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Spring 2000


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6. Selling a Gun to a Minor
John, who owns a sporting goods store, sells a gun to a boy who is thirteen. On his way home the boy drops the gun on his foot and breaks his big toe. His parents sue John, the owner of the sporting goods store, claiming that his negligence, i.e., his sale of a gun to a minor, caused their son's injury. Should the boy's parents win their suit against John?



Commentary. This scenario involves John in a tort case. He has not been charged with any criminal wrongdoing. The boy's parents have served him with a civil complaint alleging that he acted negligently, that his negligence caused their son's injury, and that therefore he (John) should pay for their son's injury.

What sort of "wrong" is a tort? In tort law, the community seeks to enforce standards of behavior by making it possible for you, if you are a victim of another's wrongdoing, to obtain compensation from the wrongdoer for his or her wrongful act. In the law of tort, it is you, rather than the community, who brings suit against the wrongdoer. The aim of the criminal law is, broadly speaking, to ensure compliance with those rules essential to the preservation and orderly functioning of the community as a whole. When these rules are broken, someone often gets hurt. But the criminal law concerns itself with that hurt only insofar as its infliction reflects a disrespect for the community's rules. It then seeks to punish the wrongdoer for breaking the rules. But there are not always identifiable victims in criminal law. Some crimes (conspiracy, illegal possession of a weapon, unsuccessful attempts) have no victims and in criminal cases where there are victims (as in crimes of robbery, rape, and assault) the criminal law does not concern itself with making good the losses or annulling the gains. There is, therefore, a need for a body of law that is specifically concerned with the victims' losses and the wrongdoers' gains as well as a need for a mechanism for determining where the burden of gains and losses should (in all fairness to the parties involved) fall. This need is met by tort law.

In large measure, the existing body of tort law is a response to the numerous injuries to which all of us are exposed every day as the result of our living together in the same place. Much of tort law primarily deals with unintended harm, particularly negligent harm, the risks of which appear to be steadily growing. You, the complainant, seek to have the losses you have suffered (medical bills, lost wages, "pain and suffering") at the hands of someone else shifted to and compensated for by that other person. A key issue is under what circumstances and to what extent should this be done.

To establish a case of negligent harm, a complainant has to prove by a preponderance of evidence that (1) the defendant had a duty to exercise reasonable care; (2) that he or she violated or breached that duty; and (3) the breach of that duty caused you harm. It is around these basic elements of the law of negligence that significant issues are raised. Just what duties do I have to others? How far do these duties extend? Is it fair that I always be required to act reasonably? How is "reasonableness" to be measured? And causation plays a role in tort law just as it does in criminal law. What determines whether my conduct has caused your injury? Am I responsible for all the harm that I cause? If I fail to help you and you are hurt, have I caused your hurt? How relevant to my responsibility for your harm is the fact that I caused it? Or that I was at fault or blameworthy in acting as I did?

Negligence is a matter of risk and it has sometimes been understood as "conduct which involves an unreasonable risk of causing damage," or more fully, "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." In most cases, negligence occurs as a result of carelessness. But it may also arise in situations where a person has considered all the possible consequences quite carefully and has exercised his or her own best judgment. The standard imposed by the community is an external one, based upon what we demands of our members and not upon any individual's notions of what is proper. The idea of risk also involves the idea of recognizable danger, based on some knowledge of the existing facts, and some reasonable belief that harm is likely to follow. But the danger may not be recognized, in fact, by the actor. All that the complainant is required to show in cases of negligence is that in the situation which gave rise to his injury it was reasonable to expect that the defendant should have realized the danger.

The topic of negligence has cropped up before. The nurse in the very first Puzzler probably acted negligently, putting her patients at risk by exposing them to scarlet fever. Even if she was unaware that she was contagious, she probably should have realized the danger. In the present puzzler, John, who is now the proud owner of a sporting goods store, sells a gun to a minor. There is no question that his conduct is negligent. Gun store owners are under a strict legal obligation not to sell guns to minors and John, in this case, has done just that. It will also be no excuse for John to say he did not think the boy was "under age." So there should be no question about John's having acted negligently. The only question is "Did John's negligence cause the boy's injury?" Of the three things that a complainant has to show in order to establish a case of negligent harm, the first two "that (1) the defendant had a duty to exercise reasonable care and (2) that he violated or breached that duty" should be considered established. Now all that the parents need to show is "(3) that the breach of that duty caused [their son's] harm."

This puzzler is based on an actual case that was heard some years ago, in 1928 to be exact. It involved a woman named Helen Palsgraf and the injuries she sustained while waiting for her train on the Long Island Railroad. The case was heard before the New York Court of Appeals, and the majority opinion was written by Chief Judge Benjamin Cardozo. Cardozo, you may recall, later became a member of the United States Supreme Court.

