'' New Year '' CAKE

Countertop: Beat the egg whites until they triple in volume, then add the sugar and mix until it becomes a glossy meringue.

Rub the yolks with the oil forming a thin mayonnaise, then pour over the egg whites and mix lightly with a wooden spoon.

Flour, cocoa and baking powder are added in the rain at the end, incorporating all the ingredients, mixing gently.

Prepare a round shape that we cover with baking paper and put the entire composition of the countertop that we put in the oven for 35 minutes on the right heat.

syrup: Put the water, sugar and rum essence in a kettle, letting it boil.

White cream: Mix the whipped cream well until it hardens, add the honey, milk, then the gelatin used according to the instructions. At the end we add the vanilla essence and mix everything. Let it cool until the cake is incorporated.

Black cream: We prepare a saucepan that we put on a bain marie. Lightly melted chocolate together with whipped cream and butter we put them in the saucepan and let the chocolate melt, stirring constantly. When it reaches the boiling point we take it off the stove and wait for it to cooler.

Glaze: Mix all the ingredients in a bain marie and let it boil a little.

assembling:

We take the cake top and cut it into 3. We syrup the bottom, add a part of the white cream, then a thin '' strip '' of black cream and let it cool a bit. Then we come back with another layer of white cream and continue with the next part of the countertop (the 2nd), syrup, put, white and black cream, and then the last part of the countertop and decorate with icing, cream and cherries.

A very tall and buuunnn cake to taste!



Sexual Abuse

The present state of New York’s statute of limitations in sexual abuse cases is summed up by the National Conference of State Legislatures as follows:

“In New York, there is no extended statute of limitations for sexual abuse however, if the abuse is treated as an intentional tort, New York & # 8217s SOL is one year. N.Y. Civil Prac. Law § 215. If the victim brings a claim against a church or school which administered the perpetrator, or any action that is based on negligence, rather than criminal behavior, the SOL is 3 years & # 8211 N.Y. Civil Prac. Law § 214. New York adopted a special statute of limitations for victims of sexual crimes in 2006 & # 8211 N.Y. Civil Prac. Law §213-c. The statute provides that actions for civil damages for defined sexual crimes, including sexual abuse of a minor, may be brought within 5 years of the acts constituting the sexual offense. ”

A proposed law, known as the “Child Sexual Abuse Reform Act,” [A.01042 (Prestlow)] would amend the CPLR by adding a section 213-d which would extend the SOL from 3 to 6 years the time in which to bring an action where the plaintiff was disabled as a result of infancy / insanity at the time the action accrued. It would also add a revival statute of 2 years as to any action that had been previously barred by the SOL. On January 9, 2013, it was referred to the Codes Committee. It is a one-house bill, with no comparable Senate bill. Another bill, A.04008 (Gabyszak), with multi-sponsors, proposes the addition of section 214-f to the CPLR, which would extend the SOL to 15 years of the act, beginning after the present tolling period for infancy or after the reporting of the incident, whichever is earlier. This bill has been introduced in legislative sessions from 2003 through 2009. It was introduced on January 30, 2013, and referred to Codes.


Uses And Abuses Of Tort Law In The COVID-19 Era

We’re in a brave new world, as y’all know. Tort lawyers, both plaintiff-side and defense attorneys, predict an onslaught of cases. Some of these cases will be non-controversial applications of Tort doctrine to the new circumstances created by COVID-19. Other cases will push the boundaries of Tort law, which requires for liability the triad of wrongdoing, causation, and damages. Conventional suits should assuredly follow their legal course, but unconventional suits should be discouraged by courts or indeed prohibited by statute. Here’s a brief (and, importantly, incomplete) rundown:

NEW YORK, NY - APRIL 14: A retail store remains closed April 14, 2020 in the Brooklyn borough of New. [+] York City. Over 2,100 nation-wide retail stores have announced complete closures this year. New York City remains the epicenter of the pandemic coronavirus in the United States. (Photo by Robert Nickelsberg / Getty Images)

Conventional Suits:

Such suits have already been filed against cruise ship operators, nursing homes, and entertainment venues. Sometimes, but not always, it will be easy to establish negligence (for example, if COVID had been publicly announced if most others in the same industry had taken preventive steps that the defendant had not taken etc.). Sometimes, but not always, it will be easy to establish causation (for example, some who are infected by the virus were in very closed locations such as nursing homes or cruise ships, and given our knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). Sometimes, but not always, it will be easy to establish damages (It’s easy if a previously healthy person gets coronavirus and dies it not so easy if the plaintiff never developed symptoms but is suing for “fear of coronavirus”.).

Where there is little evidence of negligence (e.g., where a factory created social separation and sanitized equipment after the pandemic was announced), summary judgment should be granted to defendants. Even if there is negligence in a given case, causation may be difficult to prove: maybe the gas pump should have been santized more often, but how can Mr. Smith prove that he probably contracted coronavirus at that pump? Conversely, causation may be easy to prove (for example, prisoners with coronavirus clearly contracted the disease inside prisons), but there may be no negligence (if, for example, it was simply not feasible to operate the prison in any other way).

This is the intentional tort of battery. Rare indeed have been the occurrences of such batteries, but they have occurred. Batteries are both torts and crimes. If the victim is rapidly tested and is positive for coronavirus, causation may be inferred.

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Unconventional Suits:

  • My business was closed by the government, or (prudently) by me because of the pandemic, and you refused to pay me despite the business interruption insurance I took out with your company.

If a business interruption insurance policy contains no exclusion for pandemics or government-ordered states of emergency, this becomes a rather conventional suit. The problem is that business interruption insurance typically does exclude coverage for communicable diseases such as the coronavirus, and often excludes it for government states of emergency. [This is because mass damages are hard to re-insure. It is for similar reasons that homeowners ’insurance typically excludes damage from floods, which may affect all homes in a given area.] Pressure is currently being exerted on federal and state governments to force insurers to pay out business interruption claims regardless of policy language. The restaurant industry, limited to take-out and delivery services by state laws, may lose $ 225 billion in sales over the next three months. Who should pay for this loss, business owners or government or insurers? A coalition of famous chefs (including Wolfgang Puck, Daniel Boulud, and Jean-Georges Vongerichten) has created the Business Interruption Group. BIG has apparently lobbied President Trump to penalize insurers, or perhaps to subsidize them into paying out notwithstanding their contract. In any case a substantial number of lawsuits have already been filed by restaurateurs.

A bill being drafted in New Jersey could put certain insurers on the hook for business interruption losses due to the COVID-19 outbreak, regardless of any exclusions their insurance policies may have. Such a law may have serious constitutional flaws under the Contracts clause, unless it applies only to contracts concluded after the bill is adopted.

  • You or your products rescued me poorly. Your doctor’s office, or your hospital, was the place where I contracted the coronavirus. Alternatively, the mask or gloves you manufactured failed to protect me. Alternatively, the anti-COVID-19 vaccine (once it is developed) didn’t work for me.

