ELI5: What Is Foreseeability?

ELI5: Negligence

What exactly does it mean when personal injury lawyers say that a defendant had a “duty of care” because they “knew or reasonably should have known” that their icy front porch was a hazard? Well, don’t worry, we’re here to break it down for you.

Okay, Explain Like I’m Five

Foreseeability” is a legal term of art, or fancy lawyer speak for “you should have seen it coming.” Foreseeability isn’t a tort or a crime. There aren’t elements to prove, and there aren’t set-in-stone guidelines for what constitutes foreseeability. Instead, it’s most helpful to think of foreseeability as a question, or a concept. So, when it comes to foreseeability, lawyers are going to be asking whether or not a reasonable person of ordinary prudence would be able to predict the results of their conduct.

What Is a Reasonable Person of Ordinary Prudence?

Okay, don’t be mad: there isn’t any set of guidelines for what exactly a reasonable person of ordinary prudence is either. But we can break it down into two parts: “reasonable person” and “ordinary prudence.” Let’s start off with a reasonable person. Though there are no set guidelines for what exactly a reasonable person would do, you can generally expect your behavior to be evaluated against the behavior of the average person. Let’s say you’re babysitting your four-year-old nephew and you forgot your lunch at home. Would a reasonable person leave the four-year-old unattended? Probably not. 

Ordinary prudence typically has to do with precautions. So, let’s say that you are a reasonable person, therefore you decide to take your nephew with you as you grab lunch. If you’re of ordinary prudence, you may strap your nephew into a car seat and ensure that the straps and buckles are where they’re supposed to be. You’re not necessarily expected to go above and beyond on the precautions that you take—although you totally can if liability is a big concern.

Let’s Put All that Together

When personal injury lawyers are asking about foreseeability they’re asking if a reasonable person would have been able to anticipate the hazard and if they took reasonable precautions to prevent injury from happening. Life is messy and sometimes you just can’t prevent an accident. However, if it’s foreseeable, it’s preventable. The more precautions you take to prevent injury to others, the less likely it is that you’ll be liable for those injuries. 

Foreseeability doesn’t necessarily mean that you have a legal duty, or obligation, to take precautions that would prevent an injury. But, depending on your circumstances, it might. Let’s say that you’ve got a swimming pool and you know that the first graders use your backyard as a shortcut to the bus stop. Since it could be argued that a reasonable person would know that the pool presents a drowning hazard for small children, you may have a duty to exercise some of that ordinary prudence and put a fence around your yard, and maybe put a fence around the pool too.  

How Does Foreseeability Affect a Personal Injury Claim?

When a reasonable person is able to anticipate dangers or foresee danger, they may have a legal duty, or obligation, to prevent injury. The more obvious the danger is, the more likely it is that a person has a duty of care. Let’s say you and a friend are sitting inside their car, at your house, in your driveway and there is a  tree that’s planted next to the driveway. Suddenly, a bolt of lightning strikes the tree and the tree collapses on top of the car. Assuming the tree was perfectly healthy at the time it collapsed, it’d be more difficult for your friend to sue you for their injuries. After all, how could you have foreseen and prevented a lightning strike? Let’s go back to that example one more time. You guys are still parked in your driveway, but the tree that’s standing next to the driveway is sick and dying. In fact, multiple experts have told you that this tree needs to be removed. Suddenly, the tree collapses on top of your friend’s car. In that case, you’re more likely to be liable because you knew, or reasonably should have known, that the tree could fall. Thus a personal injury attorney may argue that you had a duty to prevent the injury.

What Should I Do When I Can Foresee Injury?

If you’re looking around your house and noticing that your property isn’t quite safe, now is the time to make it safe. Remove any hazardous conditions and take reasonable precautions to prevent injury from occurring due to hazardous conditions that cannot be removed. If you’re driving, make sure you are alert and focused. Follow the laws, and drive defensively. If you foresee injury, and you take reasonable precautions to prevent that injury, you may be able to reduce your liability.

Do You Have Questions about Your Case?

At Moxie Law Group, we’re determined to provide educational resources to all—not just people who read case text in their spare time. If you’ve been injured, and you have questions about your case, contact Moxie Law Group today for a free case evaluation. Our personal injury attorneys are available to help you anywhere from Orem to Ogden, St. George to Syracuse. At Moxie Law Group, we’re dedicated to ensuring that you get the compensation you deserve. Don’t wait to get started on your claim; contact Moxie Law Group today.

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