Modifying Palsgraf: Duty and Proximate Cause the Concept of Foreseeability: McCain v. Florida Power Corporation, 593

1. Modifying Palsgraf: Duty and Proximate Cause � the Concept of Foreseeability:McCain v. Florida Power Corporation, 593 So.2d 500 (Fla. 1992) McCain was injured when the blade of a mechanical trencher he was operating struck an underground, insulated Florida Power Corporation electrical cable, causing electrical current to pass through his body. A Florida Power employee had marked the area where it was �safe� to dig, and evidence was presented at trial that McCain may have been in an area marked �safe� when he struck the cable. The Power Company had also installed technology designed to immediately interrupt the current flowing through the cable when the line was struck. Power Company records showed that, in the several prior incidents similar to McCain�s accident during the past three years, no injury had occurred. The jury awarded McCain damages, reduced to account for his own comparative negligence. The intermediate appellate court reversed, and remanded, ordering the entry of a directed verdict for Florida Power, concluding that the specific injury suffered by McCain was not foreseeable.

2. The Florida Supreme Court�s holding in McCain The Supreme Court held, that, as a matter of law, Florida Power had a duty to take reasonable steps to prevent the general type of injury that occurred in the instant case. Moreover, there was sufficient disputable evidence in the record to justify a finding that Florida Power�s negligence foreseeably and substantially contributed to the injury McCain suffered, thus raising a jury question. The question of foreseeability is relevant to both the element of duty (which is a question of law) and the element of proximate cause (which is a question of fact). A single foreseeability analysis might lead to a correct result, but such an approach to liability would be improper. In this case, such an approach will yield an incorrect result � by improperly removing the question of the Power Company�s liability from the jury and deciding it as a matter of law.

3. Duty & Proximate Cause: An explanation of the analytical approach and the role of the court The Supreme Court explained that the element of duty raises the question whether the defendant�s conduct foreseeably created a �zone of risk� (i.e., a general threat of harm to others). (This requirement of reasonable, general foresight is the core of the duty element, and is a question of law for the court, even though influenced by the facts of the case). The proximate cause element raises the question whether the defendant�s conduct foreseeably and substantially caused the specific injury that occurred. The defendant�s conduct is a proximate cause of the plaintiff�s injury, if reasonable foresight would create the expectation that similar harm is likely to recur if defendant is negligent. This is a question of fact, concerned with the specific details of the accident, and not appropriate for determination by the court, as a matter of law. It is immaterial that the defendant could not foresee the precise manner in which the injury occurred or the extent of injuries actually suffered by the plaintiff. However, an improbable or unpredictable injury would not be actionable � and the court could direct a verdict where the plaintiff�s injury is indisputably the result of extreme events which would not be foreseen in light of reasonable human experiences.

4. The Power Company�s Negligence as a Jury Question The intermediate appellate court confused the duty and proximate cause elements, resulting in the mistaken assumption that Florida Power had no duty to McCain, unless it could have foreseen the specific sequence of events that led to McCain�s injury, in light of its marking of the easement and installation of safety technology. Such a disposition of the case � as a matter of law � was erroneous, when, by its very nature, power-generating equipment creates a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment. The fact the Power Company marked the property demonstrates its knowledge that McCain would be within a zone of risk while operating the trencher. Electricity has unquestioned power to kill or maim. Thus, the duty imposed upon power companies is a heavy one, because this serious risk defines a power company�s duty.

5. McCain and the modification of Palsgraf: Reviewing the relationship between duty and proximate cause and the concept of foreseeability How does McCain resolve the disconnect between the views of Judges Cardozo and Andrews in Palsgraf? Describe the scope of the court�s inquiry on the separate questions of duty and proximate cause � to the extent that these elements of a negligence claim raise questions for the court. What factual dispute supports the denial of summary judgment in favor of the power company? Why is the power company�s argument that it has no duty to McCain a flawed application of Cardozo�s reasoning in Palsgraf? How does McCain�s modification of Palsgraf reveal the proper interpretation of the elements of duty and proximate cause?