PastPaperHero | Negligence - Unforeseeable plaintiffs

Learning Outcomes

This article explains negligence liability to unforeseeable plaintiffs on the MBE, including:

Identifying when a defendant owes a duty of care to specific plaintiffs under the Cardozo “zone of danger” majority rule and the Andrews minority view.
Distinguishing clearly between duty, actual causation, and proximate cause, and understanding how each doctrine is used to restrict negligence liability on exams.
Applying the zone-of-danger concept to varied fact patterns to determine whether a plaintiff is foreseeable and whether the case fails at the duty stage.
Evaluating multi-plaintiff and remote-injury scenarios using scope-of-risk and foreseeability reasoning to decide which plaintiffs may recover under each approach.
Recognizing how intervening and superseding causes interact with unforeseeable plaintiffs, especially where criminal acts, rescuers, or unusual chains of events appear.
Applying the eggshell-skull rule and distinguishing unforeseeable plaintiffs from unforeseeable extent or manner of harm, a frequent MBE trap.
Practicing a stepwise exam method for quickly spotting the governing jurisdictional rule, organizing duty versus proximate-cause arguments, and eliminating distractor answer choices.

MBE Syllabus

For the MBE, you are required to understand negligence duty and proximate cause as they relate to unforeseeable plaintiffs, with a focus on the following syllabus points:

The concept and scope of the duty of care in negligence actions
The Cardozo (majority) “zone of danger” approach to duty and foreseeable plaintiffs
The Andrews (minority) approach treating duty as owed to all and using proximate cause to limit liability
The relationship between foreseeability, proximate cause, and the scope of risk created by the defendant’s conduct
How courts treat remote plaintiffs, unusual chains of events, and intervening or superseding causes
The distinction between unforeseeable plaintiffs and unforeseeable extent or manner of harm (eggshell-skull principle)

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.

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.
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.
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 requires proof of four core elements: duty, breach, causation (both actual and proximate), and damages. Questions about unforeseeable plaintiffs arise at the duty and proximate-cause stages: to whom does the defendant owe a duty, and how far does liability extend?

In many negligence cases, the plaintiff is plainly within the group of people who might be harmed by the defendant’s conduct—for example, another driver on the road. But some plaintiffs are injured in ways that were not reasonably expected, or are far removed in space or time from the defendant’s conduct. These “unforeseeable plaintiffs” test the outer limits of negligence liability and are a favorite topic for MBE examiners.

Key Term: Unforeseeable Plaintiff
A person who suffers harm caused in fact by the defendant’s negligent conduct but who was not reasonably foreseeable as being within the class of persons placed at risk by that conduct.

Two classic approaches are tested:

Under the Cardozo (majority) approach, foreseeability is used at the duty stage: if the plaintiff was outside the zone of danger, no duty is owed and the claim fails.
Under the Andrews (minority) approach, duty is owed to everyone; foreseeability is handled at the proximate cause stage to limit liability.

To work these problems correctly, you must keep distinct:

Foreseeability of plaintiff (Cardozo’s focus)
Foreseeability of type of harm (proximate cause)
Foreseeability of the extent of harm (eggshell-skull plaintiff — not required to be foreseeable)

Key Term: Duty of Care
The legal obligation to conform to a particular standard of conduct to protect others against unreasonable risks of harm arising from one’s actions or omissions.

Key Term: Foreseeable Risk
A risk of harm that a reasonable person in the defendant’s position would recognize as a likely consequence of their conduct.

Duty of Care and the "Zone of Danger"

The first step in any negligence analysis is determining whether the defendant owed a duty of care to the plaintiff. Modern courts generally recognize a broad duty to act as a reasonable person under the circumstances, but Cardozo’s formulation narrows which plaintiffs can enforce that duty.

Key Term: Zone of Danger
The area, and corresponding class of persons, who are at reasonably foreseeable risk of harm from the defendant’s negligent conduct.

Under the zone of danger concept, the defendant owes a duty only to those persons who were foreseeably endangered by the conduct that made the defendant negligent. If the plaintiff was not within that zone, many courts will say that no duty was owed to that plaintiff.

