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  • 2 - Commentary on Palsgraf v. Long Island Railroad Co.

  • from Part II - The Classics
  • Edited by Martha Chamallas, Ohio State University, Lucinda M. Finley, University at Buffalo, State University of New York
  • Book:
    Feminist Judgments: Rewritten Tort Opinions
    Published online:
    28 November 2020
    Print publication:
    10 December 2020, pp 27-53

  • Summary

    Widely regarded as the most celebrated case in US tort law, Palsgraf v. Long Island R.R. Co. denied recovery to a woman who was injured in an explosion while she was standing on a platform waiting for a train. Famed jurist Benjamin Cardozo used the occasion to announce the “zone of danger” test which denies recovery to plaintiffs who are outside the scope of foreseeable harm. The rewritten feminist dissent criticizes Cardozo’s approach for its subjectivity and underlying gender and class bias, charging that Cardozo employed a double standard, displayed a lack of sympathy for the plaintiff, and ignored well-established principles of common law. Rather than using an abstract relational concept of negligence, the feminist dissent focuses on the real relationships among the parties and faults the railroad for encouraging risky masculine behavior on the part of its employees. The accompanying commentary recounts the little-known history of the litigation and discusses the larger social, political, and economic context.