The derivative actions for wrongful death and loss of consortium are thus strong and pervasive counterexamples to the Palsgraf perspective, for they involve plaintiffs suing for injuries sustained through defendants acting wrongfully toward other people. It is surprising, then, that Cardozo does not deign to discuss wrongful death suits or loss of consortium actions at all in his opinion. Some defenders of the Palsgraf perspective follow suit, simply ignoring the threat to their view that such cases pose.214 But others, such as Goldberg and Zipursky, have heroically sought to ward off this threat. Their main argument is that — as infamously laid down by Lord Ellenborough in the early nineteenth-century English case Baker v. Bolton215 — the common law did not provide for wrongful death suits until legislative intervention forced it to.216 The ingenious claim is that reflection on wrongful death suits thus supports the Palsgraf perspective: Because predicating liability on a relational wrong to the plaintiff is so central a pillar of the common law’s architecture, a statutory wrecking ball was required to (partially) demolish it.217
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第一百一十三条 经承运人证明，旅客的人身伤亡或者行李的灭失、损坏是因旅客本人的过失或者旅客和承运人的共同过失造成的，可以免除或者相应减轻承运人的赔偿责任。