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Foreseeability: We Attorneys Are Not Talking About Google Glasses, It's The Risk To Others

In today's blog post, I discuss the concept of foreseeability. It's not a pair of Google glasses, it's the risk of injury to others that can be anticipated. Foreseeability is a concept that we talk about a lot in personal injury litigation and its a concept whereby the law imposes responsibility on people to act or not act in a certain way. If the defendant acts inconsistent with what is a foreseeable risk, then the law imposes liability upon them for injuries suffered by a plaintiff. So it is important to understand the concept of foreseeability.

The jury instruction regarding foreseeability states that negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable. There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct or acted reasonably in the light of what could have been foreseen.

What does all of this mean to the average Joe ? Well, it means if you can anticipate that something you do or fail to do is likely to result in another person being injured, you can be held legally responsible (liable) to the person injured by your lack of doing something about that foreseeable risk. Liability is normally determined by what is probable, not just possible. Many things are possible, but to recover for injuries suffered as a result of an accident, that injury must be shown to have been reasonably foreseeable, or probable, or a probable natural or proximate result. By way of example, if you don't shovel your front steps to your home after is snows, the snow is likely to become icy which will cause someone to slip and fall and injure themselves. This type of accident is reasonably foreseeable and is, frankly, the reason attorneys and insurance companies are in business; Many people don't do what they should do.

The risk that is reasonably foreseen defines the duty. What is a "duty" ? Well, we all have a duty to act as a reasonable and prudent person under the circumstances. I personally look forward to the day that I met the text book definition of the reasonable, prudent person because my friend and colleagues have spent a great deal of time talking about him or her and it would be nice to put a face to a name. A duty is a type of behavior under the circumstances that a reasonable, prudent person would engage in when faced with the circumstances. To go back to my prior example of the snow falling on your front steps, most people, after the snow stops falling, are going to shovel and salt their front steps within a short period of time. You are not under a duty to make the steps completely safe for passage while it is snowing because the snow will continue to accumulate during the storm. You are, however, required to clean it up after the snow stops. If the snow stops in the middle of the night, a jury is likely to find that you did not need to hop out of bed at 3:00 a.m. to shovel off your front steps and put salt on them. You may need to do it first thing in the morning before you start your day, or at a minimum withing a few hours of starting your day after the snow stops.

You do not need to have a crystal ball or be a prophet to be considered a reasonable, prudent person. You need to be able to anticipate a reasonable risk of injury to another person. You do not need to anticipate precisely how an accident could occur or exactly what injury a person would suffer. You only need to be able to determine that it is probable a person could be injured.

So if you find yourself in the position of being called a Plaintiff unexpectedly and you have questions about this concept, feel free to contact us to discuss your circumstances further. Thank you for your time and, for your sake, I sincerely hope that you do not need to call us or be called a Plaintiff.