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 case ends at the duty stage without reaching breach, causation, or damages.

This is not the same as asking whether the defendant could foresee the particular manner in which the injury occurred. Once a plaintiff is in the zone of danger, unusual ways of injury rarely defeat liability; the focus is on whether injury to someone like this plaintiff was a reasonably foreseeable risk of the conduct.

Key Term: Proximate Cause
A limitation on negligence liability requiring that the plaintiff’s harm result from risks that made the defendant’s conduct negligent; typically expressed in terms of reasonable foreseeability of the general type of harm within the scope of risk.

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.

Key features:

Duty is a threshold question decided by the judge as a matter of law.
The judge asks: What were the risks that made the defendant’s conduct negligent, and was this plaintiff within those risks?
If the plaintiff is outside the zone of danger, the case is dismissed for lack of duty, even if the injury is causally linked in fact to the defendant’s conduct.

On the MBE, when a question clearly identifies a Cardozo/majority jurisdiction or emphasizes “zone of danger” and “duty,” the analysis is:

Identify the risk created by the defendant’s conduct.
Determine whether a reasonable person would foresee risk of harm to someone in the plaintiff’s position.
If not, conclude that the defendant owed no duty to this plaintiff and is not liable, even if causation in fact exists.

Example pattern: A shopkeeper negligently stacks boxes that fall on a customer standing nearby (foreseeable plaintiff), but a person three blocks away is injured when the crash startles a driver who later causes an accident (very remote plaintiff). Under Cardozo, only the customer is likely within the zone of danger of the negligent stacking.

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 handled as a question of proximate cause, not duty.

Key features:

Duty is owed to all persons as a matter of law.
The issue is whether the defendant’s negligence is the proximate cause of the particular plaintiff’s harm.
Proximate cause reflects a policy-based limitation on liability, focusing on the fairness and foreseeability of imposing liability for this injury to this plaintiff.
The question of proximate cause is typically one for the jury, unless no reasonable jury could find the harm sufficiently connected to the negligence.

Andrews-style courts often look at several overlapping factors:

Whether there is a natural and continuous sequence between the negligent act and the injury
Whether the defendant’s conduct was a substantial factor in bringing about the harm
Whether the injury is too remote in time or space
Whether there are multiple intervening events that make liability unfair
Overall policy considerations about the scope of liability

Under this view, liability may extend to plaintiffs who were not specifically foreseeable, so long as the injury is not too remote and falls generally within the type of harm created by the defendant’s risk.

Application: Foreseeability and Limiting Liability

The key issue in unforeseeable-plaintiff questions is how courts use foreseeability to limit the scope of liability:

Under Cardozo, foreseeability limits duty: if the plaintiff was outside the zone of danger, the defendant is not liable at all.
Under Andrews, duty exists to all; foreseeability limits proximate cause: the defendant is liable only for harms that are not too remote and are within the general scope of the risk created.

To apply these rules effectively, it helps to separate:

Actual (Cause-in-Fact) Causation – Did the defendant’s negligence actually contribute to the plaintiff’s injury? Courts use tests like “but for” or “substantial factor” here.
Proximate Cause (Legal Causation) – Assuming actual causation, is the connection between the negligence and the injury close enough, and within the scope of foreseeable risk, to justify liability?

Key Term: Direct Cause
A situation where the defendant’s negligent act leads to the plaintiff’s injury through a continuous, uninterrupted sequence of events, without any independent intervening forces.

Key Term: Indirect Cause
A situation where an intervening event occurs after the defendant’s negligent act and combines with it to cause the plaintiff’s injury.

Key Term: Intervening Force
Any outside force or act that comes into play after the defendant’s negligence and contributes to the plaintiff’s injury.

Key Term: Superseding Cause
An intervening force that is so unexpected and independent that it breaks the chain of proximate causation, relieving the original negligent actor of liability.

Proximate Cause and Foreseeable Harm

From a proximate cause standpoint (especially under Andrews), the general rule is:

A defendant is liable for harmful results that are the normal incidents of and within the increased risk created by their conduct.
If an entirely different and wholly unforeseeable type of harm occurs, many courts find no proximate cause.

