929); Coray v. Southern Pacific Co., 112 Utah 166, 185 P.2d 963 (1947), reversed, 335 U.S. 520, 93 L. Ed. 208, 69 S.Ct. 275.
Several courts have cited the Palsgraf Case with approval in cases holding that one who is himself in a position of safety cannot recover for mental shock and injury brought about by the sight of harm or peril to another person. Waube v. Warrington, 216 Wis. 603, 258 N.W. 497, 98 A.L.R. 394, 36 N.C.C.A. 489 (1935); Curry v. Journal Pub. Co., 41 N.M. 318, 68 P.2d 168 (1937); Blanchard v. Reliable Transfer Co., 71 Ga. App. 843, 32 S.E.2d 420 (1944); Cote v. Litawa, 96 N.H. 174, 71 A.2d 792, 18 A.L.R.2d 216 (1950); Resavage v. Davis, 199 Md. 479, 86 A.2d 879 (1952); Angst v. Great Northern R. Co., 131 F. Supp. 156 (D. Minn. 1955). Here the nature of the harm itself may be the distinguishing factor. Compare Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 77 N.W.2d 397 (1956); Lessard v. Tarca, 20 Conn. Supp. 295, 133 A.2d 625 (1957); King v. Phillips, , 1 Q.B. 429, 1 All E.R. 617 (C.A.), to the effect that recovery will be denied even where plaintiff herself is in the danger zone.
Other cases which appear to be distinguishable are Karr v. Chicago, R. I. & P. R. Co., 341 Mo. 536, 108 S.W.2d 44 (1937), employees at work beside railroad track not owed same duty by trainmen as passengers and drivers at crossings; Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 110 A.L.R. 749 (1937), lessor's liability for breach of covenant does not extend to employee of tenant; Sinram v. Pennsylvania R. Co., 61 F.2d 767 (2 Cir. 1932), one who negligently sinks a barge is not liable to underwriters on whom contract liability is imposed.
Comment j reverses the position taken by Comment g in the first Restatement, under which conduct threatening harm only to the plaintiff's property would not result in liability for harm to his person, and vice versa. The old Comment was based primarily upon the following language of Cardozo, C.J., in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253 (1928):
"There is room for argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an interest of another order, as, e.g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now."
This language, which is only a suggestion and not even dictum, is apparently supported only by Texas & Pacific R. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896), where harm was threatened to plaintiff's cattle, and harm resulted instead to his person. The remainder of the few decisions bearing on the question ar-Thus the defendant was held liable in Rasmussen v. Benson, 135 rive at the contrary conclusion. Neb. 232, 280 N.W. 890, 122 A.L.R. 1475, 5 N.C.C.A. N.S. 668 (1938), threatened harm to plaintiff's cattle, resulting death of plaintiff; Isham v. Dow's Estate, 70 Vt. 588, 41 A. 585, 45 L.R.A. 87, 67 Am. St. Rep. 691 (1898), harm to plaintiff's dog, resulting in personal injury; Mitchell v. Friedman, 11 N.J. Super, 344, 78 A.2d 417 (1951), negligent failure to repair toilet, resulting in personal injury from carrying water; Chicago & N. W. R. Co. v. Hunerberg, 16 Ill. App. 387 (1885), threatened harm to land, resulting in personal injury; Brackett v. Bellows Falls Hydro-Electric Corp., 87 N.H. 173, 175 A. 822 (1934), threatened harm to land resulting in personal injury; Atherton v. Goodwin, 163 Kan. 22, 180 P.2d 296 (1947), threatened harm to scales, resulting in pecuniary loss; Barker v. City of Philadelphia, 134 F.Supp. 231 (E.D.Pa. 1955), threatened harm to chattels, resulting in death of child; cf. John C. Kupferle Foundry Co. v. St. Louis Merchants' Bridge Terminal R. Co., 275 Mo. 451, 205 S.W. 57 (1918), threatened harm to tank in street, resulting in harm to factory behind it.
See, discussing the position of the old Comment, Goodhart, The Unforeseeable Consequences of a Negligent Act, 39 Yale L.J. 449, 467 (1930); Porter, The Measure of Damages in Contract and Tort, 5 Camb. L.J. 178, 183 (1934); Machin, Negligence and Interest: A Comment, 17 Modern L. Rev. 405 (1954); Payne, Negligence and Interest: A Comment, 18 Modern L. Rev. 43 (1955).
For discussion of the Palsgraf problem and the Section generally, see Green, The Palsgraf Case, 30 Colum. L. Rev. 789 (1930), in Judge and Jury, ch. 8 (1930); Goodhart, The Unforeseeable Consequences of a Negligent Act, 39 Yale L.J. 449 (1930); Steuer, The Conception of Duty in Personal Injury Cases in New York, 18 Cornell L.Q. 51 (1932); Harper, Law of Torts, § 73 (1933); Buckland, The Duty to Take Care, 51 L.Q. Rev. 637 (1935); Tilley, The English Rule as to Liability for Unintended Consequences, 33 Mich. L. Rev. 829 (1935); Porter, The Measure of Damages in Contract and Tort, 5 Camb. L.J. 176 (1935); Campbell Duty, Fault, and Legal Cause, 1938 Wis. L. Rev. 402; Cowan, The Riddle of Palsgraf Case, 23 Minn. L. Rev. 46 (1938); Gregory, Proximate Cause in Negligence -- A Retreat from Rationalization, 6 U. Chi. L. Rev. 36 (1938); Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372 (1939), 48 Yale L.J. 390 (1939), 39 Colum. L. Rev. 20 (1939); Eldredge, Modern Tort Problems, 15-17 (1941); Ehrenzweig, Loss-Shifting and Quasi-Negligence: A New Interpretation of the Palsgraf Case, 8 U. Chi. L. Rev. 729 (1941); Goodhart, Bourhill v. Young, 8 Camb. L.J. 265 (1944); Scarborough, The Unforeseeable Consequences of a Negligent Act -- Reconsidered, 2 Rutgers L. Rev. 196 (1948); Morison, A Re-examination of the Duty of Care, 11 Modern L. Rev. 9 (1948) Greenwell, Re Polemis and Remoteness of Damage in Tort, 24 Austl. L.J. 392 (1951); Eldredge, The Role of Foreseeable Consequences in Negligence Law, 23 Pa. B.A. Q. 158 (1952); Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1 (1953), reprinted in Prosser, Selected Topics on the Law of Torts, 191 (1953); James, Scope of Duty in Negligence Cases, 47 Nw. U. L. Rev. 778 (1953); Wilson & Slade, A Re-examination of Remoteness, 15 Modern L. Rev. 458 (1952); Dias, The Breach Problem and the Duty of Care, 30 Tul. L. Rev. 377 (1956).