Reasonable Foreseeability

Overview

Tort cases involve personal injuries or property damage.  Most tort cases are based in negligence which is a fault-based system.  That means that for a person to be deemed legally negligent, certain conditions must exist. These conditions can be thought of as links in a chain. Each condition must be present before a finding of negligence can be obtained.  What are those links?  They are duty, breach, causation and damages.  The defendant must have owed the plaintiff a duty to act in a certain way; that duty was breached; and the breach of the duty caused the plaintiff’s damages.

Perhaps the trickiest of the links is the causation link.  The requirement that the breach of the duty owed to the plaintiff must be causally linked to the plaintiff’s damages is the last issue to resolve in many tort cases.  Tied to the concept of causality is reasonable foreseeability.  Was it or should it have been reasonably foreseeable to the defendant at the time the defendant did whatever it was that the defendant did, that the defendant’s conduct would result in harm to the plaintiff? 

Reasonable foreseeability - that’s the focus of today’s post.

The Basics

As noted above, the resulting harm to the plaintiff must have been a reasonably foreseeable result of the defendant's conduct at the time the conduct occurred. Reasonable foreseeability is the essence of causality (also known as proximate cause).  For instance, in a Colorado case that was decided by the U.S. Court of Federal Claims, a farmer claimed personal injury caused by drinking water contaminated by U.S. Army operations.  The court not only questioned the existence of the farmer's personal injuries but held that the farmer failed to prove by a preponderance of the evidence (the legal standard applicable in a civil tort case) that his personal injuries and the cattle deaths were caused by the contaminated groundwater.  Land v. United States, 35 Fed. Cl. 345 (1996). 

Proximate cause can also be an issue (apart from negligence) with respect to coverage for an insured-against loss.  In a Nebraska case, the court dealt with the proximate cause issue in determining whether an insurance policy on livestock covered damages resulting from an infectious disease transmitted by a tornado.  The policy covered damage caused by windstorm, but not specifically cover damage caused by infectious disease.  The court held that the proximate cause of the damage to the hogs at issue was the windstorm – without the windstorm, the hogs would not have been infected by the disease.  Griess & Sons v. Farm Bureau Insurance Co., 247 Neb. 526, 528 N.W.2d 329 (1995).

The Palsgraf Case

Some things are reasonably foreseeable and other things are not; and an individual will be held liable for harm that is reasonably foreseeable or reasonably expected to result from the defendant's actions. For example, in one case a landowner was not liable for the death of a motorist that was stuck by a falling tree because eve thought the tree leaned over the road, there was no visible decay present and the landowner had no notice of a dangerous condition.  Wade v. Howard., 499 S.E.2d 652 (Ga. Ct. App. 1998).    This just reinforces the notion that there must be a causal connection - a causal linkage - between the defendant's action and the plaintiff's harm. On the other hand, a superseding cause is an intervening force that relieves an actor from liability for harm that the actor’s negligence was a substantial factor in producing.  Thus, negligence that is too remote from the subsequent injury bars liability.”

Foreseeability may also be an issue with respect to the plaintiff.  The famous case of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), is an example of an injury which was caused by an unbroken chain of events.  The plaintiff was standing on a platform of the defendant's railroad after buying a ticket to ride one of the defendant’s trains.  As the court described the facts: “[A] train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.”

Based on those facts, the court ruled that it was not foreseeable to a reasonable and prudent person that the actions which triggered the chain of events could ultimately cause injury to the plaintiff.  The railroad was not legally responsible for the plaintiff’s injuries.  For a modern version of Palsgraf, see Zokhrabov v. Park 963 N.E.2d 1035 (Ill. Ct. App. 2011).

Application to Agricultural Activities

It is possible that a negligent tort claim could be brought against a farmer that plants genetically modified (GM) crops if the crops cross-pollinate and contaminate a neighbor’s conventional crop.  For the neighbor to prevail in court, the neighbor would have to prove that the farmer had a duty to prevent contamination, that the duty was breached (e.g., failure to select seed properly, adhere to specified buffer zones, or follow growing and harvesting procedures), and that the breach of the duty caused the neighbor’s damages, which were a reasonably foreseeable result of the farmer’s conduct.  But is there a duty on the part of the farmer planting GM crops to prevent contamination when it is the convention crops that are the rarity?  I don’t know the answer to that one.  To date, no appellate-level court has rendered a published opinion in a negligence tort case involving genetically modified crops on that specific set of facts that I am aware of.

Conclusion

As noted above, the foreseeability of harm is generally a major factor that is considered in determining the existence of a duty.  However, the Restatement (Third) of Torts states that the foreseeability of physical injury to a third party is not to be considered in determining whether there exists a duty to exercise reasonable care.  That’s an interesting take, and at least one court has adopted the Restatement approach in holding that a landowner has a duty to exercise reasonable care to keep their premises in a manner that would not create hazards on adjoining roadways.  See, e.g.,  Thompson v. Kaczinski, et al., 774 N.W.2d 829 (Iowa 2009), vac’g, 760 N.W.2d 211 (Iowa Ct. App. 2008).  If that is the case, then there is a duty to maintain a premises.  That would be of particular importance to a rural landowner.