The legal problems with such suits are numerous. Establishing negligence will be difficult: what, in foresight (hindsight being 20/20) did the doctor or hospital do wrong? How and at what cost could the mask or gloves have been rendered “perfect?” Establishing causation will also be difficult: how do we know that the victim caught the coronavirus at that doctor’s office, or when he was using the allegedly porous mask? The difficulties of such suits, combined with the downside of the “American rule” (which forces defendants who are sued to pay their own attorneys' fees, even if they are found non-liable, and which therefore leads defendants who have done absolutely nothing wrong to settle) is a very good argument for adoption of COVID-19 immunity statutes in favor of rescuers and vaccine manufacturers. Liability should be limited to the (very rare) cases where there is a manufacturing defect causes harm (for example, if a batch of vaccine were contaminated with a foreign substance that produced a “signature” harm in persons receiving the contaminated batch).

Doctors who prescribe drugs, which the FDA has approved for other uses, to COVID-19 patients should similarly be shielded by legislation from liability if those drugs don’t work, so long as scientific literature supported their use for this purpose. “Off-label prescriptions,” as they are called, are so common that virtually every drug is used off-label in some circumstances. It would be negligent not to prescribe hydroxychloroquine to COVID-19 patients in many cases, for example.

On March 27, President Trump signed into law H.R. 748, the “Coronavirus Aid, Relief and Economic Security Act” (CARES Act). This law includes so-called “Good Samaritan” language that provides federal protection against liability of volunteer health care professionals during the COVID-19 emergency response (see section 3215). This, I think, is a welcome development.

  • I’m depressed by unemployment or my retirement fund has decreased because of the stock market shutdown.

These troubling cases are often damage without wrongdoing. Governments dictated the closing of many industries, and whether or not you think their policy choice was right, it was surely reasonable. Similarly, merchants are surely entitled to close down and furlough employees if insufficient income comes in after the pandemic strikes. Economic distress is best addressed publicly, as the CARES act has done for those directly harmed. Indirect economic harm (depression reduced retirement income) is typically not compensated in Tort, and is best seen as a risk of investing and of living. Psychological distress, though real, is also not compensated because of the difficulty in separating out real from malingered damages. This “moral hazard” is the reason why Common Law Torts does not allow the tort of negligent infliction of emotional distress. Where there is no negligence there is even less reason to compensate.

I could go on, but I think I’ve summarized the main types of lawsuits that have been and will be spurred by COVID-19. I haven’t discussed a lawsuit against China, though - if that country negligently allowed the virus to spread abroad by hiding it from the rest of the world, its perfidy is likely the cause of trillions of dollars of real damage. As my lawprof colleague Stephen Carter has demonstrated, sovereign immunity protects this massive tortfeasor from liability (though Quixotic lawsuits have already been filed in the USA and in Israel).


Torts of Minors

Torts:
A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.
Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform their behavior accordingly. Third, the plaintiff must prove that they suffered injury or loss as a direct result of the defendant's breach.
The law of torts is derived from a combination of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbidding particular conduct). Tort-feasors are subject to neither fine nor incarceration in civil court.

Rebuttable Presumption:
In the law of evidence, a presumption which may be rebutted or disputed if contrary evidence is introduced. Subsequently, the burden of proof shifts to the other party.

Vicarious Liability:
The imposition of tort liability on one person (who is not directly responsible for the injury), for another person’s conduct based solely on the relationship between the two persons.

Minors ’Liability for Own Torts

A minor is responsible for his or her own torts. However, the court will often apply a more lenient standard. In determining tort liability for children, there are special rules, usually based on the age of the minor. Historically, there was a bright-line test based on the child’s age. Specifically:

  • Under age 7: A child could not be negligent.
  • Between age 7 and 14: There was a rebuttable presumption that the child could not be negligent.
  • Between age 14 and 21: There was a rebuttable presumption that the child was capable of negligence.

EXAMPLE: Ted was 6 years old when he was injured after running in front of a car. The driver argued that Ted was contributorily negligent as a matter of law. The lower court held that the child could not be negligent because of his age. However, on appeal, the court ruled that the jury should be able to decide whether, based on the facts and circumstances of this case and the characteristics of this child, Ted could be held to have been negligent. See, e.g., Tyler v. Weed, 280 N.W. 827 (Mich. 1938). See also, Baker v. Alt, 132 N.W. 2d 614 (Mich. 1965).

Use of a subjective test, has replaced the old use of the chronological age test. This test deals with the ability of a particular child to recognize and avoid risk and harm. Factors considered in this analysis include:

Given the difference in child development rates, this test may more accurately assess a child’s culpability.

EXAMPLE: Albert (age 12) was wounded by a bullet from a gun discharged by his cousin, George (age 12), while they played in a cottage owned by their common grandfather. In an attempt to defeat a trespass action brought by Albert against George and his grandfather, George relied upon his age to absolve himself of any guilt for his actions. If the chronological age test had been applicable, there would have been a presumption that George could not be negligent. Instead, the appellate court affirmed the trial court finding that George and his grandfather were liable for Albert’s injuries. The court found that George was "under an obligation to exercise reasonable care, which was measured by the‘ reasonable care ’that other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances." EEA Kuhns v. Brugger, 135 A.2d 395 (Pa. 1957).

The standard changes when a minor engages in adult activity, such as driving a car or flying a plane. In these instances, the child is held to the same standard as an adult.

EXAMPLE: David, who was 15-years-old, was killed when a motorcycle he was driving collided with the driver’s car. At trial, the driver objected to the minor standard, which stated because the decedent was under the age of 21 at the time of the accident, he was considered a minor and was not to be held to the same degree of care as an adult. Instead, it was argued that the decedent was required to exercise the care of the average child of his age, experience and stage of mental development. On those jury instructions, the jury returned a verdict in favor of the administrator of David’s estate. On appeal, the court held that the correct standard of care was that of an adult because David (although a minor) was operating a motor vehicle. See, e.g., Daniels v. Evans, 224 A.2d 63 (N.H. 1966). As such, at the very least David could have possibly been considered contributorily negligent in the accident.

Parental Liability for Minor’s Torts

A survey of various judge television shows would reveal a fair amount of lawsuits against minors. Often, the plaintiff attempts to collect restitution from the parents for the tortious conduct of a minor child. In certain circumstances, parents can be held civilly or criminally negligent for the conduct of their minor children.

Each state has its own law regarding parents' financial responsibility for the acts of their children. Parents are responsible for their children's harmful actions much the same way that employers are responsible for the harmful actions of their employees. This legal concept is known as vicarious liability. The parent is vicariously liable, despite not being directly responsible for the injury. A number of states hold parents financially responsible for damages caused by their children. Some of these states, however, place limits on the amount of liability. For example, in California parents are civilly liable for a "minor's acts of willful misconduct resulting in death, personal injury or property damage." See Cal. Civ. Code § 1714.1 (2005). Specifically,

See Cal. Civ. Code § 1714.1 (a) (2005).

EXAMPLE: Andrew, who is 16-years-old, went on a drinking binge with some friends (also minors). While drunk, he stole a small airplane and went on a joy ride with his friends. He did not have a pilot’s license. Although he managed to land the plane without incident, he did slide into another small plane and cause $ 10,000 worth of damage. The owner of the damaged plane sued Andrew and his parents. If this incident had happened in California, both Andrew and his parents could be held jointly and severally liable for the $ 10,000 in damages as a result of Andrew’s willful misconduct. See Cal. Civ. Code § 1714.1 see also Nev. Rev. State. Ann. § 41.470 (2005).

