We all know that the basic elements of a tort case involve the existence of a duty with a breach of that duty that causes damages. We also know that there are common defenses which we face in our tort cases. Inevitably these are based upon one of the required elements for a valid tort claim. It is helpful, therefore, for us to review the defenses which we should have in mind as we prepare our case and go through discovery. Here is a simplistic refresher on the elements:


The existence of a general duty of reasonable care imposed on all persons not to place others at foreseeable risk of harm through their conduct.


The exercise of unreasonable conduct in light of the foreseeable risks to others which a reasonably prudent person under the same or similar circumstances would not have done or should have done.


The breach was the cause of the claimed harm and that it was a proximate cause, meaning it was a reasonably foreseeable anticipated outcome.


The damages include past, present and future physical and emotional injury non-economic as well as economic damage.  In many jurisdictions an additional damage claim for punitive conduct is allowed.

In analyzing the application of these elements it’s important to keep in mind that the proof can be circumstantial, that is evidence from which a reasonable inference can be drawn. Some circumstances rise to the level of the application of the doctrine of Res Ipsa Loquitur.

With this outline in mind the common defenses that we face are these:


  1.  Denial that any duty existed
  2. In malpractice cases that this wasn’t their patient.
  3. Statutory defenses such as:  (a)Good Samaritan laws (b) Immunity statutes & (c) Statutes of limitation
  4. Assumption of  risk


  1.  A factual denial of the allegations claimed. “The light wasn’t red.”
  2. A dispute as to what the duty of care was at the time of  the  occurrence
  3. In malpractice, a dispute as to the  standard of  care
  4. In malpractice, a claim of exercise of  medical judgment – the existence of  a  “respectable minority” viewpoint


  1.  The conduct involved didn’t cause the harm claimed
  2. The claimed harm  was due to an inevitable occurrence
  3. Blame game  & empty chair defense: someone or something  else was the cause
  4. A denial of  legal responsibility: Respondeat superior doctrine
  5. If there was fault, the plaintiff  was at fault too: Comparative fault


  1.  A denial that the damages claimed are authentic
  2. A claim of exaggerated or unconnected damages
  3. A claim of preexisting conditions
  4. Issues about degree of seriousness of injury
  5. Claims that the damages are limited by life expectancy issue
  6. Failure to mitigate damages claim

We need to have the basic defenses in mind as we prepare our case. For example, we frequently are met in malpractice cases with the claim that the action fell into an area of medical judgment so the conduct did not violate an established standard of care. In discovery, we should consider whether to ask the defense witnesses whether in their opinion the defendant doctor “had made an error of judgment?” to encourage a denial and follow with questions eliminating or limiting the judgment defense. Your own experts should deal with the issue as well. They should explain that the exercise of medical judgment involves a weighing of risk and benefit based upon valid findings. Examples of valid exercise of careful medical judgment and an opinion this defendant’s actions didn’t qualify are important. Characterizing the defendant’s actions as “conscious choices” and not merely a “judgment” focus on the choice of an unsafe alternative. Comparing the doctor’s claim of exercising judgment to that of choosing to run a stop sign connects to the idea of medical stop signs being ignored.

These and other rebuttal of defenses should be thought out and prepared for in advance of serious discovery in your cases. Taking the time to do so will pay dividends.

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Recently a friend asked for ideas on the defense “it would have happened  anyway. ”  I was  motivated to give this some thought. I don’t  have a good or magic answer, but here are some thoughts about this  defense.

Defendants often employ the defense that they are not at fault even if they were negligent. Because the harm would have happened anyway. This defense has an aspect of the “act of God” or inevitable accident claim. It is essentially an issue of causation so we should take the time to review basic tort law in order to decide how to deal with it.

We know the elements required for a personal injury verdict generally involve: (1) the existence of a duty (2) a breach of that duty and (3) the breach causing the harm. Regarding the last element causation in a personal injury case is the essential link between behavior and injury because even if a defendant was negligent they are not liable for injuries unless the negligent behavior caused the injury.

While negligence doesn’t have to be the sole reason the injury occurred most jurisdictions require it to be a “substantial factor” in causing or worsening the injury.  In addition, it must be a proximate cause. Proximate cause means “close to” or “near.” Proximate cause asks whether the injury was foreseeable because even if a defendant’s action was the cause of injury the defendant may not be liable for damages if the action was so far removed from injury that the defendant could not have foreseen that the action would cause the kind of harm complained about.

The classic tort case explaining proximate cause is the 1928 Palsgraff vs Long Island Railroad Company. A man carrying a package was helped on the train by two Long Island Railroad guards who caused the passenger to drop the package. The package had fireworks in it which exploded when it landed. The explosion caused weight scales down the platform to tip over injuring Helen Palsgraff. The court ruled for defendant holding that a defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger and the falling scale did not qualify in that regard.

There are rare exceptions in this regard. In the English 1863 case of Byrne vs Boadle, Byrne was walking on the street in front of a flour company when a barrel fell out of the window above him and struck him causing serious injuries. There was no evidence of the negligence by employees nor was the cause ever proven. Nevertheless, Byrne won the case because the court held the circumstances demonstrated that the event could not have happened without negligence on somebody’s part creating the concept of res ipsa loquitur

The “it would have happened anyway” defense is almost always nothing more than an excuse to escape personal responsibility. It’s like the rationalization “you can’t stop all of it” or it’s a “risk of procedure” or “it wasn’t me” or “there’s no way of preventing all accidents” or “it happens in the best of hands.” It is a claim of “convenient futility” and expresses the rationalization that “it wouldn’t have mattered if I had done the right thing.” The logic is faulty and self-serving. It involves the time-honored rationalization that sidesteps taking responsibility because “the wrong thing is certain to occur anyway.”

