Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
We think the quality of his acts in the situation that confronted him was to be determined by the
jury. Certainly he believed that good would come of his search upon the bridge. . . . Indeed, his
judgment was confirmed by the finding of the hat. . . . “Errors of judgment,” however, would not
count against him, if they resulted “from the excitement and confusion of the moment”. The
reason that was exacted of him was not the reason of the morrow. It was reason fitted and
proportioned to the time and the event.
Whether Herbert Wagner’s fall was due to the defendant’s negligence, and whether
plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the
emergency confronting him, were questions for the jury.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and
a new trial granted, with costs to abide the event.
Notes
1. Rules versus standards. In this opinion, Cardozo asserts that a defendant should always
foresee harm to a rescuer, because “danger invites rescue.” Cardozo’s rescue rule is thus
something like the rule for subsequent negligent medical care: it is a rule of thumb that cuts
through the case-by-case contextual inquiries into considerations such as foreseeability. Of
course, there may be some situations where rescue is more or less likely, depending on whether
the person can call for help, whether there are other people around to respond, etc. Why would
Cardozo impose a categorical rule that rescue is foreseeable? Why not allow juries to decide the
foreseeability of rescue on a case-by-case basis?
2. Reconciling Palsgraf and Wagner? In Palsgraf, Cardozo was concerned that the tortious
act, pushing by the guard, was not a wrong with respect to Mrs. Palsgraf. Yet in Wagner, he
maintains that any tortious act is a wrong with respect to a rescuer. What explains the different
treatment of two people who were in fact injured by the tortious act?
E. Completely Unexpected?
Late in the winter of 1959, each of the strands of proximate causation came together in a
spectacular, and thankfully not catastrophic, accident on the Buffalo River in upstate New York.
Petition of Kinsman Transit Co. (Kinsman Transit I), 338 F.2d 708 (2d Cir. 1964)
FRIENDLY, J.
We have here six [interlocutory] appeals . . . . The litigation, in the District Court for the
Western District of New York, arose out of a series of misadventures on a navigable portion of the
Buffalo River during the night of January 21, 1959. . . . We shall summarize the facts as found by
[Judge Burke, the District Court Judge]:
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