Other types of tort liability are covered more fully in the torts class.

Responsibility for Crimes

At common law, there were also age specific demarcations regarding minors ’liability for criminal conduct:

  • Under age 7: A child was conclusively deemed incapable of committing a crime.
  • Between age 7 and 14: There was a presumption that the child was unable to form a criminal intent however, this presumption could be rebutted by the state proving that the child had sufficient intelligence to form a criminal intent.
  • Between age 14 and 21: A minor was held to have the same capacity to form a criminal intent as an adult.

Today, most states deal with juvenile offenders with statutes that focus on supervision and rehabilitation of the minor in a civil proceeding. Generally, minors remain under the jurisdiction of juvenile courts until the age of 16 or 18, after which they become subject to the same criminal responsibilities as adults. Yet, as younger perpetrators commit violent crimes, the criminal justice system struggles with how to handle these situations.


What breed is my tort?

hello, we have had our Reggie for over 3 years now, we got her from a family friend who was moving away. We had her in an enclosure but she kept scratching at itt and always got herself stuck trying to open the it! She currently lives on my bedroom floor, this is super controversial I've seen but she hasn't had any problems with biting furniture, being kicked or eating thing's she's not meant to. Some of the enclosures posted here are amazing! -But I feel bad keeping her in a small space.

Can you give me some insight into the tortoise world and identify what type of tortoise she is? I haven't seen one like her! Also, can you give me some advice on taking care of her and making sure she lives her life to the fullest? Thank you

Well-Known Member

Pillowkale222

New Member


sorry if i have held her the wrong way- I havent checked the plastron before- she definitey needs a bath

Desert Tortoise Care Sheet

The care sheet that @Tom linked for you on the other thread is the most current and accurate care sheet for desert tortoises.

The Dog Trainer

For people who are farther inland, in hotter drier areas, it can be done satisfactorily without heat, but even for them, its better with heat.

If you contact the people you got the tortoise from, or most people who have and keep adults, they will tell you it will be fine with no heat. In all likelihood, the tortoise will end up with an RI and eventually die that close to the coast. I used to work in Hermosa beach at a pet store, and we rescued several sick DTs every year. The cure was to move them inland to Whittier at a friends house.

RobinRae

New Member

For people who are farther inland, in hotter drier areas, it can be done satisfactorily without heat, but even for them, its better with heat.

If you contact the people you got the tortoise from, or most people who have and keep adults, they will tell you it will be fine with no heat. In all likelihood, the tortoise will end up with an RI and eventually die that close to the coast. I used to work in Hermosa beach at a pet store, and we rescued several sick DTs every year. The cure was to move them inland to Whittier at a friends house.


Limited Tort Vs. Full Tort & # 8211 Exceptions to Limited Tort in PA

In Pennsylvania, insurance companies offer full cake coverage, which gives covered individuals the right to sue in court for full damages, and limited tort coverage which restricts the ability to sue for pain and suffering.

Even if a person is injured in a car accident thing limited tort on their Pennsylvania automobile insurance policy, there are exceptions to limited tort that still allow the injured party to sue for pain and suffering.

Under the Pennsylvania Motor Vehicle Responsibility Law, there are exceptions in which an injured party who chose limited tort or is insured by a limited tort policy can still recover a pain and suffering settlement as if he or she had a full tort policy. These exceptions can be found under the law at 75 Pa. Cons. State. § 1705 (d), and include the following:

  1. Drunk Driver Caused The AccidentLimited tort does not apply if the driver at fault for the accident is convicted of driving under the influence (DUI) (DWI) or accepts Accelerated Rehabilitative Disposition or (ARD Program). The key to remember is that the person must be convicted of DUI or accept ARD (often called “first time offender program).
  2. An Uninsured Driver Caused the Accident. Under Pennsylvania law, if the driver who caused the accident was uninsured, the injured party is not bound by limited tort. The law reads that limited tort does not apply “whenever the person at fault has not maintained financial responsibility as required” by Pennsylvania law. 75 Pa. Cons. State. § 1705 (d) (1) (iv). This means that if the injured victim in a car accident has uninsured motorist coverage or UM insurance, a claim can be made against your own insurance company and you will not be bound by the limited tort option even if you chose limited tort under your own automobile policy.
  3. Car Registered in Another State. If the person who caused the accident was driving a vehicle registered in a state outside of Pennsylvania, limited tort does not apply. As many car accidents in the Philadelphia area are often caused by drivers with a car registered in New Jersey, New York, Maryland or Delaware, this is a significant exception. Remember, it is not where the driver is from that controls, but rather where the car is registered. 75 Pa. Cons. State. § 1705 (d) (1) (i).
  4. Passenger on aCommercial Vehicle or a Motorcycle. If the injured party was a passenger on a taxi, bus, Uber, Lyft, rental vehicle, motorcycle or any other type of vehicle that is not a “private passenger vehicle,” the injured party is entitled to full tort coverage even if they chose limited tort on their own policy. A private passenger vehicle does not include a vehicle that is rented to others (rental truck or rental car), used by the public (such as Uber, Lyft or a taxi cab), or is principally used for commercial purposes (tractor trailer truck, bus, public van). 75 Pa. Cons. State. § 1705 (d) (3). A private passenger vehicle is defined as having four wheels, thus allowing motorcycle riders / passengers to obtain the exception to limited tort.
  5. Pedestrian or bicycle rider. A pedestrian or bicyclist injured by an automobile is not bound by limited tort, despite what they chose for their own automobile policy. So, if you or a loved one was crossing the street or riding a bike and was hit by a car, it doesn’t matter that you chose limited tort on your own automobile policy.
  6. The injury involved a “Serious Injury” under the law. The law states, that "unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss [pain and suffering]." So what does serious injury mean? The Pennsylvania Legislature has defined serious injury as "an injury resulting in death, serious impairment of a bodily function, or permanent disfigurement." 75 Pa.C.S.A. § 1702. However, the Pennsylvania courts have held that all injuries are different and that even a soft tissue injury can constitute a “serious injury” where it is clearly documented and substantially impairs body function.

In determining whether a claimed impairment is “serious,” the Court must consider the following factors: (1) the extent of the impairment (2) the particular body function impaired (3) the length of time that the impairment lasted (4) the type of treatment required to correct the impairment and (5) any other relevant factor. The Pennsylvania courts have held that the focus is not on just the type of injury, but rather on how the injuries affected a particular body function. Normally, medical testimony will be needed to prove a serious injury.

Some examples of cases where the Courts held the injury could be “serious” and it was up to the jury to determine the issue of whether the injury was serious include:

  • Plaintiff continued to experience pain in her neck, back, legs, along with headaches, could not sit or stand for long periods, and missed her children's activities. Cadena v. Latch, 78 A.3d 636 (Pa. Super. 2013)
  • Plaintiff sustained a herniated disc and underwent a course of physical therapy and was impaired in his ability to sleep, run and hike long distances, play with his child, ride his mountain bike and motorcycle although he only missed 3 days of work. Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. Ct. 1999)
  • Plaintiff suffered a bulging disc, pain radiating into her leg, had difficulty lifting heavy objects and playing with her daughter, and continued to experience pain for well over a year. Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998).
  • Plaintiff suffered chronic pain syndrome could not do many physical activities including housework and recreation without pain and had difficulty sleeping.Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000).

