The Relationship Between Foreseeability & Negligence

What is the doctrine of foreseeability and why does it matter in personal injury cases?

For you to receive compensation in a personal injury lawsuit, your attorney will need to prove that the defendants acted negligently – in other words, their actions (or inactions) contributed to the cause of your injuries. But proving negligence is rarely simple. One of the most important factors to consider is the doctrine of foreseeability.

Foreseeability, as the name suggests, asks if the defendant could have reasonably expected an accident to occur. In most cases, foreseeability is obvious. If a driver is texting while driving on a busy road, it would not be unexpected for them to hit a pedestrian. The accident, and any resulting injuries, are a clearly foreseeable result of the driver’s carelessness.

But there are times when foreseeability becomes much trickier. Take, for instance, a worker who’s repairing an AC unit on the ground floor of a building while construction is occurring on the roof. If the worker, who was not part of the roof construction, is hit by falling debris, is that foreseeable? The defense will likely argue no, but an experienced personal injury attorney knows that the law allows foreseeability to extend further than you may expect.

Need to Know:

• Foreseeability asks if the defendant could have reasonably expected the accident. Proving foreseeability establishes that your injuries are a result of someone else’s negligence.
• Before determining if an accident was foreseeable, your lawyer will also need to show that the defendant’s actions were the proximate cause of the accident.
• Foreseeability can extend beyond the immediate consequences of an accident.

In this Article:

• How the Courts Established Foreseeability in the United States
• Foreseeability in Action
• Proving Foreseeability
• Extent of Foreseeability

How the Courts Established Foreseeability in the United States

The doctrine of foreseeability arose from a 1928 New York Court of Appeals case. This landmark case established the standards for liability in negligence cases.

Helen Palsgraf, the plaintiff in the case, was waiting on a railroad station platform in New York City when two men, late for their train, ran up and tried to jump aboard the train as it was pulling away. One man succeeded, but the second stumbled, and two railroad guards tried to help him by giving him a push. Unfortunately, this caused the man to drop the package he was carrying – a package that contained fireworks. The package exploded, causing the entire station to rumble and roof tiles to fall onto the platform and strike Helen where she stood.

Helen sued the railroad company, alleging that her injuries were caused by the guards. If they hadn’t tried to help the man, she argued, the package would have never been dropped. Though the lower courts initially ruled in her favor, the NY Court of Appeals overturned the ruling, issuing a statement that continues to set standards in personal injury cases nationwide today.

The Palsgraf case established that a plaintiff’s injuries must be a reasonably expected consequence of the defendant’s action or inaction. In Helen’s case, her injuries were so far removed from the inciting incident, that the guards (and by extension, the railroad company) could not possibly be held accountable. Negligence, the court said, is not the same as a “wrong.” Even if the guard made a mistake, that’s not the same as acting negligently.

Foreseeability in Action   

If the defense can argue successfully that your accident was not foreseeable, they will not be held at fault for your injuries, which can make proving foreseeability a linchpin in negligence cases. Though it’s rare for our attorneys to have to make a foreseeability argument in court, it still comes up from time to time. Occasionally, foreseeability in a case is unclear, and it’s necessary to make a formal foreseeability argument. Other times, our lawyers may feel it relevant to mention it as part of the case.

Winning personal injury cases has occasionally boiled down to persuading the defense that their foreseeability argument would fail to convince a jury – and most of the time, foreseeability is a losing argument for the defendant.

Example of Clear Foreseeability

A recent Block O’Toole & Murphy (BOM) case involves a young construction worker who fell through temporary plywood flooring. While working on building renovations, the rotting plywood floor collapsed, causing our client to fall an entire floor down. He suffered serious injuries to his legs and spine which will require lifelong care, and as such, brought a case against the general contractor for their negligence.

In cases like this, foreseeability is clear: a rotten plywood floor is extremely likely to cause an accident. Even if the contractor was not anticipating the floor to collapse so soon, the accident is still a predictable result of leaving rotten plywood out for people to walk over without safety equipment.

Example of Contested Foreseeability (Defense Argument)

There are occasional cases where foreseeability is less clear. Another case handled by one of our attorneys involved a construction worker conducting sewer renovations. To get a better view of his work, our client positioned himself in between the wall and the excavator while it was in operation, which led to him getting pinned and crushed by the machine. The defense tried to argue that the incident was not foreseeable, as no one should ever stand between the wall and excavator, especially while it’s on.

Our attorneys quickly pointed out the flaws in this argument. First and foremost, it’s never unexpected that things go wrong when operating heavy machinery. Forward-thinking contractors need to anticipate that the unexpected will happen, especially when dealing with potentially hazardous machines. Second, our client was an integral part of the construction project, and it’s not unexpected for him to have ended up in that space. We were ultimately able to convince the defense that their argument would crumble in front of a jury and settled the case for $5.5 million.

Example of an Incident Beyond Reasonable Prediction

Finally, like the Palsgraf case, there are instances when the incident is so attenuated that no reasonable judge or jury would consider it foreseeable. Let’s say you own a dog with a tendency to be aggressive toward strangers. One day, while the dog is playing outside, someone trespasses through your backyard. The startled dog bites the trespasser, who sustains injuries.

