Hookem and Crookem Law Firm, L.L.C.

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Date: May 11, 2012

To:  Ambulance Chaser Task Force (J. Pilarski, A. Cyrus, D. Davis)

From: Michael J. Hookem, Senior Partner

Subject:  Palsgraf v. Trans Florida Railroad

Our client, Annie Palsgraf, underwent plastic surgery last week.  Unfortunately, the package of fireworks, carelessly dropped by a TFR-employed porter, exploded, causing rockets to shoot from the fallen cardboard box.  One such rocket hit Mrs. Palsgraf right between the eyes, knocking her several feet from the commuter rail.   Her face, nearly blown off from the rocket's impact, became the least of her worries.  Other travelers, alarmed by the explosion, started pushing and shoving, ignoring our client as she stumbled to the ground.  As more rockets continued firing from the package, commuters began running for shelter, trampling Mrs. Palsgraf in the process.

Our client wishes to sue TFR for twenty million dollars.  I believe if we use proximate cause, we will win this case. Remember, as lawyers, we must have an argument that passes the laughter test.  This particular fact pattern suggests unforeseeable events.  For that reason, we should employ Cardozo's formula for negligence.  In case you've forgotten this is the formula for negligence:

·        
-em and Crook-em Law FirmExistence of Duty

·         Breach of Duty

·         Causation and Proximate Cause

·         Injury

To determine if there was an existence of duty, we must see if the severity of harm (SH) added to the likely hood of harm (LH) is more than the cost of precaution (CP).  Next, to determine whether a breach of duty existed, we have to determine what a reasonably prudent person would have done in the defendant's shoes.  Now we need to prove causation and proximate cause.  The standard we use is more likely than not.  So in this case, we would say, "More likely than not, but for the TFR porter dropping the package, the rocket would not have flown into Mrs. Palsgraf's face."  Second to last, we must prove proximate cause.  If we are using Cardozo, we must look from the defendant's perspective and use the foresight approach.  Then we must characterize the risk before determining the zone of danger.  The risk of a rocket firing from a fallen box and hitting someone in the face is moderate during a regular work day at the station.  Finally, we determine the zone of danger.  We want the incident to be foreseeable and the zone of danger to be remote enough to include the plaintiff.  Lastly, we need to say that it is clear Mrs. Palsgraf sustained injuries from the flying rocket.

I have confidence that there is more than a 50% chance we can win this case.  If you have any questions, please email me at hookem@scam.com

Blog Question:

Suppose you are council for TFR.  You are working with three other attorneys.  Discuss how you would organize a rebuttal to Hookem's claims.  Look to Chapter 3 and talk about your defense using strategic planning (subject, purpose, readers, and context).  Finally, discuss what, as a group, your project outcome would be.

*For extra credit:  Above, I have given you the entire formula for negligence.  This is just how J.P. Morgan or any plaintiff's lawyer would argue before a jury.  See if you can apply the negligence formula to brief fact pattern I've laid out for you.  Let me know if you need extra help.  Good luck!