NEGLIGENCE: DUTY AND FORESEEABILITY

The overwhelming number of personal injury cases involve an act of “negligence” by one individual that results in an injury to another.   However, the fact that one individual’s negligent act results in another individual’s injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.

The most famous “tort” (“tort”= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales.  At the other end of the platform some men were rushing onto a train.  Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks.  The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf.    Was the LIRR liable to Mr. Palsgraf for the injury he sustained?

The appeals court discussed  whether, in the first instance, there was any duty owed  Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged  negligence.  The lower court  ruled that there was a duty owed to Mr. Palsgraf.  The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no “duty”, there is no basis for the LIRR’s liability !

Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of “foreseeability”–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?

Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)?   “Foreseeability” of the exact occurrence is not as dramatic an issue in this latter scenario.

ACT  OF  GOD: NATURAL DISASTERS

If, today, a tornado were to destroy your home, “who ya gonna sue?”  Hope that you had enough, and appropriate,  insurance  coverage?

Just recently a fierce winter  storm caused ice to fall onto, and break through, a glass atrium of a New York office building.  Several people were injured, though thankfully, only slightly.   In Washington, D.C., the impact of that same winter storm that wracked almost the entire East Coast, created winds gusting up to 60 mph that shook scaffolding, causing two workers to lose their footing and fall.  Though seriously injured, both survived.   “Act of God”?    Certainly.   End  of  story?  Not at all !

There are certainly certain natural events that occur that result in damage to individuals, and for which there will be no recourse, by way of a lawsuit.  God is not a viable litigant !

Before you jump to the conclusion, however, that any given event–any “Act of God”–even a hurricane, a  blizzard, a raging flood or a tsunami–may not lend themselves to seeking compensation from a source other than, or over and above, insurance, it would be wise to consult with an experienced Personal Injury Attorney.

Most common in the winter months are cases involving falls on ice and snow.  Without going into details in this area of law, which can be difficult, the experienced attorney will examine the existence of local ordinances regarding snow removal.  The attorney will also look at any acts by a property owner that aggravated what nature may have created, had there been no human interference.

With the examples of the glass atrium and the scaffold, we enter into areas of law that also lend themselves to imposing responsibility upon third parties.  In both instances, laws exist that will govern the imposition of liability on certain third parties (building codes, labor law).  And even in addition to those grounds for a lawsuit, there are many instances where the concept of “foreseeability” is applicable which will subject certain third parties to liability for what otherwise seem to be an “Act of God”.

“Foreseeability”, the facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions (legal dictionary definition) will be dealt with in another posting.