Date: Thu, 10 May 2007 21:58

From: Richard Wright

Subject: OBG again

I haven't had time to enter into the fascinating broader discussion or even to read it all (but I hope to have time to do so soon). Yet I can't stop myself from replying to Jason, if only to correct the spelling of Palsgraf. But now that I'm here, yes, Palsgraf was wrongly decided, by a bare majority, and it has been repudiated by the Restatement Third (as has Wagon Mound I by Wagon Mound II and Hughes v. Lord Advocate), at least on the duty issue and arguably even on the proximate cause issue, with respect to the required foreseeability of the specific plaintiff and harm, rather than foreseeability of the risk the realization of which led to the plaintiff's harm. See this paper, in which I discuss the major British (Commonwealth) as well as American cases.

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From: Jason Neyers
Sent: Thursday, May 10, 2007 9:09 AM
Subject: RE: ODG: OBG again

Andrew Dickinson wrote:

Just for completeness - I would argue that in the "tort without loss" scenario, the missing element required for civil actionability is provided by the loss suffered by the claimant, as a sufficiently proximate "victim" of the defendant's conduct.

So Palsgraf is wrongly decided?

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