(dissenting):
I dissent because I believe, as did the trial judge, that the injury suffered by Cullen was foreseeable; I also believe that the majority fails to give the experienced trial judge’s finding to that effect the deference to which it is entitled.
In this diversity case we are of course required to turn to New York law, and one cannot discuss the questions of duty and foreseeability without reference to Palsgraf v. Long Island Railroad, 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928), where Cardozo stated that “[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” See also Macpherson v. Buick Motor *1102Co., 217 N.Y. 382, 394, 111 N.E. 1050, 1054 (1916) (“foresight of the consequences involves the creation of a duty”). Although the New York Court of Appeals was to say in Pulka v. Edelman, 40 N.Y.2d 781, 785, 358 N.E.2d 1019,1022, 390 N.Y.S.2d 393, 396 (1976) (parking garage not liable for pedestrian injury caused by exiting car), that “[fjoreseeability should not be confused with duty,” four years later it stated in Havas v. Victory Stock Paper Co., 49 N.Y.2d 381, 402 N.E.2d 1136, 426 N.Y.S.2d 233 (1980) (independent trucker’s employee could recover for injuries sustained while helping defendant’s employee load waste paper onto truck), that “whether [the defendant] owed a duty to the plaintiff and, if it did, whether, in the face of it, [the defendant] failed to act in a reasonably prudent manner — turn largely on foreseeability.” 49 N.Y.2d at 385, 402 N.E.2d at 1138, 426 N.Y.S.2d at 236. Palsgraf, quoted immediately thereafter by the Havas court, lives.
The majority opinion concludes that BMW of North America, Inc., should not be held liable for its dealer’s defalcation of Cullen’s money because that defalcation was “an intervening act, tortious or criminal.” In other words, “no amount of supervision by BMW/NA would have enabled it to foresee [the dealer’s] thievery.” But New York law provides, as the common law of England before it provided, that “the criminal conduct of a third person [does] not preclude a finding of ‘proximate cause’ if the intervening agency was itself a foreseeable hazard.” Nalian v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520-21, 407 N.E.2d 451, 459, 429 N.Y.S.2d 606, 614 (1980); Scott v. Shepherd, 96 Eng.Rep. 525, 526 (C.P. 1773) (“The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he who does the first wrong is answerable for all the consequential damages.”).
BMW/NA sells its vehicles to the public only through dealerships. It was well aware of this dealer’s habit of passing worthless checks and its inability to obtain regular financing through established commercial channels. BMW/NA protected itself by demanding and receiving only certified checks for any goods ordered by its dealer. But consumers were left to fend for themselves, while the BMW/NA dealer, armed with all the indicia of an ongoing BMW dealer from order pads to location, sign, vehicles, and parts, continued to solicit orders and accept deposits from customers. The dealer’s “thievery” was sufficiently foreseeable to BMW/NA that it insisted upon certified checks before delivery. Why was such thievery not equally foreseeable insofar as BMW customers were concerned?
Moreover, as the New York Court of Appeals has so cogently indicated, liability concepts have broadened to reflect economic, social, and political developments. See, e.g., Micallef v. Miehle Co., 39 N.Y.2d 376, 385, 348 N.E.2d 571, 577, 384 N.Y.S.2d 115, 121 (1976); Codling v. Paglia, 32 N.Y.2d 330, 340, 298 N.E.2d 622, 627, 345 N.Y.S.2d 461, 467-68 (1973). Allowing a defendant to shield itself from liability by conducting operations exclusively through “independent” franchisees ignores the clear “trend of the law ... to expand the liability of an enterprise to ... third persons injured because of activities carried on in behalf of the enterprise.” Hetherington, Trends in Enterprise Liability: Law and the Unauthorized Agent, 19 Stan.L.Rev. 76, 76 (1966). See also Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 Yale L.J. 1, 76-77 (1980). Moreover, BMW/NA was in a much better position than was Cullen to determine the financial bona fides of the dealer; indeed, the only real evidence the consumer has of an automobile dealer’s financial integrity is the imprimatur given the dealer by the automobile company itself — logos, trademarks, advertising layouts, cars (though here the dealer bought cars from other dealers), and parts, and, most important of all, the continuation of the dealership. Automobile company advertising customarily emphasizes the service, reliability, and integrity of *1103the company’s dealers. Liability here can also fairly be defended as involving a measure of risk-spreading, it seemingly being fairer to saddle the franchisor with the “cost” of distribution involved in an occasional dealer’s failure than to saddle the unfortunate consumer who relied upon the very existence of the franchise to put down his good money.
Thus I agree with Judge Neaher that the dealer’s thievery was foreseeable and that though it was an intervening act it nevertheless did not absolve BMW/NA of responsibility; in Scott v. Shepherd terms, the very existence of the dealership was a squib in a crowded market.
But foreseeability is also peculiarly a question of fact. As the New York Court of Appeals said in Havas, 49 N.Y.2d at 388, 402 N.E.2d at 1139, 426 N.Y.S.2d at 237, “[i]t [is] particularly appropriate to leave this issue” to the finder of fact. See also 2 F. Harper & F. James, The Law of Torts § 18.8, at 1059 (1956) (“Reasonable foreseeability of harm is the very prototype of the question the jury must pass upon in particularizing the standard of conduct in the case before it.”). I had supposed that the reason we have Fed.R.Civ.P. 52(a), which tells us that a district court’s findings should withstand appellate review unless clearly erroneous, is to give the district court as trier of fact the same range of determination as we give a jury. Interestingly, only last April the Supreme Court not very gently reminded the courts of appeals that Rule 52 “does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a Court of Appeals to accept a district court’s findings unless clearly erroneous.... [I]n particular, it does not divide findings of fact into ... ‘ultimate’ and . .. ‘subsidiary’ facts.” Pullman-Standard v. Swint, - U.S. -, -, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Thus because I do not think that the district court’s finding of foreseeability was clearly erroneous, I would affirm even if I had some doubt on the foreseeability question. But in light of the applicable New York cases, I do not have even such a doubt.
And if the entire issue were restated in terms of duty rather than in terms of foreseeability, as the New York Court of Appeals in Pulka v. Edelman, supra, suggested may be a separate and distinct question (sed quaere), I would refer only to Hendrickson v. Hodkin, 276 N.Y. 252, 11 N.E.2d 899 (1937) (holding a hospital liable for permitting a quack doctor to treat a patient on its premises); De Ryss v. New York Central Railroad Co., 275 N.Y. 85, 9 N.E.2d 788 (1937) (landowner who permits a third person to hunt under circumstances indicating to a reasonably prudent man that it is dangerous to do so is liable to others injured as a result); and Note, Liability of a Franchisor for Acts of the Franchisee, 41 S.Cal. L.Rev. 143 (1968). Here BMW/NA clearly could have terminated the dealership and indeed had a duty to do so in light of the dealer’s instability and unscrupulousness, before the dealer took Cullen’s deposit.1
. I would agree with the district court that there would be no violation of the Automobile Dealers’ Day in Court Act, 15 U.S.C. §§ 1221-1225 (1976), by termination in this case. David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52 (4th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975). It may not be amiss to say that I am extremely confident that the author of the majority opinion would not disagree with this conclusion either. See Pierce Ford Sales, Inc. v. Ford Motor Co., 299 F.2d 425 (2d Cir.), cert. denied, 371 U.S. 829, 83 S.Ct. 24, 9 L.Ed.2d 66 (1962).