(Indeed, in the celebrated Palsgraf case for today, the dueling opinions differ on whether the hiccup found within the fact pattern is best categorized as one of duty (Cardozo) or proximate cause (Andrews).) Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. A Flood—Not a Ripple—of Harm: Proximate Cause Under the Fair Housing Act. The majority Cardozo view held that it should be analyzed under Duty, while Andrews held that Duty is a broad concept and unforeseeability should be discussed under proximate cause. This Article argues that the term is often an empty vessel, into which the courts can pour multiple meanings. However, proximate cause is an anachronism because in modern contract analysis proximate cause means something different from the opinion espoused by Justice Cardozo. POUND, LEHMAN and KELLOGG, JJ., concur with CARDOZO, Ch. 27 It was not enough for a defendant’s negligence to foreseeably result in some kind of injury to some kind of plaintiff; the particular group of harmed individuals and the particular type of injury must also have been foreseeable. Rejection of the closest in time/distance test may have been one of the ideas the author or authors of California Insurance Code had in mind when they drafted these sections: He set forth a re-examination of the negligence concept with the hope of replacing the usual formulas and their "shifting meanings" with a … 28 Id . Over the past decade, several city governments across the country have filed suits against banks pursuant to the Fair Housing Act seeking redress for municipal damages caused by the banks’ discriminatory lending practices. The Strange State of Legal Education Generations of law students thus came to be educated that Palsgraf is a case about proximate cause — when it is not. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. The issue in the case is whether the unforeseeable plaintiff will be analyzed under duty or proximate cause. Proximate cause is a notoriously flexible and theoretically incon-sistent concept. Actual cause, the topic of the last chapter, is a legal determination used to establish a defendant's liability. The following year, in striking down the Bituminous Coal Conservation Act, the Court accepted Cardozo’s proximate cause test. For Cardozo, proximate cause could be dealt with as an issue of foreseeability. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. care," or that the defendant's negligence was not a "proximate cause" of the plaintiff's injury. Mr. Justice Cardozo, speaking for the majority, preferred the first approach. They simply adopted Cardozo’s “zone of danger” formulation as the test for determining whether a cause is proximate! (Cardozo dissented from the decision on procedural grounds.) But the trainmen's negligence was close enough in time and space, he wrote, to be considered the ''proximate cause'' of Mrs. Palsgraf's injury. Proximate cause, on the other hand, is a policy determination used to limit a defendant's liability. Palsgraf’s notoriety as a proximate cause case is ironic, to say the least, given that Chief Judge Benjamin Cardozo’s majority opinion expressly disclaims all reliance on causation in overturning the plaintiff’s verdict (“[t]he law of causation, remote or proximate, is thus foreign to the case before us”). That being the case, we do not consider proximate cause unless we have established actual cause. It … The court must ask itself whether there was a natural and continuous sequence between cause and effect. 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