An experienced car accident law firm like The Pearce Law Firm knows how to prove your injury was “serious” to meet the threshold to overcome limited tort. We will make sure you undergo diagnostic testing like an MRI or x-ray to see if there is a fracture or herniated disc.

Also, if you sustained scarring, we will document this with your medical doctor. Also, we will have you keep a journal of how your injuries have impacted your life such as not allowing you to play with your child or participate in social activities. If you are in pain and having symptoms, it will be important to keep treating this document to the insurance company. We will also show the insurance company how the injury has affected your job, either showing you have missed substantial time from work or that you have restrictions and cannot perform your job to the fullest the way you used to.

  1. Other exceptions to limited tort. Other less common exceptions used to overcome limited tort include accidents caused by a defect in the design, manufacturing, repair or maintenance of a vehicle. Lastly, an exception exists if the person who caused the accident intended to injure himself or another person.

The Pearce Law Firm is Here to Help. Having an experienced limited tort lawyer is important in evaluating your case. Edith Pearce worked for years as a lawyer for an automobile insurance company. She knows how to overcome the limited tort defense if the facts of your case meets one of the exceptions. She will have a thorough review of your automobile accident case and your insurance paperwork. Give our firm a call. We offer free consultations - so don’t risk your case to just anyone.

Check out what Kaitlin had to say about us on Google:

Would recommend this law firm to anyone! Edith, William and Nicole do everything they can for their clients and help them receive the justice they deserve. You will be in great hands with this firm!


Five Key IRS Rules On How Lawsuit Settlements Are Taxed

Many plaintiffs win or settle a lawsuit and are surprised they have to pay taxes. Some don’t realize it until tax time the following year when IRS Forms 1099 arrives in the mail. A little tax planning, especially before you settle, goes a long way. It's even more important now with higher taxes on lawsuit settlements under the recently passed tax reform law. Many plaintiffs are taxed on their attorney fees too, even if their lawyer takes 40% off the top. In a $ 100,000 case, that means paying tax on $ 100,000, even if $ 40,000 goes to the lawyer. The new law generally does not impact physical injury cases with no punitive damages. It also should not impact plaintiffs suing their employers, although there are new wrinkles in sexual harassment cases. Here are five rules to know.

1. Taxes depend on the “origin of the claim.” Taxes are based on the origin of your claim. If you get laid off at work and sue seeking wages, you’ll be taxed as wages, and probably some pay on a Form 1099 for emotional distress. But if you sue for damage to your condo by a negligent building contractor, your damages may not be income. You may be able to treat the recovery as a reduction in your purchase price of the condo. The rules are full of exceptions and nuances, so be careful, how settlement awards are taxed, especially post-tax reform.

2. Recoveries for physical injuries and physical sickness are tax-free, but symptoms of emotional distress are not physical. If you sue for physical injuries, damages are tax-free. Before 1996, all “personal” damages were tax-free, so emotional distress and defamation produced tax-free recoveries. But since 1996, your injury must be “physical.” If you sue for intentional infliction of emotional distress, your recovery is taxed. Physical symptoms of emotional distress (like headaches and stomachaches) is taxed, but physical injuries or sickness is not. The rules can make some tax cases chicken or egg, with many judgment calls. If in an employment dispute you receive $50,000 extra because your employer gave you an ulcer, is an ulcer physical, or merely a symptom of emotional distress? Many plaintiffs take aggressive positions on their tax returns, but that can be a losing battle if the defendant issues an IRS Form 1099 for the entire settlement. Haggling over tax details before you sign and settle is best.

3. Allocating damages can save taxes . Most legal disputes involve multiple issues. You might claim that the defendant kept your laptop, frittered away your trust fund, underpaid you, failed to reimburse you for a business trip, or other items. Even if your dispute relates to one course of conduct, there’s a good chance the total settlement involves several types of consideration. It is best for plaintiff and defendant to agree on tax treatment. Such agreements aren’t binding on the IRS or the courts in later tax disputes, but they are usually not ignored by the IRS.

4. Attorney fees are a tax trap. If you are the plaintiff and use a contingent fee lawyer, you’ll usually be treated (for tax purposes) as receiving 100% of the money recovered by you and your attorney, even if the defendant pays your lawyer directly his contingent fee cut. If your case is fully nontaxable (say an auto accident in which you’re injured), that shouldn't cause any tax problems. But if your recovery is taxable, watch out. Say you settle a suit for intentional infliction of emotional distress against your neighbor for $100,000, and your lawyer keeps $40,000. You might think you’d have $60,000 of income. Instead, you’ll have $100,000 of income. In 2005, the U.S. Supreme Court held in Commissioner v. Banks, that plaintiffs generally have income equal to 100% of their recoveries. even if their lawyers take a share.

How about deducting the legal fees? In 2004, Congress enacted an above the line deduction for legal fees in employment claims and certain whistleblower claims. That deduction still remains, but outside these two areas, there's big trouble. in the big tax bill passed at the end of 2017, there's a new tax on litigation settlements, no deduction for legal fees. No tax deduction for legal fees comes as a bizarre and unpleasant surprise. Tax advice early, before the case settles and the settlement agreement is signed, is essential.

5. Punitive damages and interest are always taxable. If you are injured in a car crash and get $50,000 in compensatory damages and $5 million in punitive damages, the former is tax-free. The $5 million is fully taxable, and you can have trouble deducting your attorney fees! The same occurs with interest. You might receive a tax-free settlement or judgment, but pre-judgment or post-judgment interest is always taxable (and can produce attorney fee problems). That can make it attractive to settle your case rather than have it go to judgment. For a crazy example how these tax rules can whittle after-tax amounts to nothing, check out how IRS taxes kill plaintiff's $289M Monsanto weedkiller verdict.


Contents

At the time of the 1928 New York Court of Appeals decision in Palsgraf, that state's case law followed a classical formation for negligence: the plaintiff had to show that the Long Island Railroad [a] ("LIRR" or "the railroad") had a duty of care, and that she was injured through a breach of that duty. It was not required that she show that the duty owed was to her. [1] Under New York precedent, the usual duty of utmost care that the railroad as a common carrier owed its customers did not apply to platforms and other parts of the station. [1]

Facts Edit

Sunday, August 24, 1924, was a warm summer day in Brooklyn, and Helen Palsgraf, a 40-year-old janitor and housekeeper, was taking her two daughters, Elizabeth and Lillian, aged 15 and 12, to Rockaway Beach. Having paid the necessary fare, they were on the platform at the East New York station of the LIRR on Atlantic Avenue in Brooklyn, when a train, not theirs, pulled in. As it began to move again, two men raced for the train, and one made it without incident, as the doors had not closed. The other, a man carrying a package, leapt aboard, with the help of a platform guard pushing him from behind as a member of the train's crew pulled him into the car. But in the process, the man lost the package, which dropped and exploded, for it apparently contained fireworks. Either the force of the explosion or the panicking of those on the platform caused a tall, coin-operated scale to topple onto Helen Palsgraf. No one was hurt enough to spend the night in the hospital, though several people, Palsgraf among them, were listed as injured. [2] [3]

