^ This result might be less repugnant if B’s estate were able to recover in negligence, but taking the relational structure of the negligence tort at face value would preclude such a recovery as well. For the defendant’s lack of due care, in such a case, is not a lack of due care toward B. (If this is not clear, we can fill in the details of the case to make it clear: For example, suppose that the defendant has good but misleading evidence to believe that B has given enthusiastic and informed consent, for amply sufficient remuneration, to being sprayed by the gas.) What makes it culpable and wrongful to spray the gas, in such a case, clearly has nothing to do with B: It is the fact that A clearly does not consent that puts the defendant in breach. Although B is not an unforeseeable victim, she is nevertheless not wrongfully treated; allowing her a negligence recovery would run afoul of Cardozo’s insistence that the negligence plaintiff must sue for a wrong personal to her.
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