However:

If the result (e.g., someone’s physical injury) is of a foreseeable type, the fact that it came about in an unusual or unexpected way usually does not defeat liability.
The presence of intervening forces does not automatically cut off liability; the key is whether the intervening force, and the result, were within the scope of foreseeable risk.

Examples of generally foreseeable intervening forces that do not cut off liability:

Negligence of rescuers
Subsequent medical malpractice that worsens the injury
Efforts by others to protect life or property
“Reaction” forces (e.g., a crowd panicking in response to danger)

An unforeseeable crime or intentional tort by a third party is more likely to be treated as a superseding cause, especially when the defendant’s negligence did not increase the risk of that type of wrongdoing.

Foreseeable Plaintiff vs Foreseeable Extent of Harm

It is important for MBE purposes to distinguish:

Foreseeability of the plaintiff (who is protected): at issue in Cardozo’s duty analysis and, indirectly, in Andrews-style proximate cause.
Foreseeability of the extent or severity of harm: generally irrelevant because of the eggshell-skull rule.

Key Term: Eggshell-Skull Plaintiff
A principle that the defendant takes the plaintiff as found and is liable for the full extent of the plaintiff’s injuries, even if the severity of harm was not foreseeable.

Once a plaintiff is within the protected class (e.g., within the zone of danger), the defendant is liable for all resulting injuries, even if the plaintiff is unusually fragile or suffers a rare complication. The law distinguishes between:

Unforeseeable plaintiff → may bar recovery (Cardozo) or be resolved via proximate cause limits (Andrews).
Unforeseeable extent of injury to a foreseeable plaintiff → defendant still liable.

Rescuers and Foreseeability

A special application likely to appear on the MBE: rescuers.

Courts commonly state that “danger invites rescue.” A person who attempts a reasonable rescue is treated as a foreseeable plaintiff, even if they were not physically present at the initial moment of negligence.

Under Cardozo, many courts treat rescuers as effectively within the zone of danger, because the risk of harm to rescuers is itself foreseeable.
Under Andrews, rescuers are easily within the scope of risk for proximate cause purposes.

Some jurisdictions apply the “firefighter’s rule,” limiting recovery by professional rescuers for risks arising naturally from their duties. That rule is more a matter of assumption of risk or public policy and is less central to the MBE’s treatment of unforeseeable plaintiffs, but it may occasionally appear as a distractor.

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. Under Cardozo’s approach, the railroad owes a duty only to those within the foreseeable zone of danger created by the conductor’s negligent push. The obvious foreseeable risk is injury to the passenger being pushed or to nearby people who might be struck. A bystander far down the platform, injured by the chain reaction of an unexpected explosion and falling scale, is outside that zone. Because no duty is owed to that distant bystander, the claim fails at the duty stage, even though the injury was actually caused by the conductor’s act.

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. Under Andrews, the railroad owes a duty of reasonable care to everyone. The issue becomes proximate cause, decided by the jury. The jury would consider whether the conductor’s negligence was a substantial factor producing the bystander’s injury and whether the injury is too remote for liability. The sequence—negligent push → dropped package → explosion → falling scale → injury—is continuous but involves an unusual mechanism (fireworks). Some juries might view the harm as within a broad scope of risk of pushing passengers; others might find it unfair and too remote. The key point is that duty does not bar recovery; proximate cause does the limiting work.

Worked Example 1.3

A driver negligently runs a red light, narrowly missing a pedestrian in the crosswalk. One block away, a bicyclist hears screeching tires, becomes startled, and swerves into a parked car, breaking her arm. The jurisdiction follows Cardozo.

Question: Is the driver liable to the bicyclist?

Answer:
Likely no. The zone of danger created by running the red light clearly includes people in or near the intersection—such as the pedestrian and other vehicles in the intersection. A bicyclist a block away, who is injured only after reacting to the sound of tires, is much more remote. A court applying Cardozo’s analysis would probably hold that the cyclist was outside the foreseeable zone of danger, so the driver owed no duty to that cyclist regarding this risk. The claim would be dismissed on duty grounds.

Worked Example 1.4

Same facts as Worked Example 1.3, but the jurisdiction follows Andrews, and the bicyclist was only 50 feet from the intersection when startled.