Contemporary accounts and witnesses at trial described the man as Italian in appearance, and there was speculation that the package was being taken for use at an Italian-American celebration of some sort no great effort was made to identify the owner. Palsgraf's injury was listed in The New York Times as shock she also suffered bruising. The distance between Helen Palsgraf and the explosion was never made clear in the trial transcript, or in the opinions of the judges who ruled on the case, but the distance from the explosion to the scale was described in the Times as "more than ten feet away" (3 metres). [2] [3] Several days after the incident, she developed a bad stammer, and her doctor testified at trial that it was due to the trauma of the events at East New York station. She had not recovered from the stammer when the case came to court. [4]

Trial Edit

Palsgraf brought suit against the railroad in the Supreme Court of New York, Kings County, a trial-level court, in Brooklyn on October 2, 1924. The summons was served the following month, and the defendant filed its answer on December 3. The case was heard on May 24 and 25, 1927, with Justice Burt Jay Humphrey presiding. [5] Humphrey had served for over twenty years on the county court in Queens before unexpectedly being nominated for election to the Supreme Court in 1925 he was noted for his courteous and friendly manner. [6] Manhattan lawyers tried the Brooklyn case: Matthew W. Wood, who worked from 233 Broadway (the Woolworth Building) represented Palsgraf, while Joseph F. Keany, whose office was at Pennsylvania Station, was for the railroad, along with William McNamara. [5] Wood was an experienced solo practitioner with two degrees from Ivy League schools Keany had headed the LIRR's legal department for twenty years—McNamara, who tried the case, was one of the department's junior lawyers, who had advanced from clerk to counsel after graduation from law school. [7] At trial, Palsgraf testified that she had been hit in the side by the scale, and had been treated at the scene, and then took a taxicab home. She testified to trembling then for several days, and then the stammering started. Her health forced her to give up her work in mid-1926. [8] Wood called Herbert Gerhardt, an engraver, who had seen the man with the package hurry towards the train, and whose wife had been hit in the stomach in the man's rush. He testified that the scale had been "blown right to pieces". [9]

On the second day of the trial, Wood called Dr. Karl A. Parshall, Palsgraf's physician. He testified that he had treated Palsgraf occasionally for minor ailments before the incident at East New York, but on the day after found her shaken and bruised. He gave it as his opinion that Palsgraf's ills were caused by the accident. [10] Grace Gerhardt, Herbert's wife, was the next witness. She testified to being hit by one of "the two young Italian fellows" who were racing to make the train, and how one made it unaided and the other only with the help of two LIRR employees. She had nothing to say about the scale or Palsgraf, having seen neither. [11] Elizabeth and Lillian Palsgraf, the elder and younger daughter of the plaintiff, were next to testify and spoke of what they had seen. Wood indicated his only remaining witness was a neurologist, an expert witness, and McNamara for the LIRR moved to dismiss the case on the ground that Palsgraf had failed to present evidence of negligence, but Justice Humphrey denied it. The neurologist, Graeme M. Hammond of Manhattan, had examined Palsgraf two days before, observing her stammering, speaking only with difficulty. She told him of depression and headaches. He diagnosed her with traumatic hysteria, for which the explosion was a plausible cause, and said the hysteria was likely to continue as long as the litigation did, for only once it was resolved were the worries connected with it likely to vanish. [12]

Wood rested his case on behalf of the plaintiff McNamara offered no evidence but again moved to dismiss, which Humphrey denied. The judge told the all-male jury that if the LIRR employees "omitted to do the things which prudent and careful trainmen do for the safety of those who are boarding their trains, as well as the safety of those who are standing upon the platform waiting for other trains, and that the failure resulted in the plaintiff's injury, then the defendant would be liable." [13] The jury was out for two hours and 35 minutes, including the lunch hour, and they awarded Palsgraf $6,000 ($89,400 today). [14] Pursuant to statute, she also recovered costs of $142, an amount added to the verdict. [15] A motion for a new trial was denied on May 27, 1927 by Justice Humphrey, who did not issue a written opinion, and a judgment was entered on the verdict on May 31, from which the LIRR appealed on June 14. [16] Once Palsgraf had gotten her jury verdict, the Gerhardts also sued the railroad, with Wood as their counsel. [17]

William H. Manz, in his article on the facts in Palsgraf, suggested that neither side spent much time preparing for trial. Wood did not contact his fact witnesses, the Gerhardts, until shortly before the trial, and Palsgraf was examined by Dr. Hammond the day before the trial started. McNamara, one of the most junior members of the LIRR's legal team, called no witnesses, and Manz suggested the entire defense strategy was to get the judge to dismiss the case. [18] In his later book, Judge Richard Posner indicated that the much-sued LIRR did not present a better case than the first-time plaintiff: "it put on a bargain-basement defense".

Initial appeal Edit

The LIRR's appeal took the case to the Appellate Division of the New York Supreme Court, for the Second Department, [19] the state's intermediate appeals court. In its briefs before the Appellate Division, the LIRR argued that the verdict had been contrary to the law and the evidence. It stressed that it had no foreknowledge that the package was dangerous, and that no law required it to search the contents of passenger luggage. The brief stated that given this, there was no negligence in helping a man make a train, and even if there was, that negligence was not the proximate cause of Palsgraf's injuries. [20] Wood, for Palsgraf, argued that the jury verdict finding negligence was supported by undisputed facts, and should not be questioned by the appellate courts. The plaintiff's brief also suggested that the failure of the railroad to call as witnesses the employees who had aided the man should decide any inferences of negligence against it. Wood deemed the trainmen guilty of a "dereliction of duty", misconduct that was the proximate cause of Palsgraf's injuries. [21]

The lawyers argued the case before the Appellate Division in Brooklyn on October 21, 1927. [15] On December 9, the Appellate Division affirmed the trial court's judgment, 3–2. Albert H. F. Seeger wrote the majority opinion for the five justices hearing the case, and was joined by Justices William F. Hagarty and William B. Carswell. [19] Seeger had been born in Stuttgart and came to the United States as a child he had been elected to the Supreme Court in 1917 and was elevated to the Appellate Division by Governor Al Smith in 1926. Aged 68 at the time of Palsgraf, he could serve only two more years before mandatory retirement. [22] Justice Seeger ruled that the finding of negligence by the jury was supported by the evidence, and speculated that the jury might have found that helping a passenger board a moving train was a negligent act. He wrote that while the set of facts might be novel, the case was no different in principle from well-known court decisions on causation, such as the Squib case, in which an explosive (a squib) was lit and thrown, then was hurled away repeatedly by people not wanting to be hurt until it exploded near the plaintiff, injuring him his suit against the man who had set the squib in motion was upheld. The majority also focused on the high degree of duty of care that the LIRR owed to Palsgraf, one of its customers. [23]

