As plaintiff’s trial lawyers, we are bound to the obligation of protecting society from the carelessness and negligence of others.  Those negligent actors may be individuals like you and myself or they may be corporations and/or other large organizations such as government entities.  This duty to prevent future harm and injury is, after all, the primary objective of the plaintiff’s trial attorney.  I think that we get caught up in this idea that our purpose is simply to redress wrongs caused to our clients.  We need to keep in mind that our client is simply one individual who’s wrongs do need to be redressed but the real focus of our advocacy should be on preventing the type of wrong which occurred to our client from occurring to other similarly situated individuals in society. 

     When we are in trial we need to keep this purpose front and center in our minds.  When we speak to the jurors we need to speak not of the damage done to our client but of the damage which will occur to other individuals, much like the jurors, if careless acts such as the one committed by Defendant in that very trial are not put to a stop.  We need to remind the jurors that it is in fact their job to stop these types of intentional or negligent acts which can and will continue to hurt other people if the jurors don’t put a stop to it.  We need to educate our jurors that they are empowered through their jury verdict to do just this. 

     In order for us to impress upon the jurors the importance of their verdict we need to make clear to the jurors that the same type of conduct in which the defendant committed can and will occur over and over again if the jury doesn’t send a message by way of a strong verdict.  To impress upon the jurors that the type of injury, before them in this case, could happen just as easily to any juror or one of their loved ones we need to show the variety of different contexts in which the same type of negligence, on the part of the defendant, could result in various types of injuries to others.     

     Unfortunately, one consequence of our failure to remember our role in this regard is that the courts have also forgotten the role of the plaintiff’s attorney.  We have forgotten to remind the courts of this fact for so long.  As a result, when we do speak up, requesting a verdict that will protect the community as opposed to simply a verdict which will only redress wrongs borne against our client, the court may perceived our actions as overreaching.  When the defense does chime in with objections to this perceived overreaching we must be prepared with a response.  That response need be backed in law so as to overcome any and all objections. 

     This is the context in which the Palsgraf case becomes important to us.  Palsgraf v. Long Island R. Co., 248 N.Y. 339 is a seminal case on the issue of negligence and proximate cause.  In Palsgraf you have a situation where a man is running late to catch a train car.  As he rushes to jump onto the train car two railroad employees help him jump onto the train car.  One of the employees pulls him into the train car while another employee pushes him into the car from the backside.  The man who is leaping onto the train car happens to be carrying a package in his arms.  Unbeknownst to the guards who help the man board the train there just happens to be fireworks inside of the package.  Though, by mere observation by the guards there was no way of telling that fireworks were inside the package.  In any event, while the man is being nudged onto the train this package falls to the ground which causes the fireworks to explode.  The explosion caused some scales at the end of the railroad platform to fall and strike the plaintiff.  The plaintiff sued the railroad company.  On appeal before the New York State Supreme Court the railroad argues that it can’t be held liable for negligence based on the injuries that occurred to the plaintiff.

     In the Palsgraf opinion the court spent a considerable time discussing the idea of foreseeability.  Essentially, the court made a big point of the fact that before negligence can be found there must first be an establishment of a duty.  The duty, of course, must be a duty that is owed towards the plaintiff.  To determine if a duty does in fact exist you have to look at the context of the situation.  In other words, when you look at the context of the case was it foreseeable that injury could likely result to the plaintiff based on the defendant’s actions.  Note, that you need to use the defendant’s perspective in determining this foreseeability.  Thus, the question is whether an ordinarily individual in the same situation would have perceived a potential risk to the plaintiff given the context.  Thus, given this reasoning the New York Supreme Court found that there was no way that the guards could have anticipated the risk.  From the guard’s perspective, they could only see a package.  The guards had no way of knowing that the package contained fireworks.  Since the guards couldn’t have reasonably known that the package contained fireworks any danger to a third party many feet away could not have been anticipated or foreseeable.  Given that the danger was not reasonably foreseeable from the guard’s perspective, the guards owed no corresponding duty to the plaintiff.  So without foreseeability there is no duty and without duty there is no negligence.

     Another important point derived from the Palsgraf case is that the amount of duty owed to a particular individual should be proportional to the potential gravity of harm and/or likelihood of that harm occurring.  For example, an individual who is handling a pistol which shoots real bullets should exercise a higher duty of care than an individual handling a rubber band gun.  The consequences of the prior far outweigh the potential consequences of the later.  Given these heightened consequences a corresponding duty of care should be imposed upon the carrier of that gun. 

     The Palsgraf case gives us, as plaintiff’s lawyers, the ability to argue foreseeability.  As I stated earlier, when we focus our trials on the consequences of what could have happened to the plaintiff or other members of society, opposing counsel and or the judge may get uneasy.  Defense counsel may object on relevance grounds.  The defense will argue that testimony consisting of what could have happened given the defendant’s conduct has no bearing on the case at hand.  You, as plaintiff’s counsel, need to remind the court that in order to prove negligence you must demonstrate duty.  Remind the court that duty and negligence are intimately involved with one another.  The Palsgraf case speaks directly to this point.