Palsgraf v. Long Island Railroad (1928)
Helen Palsgraf, who lived in Brooklyn, purchased a train ticket to travel to Rockaway Beach. While she waited on the platform for her train, various other trains to other destinations came and went. As one of these was pulling away, a man with a brown paper package under his arm ran out of the station and across the platform in an effort to board the train as it was picking up speed. He appeared to be losing ground when two of the railroad's employees came to his assistance, pulling and pushing him onto the moving train. In the process, the package slipped out from under the man's arm and fell under the wheels of the train. A spark from the train ignited the fireworks which the package so happened to contain. A huge explosion occurred and the sound from the explosion ricocheted throughout the station, causing a set of heavy scales at one end of the platform to topple over onto poor Mrs. Palsgraf, who was standing there clutching her ticket to Rockaway Beach. She sued the Long Island Railroad alleging that the negligence of its employees (in helping the man with the package onto a moving train) was responsible for her injury. Did the negligence of the railroad employees cause Mrs. Palsgraf's injuries?

Here, as in John's case, there was no question that the Railroad employees acted negligently. Training manuals for the Long Island Railroad state in no uncertain terms that a passenger who tried to board a moving train was to be discouraged from doing so. Therefore the employees had a duty of care which they violated. But did their violation of a duty of care cause Mrs. Palsgraf's injuries? To this, Cardozo answered "no." And in his opinion which has become a staple of every law school curriculum in the country, Cardozo argued that the question of whether the railway officials' negligence caused Helen Palsgraf's injuries came down to the more basic question whether they owed a duty of care to her in light of the reasons we consider the railway officials' conduct to be negligent in the first place.

The reason we consider particular forms of conduct negligent is because they create risks of injury. Different modes of conduct create different sorts of risk. So, for example, the reason that helping a passenger onto a moving train is regarded as negligent is because such conduct creates a risk of injury to the passenger. Helping a passenger onto a moving train could result in the passenger's breaking his leg or twisting his ankle. This did not happen in this case. The man with the package boarded the train without injury. But had he been injured in the course of his having been helped onto the train by the railway officials, their negligence would have caused the man's injury.

By the same reasoning, John's sale of a gun to a boy of thirteen was negligent because such conduct creates certain kinds of risk of injury. Why is the sale of a gun to a minor considered risky? Well, for one reason, we suspect that a minor may not know how to handle a gun. He may handle it in such a way that it goes off unexpectedly and causes an injury, either to himself or someone else. These risks might be said to be risks that fall within an "arena of risk" created by the sale of a gun to a minor. They are also the reasons we consider such a sale to be negligent in the first place. This said, it is a short hop and a step to the observation that had the young man shot himself in the foot, John's negligence would have been the cause of the boy's injuries. But the boy dropped the gun on his foot. This too caused an injury, but this type of injury falls outside the "arena of risks" created by what makes the sale of a gun to a minor negligent.

Cardozo made much the same argument in Helen Palsgraf's case. The injuries she sustained fell outside the arena of risk of injuries created by what makes helping a passenger onto a moving train risky. Cardozo did not deny that the railway officials had duties of care which they owed to Mrs. Palsgraf, but these were duties not to harm her in foreseeable ways. And, Cadozo concluded, nothing in the man's behavior or in the appearance of the parcel he was carrying would suggest to a reasonable person that either (the man or his parcel) posed a risk to the health and safety of Mrs. Palsgraf.

What is significant about the Cardozo opinion is that it provides a rationale for limiting liability. In John's case and that of Helen Plasgraf, a chain of events is set in motion resulting in an injury. If we were to apply the sine qua non test to both cases, there would be no question that John's negligence caused the boy's injury and the railway officials' negligence caused the injuries suffered by Mrs. Palsgraf. But for John's negligence the boy would not have broken his big toe. But for the negligence of the railway officials, Helen Plasgraf would not have been injured. Cardozo offers an explanation, not without reason, for limiting the extent of both the railway officials' and John's liability for the consequences they, in fact, brought about. Insofar as we find Cardozo"s explanation persuasive, we have another ground for rejecting the sine qua non test or, at least, for qualifying and/or modifying its results. Judge Andrews, dissenting from Cardozo's majority opinion, was not persuaded. In Andrews' opinion, negligence is not a relationship between a person and those whom that person "might reasonably be expected" to injure, but rather to all those whom that person "in fact" injures. According to Andrews the negligence of the railway officials was a necessary condition for Mrs. Palsgraf's accident and the accident was a direct consequence of the railway officials' actions, "neither remote in time or in space." But for what the railway officials did, the accident to Mrs, Palsgraf would not have happened. Judge Andrews thought that the Long Island Railroad should pay for her injury. What do you think? Whose side are you on, Cardozo's or Andrews'? Feel free to debate this question among yourselves. Who has the better argument? Cardozo or Andrews? Why? Then, having answered this question to your own degree of satisfaction, consider the next puzzler.

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