Fire, Flood, Mud, and Lawsuits for Wrongful Death

By Steven A. Blum   |   April 5, 2018

The awesome mountains above us still precariously harbor massive boulders, reminding us daily of our lost friends, neighbors, and family. Some of the 12-foot high boulders that traveled all the way down the mountain, past East Valley Road, sit like monuments to the enduring power of nature.

What does the law have to say about the loss of life? It’s a big topic, but some have focused on Edison, alleging that the giant utility is responsible for our neighbors’ deaths and should compensate the grieving families.

In earlier articles discussing loss of property, I explained that the California Constitution (Article 1, section 19) and United States Constitution (Fifth Amendment) require a government agency – or a utility – to pay “just compensation” if its public project, operating as intended, is a substantial contributing cause of damage to private property. In other words, even if Edison’s facilities were just one of many causes (along with, say, wind and flood) of damage to homes, then Edison must pay for the damage. This is called inverse condemnation.

But that rule doesn’t apply to wrongful death claims. There, the legal theory is negligence and the type of proof required to win the case is different, so there will be different legal hurdles to overcome.

So, let me tell you about Helen Palsgraf, a 40-year old New York housekeeper whose story is known to every first-year law student in the United States. Her story will influence how the case against Edison is decided.

On August 24, 1924, Mrs. Palsgraf decided to take her 15- and 12-year-old daughters to Rockaway Beach in New York. She was waiting on the platform of the East New York train station on Atlantic Avenue, in Brooklyn, when two men raced past her to board the train that was about to pull out. One of the men carried a package and jumped on board with the help of a platform guard, while a member of the train’s crew pulled him into the train car.

But the man dropped his package and it exploded – it was full of fireworks. This in turn caused a tall, coin-operated scale to fall onto Mrs. Palsgraf. She didn’t go to the hospital, but the shock was so severe that her health deteriorated, she developed a stammer, and she was unable to work. 

Later, she sued the railroad, arguing that its employees were negligent when assisting the man with the fireworks, and that she had been injured as a result.

In May 1927, she won a jury verdict of $6,000 ($84,500 today), which the railroad appealed all the way up to the New York Court of Appeals (their Supreme Court). The legendary justice Benjamin Cardozo (later of the U.S. Supreme Court) wrote for a 4-3 majority of the NY Court’s justices that there was no negligence because the railroad employees, in helping the man board, did not have a duty of care to Mrs. Palsgraf.

Why? Because it was not foreseeable that helping a man with a package could injure Mrs. Palsgraf. As Justice Cardozo put it, she was not within the zone of foreseeable risk and, in a famous line, he stated, “proof of negligence in the air, so to speak, will not do.”

Justice Cardozo wrote: “The diversity of incidents emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to someone else.”Therefore, “The risk reasonably to be perceived defines the duty to be obeyed.”

Negligence, he emphasized, derives from human relations, not in the abstract. The railroad won the case.

The legal term for what Justice Cardozo described is “proximate cause.” To prove negligence, the plaintiff must show that the defendant’s act or omission was the “proximate cause” of the injury. But what is “proximate?” Like Justice Cardozo, judges in negligence cases answer this question by deciding whether, as a matter of public policy, a defendant owes a duty to a plaintiff in a particular situation. Usually, that depends on a judge’s opinion about whether an injury was reasonably foreseeable in that situation.

Proximate cause is just one type of legal cause. There are lots of different causation tests, depending on the legal theory under consideration. For example, the causation tests differ for wrongful death (negligence), strict products liability, insurance coverage, inverse condemnation, and criminal law. Each test is grounded in a different mix of policy and legal concerns.

Edison, having now been sued, will defend itself with Mrs. Palsgraf’s story and the precedent articulated by Justice Cardozo. Would a reasonable person have foreseen that an Edison transformer in Santa Paula, on December 4, 2017, could spark a fire that would spread 30 miles, melt the vegetation on a Montecito mountain, transform it into a giant slip-and-slide, which then suffered a torrential rainfall that, on January 9, created a debris flow down the canyons and killed people asleep in their homes? 

Maybe. But it seems that the argument against Edison for property damage using inverse condemnation principles is an easier case to prove.

And depending on what we find out in the legal process, it might be that those who lost family would be served by focusing on whether the County of Santa Barbara had a mandatory duty to warn residents and breached it by waiting too long and giving the wrong warnings. One purpose of civil litigation is to compensate victims, but another equally important purpose is to change future behavior. Hence, my interest in the County.

Survivors of residents, who may have a wrongful death claim against a government agency in California, must file a proper government tort claim within six months of the death as a precondition to filing a lawsuit.

This is the eighth in a series of articles about the law and the Montecito mudslides. You can read the first seven articles on, volume 24, issues 4-13, or email:

Next article: “Into the Woods – Do Trees Have Standing?”


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