If that trespasser filed a claim against you, arguing that you acted negligently by not restraining your dog, he or she would probably fail. The defense’s best chance to win a foreseeability argument is when someone truly is where they’re not supposed to be – in this instance, your backyard. Not only was the plaintiff breaking the law to be on your property, it’s also not foreseeable that a stranger would be wandering through your private yard. You had no duty of care to that person, and you would not be expected to restrain your dog in your own home.

Proving Foreseeability

To prove foreseeability, an attorney must show that the accident is the proximate cause of the injuries. Also known as the legal cause of an accident, proximate cause goes hand in hand with foreseeability, because it asks if an accident is a cause of the plaintiff’s injuries.    If you can’t prove proximate cause, then the accident did not legally cause your injuries.

One defense our lawyers almost always contend with is that the defendant’s actions were not a proximate cause of the injuries. Instead, the defense argues that a plaintiff’s injury is a result of natural bodily deterioration. For instance, if you trip and fall on a cracked sidewalk and develop back pain down the line, the defense may argue that your back pain is a result of aging, not the accident. Your attorney then must demonstrate that the proximate cause of your back pain is the fall, and you would not be in the same amount of pain had it not occurred.

Also needed to prove foreseeability is evidence that the injured party was within a “zone of danger.” In other words, was the plaintiff positioned somewhere that puts them at immediate risk of physical harm, and is it foreseeable for them to have been there?

In a recent BOM settlement, our client was performing groundwork on a building that was simultaneously receiving roof repairs. Though he was not a part of the roofing construction, he was still required to work underneath the construction area. It was allegedly a very windy day, and as our client was working, a piece of equipment flew off the roof and hit him, resulting in head trauma and ongoing neck pain. The defense argued that it was not foreseeable for something to have flown that far to hit our client, because he was outside the radius of danger. Our attorneys didn’t find this persuasive and were able to convince the defense that our client was in fact in the zone of danger, leading to them settling the case for $1.8 million.

Extent of Foreseeability

Whether you sustain an injury that causes further medical complications or have an old injury that’s exacerbated by the accident, you may still be able to recover damages for the expenses and aggravation of pre-existing pain. Even though foreseeability may seem less obvious in the following scenarios, it can still be applied.

Complications to Injuries

In one case handled by BOM, our client was struck by a falling object on a construction site. His injuries required multiple back surgeries to address, and one surgery led to the development of an infected abscess on his spine. The doctors then had to perform an additional surgery to drain the infection. Even though the abscess was not a direct result of the fall, it was still claimed as damages in the case. The defendants own the subsequent surgery, because it’s foreseeable that somebody can have a complication that results in further medical treatment.

Medical Malpractice

Let’s say you’re struck by a speeding vehicle on the road and require immediate surgery to address the injuries. You then file a lawsuit against the driver of the vehicle and any other negligent parties involved in the accident. If you later find out that the surgeon who operated on you after the accident acted negligently, you would not need to file a second lawsuit against the doctor. The damages related to the doctor’s carelessness can be included in the initial case, because even medical malpractice can be deemed foreseeable. This also protects you from needing to file two separate claims, which would be yet another stressor for you as you recover.

Pre-Existing Conditions

You may be worried that a pre-existing condition disqualifies you from having a case if you were involved in an accident. But foreseeability covers exacerbated issues as well as new ones. In personal injury law, you take the injured party as you find them. The defense can’t escape liability because of a worsened or pre-existing condition. This concept is known as the “eggshell plaintiff” – if somebody has a condition that’s worsened by an accident, the defense can’t escape liability.

Juries on personal injury cases are instructed to consider “aggravation, exacerbation, and activation” when determining awards. The Pattern Jury Instructions – a series of instructions written by the judge and given to the jury before deliberation – explains that, under the law, you can file a claim for exacerbation.

Many lawyers are fearful of addressing prior injuries while working on a case and will avoid mentioning pre-existing conditions in front of a judge or jury. But because foreseeability protects exacerbated conditions, it’s important to own the priors instead. A Labor Law case that one of our attorneys handled involved a construction worker who fell through a board on an elevated platform, resulting in an injured back. The injury required surgery to fix, but the defense saw an opportunity to escape fault: our client had been treated for disc herniation in the past and had ongoing back issues well before the accident occurred.

Prior to the incident, our client had received extensive treatment for his back, including physical therapy, injections, and chiropractic care. He’d even consulted with a spine surgeon before the incident. The defense may have thought this was a smoking gun in the case, but our lawyers knew better. An extensive investigation into the client’s medical history revealed that, prior to the accident, his pain had been isolated in his left leg.  Records from past appointments showed that he had never complained of pain in the right leg until after the accident. This proved that the fall had exacerbated the injury, a key point to winning the case. Ultimately, our attorneys obtained a verdict of $4 million – believed to be the largest exacerbation verdict in the Bronx at the time.

Foreseeability, like most legal doctrines, seems simple, but is quite complex in practice. Even though foreseeability arguments may be uncommon, it’s still possible that it will be relevant to your case, and you’ll want to feel comfortable that your attorney understands the many ins and outs of this doctrine. For a free consultation with experienced, knowledgeable personal injury attorneys, contact Block O’Toole & Murphy at 212-736-5300 or through our online contact form.