Have you ever known something was going to happen even before it did? Almost like looking into a crystal ball? That is the theory behind the legal term foreseeability.

What Is Foreseeability?

Foreseeability is the extent to which a person can see or anticipate beforehand that something is predictable or about to happen. It is determined before the fact, not after the accident or injury has occurred. One of the most often-debated aspects of foreseeability is whether it should be a question of fact for a jury to decide or a question of law for judges to decide.

Evaluating Foreseeability

When considering the foreseeability of an event, you must ask yourself whether or not it was foreseeable, or likely, in any way at all. If it was, you must determine how foreseeable it was, by asking a couple of questions:

  • Was the event foreseeable to the defendant?
  • Would the event have been foreseeable to a reasonable person?

Most of the time, the second question comes into play only when the answer to the first one is no.

Subjective or Objective?

The two standards of foreseeability are subjective and objective. The subjective standard is based only upon what the defendant actually knew or understood, while the objective standard is measured by what a reasonable person would have known, had he been in the same or similar circumstances. Basically, if the defendant did not foresee something that a reasonable person would have, the law might say that he should have foreseen it.

Intervening and Superseding Causes

Sometimes defendants in personal injury cases will argue that a third party’s negligent conduct intervened with their own conduct, breaking the chain of causation. They will try to establish that the third party’s intervening conduct was a superseding cause of the plaintiff’s injury.

The accepted rationale in such a claim is that if at the time of the defendant’s negligence it was foreseeable that an intervening act from a third party’s would occur, the defendant is considered liable. But if the intervening act was not thought to be foreseeable, the act is instead considered to be a superseding cause, which relieves the defendant of liability.

So What Does Foreseeability Have to Do With Negligence?

Negligence is a careless act that breaches a legal duty. To be held liable for negligence, the defendant must owe a reasonable duty of care toward a foreseeable plaintiff and carelessly breach that duty, and the breach must cause the plaintiff to suffer damages. A plaintiff is foreseeable if he is in the zone of danger created by the defendant.

Foreseeability may be thought of as the glue that connects the elements of negligence together, and ultimately helps determine whether or not one person must pay for the damages suffered by another.

Image by jon_a_ross.

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