Presiding Justice Edward Lazansky (joined by Justice J. Addison Young) wrote a dissent. [19] Lazansky, the son of Czech immigrants, had been elected New York Secretary of State as a Democrat in 1910. Elected to the Supreme Court in 1917, he had been designated presiding justice of the Second Department by Governor Smith earlier in 1927. [22] Lazansky did not question the jury finding of negligence, but felt that the employees' conduct was not the proximate cause of Palsgraf's injuries, since the man's conduct in bringing a package that might explode to a crowded passenger station was an independent act of negligence, rendering the neglect by the railroad too remote in causation for there to be liability. [24]

The LIRR was entitled by law to take the case to the New York Court of Appeals (the state's highest court) as there had been a dissent in the Appellate Division, and it did. [25] The railroad argued again that Palsgraf had failed to establish that she had come to harm through the railroad's negligence: that there was no negligence, and even if there was, that neglect had not harmed Palsgraf, since such injury was not "a natural and probable consequence of assisting a man to board a train". [20] Its brief alleged that the trainmen could not have stopped the man from boarding, and once he had flung himself onto the train, had little choice but to help him, "faced with such an emergency they cannot be charged with negligence because they elected to assist the man rather than stand idly by and leave him to his fate." [26] Wood, for his part, argued that negligence had been found by the jury, and by both majority and dissenting justices in the Appellate Division. He wrote that there were many facts from which the jury could have found negligence, including the fact that the train had not shut its doors as it departed (though whether this was to allow latecomers to board or because it was a summer day is uncertain). [27] The case was argued before the Court of Appeals in Albany on February 24, 1928. [28]

Cardozo's majority opinion Edit

Cardozo's statement of facts, Palsgraf v. Long Island Railroad Co., 248 N.Y. at 340–341

The Chief Judge of the Court of Appeals, Benjamin N. Cardozo, was a judge who was greatly respected he later became a justice of the U.S. Supreme Court. After a standout legal career, Cardozo had been elected to the trial-level Supreme Court in 1913, but was quickly designated by the governor for service on the Court of Appeals. He was in 1917 appointed a judge of that court, and in 1926 was elected chief judge by the voters. [29] In Palsgraf, Cardozo wrote for a 4–3 majority of the Court of Appeals, reversing the appellate judgment and directing that the case be decided for the defendant, the LIRR. [30] Cardozo was joined by Judges Cuthbert W. Pound, Irving Lehman and Henry Kellogg. [31]

Despite being the longest statement of the facts in any of the four appellate opinions generated by the case, [32] Cardozo's was described by Posner as "elliptical and slanted". [33] It has also been deemed "highly abstract". [32] According to Professor Walter O. Weyrauch in his 1978 journal article, "Cardozo's famous opinion reduced the complicated facts of the case to a bare minimum. Mrs. Palsgraf was transformed into a 'plaintiff' without age, family status, or occupation. The opinion omitted the nature of her injury, the amount of damages that she sought, and the size of the jury award." [34] For example, Cardozo describes Palsgraf (whom he does not name, nor mention her daughters) as standing on the LIRR's platform, rather than waiting for a train, thus downplaying her status as a customer entitled to a high degree of care by the railroad. The explosive package is described as small, though the witnesses had described it as large. The scales are described as being "at the other end of the platform, many feet away" from the explosion, but the record does not support this statement. [35] This characterization may have been based on testimony by Lillian Palsgraf, who had gone to buy a paper from a newsstand "at the other end of the platform", but who was yet close enough to see the package fall. Cardozo's characterization of distance would be challenged by the plaintiff in her motion for reargument, which would be denied with the rejoinder that however close she was to the explosion, she was not so close as to bring her within the zone of foreseeable risk. [36]

After the fact pattern, Cardozo began his discussion of the law with "the conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relative to her it was not negligence at all." [37] Cardozo quoted Pollock on Torts and cited several cases for the proposition that "proof of negligence in the air, so to speak, will not do." [37] Only if there is a duty to the injured plaintiff, the breach of which causes injury, can there be liability. [38] He defended his decision, "a different conclusion will involve us, and swiftly too, in a maze of contradictions." [37] Cardozo posed hypothetical situations: if a railway guard stumbles over a bundle of newspapers, and there are explosives within, will there be liability to an injured passenger at the other end of the platform? Will the result be different if the object containing the explosives is a valise instead? If there was negligence that day, Cardozo argued, it was only negligence that resulted in the fall and destruction of the package, and there was no wrong done by the railroad to Palsgraf for personal injury, "the diversity of incidents emphasizes the futility of the effort to build the plaintiff's right upon the basis of a wrong to some one else." [39] The chief judge instructed, "The risk reasonably to be perceived defines the duty to be obeyed". [40] Cardozo did not absolve the defendant who knowingly unleashes a destructive force, such as by shooting a gun, just because the bullet takes an unexpected path. This is not such a case, Cardozo held: even if the railway guard had thrown down the package intentionally, without knowing the contents he could not knowingly risk harm to Palsgraf, and would not be liable. Negligence cannot impose liability where an intentional act would not. [41]

Negligence, Cardozo emphasized, derives from human relations, not in the abstract. Negligence that does no one harm is not a tort. It is not enough, he found, to prove negligence by the defendant and damage to the plaintiff there must be a breach of duty owed to the plaintiff by the defendant. He traced the history of the law of negligence, a concept not known in medieval times, and noted that it evolved as an offshoot of the law of trespass, and one could not sue for trespass to another. Had the railroad been negligent towards Palsgraf, it might have been liable, but "the consequences to be followed must first be rooted in a wrong", and there was no legal wrong done by the railroad to Palsgraf. [42] Thus, the lower courts were incorrect, and must be reversed, and the case dismissed, with Palsgraf to bear the costs of suit. [43]

Dissent by Andrews Edit

William S. Andrews of Syracuse was a 69-year-old [44] judge, noted for his scholarship, who had been on the Court of Appeals since 1917. The son of Charles Andrews, a former Chief Judge of the Court of Appeals, William Andrews is best remembered today because he wrote an opinion in Palsgraf. [45] In that dissent, he was joined by Judges Frederick E. Crane and John F. O'Brien. Andrews began with a brief recitation of facts: that a railroad employee had negligently dislodged the package, the contents of which the trainman was unaware, and the subsequent explosion broke the scale and injured the plaintiff, "an intending passenger". [46] Andrews noted the fundamental difference among the judges concerning the law of negligence: whether there must be a duty to the plaintiff, the breach of which injured her, and whether, when there is an act that is a threat to the safety of others, the doer of it should be "liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger". [46] Andrews believed that if there was a negligent act, the proximate cause of injury to the plaintiff, that should establish liability. [47]

Andrews found Cardozo's reasoning too narrow, and felt that the focus should be on the unreasonable act: driving down Broadway at high speed is negligent whether or not an accident occurs. Such an act is wrong to the public at large, not only to those who might be injured. "Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone . In an empty world, negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene." [48]

Andrews pointed out that the law allows plaintiffs to recover from defendants who had no duty towards them: orphans may recover for their negligently killed parents a bereaved person may recover for negligence in the death of a spouse. An insurance company may sue in subrogation and recover the sum paid out from the person who started the fire. "Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also harmed the company." [49]