Question: Is the driver liable to the bicyclist?

Answer:
More likely yes. Duty is owed to all, so the question is proximate cause. The driver’s negligence set in motion a natural sequence: running the light, causing a dangerous situation, startling a nearby cyclist, and causing her to crash. The injury (a physical collision resulting from evasive action) is the very sort of harm risked by reckless driving. The proximity in space (50 feet) and time, and the absence of any extraordinary intervening event, support a finding that the driver’s negligence was a substantial factor and a proximate cause of the cyclist’s injury.

Worked Example 1.5

A store negligently leaves a heavy box on a high shelf. The box falls and slightly bumps a customer on the shoulder. Unknown to the store, the customer has a rare bone condition, and the minor impact causes multiple fractures and permanent disability.

Question: Is the store liable for the full extent of the customer’s injuries?

Answer:
Yes. The customer is a clearly foreseeable plaintiff: anyone standing near negligently stacked goods is within the zone of danger. The particular extent of injury (catastrophic fractures due to a rare condition) is not foreseeable, but under the eggshell-skull plaintiff rule, the store takes the customer as found and is liable for all resulting harm. The unforeseeability of the severity of harm does not bar recovery once the plaintiff and the general type of harm (physical impact from falling objects) are foreseeable.

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):

References to “zone of danger,” “to whom is a duty owed,” or a judge dismissing the case as a matter of law usually signal the Cardozo/majority duty analysis.
References to “proximate cause,” “substantial factor,” “remoteness,” or a jury determining whether liability extends to this plaintiff usually signal the Andrews/minority proximate cause analysis.

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. Then:

Under Cardozo, ask whether the plaintiff was within the class of persons foreseeably endangered by the defendant’s conduct.
Under Andrews, assume duty is satisfied and analyze whether the harm is within the scope of foreseeable risk and not too remote.

Summary

In negligence law, not every person actually injured by a defendant’s conduct can recover. Courts use foreseeability to limit liability, either at the duty stage (Cardozo) or at the proximate cause stage (Andrews):

The Cardozo (majority) approach restricts duty of care to plaintiffs within the foreseeable zone of danger created by the defendant’s conduct. Plaintiffs outside that zone are treated as unforeseeable plaintiffs and cannot recover because no duty is owed to them.
The Andrews (minority) approach treats duty as owed to all. It uses proximate cause and policy factors to determine whether a particular plaintiff’s injury is too remote. Foreseeability is used to assess whether the injury falls within the general scope of risks created by the negligent act.
Proximate cause analysis distinguishes between foreseeable types of harm (usually recoverable) and wholly unforeseeable types of harm (often not), while generally disregarding the precise manner or extent of injury.
The eggshell-skull rule ensures that unforeseeable severity of injury to a foreseeable plaintiff does not bar recovery. The key distinction is between unforeseeable plaintiffs and unforeseeable degrees of harm.
Special categories such as rescuers are usually treated as foreseeable plaintiffs, reinforcing the idea that negligence liability extends to those whom the risk of harm naturally invites or affects.

Understanding how foreseeability operates at both the duty and proximate-cause stages is essential to resolving MBE questions involving multiple or remote plaintiffs.

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 and policy-based foreseeability.
Proximate cause focuses on whether the harm was within the scope of risk created by the defendant’s negligence and not too remote.
Intervening forces may or may not cut off liability; only superseding causes break the chain of proximate causation.
The eggshell-skull plaintiff rule makes the extent or severity of harm irrelevant once the plaintiff and general type of harm are foreseeable.
Rescuers are typically treated as foreseeable plaintiffs, even if not present at the initial moment of negligence.
On the MBE, careful attention to whether the question emphasizes duty/zone of danger or proximate cause/substantial factor is important for choosing the correct rule.

Key Terms and Concepts

Unforeseeable Plaintiff
Duty of Care
Foreseeable Risk
Zone of Danger
Proximate Cause
Direct Cause
Indirect Cause
Intervening Force
Superseding Cause
Eggshell-Skull Plaintiff

Negligence - Unforeseeable plaintiffs