Rope Swinging

When we were little kids our moms taught us some important lessons.  She did not know it but some of the lessons she was teaching us about included the basics of  foreseeability:  look both ways before crossing the street, don’t run while carrying sharp objects like knives or scissors, don’t play with fire.  All of these lessons included  the basics of foreseeability.  In each instance we were being warned bad things could happen if we were not careful under the circumstances.  We were taught to foresee, or look ahead.  As we mature we learn more adult lessons about life and human nature until as a “reasonable man” we are expected to know and follow  most of life’s little lessons.Rope Swinging

There is some confusion and maybe misconception about the law of damages and foreseeability.  Once the Plaintiff has proven the defendant’s conduct was a cause of  the injury, the Plaintiff is entitled to a verdict for all of his damages which were caused by the negligence, even if they were entirely unforeseeable. In an RSD case, for example, the development of searing pain caused by this horrible condition may not be foreseeable, but the defendant must pay for it if he caused it.   I think some attorneys need to refresh themselves on this rule.  See Silva v Stein, 527 So. 2d 943 (Fla. 3rd DCA 1988). The case is an extremely instructive and important  one clearing up the apples and oranges difference between foreseeablity and liability, and foreseeablity and damages.


The following is an excerpt from Professors Prosser & Keeton  in their 1984 book on the Law of Torts, pg 291-292:

“It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. The defendant is held liable when the defendant’s negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright. The defendant of course is liable only for the extent to which the defendant’s conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the ‘eggshell skull,’ who suffers death where a normal person would have had only a bump on the head; and an obviously related rule is that the defendant who kills another must take the chances, as to damages for the death, that the other has a large income, although the defendant has no reason to expect it.”

This rule comes up in final arguments to the jury in cases where one would not expect the consequences of the defendant’s negligence to be as great as they turned out. The jury needs a lawyer to explain causation in the context of the injury which the defense is going to argue is being blown out of proportion to the reality.  I have an interesting case I am working on now where my client was rear-ended and suffered a heart attack at the scene.  Other cases I’ve handled included clients who developed RSD, have had repeat cervical fusions, and various types of mental injuries such as PTSD. 

The lesson is that if the defendant caused the injuries it is no excuse or defense to say that they could not have been anticipated.  You are not expected to be as tough as Arnold Schwarznegger.

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