An event may have many causes, Andrews noted, and only some may be deemed proximate. Liability for negligence may only be found where that proximate cause exists, a term that the judge admitted was inexact. He suggested the analogy of a river, made up of water from many sources, and by the time it wound to sea, fully intermixed. But for a time, after water from a muddy swamp or a clayey bed joins, its origin may be traced. Beyond a certain point, it cannot be traced, and such is proximate cause, "because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." [50]

That point, beyond which there is no proximate cause, is drawn differently by different judges, and by different courts, Andrews explained. He listed factors that courts might consider, such as remoteness in time or space, and discussed some hypotheticals, such as a chauffeur who causes an accident, the noise of which startles a nursemaid into dropping a child, then returned to the case being decided,

Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief "it cannot be denied that the explosion was the direct cause of the plaintiff's injuries." So it was a substantial factor in producing the result—there was here a natural and continuous sequence—direct connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable. [51]

Given that, Andrews concluded, the jury verdict should be upheld. "Under these circumstances I cannot say as a matter of law that the plaintiff's injuries were not the proximate result of the negligence. That is all we have before us." [51]

Wood, Palsgraf's lawyer, moved the Court of Appeals to allow reargument of the case, alleging that Cardozo had confused the position of Palsgraf with that of her daughter Lillian (at the newsstand), and complained about the chief judge's use of such terms as "distant" and "far away". Wood warned that the decision could have far-reaching adverse effects on innocent passengers. [52] The court denied the motion with a one-sentence statement likely written by Cardozo, "If we assume that the plaintiff was nearer the scene of the explosion than the prevailing opinion would suggest, she was not so near that injury from a falling package, not known to contain explosives, would be within the range of reasonable prevision." [36] Costs of $559.60 were due from Palsgraf to the railroad under Cardozo's order. [53] Posner doubted the sum was ever collected, noting that Palsgraf's family spoke to legal scholars and periodicals about the case in later years, and never mentioned an attempt to collect what would have been about a year's salary for the disabled former janitor. [54]

Helen Palsgraf remained embittered about the loss of her case. She became mute, and suffered from other health problems prior to her death on October 27, 1945, at the age of 61. At the time of her death, Palsgraf was living in Richmond Hill, Queens with her daughter Elizabeth. Her former attorney, Wood, maintained a law office in the Woolworth Building until his death in 1972 at age 96. His opposing trial counsel, McNamara, remained with the LIRR's legal department until his retirement in 1959, while McNamara's superior and counsel of record, Keany, continued as the railroad's general solicitor until he died in 1935. Justice Humphrey retired in 1936, a year after he gained notoriety for presiding over the marriage of heiress Doris Duke he died in 1940. [55] Andrews retired at the end of 1928, having reached the mandatory retirement age of 70 he died in 1936. [56] Cardozo was appointed to the U.S. Supreme Court in 1932 by President Herbert Hoover and served there until his death in 1938. [29]

After the Palsgraf case became prominent among lawyers, having been taught to many of them in law school, members of the family sometimes encountered startled reactions when lawyers learned their last name. Frank Palsgraf, Helen's grandson, told in 1978 of "being treated like a celebrity" by a prosecutor when called for jury duty, and causing the judge to reminisce about hard nights studying the case in law school. Nevertheless, the prosecutor struck him from the jury. [57] According to Posner, the later coverage of the family "makes it clear that, with the exception of Mrs. Palsgraf, the Palsgraf family was thrilled by its association with a famous case, notwithstanding the outcome". [58] In 1991, that association became closer, as Lisa Newell, first cousin four times removed of Judge Cardozo, married Palsgraf's great-grandson, J. Scott Garvey. [59]

Palsgraf came to the attention of the legal world quickly. William L. Prosser of the University of California Law School wrote that the Appellate Division's decision fell into the hands of Francis H. Bohlen of the University of Pennsylvania Law School. Bohlen was at that time the reporter compiling the first Restatement of Torts for the American Law Institute (ALI), and Cardozo was informally one of the advisers. In that task, Bohlen was having difficulty dealing with the concept of duty of care in negligence, especially involving unforeseeable plaintiffs, and Prosser related that Cardozo was treated to a learned discussion by the other advisers of a case that might come before his court and, convinced by the arguments, used them to decide Palsgraf. [60] Kaufman doubted this story, which was told to Prosser by Dean Young B. Smith of Columbia, noting that the only meeting of the advisers between the two appeal decisions in Palsgraf took place in New York on December 12–13, 1927, beginning only three days after the Appellate Division ruled, and the notes reveal that Cardozo was absent the chief judge was hearing arguments all that week in Albany. Nevertheless, the discussions and materials from the Restatement compilation likely influenced Cardozo in his decision. [61]

Bohlen dwelt heavily upon Cardozo's opinion in Palsgraf in presenting the Tentative Draft of the Restatement to the ALI's annual meeting, which approved the section citing Palsgraf with little discussion. [62] [b] Palsgraf quickly became well known in the legal community, and was cited in many cases, some of dubious relevance. According to Kaufman, "the bizarre facts, Cardozo's spin on the legal issue, the case's timing in relation to the Restatement project, its adaptability for law-school teaching, the policy-oriented dissent by Andrews, Cardozo's rhetoric, and Cardozo's name—all these factors combined to make Palsgraf a legal landmark." [59] According to Prosser, writing in his hornbook for law students, "what the Palsgraf case actually did was submit to the nation's most excellent state court a law professor's dream of an examination question". [63] But Professor (later Judge) John T. Noonan saw more than this, noting that Cardozo was then the nation's most prominent state-court judge: "The excitement of Palsgraf was not merely that it was a brilliant examination question it was an examination question answered by Cardozo." [63]

The first mentions of Palsgraf in law reviews were case notes written by law students, appearing over the course of the year following the decision by the Court of Appeals. Professor Robert L. Goodhart, in the Yale Law Journal in 1930, was at the front of an avalanche of commentary to such an extent that by 1938, Louisiana State University professor Thomas A. Cowan deemed Palsgraf "a legal institution". [64] The case entered the standard legal casebooks, from which law students learn, in the early 1930s, usually to illustrate the necessary connection between defendant's misconduct and plaintiff's injury in negligence cases. [65] According to Posner, writing in 1990, "Palsgraf is now the subject of a large scholarly literature, and is, I believe, the only case reprinted in all American casebooks on tort law." [66] Manz wrote, "everyone who has sat in an American law school torts class can recall the basic facts—the crowded railroad platform, the running men, the dropped package, the explosion, and the falling scale. Palsgraf has become a sort of legal 'urban legend'—an allegedly true, but improbable, tale told and retold to each new class of law students." [67] Professor W. Jonathan Cardi noted, "in law school classrooms, 'Palsgraf Day' is often celebrated with food and drink, dramatic reenactments, interpretive poems, and even mock duels between Judges Cardozo and Andrews". [68]

Palsgraf was soon adopted by some state courts, at times in different contexts: Though some state courts outside New York approved it, others did not, sometimes feeling that foreseeability was an issue for the jury to consider. [69] According to Posner, writing in 1990, Cardozo's holding that there is no liability to a plaintiff who could not have been foreseen "has been followed by a number of states besides New York, but it remains the minority rule. Most states continue to muddle along with the nebulous 'proximate cause' approach, which emphasizes the proximity in time and space of the defendant's careless act to the plaintiff's injury that was the approach taken by Judge Andrews's dissent in Palsgraf." [70]

