Wrongs Without Rights. Review of Wrongs, Rights, and Third Parties, by N. Cornell.

Publication Year:
2017
Usage 66
Downloads 52
Abstract Views 14
Repository URL:
https://repository.law.umich.edu/reviews/115
Author(s):
Hershovitz, Scott
Tags:
Wrongs; Rights; Palsgraf v. Long Island Railroad Co.; Flanders v. Cooper; Torts
review description
The word “wrong” is the source of much confusion, in part because it does double duty. “You set the table wrong,” I might say, noting that you’ve misplaced the forks and knives. When I say that, I imply that there’s a standard against which place settings are properly judged, and that you’ve mucked things up by failing to match it. This use of the word “wrong” pops up all over the place: “You took a wrong turn.” “That’s the wrong answer.” “Why do I get everything wrong?” But there’s another way to use the word “wrong”: “You wronged Tom,” I might say, “and you really ought to do something about it.” When I say that, I imply that Tom had a right that you not do what you did, and, moreover, that you owe him something for having breached his right. This usage is related to the first. Tom’s right sets a standard, against which your action is properly judged. What you did was wrong, relative to that standard. But since the source of the standard was Tom’s right, you didn’t just do something wrong, you also wronged Tom. This second notion of “wrong” is central to tort law. Indeed, it figures in the most famous torts case, Palsgraf v. Long Island Railroad Co. An employee of the Long Island Railroad Company did something wrong: he pushed a passenger carelessly, and in doing so, dislodged the package that the passenger was holding. The package concealed fireworks. They exploded, injuring poor Helen Palsgraf, who was standing thirty feet down the platform. Palsgraf sued. Could she hold the railroad accountable for her injuries? No, said Justice Cardozo, because she could not show “‘a wrong’ to herself, i.e., a violation of her own right.” Why not? She was so far down the platform that no one would anticipate that the push would pose her any danger, so she wasn’t in a position to demand that it be done carefully. As Cardozo put it, “[t]he risk reasonably to be perceived defines the duty to be obeyed.”