^ In an excellent recent essay that also engages extensively with Palsgraf, Professor Adam Slavny has suggested a broadly similar principle (albeit as a proposal in first-order moral philosophy rather than as an interpretation of tort law’s moral commitments). Adam Slavny, Relational Fault and Unforeseeable Victims, 31 Legal Theory 96, 113 (2025). According to this principle, a faulty act incurs (at least presumptively) moral liability to compensate a victim if “the outcome for [that victim] is sufficiently similar to the grounds on which the act that harmed [that victim] is at fault.” Id. To test this principle, suppose a defendant negligently destroys a painting owned by A, which A would otherwise have sold for $5,000 to B, who in turn would have sold it to C for $10,000. A and B both lose out on $5,000, but only A is entitled to recovery (both as a matter of tort doctrine and ordinary moral intuition); B has suffered textbook pure economic loss. The parties are distinguished only by the fact that A’s rights, unlike B’s, are infringed. The case suggests that Slavny’s principle is not quite accurate, whether as an interpretive account of tort doctrine or as a philosophical account that faithfully reflects ordinary moral intuition, unless it tacitly builds in the idea of rights infringement.
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Again the most plausible diagnosis is that the doctrinal contours of this privilege track the contours of the underlying moral terrain only roughly. When a defendant uses evidently necessary deadly force against a plaintiff who reasonably appears to be threatening his life, it will very often be the case that the defendant’s action is not culpable. Sometimes, it may also be the case that the plaintiff has foreseeably and responsibly induced in the defendant this reasonable appearance, such that the plaintiff should be understood to have waived her right against this action in an estoppel-like fashion.181 In some cases, however, neither will be true — and in such cases, the privilege will immunize from liability a defendant who ought in justice to compensate his victim, because he has culpably and foreseeably infringed her right against being killed or injured.182
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