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By means of exploring different examples of law cases, the following essay seeks to show the difference between the two fault theories. The first one is being Holmes theory, which affirms that when every man acts, he assumes all the risks caused by his actions, whether the results of his actions are planned or they are happened because of some failure to obey a sense of duty of concern owed to another person. While the second theory is Austin’s positivism theory which states that in order to assign legal responsibility a culpable state of mind must be imputed (Holmes 1881).

In common law authority, a tort is described as a civil wrong which causes a person’s unfair harm or loss resulting in legal accountability for the person who commits the convoluted act normally referred to as tortfeasor (Wright 1985). A mental anticipation of risk should be a required aspect for imputing tort liability, because in this case a tortfeasor knew well of the risks involved in his actions as well as of the fact that everyone around him would be affected before engaging in the deed. Under my interpretation of the facts in Palsgraf v. Long Island Rail Road, a responsible attitude on the part of the defendant railroad did not need to be assigned in order to find the railroad liable (Manz 2005). This is due to the guard from the platform who helps passengers board the train did not know the content of the passengers’ parcel, thus when the parcel dropped and caused the explosion, which injured the plaintiff, the station could not be held liable (Wright 1985). The plaintiff was injured from the result of an unforeseen situation, which she was not directly involved in, thus if the station was held liable it would lead the station to unlimited scopes of legal responsibility (Kaufman 1998).

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There is an essential difference between the theories of tort liability base on the words of Judge Cardozo as compared to Judge Andrews. According to Judge Cardozo’s reliance on tort liability, the guard was not aware of the content of the package, which was also wrapped in newspaper, thus hiding its true contents. This means that he did not have a mental anticipation of the involved risk, thus he did not have any duty towards the plaintiff, which made him not liable for any negligence (Wright 1985). According to the dissenting Judge Andrews, the incident happened due to proximate causation. The Judge argued that if not for the conductor’s attempts to assist the passenger hanging on the train, the parcel would not have dropped thus causing the explosion which was resulted in injury to the plaintiff (Kaufman 1998).

I find Holmes theory more compelling as opposed to Austin’s positivist theory, because with Holmes’s theory he attributes a sense of assumed responsibility, when engaging in an action, while Austin’s theory attributes responsibility by virtue of intention. In the case of Lynch V. Fischer, the court stated that the facts will be restated. This is because of the lack of enough evidences from the plaintiff to support his accusations of foul play from the defendant Lynch so as to ensure her sole custody of the minor.

Judge Andrews simply imputes the railroads conduct liability for the plaintiff’s injuries as a matter of law. This is due to the fact that he confirms that the plaintiff’s injury was caused by the misconduct of the stations guards. He states that if the guard had not attempted to assist the passenger, the parcel would have not been knocked from his hands, therefore causing the explosion, which caused the injury. The dissents’ theory of causation is supported by the approximation of the plaintiffs distance to the explosion, which was caused by the apparent wrong doings of the said station guards. The theory was also supported by the fact that the conduct of the defendant’s employees was also involved in the result of the injuries.

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In the case law of Quirke V. City of Harvey, the court decided that the power outage was not the proximate cause of the accident, but rather the plaintiff’s lack of responsibility in following the traffic rules. According to Bentley v. Saunemin Township, the court ruled for the plaintiff Bentley because the vehicular deaths of Mr. and Mrs. Holzhauer were caused by the lack of the visible stop sign at the intersection and lack of maintenance by Saunemin Township traffic commissioner administrators. The main difference between conditions precedent and proximate cause in Quirke v. City of Harvey and Bentley v. Saunemin is that in the first case the plaintiff was well aware of the traffic rules at the intersection but ignored to follow them due to the power outage while in the second case, the victims, not natives of the area, had not any opportunity to know that there was an intersection ahead, because the stop sign was hidden from plain view.

In Quirke V. City of Harvey, the court ruled in favor of the defendant City. This is because the plaintiff argued that since the power was switched, he could not see the intersection, thus why he was involved into the accident. In turn the defendant argued that a variety of reasons of an emergent nature or otherwise could have caused the city’s power to be shut down unexpectedly, thus the plaintiff should still have recognized and adhered to the traffic rules to avoid incidents. The plaintiff Quirke argued that but for the power switching, he would have otherwise not involved into the accident, but the theory of causation upheld by the court, which was that the power outage, was not legally or morally culpable for the accident.

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In the case of Derdiarian v. Felix, the court ruled for the plaintiff Derdiarian. The court argued that the plaintiffs injuries were foreseeable and only happened because of the failure of the employers to secure the worksite thus causing a causal connection. Moreover, the court argued that if the driver who struck the plaintiff had taken his epilepsy medication that day, the incident would not have occurred, thus determining it a proximate cause since the incident was foreseeable. Concurrent causes were the main faults in the incident. The chief comparison between Quirke V. City of Harvey and Derdiarian v. Felix is that in the first case, there was no proximal cause since the incident was not foreseeable, but in the second case it was.

The case of Quirke V. City of Harvey, where no proximal cause could be determined since the power outage was not the direct cause of the incident, is more in agreement with the theory relied upon Andrews in his opposing opinion in Palsgraf v. Long Island Rail Road.