The overwhelming majority of state courts accept that there must be a duty of care for there to be liability: the courts of Wisconsin, though, have stated that they have adopted Andrews' approach, and impose liability when there was a duty to any person, whether or not that person is the plaintiff. [71] The Restatement (Second) of Torts (1965) amended the earlier formulation only slightly, but the third Restatement (2009), takes an approach closer to that of Andrews in focusing on whether the defendant engaged in an activity that carried a risk of harm to another (not necessarily the plaintiff), and on whether the defendant exercised reasonable care. The new formulation makes foreseeability, or the scope of the risk, not a hurdle that must be overcome, as in Palsgraf, but a factor to be weighed with others when determining whether there was negligence. [72] [73] Thus, according to law professor David Owen in his 2009 article, "the Restatement (Third) discards Judge Cardozo's elemental work in Palsgraf so long ago. And . also rejects Judge Andrew's [sic] valuable insight that juries should be offered a wide range of fairness factors, beginning with foreseeability, in figuring how far responsibility should extend". [74]

According to Posner, "Cardozo's 'bottom line' is that there is no liability to an unforeseeable plaintiff". [70] Don Herzog, in his 2017 book, deemed the Palsgraf principle to mean that "if anyone was wronged here, it was the man with the parcel. The guards' wronging him happened to harm Mrs. Palsgraf. But that doesn't mean they wronged Mrs. Palsgraf. And if they didn't wrong her, she can't conceivably prevail in a tort action. Cardozo is not thinking that if he were on the jury, he wouldn't find the railroad liable. He is saying it was a legal error to let the jury finding stand." [75] This is because "the crucial fact for Cardozo is that the parcel of explosives was unmarked. So reasonably careful conductors worry only that if they make it fall, it will break . They have no reason to worry about the welfare of Mrs. Palsgraf." [76]

Cardozo has been praised for his style of writing in Palsgraf. Posner noted that in the facts of the case Cardozo "saw instantiated the basic principles of negligence law and was able to articulate them in prose of striking freshness, clarity, and vividness", in an opinion mostly written in short sentences and lacking footnotes or block quotes. [77] University of Pennsylvania Law School Professor Kim Lane Scheppele noted that the opinion was "written by Judge Benjamin Cardozo at the height of his formidable powers". [78] Richard Polenberg, in his study of that jurist, stated, "Cardozo had a genius for making it seem that the results he reached were logical, inevitable, and legally unassailable". [79] Prosser stated, "with due respect to the superlative style in which both [Cardozo's and Andrews' opinions] are written, neither of them wears well on long acquaintance. Both of them beg the question shamelessly, stating dogmatic propositions without reason or explanation." [80] Herzog was also less enthusiastic, noting that "the majority opinion is unfortunately written in the curious idiolect I sometimes call Cardozo-speak." [76]

From its early days, there has been criticism of Palsgraf, and more recently, of Cardozo for authoring it. Cowan, writing in 1938, described its holding as limited to its facts, that given the identical circumstances recurring, the railroad would breach no duty to the new plaintiff by assisting a man with such a package in boarding. [81] Prosser in his 1953 article wondered "how can any rule as to the 'scope of the risk' evolved from two guards, a package of fireworks and a scale aid in the slightest degree in the solution of this question? Is it proper, in Palsgraf itself, so utterly to ignore the fact that the plaintiff was a passenger[?] . until the question is decided, is Palsgraf really definite authority even for Palsgraf ?" [82]

Noonan's 1976 book chronicled the unwillingness by legal scholars to utilize the "multitude of legal facts not mentioned by Cardozo and Andrews", even though the lower-court record in Palsgraf was reproduced in a civil procedure casebook in the 1950s. [83] Noonan criticized Cardozo for not taking Palsgraf's circumstances into account when making his decision, and listed factors that may have influenced Cardozo against the plaintiff, including that he was a lifelong bachelor who did not have Palsgraf's experience of caring for children, and he may have frowned upon Wood's representation of Palsgraf (likely on a contingent fee, something not favored at the time). [84] Posner, writing in 1990, disagreed with Noonan and with feminist critics following him, noting that judges take an oath to do equal justice to rich and poor, "so the fact that Mrs. Palsgraf was poor would not have been a principled ground for bending the rules in her favor". [85] Noonan had considered unjust the award of court costs against Palsgraf, and in her 2016 book, law professor Cathleen Kaveny agreed, "the penalty imposed on Palsgraf for seeking justice through the courts was to deprive her, a single mother, of the ability to support her children . All judges, however can develop empathy. And in telling the story of Helen Palsgraf, Judge Noonan makes a good case for why they should." [86]

In 2011, Cardi analyzed the present-day influence that Palsgraf has had on state courts. He found that neither Cardozo nor Andrews has won on the question of how duty of care is formulated, with courts applying policy analyses. "As to the proper doctrinal home for plaintiff-foreseeability, Cardozo has undoubtedly prevailed. Although a clear majority of jurisdictions state that duty is the proper home for plaintiff-foreseeability, Cardozo's vision of foreseeability as a categorical determination has not been widely adopted." [87] But, he noted, "Andrews may have found a back door to victory. Arguably the most important consequence of the Palsgraf decision, the resolution of the judge/jury question, appears to lean in Andrews' direction. A majority of courts prefer to leave foreseeability—even as a part of duty—to the jury." [87]

Scheppele put Palsgraf in social context, noting that 108 passengers were killed in railroad operations on the LIRR in 1924, a typical figure for it in the 1920s.

Social scientists of a more qualitative and historical bent would see the Palsgraf case as part of a long history in which the railroad industry imposed substantial costs on the broader society, costs that were never added to the ledgers of the railroads. Most train accidents were not litigated. Those that were shared the fate of Mrs. Palsgraf's: each case was taken on its own facts as an isolated, freak occurrence, and the broader consequence, in which death and injury became a normal byproduct of running the railroad, was disregarded. If judges could see—if not through statistics, then perhaps through the social history of the railroad industry—just how dangerous trains were and how much death and destruction they left in their path, they may have been less inclined to think that Mrs. Palsgraf's problem was that those two men carried fireworks onto the platform that day. [88]


§ 1983 Civil Rights Claims Follow Local Rules on Statutes of Limitations

For § 1983 lawsuits, the courts will apply the statute of limitations applicable to similar actions in the subject locale. In other words, for personal injury and wrongful death claims in New Mexico, the SOL will follow the local New Mexico rules. Thus, the statute of limitations for personal injury and wrongful death will apply as these are the most similar in nature to § 1983 claims.

The confusion arises because § 1983 civil rights claims are almost invariably filed against governmental entities, such as prisons which is where Collins & Collins, P.C. focuses much of its work. So the question arises as to which New Mexico statute of limitations on personal injury and wrongful death claims should apply in case of § 1983 civil rights claims, the general personal injury SOL or the SOL for suits against the government?

Fortunately, the 10th Circuit Court of Appeals which governs New Mexico federal district court has ruled alleviating the confusion.


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