Microsoft Word Creates New Cause of Action

Plaintiffs Finally Can Redress Circuitous Wrongs as Foreseeability Spell-Checked Into Oblivion

It seems that Mrs. Palsgraf has finally been vindicated, forcing law professors across the country to revise their 1L Torts exams.

Not a Lawyer, or Don't Remember the Details of Palsgraf v. LIRR?

One fine day, as Mrs. Helen Palsgraf waited on one end of a Long Island Railroad Platform, a passenger on the other end was hurrying to catch a train.  Two friendly LIRR guards -- one on the train and one on the platform -- pulled/pushed the passenger into the train, causing the passenger to drop a package he carried, which just happened to contain fireworks.  The fireworks exploded when the package hit the rails, and caused a scale beside which Mrs. Palsgraf was standing to fall and injure Mrs. Palsgraf.  She sued the LIRR, claiming that the negligence of the guards caused her injuries.

The trial and appellate courts found for Mrs. Palsgraf.  The NY Court of Appeals, in a decision written by Chief Judge Benjamin Cardozo, reversed and dismissed Mrs. Palsgraf's complaint, holding that the relationship between the guards' actions and Mrs. Palsgraf's injuries were too indirect to make the railroad liable.

In short, a limitation on tort liability was born:  if the injury is not foreseeable, the actor is not liable in tort. 

Or, put another way, the court instituted as binding precedent something parents had known about cause and effect for years.  See Sibling A v. Sibling B, 1 Slusarz 299 (2010)(holding that Sibling B's hogging of the computer did not cause Sibling A not to clean her room). 

More of a visual learner?  This might help:

What Changed and How did it happen? 

Spell check on Microsoft Word doesn't recognize the word "tortious," making unwary lawyers advocate for or against tortuous interference with contracts, business expectations, etc.

Full disclosure time:  I'm a word geek.  I make no apologies

To continue:  according to Merriam-Webster, "tortious" means "implying or involving tort," and "tortuous" means "marked by repeated twists, bends, or turns...marked by devious or indirect tactics...circuitous".  Basically, an actor could not be liable in tort for tortuous behavior, for lack of foreseeability.

So, whenever I see legal writing where someone has fallen prey to the siren-song of spell check, I see Benjamin Cardozo eating his words, and Mrs. Palsgraf declaring sweet, sweet victory.

Comments (1)

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Mike J - June 19, 2011 1:08 AM

Tortious, indeed. I noticed also that Word can "approve" correctly spelled words that cause a break in correct grammatical structure or coherence. Dare I mention the pervasive "firstly" that has crept into journalism--well, when they were still riding high at newsprint facilities.

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