Mrs. Palsgraf is Alive, in the U.S. Supreme Court

PalsgrafAs a Torts prof, I loved this tidbit sent in by Elise Hendrick. Good old Mrs. Palsgraf. You can try, but you can’t keep her down.

Elise was listening to oral arguments before the U.S. Supreme Court in Exxon Co. USA v. Sofec, 116 S.Ct. 1813 (1996), and came across the following exchange between George Playdon, counsel for Sofec, and Justice Scalia. The two were engaged in a colloquy about the maritime supervening cause doctrine:

Scalia: I’m not sure that you need a “doctrine of supervening cause.” Is a doctrine of supervening cause anything other than Palsgraf? When you say, you know, that the negligence … the causality … had long since terminated. Once you say you’re out of the scope of the risk, what do you need a doctrine of supervening cause for? And isn’t that basically your case?

Playdon (chuckling): I smile—I never envisioned thirty years ago that I’d have the opportunity …

Scalia: Of arguing Palsgraf!

Playdon (stammering, laughing): Obviously, Palsgraf is a foreseeability doctrine, just like Hadley v. Baxendale is a foreseeability problem.

Elise speculates that this may have been the first time the implausible case of Mrs. P has been mentioned in court since Palsgraf was decided in 1928.

— Thanks to Elise Hendrick.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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