Pleading the element of duty

Written by: Thomas A. Downie May 10, 2022 Read Time: 8 min

This post is part of a series. Here is the full series list:

Pleading the element of duty
The duty element revisited
The special problem of intervening cause

This is the first of three posts on the element of “duty” in a negligence case. The “basic elements of negligence” are “duty, breach, proximate cause, and damages.” Estate of Sample v. Xenos Christian Fellowship, Inc., 2021-Ohio-3898, at ¶ 11 (10th App. Dist. 2021 Nov. 2, 2021) (quoting Ball v. Stark, 2013-Ohio-106, ¶ 76 (10th App. Dist. 2021)). The current post deals with the “duty” element—specifically how to plead it in a way that survives a dismissal motion. However, two of the elements, duty and proximate cause, are interrelated.

Palsgraf Revisited

Modern jurisprudence on this issue springs from Palsgraf, an opinion by then-Chief Judge Benjamin Cardozo on the New York Court of Appeals. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). One analyst argues that the facts recited in Palsgraf “may bear little resemblance to what really happened.” Susan Healy, Forgotten Legal History: The Story Behind PalsgrafThe Florida Bar (Jan. 27, 2021). Another argues that Judge Cardozo didn’t intend the interpretation commonly placed on his opinion. William E. Nelson, Palsgraf v. Long Island R.R.: Its Historical Context, 34 Touro Law Review No. 1 (2018). Our interest in Palsgraf lies with its classic holdings. Thus, we’ll take the opinion and its interpretation at face value.

Helen Palgraf and her daughters were on the platform of a train station when a train stopped. A man “carrying a package jumped aboard a car, but seemed unsteady as if about to fall.” A railroad guard “reached forward to help him in” and another guard “pushed him from behind.” The man’s package, which contained fireworks, “fell upon the rails.” The explosion “threw down some scales at the other end of the platform, many feet away,” and Mrs. Palgraf was injured.

According to the opinion, the case did not involve “an unreasonable hazard” in which “conduct is held to be at the peril of the actor.” Indeed, no hazard at all “was apparent to the eye of ordinary vigilance.” These facts posed a hurdle which Mrs. Palgraf couldn’t clear. There must be “a duty to the individual complaining, the observance of which would have averted or avoided the injury.”

In the court’s words, “[t]he risk reasonably to be perceived defines the duty to be obeyed.” A duty is owed to those who are “within the range of apprehension.”

Duty and Foreseeability

Modern cases reduce this to “foreseeability.” But there’s a subtlety to it that I missed when we first studied it in law school. The foreseeability question is asked twice.

In the first instance, foreseeability defines the element of duty. “[Foreseeability of harm to the person injured” gives rise to “a duty of care toward that person.” Herrera v. Quality Pontiac, 134 N.M. 43, 73 P.3d 181, 186 (2003) (quoting Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990)). “If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.” Id.

For now, we’ll stay with the element of duty and address how it can best be pleaded. Note, however, that a second application of foreseeability defines the element of proximate cause. See, e.g., Cascone v. Herb Kay Co., 6 Ohio St. 3d 155 (1983), discussed in the later post on intervening causes.

Pleading Existence of Duty

Two main suggestions come to mind. One, take care to plead the element of duty in the same, elaborate terms used in cases like Palsgraf. In a given case, simply alleging that “defendant owed a duty to plaintiff” may be challenged as conclusory. It’s fairly easy to plead the element more elaborately using the formulas in the case law. See the Illustrations below.

The second suggestion adds substance to the duty allegations. What did the defendant know that made the risk of harm to the plaintiff foreseeable? What should the defendant have known upon reasonable inquiry? At its core, the question is, what would a reasonable person in the defendant’s position have known, looked into, or guarded against?

Illustrating the Pleading

The example comes from a negligence case, which I’ve fictionalized. Maelstrom Corp. owned a now-defunct manufacturing plant in which it produced chemicals. Having ceased operations there, Maelstrom engaged a demolition contractor, CutRight, to disassemble and remove the plant’s contents, which included empty storage tanks. CutRight commenced the removal of the tanks using acetylene cutting torches. An explosion occurred and CutRight’s welder, Harold Johnson, was injured by flying debris.

Negligence allegations against Maelstrom minimally include basic averments regarding its knowledge. The following facts may eventually be supported by police reports and the like. But we can plead them as inferentially true, simply from the nature of the incident.

Maelstrom Corp. was in the business of producing chemicals, and had engaged in that production at the Plant.

From its experience, Maelstrom knew or should have known that storage tanks used in such manufacturing could contain substances even when appearing to be empty.

Maelstrom further knew, or should have known, that one or more substances formerly contained in its storage tanks were flammable, explosive, or otherwise volatile, and could ignite or explode in the presence of an acetylene cutting torch.

Using formulas from the case law, we can augment these basic allegations about Maelstrom’s duty of care. The following could be additional averments in the same complaint.

Knowing that its storage tanks could contain flammable, explosive, or otherwise volatile substances, Maelstrom could or should have foreseen the occurrence of injury to workmen if reasonable care was not exercised in removing the tanks.

In particular, Maelstrom could or should have foreseen the grave risk of injury to workmen if they attempted to remove the tanks using acetylene torches.

Failure to exercise reasonable care in removing the tanks, and in selecting and determining the method of removal, would create unreasonable risks of harm to workmen involved in such removal, including Plaintiff Johnson.

Maelstrom therefore owed a duty to workmen, including Plaintiff, to exercise reasonable care in removing the tanks or causing them to be removed.

Maelstrom’s duty of reasonable care included, but was not limited to, warning workmen of the grave risk of injury arising from any attempt to remove the tanks using acetylene torches.

Still more facts may be available in a given case. I’m not suggesting that you plead these allegations without basis. However, additional facts may be found or reasonably inferred from available sources. Prior lawsuits, for example. Be sure to look for workers compensation cases—they can be early indicators of danger at a company. Similarly, government investigations and citations, newspaper articles, press releases, and website pages. Any of these might provide information from which inferences can be drawn. Thus, our negligence complaint against Maelstrom continues.

In the course of its chemical manufacturing business, Maelstrom was familiar with safety measures that could or should be undertaken in the manufacture, handling, and storage of chemicals and related activities.

In particular, Maelstrom was familiar with chemical testing methods and the importance of such testing to safety.

Maelstrom regularly tested its chemicals in production, as well as the chemical constituents used therein.

Additionally, Maelstrom tested the contents of storage tanks located in the Plant, or should have done so in the exercise of reasonable care.

Before removing the storage tanks or causing them to be removed, Maelstrom performed, or in the exercise of reasonable care should have performed, testing and inspection of the tanks to determine their contents, and in particular to determine whether the tanks contained substances that were flammable, explosive, or otherwise volatile.

In the further exercise of reasonable care, Maelstrom could and should have determined the proper and safe method of removing the tanks, and in particular whether acetylene torches could safely be used in such removal.

Failure to exercise reasonable care in any of these respects would create an unreasonable risk of harm to workmen, including Plaintiff.

Maelstrom therefore owed a duty to workmen, including Plaintiff, to exercise reasonable care in the above respects.

Maelstrom’s duty of reasonable care included, but was not limited to, selecting and specifying the proper and safe method of removal.

Not every complaint requires this complexity. The degree of detail will be commensurate with importance of the case as well as the likelihood of a motion to dismiss. The claim in Palsgraf failed in part because of the remoteness of the defendant’s act to the plaintiff’s injury—i.e., that the explosion “threw down some scales at the other end of the platform, many feet away.” Careful pleading can tie one to the other, establishing foreseeability.

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.