The First Department, in a full-fledged opinion by Justice Saxe, determined the owner of a taxicab did not owe a duty to plaintiff who was injured by the cab when an occupant of the cab rendered the driver unconscious during a robbery. The administrative rule requiring a partition between the passenger area and the driver was deemed designed to protect the driver of the cab, not the general public outside of the cab. Similarly a broken CB radio in the cab did not breach a duty owed to the general public:
Plaintiffs focus on the foreseeability of the type of accident that occurred in the absence of safety devices that would have protected the driver from assault. They argue that since those safety devices would protect not only the driver, but other motorists and pedestrians who might be injured by the driver, the owner of the vehicle owed a duty to both the driver and to plaintiffs to install safety equipment that would protect them.
With regard to how foreseeability interconnects with duty, some confusion has arisen from the classic language of Chief Judge Cardozo’s decision in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344 ), that “[t]he risk reasonably to be perceived defines the duty to be obeyed.” These words have sometimes been misinterpreted to mean that the foreseeability of harm can “spawn a duty” to prevent that harm (see e.g. Pulka v Edelman, 40 NY2d 781, 787  [dissenting opinion]). However, the majority in Pulka v Edelman clarified the error of this reasoning, to explain that foreseeability may not be relied on to create a duty:
“Foreseeability should not be confused with duty. The principle expressed in Palsgraf v Long Is. R.R. Co. (248 NY 339, supra), quoted by the dissent, is applicable to determine the scope of duty — only after it has been determined that there is a duty. Since there is no duty here, that principle is inapplicable” (Pulka, 40 NY2d at 785). On v BKO Express LLC, 2017 NY Slip Op 00281, 1st Dept 1-17-17
NEGLIGENCE (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/DUTY (NEGLIGENCE, NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/FORESEEABILITY (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)