Brown v. Edwards Transfer Co., Inc.

KILGARLIN, Justice,

concurring.

I concur with the judgment of this court both as to the entitlement of the illegitimate children to recover under the Wrongful Death Act (Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001, et seq.) and the remanding of this cause so that the issue of contributory negligence might be submitted. I write only to elaborate on the discussion of foreseeability.

I heartily endorse the court’s reaffir-mance of the principle laid down in Trinity River Authority v. Williams, 689 S.W.2d 883, 886 (Tex.1985), that “[i]t is not necessary that the exact path leading to injury be anticipated as long as the general danger surrounding the event is appreciated.” I further agree with the writing of an earlier court in Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970), that “[t]he test [of foreseeability] is not what the wrongdoer believed would occur; it is whether he ought reasonably to have foreseen that the event in question, or some similar event, would occur.”

Footnote two of Clark, id. at 439 , contains an excellent statement of the law taken from Harper & James, The Law of Torts, vol. 2, § 20.5(6), page 1147. Those two Yale University professors of law stated, “[foreseeability does not mean that the precise hazard or the exact consequences which were encountered should have been foreseen. Upon this all are agreed, whether they regard foreseeability as relevant only to the duty issue, or to questions of proximate cause as well.” Then, borrowing from Oxford University’s Corpus Professor of Jurisprudence Sir Frederick Pollock, writing in 38 L.Q.Rev. 165, 167 (1922) (a publication he founded), Fowler and James continue “when it is found that a man ought to have foreseen in a general way consequences of a certain kind, it will not avail him to say that he could not foresee the precise course or the full extent of the consequences, being of that kind, which in fact happened.”

Of course, Pollock had great difficulty with the early English case Heaven v. Pen-der, 11 Q.B.D. 503 (1883), that established the concept of duty in respect to torts. Pollock believed that “everyone is bound to exercise due care towards his neighbours in his acts and conduct_” F. Pollock, Law of Torts, 334 (15th ed. 1951).

The case at bar presents me with an opportunity to write what is to be my last opinion as a member of this court (although because of the contingencies of court discussion of other of my authored opinions and motions for rehearing, it may not be the last opinion to appear in Southwestern Reporter, second series). Once again, the ominous specter of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 , 162 N.E. 99 (1928), is brought to the fore. It was Palsgraf , just sixty years ago, that utilized foreseeability to limit liability in terms of duty. Because the author of the majority opinion, Chief Judge Benjamin Nathan Cardozo (later of the United States Supreme Court) was a man of preeminent reputation, the holding of Palsgraf was almost immediately incorporated into the Restatement of Torts, and thus has since become firmly entrenched in the law.

By holding that no duty was owed unless it was foreseeable as to the exact way an accident would occur as a result of negligence, the Palsgraf majority worked its mischief on the law. Most attorneys will remember from law school the facts of Palsgraf . Ms. Palsgraf was standing on the platform of the Long Island Railroad, awaiting the arrival of a train. She was standing near some scales while the railroad guards were assisting a passenger to board a slowly moving train (unquestionably an act of negligence). One of the guards knocked from the passenger’s hands a package he was carrying (again, arguably an act of negligence). The package contained explosives, which fell on the tracks and underneath the wheels of the moving train. An explosion occurred, shaking the platform, and causing the scales to topple onto Ms. Palsgraf, thereby injuring her. Rube Goldberg could not have devised a more complex chain of events. Nevertheless, the majority in Pals- *226 grafhoíá that because the exact maimer in which Ms. Palsgraf suffered injury was not foreseeable, there could be no recovery.

Dean Leon Green, prolific writer and teacher of so many Texas lawyers, criticized foreseeability as a sole determinative of duty. Green, The Palsgraf Case, 30 Colum.L.Rev. at 789 (1930). Likewise, what is often forgotten about Palsgraf is that out of a seven member New York Court of Appeals, three members dissented. Judge Williams Andrews, writing for the dissent, contended that “[ejveryone owes to the world at large the duty of refraining from those acts that may reasonably threaten the safety of others.” 248 N.Y. at 350 , 162 N.E. at 103 .

Admittedly, this court, in this case, has not gone nearly as far as Judge Andrews’ position that would eliminate foreseeability from consideration. However, by holding that it is not necessary that one foresee the exact consequences of negligent conduct, we are certainly reaffirming our departure from the harshness of the rule in Palsgraf I predict that courts of this state will continue to carve exceptions to Palsgraf and will continue to broaden the once narrow scope of liability. Although we may be loathe to throw off the Cardozo collar of limited duty, “[tjhe time may be approaching, however, when a trail blazing Texas court will recognize the merits of the Pals-graf Assent and its advantages in this progressive twentieth century. With constant social and economic fluctuations, Texas needs the flexibility of the Andrews concept of duty.” Kilgarlin & Sterba-Boat-wright, The Recent Evolution of Duty in Texas, 28 S.Tex.L.J. 241, 306 (1986).

As I leave this court, I can think of no more fitting epitaph as an expression of my philosophy of law.