Negligence - Unforeseeable plaintiffs

Learning Outcomes

After reading this article, you will be able to explain when a defendant owes a duty of care to an unforeseeable plaintiff, distinguish the Cardozo and Andrews views on duty and proximate cause, and apply these principles to MBE-style negligence questions. You will also recognize how courts limit liability for remote or unforeseeable plaintiffs and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the scope of duty in negligence, especially as it relates to unforeseeable plaintiffs. This includes:

• The concept of duty of care and its limits in negligence actions.
• The Cardozo (majority) and Andrews (minority) approaches to duty and proximate cause.
• The "zone of danger" rule and its application to plaintiffs outside the foreseeable risk.
• The relationship between duty, foreseeability, and proximate cause in determining liability.
• How courts handle cases involving multiple plaintiffs and remote injuries.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a negligence action, who is owed a duty of care under the Cardozo (majority) approach?
   1. All persons who suffer harm as a result of the defendant's conduct.
   2. Only those plaintiffs within the foreseeable zone of danger.
   3. Only plaintiffs who are physically injured.
   4. Any bystander who witnesses the event.
2. Under the Andrews (minority) view, what is the main test for whether a defendant is liable to an unforeseeable plaintiff?
   1. Whether the plaintiff was in the zone of danger.
   2. Whether the defendant's conduct was the proximate cause of the injury.
   3. Whether the plaintiff was a rescuer.
   4. Whether the plaintiff suffered economic loss.
3. If a defendant negligently causes a car accident, and a bystander a block away is injured by falling debris, is the defendant liable under the Cardozo approach?
   1. Yes, because all injuries are foreseeable.
   2. Yes, because the bystander was physically harmed.
   3. No, because the bystander was outside the foreseeable zone of danger.
   4. No, because the defendant did not intend harm.

Introduction

Negligence law requires that a defendant owe a duty of care to the plaintiff. But what happens when the plaintiff is not someone the defendant could reasonably foresee as being at risk? This issue—liability to unforeseeable plaintiffs—often appears on the MBE. Courts use different approaches to determine whether a duty exists and whether the defendant is liable for injuries to remote or unexpected plaintiffs.

Key Term: Unforeseeable Plaintiff A person who suffers harm as a result of the defendant's negligent conduct but who was not reasonably foreseeable as being at risk of injury.

Duty of Care and the "Zone of Danger"

The first step in any negligence case is to establish that the defendant owed a duty of care to the plaintiff. Most courts follow the Cardozo approach, which limits the duty of care to those plaintiffs who are within the foreseeable "zone of danger" created by the defendant's conduct.

Key Term: Zone of Danger The area or group of persons who are at foreseeable risk of harm from the defendant's negligent conduct.

Under this view, if the plaintiff was not within the zone of danger, the defendant owes no duty and cannot be held liable, even if the plaintiff was actually injured.

The Cardozo (Majority) Approach

Under the Cardozo approach (from Palsgraf v. Long Island Railroad Co.), a defendant is only liable to plaintiffs who are within the foreseeable zone of danger. If the plaintiff's injury was not a foreseeable result of the defendant's conduct, no duty is owed.

• Duty is a threshold question for the judge.
• If the plaintiff is outside the zone of danger, the case is dismissed for lack of duty.

The Andrews (Minority) Approach

The Andrews approach (minority view) holds that everyone owes a duty of care to the world at large. Whether the defendant is liable to an unforeseeable plaintiff is a question of proximate cause, not duty.

• Duty is owed to all persons.
• Liability is determined by whether the defendant's conduct was the proximate cause of the plaintiff's injury.
• The jury decides whether the injury was a sufficiently direct result of the defendant's negligence.

Key Term: Proximate Cause A legal limitation on liability, requiring that the harm to the plaintiff be a reasonably foreseeable result of the defendant's conduct.

Application: Foreseeability and Limiting Liability

The key issue is whether the plaintiff's injury was a foreseeable consequence of the defendant's negligence. Courts use foreseeability to limit liability for remote or unexpected injuries.

• Under Cardozo, unforeseeable plaintiffs cannot recover.
• Under Andrews, liability may extend further, but proximate cause still limits recovery for highly remote or indirect injuries.

Worked Example 1.1

A train conductor negligently pushes a passenger onto a departing train. The passenger drops a package containing fireworks, which explode. The shockwave knocks over a scale at the far end of the platform, injuring a bystander.

Question: Is the railroad liable to the bystander under the Cardozo approach?

Answer: No. The bystander was outside the foreseeable zone of danger. The harm to her was not a foreseeable result of the conductor's negligence, so no duty was owed.

Worked Example 1.2

Suppose the same facts as above, but the jurisdiction follows the Andrews approach.

Question: Is the railroad liable to the bystander under the Andrews approach?

Answer: Possibly. Duty is owed to all, but the jury must decide if the injury to the bystander was a proximate result of the conductor's negligence. If the harm is deemed too remote or unforeseeable, liability will still be denied.

Exam Warning

Courts may use different language to describe the limits on liability for unforeseeable plaintiffs. On the MBE, always check whether the question is testing duty (Cardozo) or proximate cause (Andrews).

Revision Tip

If the question mentions "zone of danger," think Cardozo. If it focuses on "proximate cause" or asks about the jury's role, think Andrews.

Summary

• The majority (Cardozo) view limits duty to foreseeable plaintiffs within the zone of danger.
• The minority (Andrews) view treats duty as owed to all, but uses proximate cause to limit liability.
• Foreseeability is the main tool courts use to prevent unlimited liability for remote injuries.

Key Point Checklist

This article has covered the following key knowledge points:

• Duty of care in negligence is generally limited to foreseeable plaintiffs.
• The Cardozo approach restricts duty to those within the foreseeable zone of danger.
• The Andrews approach treats duty as owed to all, but limits liability through proximate cause.
• Foreseeability is used to prevent liability for highly remote or unexpected injuries.
• Courts may differ on whether duty or proximate cause is the limiting factor for unforeseeable plaintiffs.

Key Terms and Concepts

• Unforeseeable Plaintiff
• Zone of Danger
• Proximate Cause