Posted by on

In order for the law to hold someone at fault for an injury they must have

1. A duty (like car drivers owe each other to be safe)

2. A breach of that duty (driver is unsafe, speeding, does not keep a careful lookout, runs a stop light, etc…)

3. Direct Causation (the unsafe act that breached the duty caused the injury)

4. Proximate CausationFORESEEABILITY (explained below) 

5. Harm caused.

An injury can be directly caused from a negligence act yet not be foreseeable, and vice versa.  For example, a driver “Joe”, causes a crash on the highway and a major traffic jam directly causes  Jane to be stuck in traffic for an hour and causes Jane to miss her job interview.  Jane was an hour late and the interview is canceled, she does not get the job.  Had Joe not been negligent and caused the car accident Jane would have gotten to the job interview on time and lets assume she would have gotten the job.  Does Jane have a case against Joe?  His negligence directly caused the traffic jam which caused Jane to be late and her loss of the job?  ANSWER: No, it is too far removed (NOT FORESEEABLE) as Jane’s loss of a job is not legally foreseeable as the result of causing a traffic crash.   See “Zone of Danger” discussed in Palsgraf v. Long Island RR Co., basically:

  1. A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances.
  2. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.

Now that we have a basic understanding of foreseeability,  how is it important in cases where the injury was clearly foreseeable?  Foreseebaility is important to an injury lawyer when presenting a case to a jury.  Foreseeability helps elevate the standard of care the driver, doctor, business, etc… owes to the injured person.  The more foreseeable the injury the greater the standard of care owed. The More foreseeable the injury the more the driver, doctor, hospital, business, etc… should put safety measure in lace to prevent injury.

Therefore, the use of statistics to show a jury how often a certain type of injury happens (i.e. how foreseeable an injury is) helps make the personal injury case not only about a specific injured person, but about the reasons why enforcement of safety rules will make the community as a whole safer.

Foreseeable and a legal DUTY:

The most important factor in the consideration of “duty” is foreseeability.  The level of care required is determined by the foreseeable frequency and severity of the harm. Generally a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct dangerous.  Foreseeability establishes a zone of risk, which is to say that it forms a basis for assessing whether the conduct creates a generalized and foreseeable risk of harming others.  Foreseeability of those put at risk of harm by the conduct creates the duty to prevent the harm and protect others.  Thus, any evidence  (STATISTICS!) to establish the foreseeability of who could have been harmed by Defendants’ conduct, the foreseeable injuries from Defendants’ conduct, and/or the foreseeable severity of the injuries from the Defendants’ conduct is probative and admissible on the issue of the level of care required.

Foreseeability and Causation:

Foreseeability is the standard by which proximate cause, as distinguished from the existence of a mere condition, is to be tested.   To find negligence, the jury must determine that some injury (not the exact injury sustained) to someone in Plaintiff’s position was foreseeable.  Thus, evidence of the foreseeability of harm from Defendants’ conduct is probative on the issue of causation and admissible.


Use of statistics is critical in a personal injury case. Such as “According to the Missouri Highway Patrol, in 2011 there we 85,206 car crashes in Missouri caused by drivers, following too close, not paying attention, and driving too fast.” or “12 million patients are misdiagnosed every year in the United States. This is according to the International Journal of Healthcare Improvement.”

Not only does this use of statistics show how foreseeable of the harm caused by the defendant is, but it focuses your case to the general safety of the community and not just about one injured person. Because that is the ultimate goal of our civil justice system, deterrence of similar negligent acts to make everyone in the community safer over the long run. How better to show the importance of a rear end car crash trial than by showing the jury that in Missouri 85,206 car crashes happened as the result of inattentive driving in 2011 alone. This gives a reason beyond just one single injured person for the jury to enforce the safety rule requiring drivers to keep a careful lookout and pay attention with their driving. Then hopefully over time that 85,206 number will decrease as a result of jurors enforcing the safety rules of our community.

Under Restatement (Third) of Torts, “The harm whose severity should be considered under this Section is not the particular harm suffered by the plaintiff, but whatever harms are rendered more likely by the actor’s conduct. There may well be a range of foreseeable harms; and the actual harm suffered by the plaintiff may, depending on the circumstances, be either on the high end or the low end of this range.”

Thus, under the Restatement approach to determining the scope of a defendant’s duty, all foreseeable risks created by the defendant’s conduct must be considered—not just the particular risk that, in fact, resulted in injury to the particular plaintiff.


Share It