It is in conflict with the principal that “an ounce of prevention is worth a pound of cure” and “it’s better to be safe than sorry.” Think about President Harry Truman who had a sign on his desk that said “the buck stops here.” The buck stops with the defendant who is desperately trying to pass it on to something or someone else. Ducking responsibility is an act of cowardice.

It is a pathetic excuse by incompetent and negligent individuals who have made bad decisions when they argue that a better decision would not have made any difference. Note that even assuming, for sake of  argument, the decision did not cause the harm, that does not excuse or mitigate an individual’s negligence and incompetence. At best if the claim is true the negligent and incompetent person was just lucky that the ineptitude didn’t cause the harm. “It would’ve mattered because the same thing would’ve happened even if I was competent” is an admission of negligence  and incompetence coupled with a lame excuse to avoid accountability.

Usually the defendant offers a variety of alternate reasons for the outcome to support the claim it wasn’t their fault even if they were negligent, which they deny anyway. It’s not unlike the anecdotal defense of the property owner who was sued for his dog biting a passerby. He responded “It was the neighbor’s dog, I don’t even own a dog, but if I did it would be tied up.” It  is  the mixed bag of hiding behind excuses  and refusing to step up and be truthful.

Keep in mind legal probability is a requirement and the mere possibility that the injury could have occurred without negligence is insufficient. Appropriate pretrial motions should be considered. Also, if the negligence increases the risk of harm that may be considered.  Don’t overlook Occam’s razor and the “Zebra” test either. Occam’s principle is that where there are several possible explanations, the simplest and most obvious explanation is the most likely answer. The Zebra principle in medicine says that “when you hear hoof beats it’s probably horses and not zebras. Often the defenses are a cluster of excuses which invite speculative alternatives to obvious explanations.

The best way to respond to the claim that the harm would have happened anyway is to avoid an intellectual, technical and detailed analysis of the issue. Instead, approach it in a general common sense way. If you have a serious harmful outcome, the general reaction is that something like that doesn’t happened without a reason. There usually is a major role involving the action of defendant involved in the harm, however, the defendant insists we ignore their role and instead look at some obscure, alternative explanation which, of course, exonerates them from any responsibility. Think of the Wizard of Oz. When Dorothy’s dog Toto pulls the curtain away suddenly revealing the Wizard of Oz as a fake, the Wizard cries out “Pay no attention to that man behind the curtain.” The defendant is doing the same thing, when, in an effort to hide their personal responsibility their cry is “it would have happened anyway.”

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Shanin Spector is a partner in the Pennsylvania firm of Klein and Spector. Both are members of the Inner Circle of Advocates with multiple jury verdicts in excess of a million dollars. A book has been written about a trial Shanin Spector tried involving the death of Carrie Goretzka. The book, Danger Above tells the story of the 2009 electrocution from a downed power line and the verdict in Pittsburgh Pennsylvania. Here are some passages from the book I felt were significant for us to consider as plaintiff trial lawyers.

Spector carefully prepared his opening statements with a written script. It was coordinated to his PowerPoint or other exhibits he intended to use. He practiced giving the opening statement on a repetitive basis and revised it as needed. His trial aide using the equipment followed the script and is ready to immediately display whatever exhibits are provided for in the outline. His openings are organized and totally thought out for maximum impact. Since opening is a first impression of the facts, being prepared for it seems to me to be really important. Organization also suggest you know what you are talking about.

I thought his idea of using the phrase “is that fair?” was very interesting. The author says he favors “is that fair” as a way of eliciting a positive response from a witness who did not want to say, or acknowledge, what Spector really wanted – a simple “yes.” He believes saying that something was “fair” set a lower threshold for an affirmative response. It offered a compromise of sorts for a witness who refused to fully capitulate. It provided a graceful way out: “all right, you don’t want to give in on this point, but would it be “fair” to say such – and – such?” Spector found that often a witness who refused to concede completely would agree that a point made by the lawyer was at least “fair,” which he knew translated to a jury in a basic form as “yes.” It allowed witnesses to salvage some pride, providing a little wiggle room even though they were essentially surrendering the point.” It’s a thought worth considering as a tactical device on cross examination.

I was intrigued by the negotiation involved in this case which continued right up to the moment of final argument. After it was believed a settlement had been reached, one of the insurance companies made a dumb decision to withdraw an offer resulting in total disaster for them when the verdict came in. I was amused by Spector’s analogy of insurance companies often doing illogical things in negotiation over the wrong issues.

According to the book, in commenting about insurance company illogical negotiation decisions, Spector often cited the scene from the movie Dr. Strangelove where Peter Sellers, in the role of Capt. Lionel Mandrake, needs to make an urgent call to the president of the United States. A rogue Brig. Gen., Jack Reppert, has ordered a nuclear air attack on the Soviet Union and he is calling the president to stop the attack. However, when he tries to use the pay phone, he’s $.20 short so he orders his escort, played by Keenan Wynn, to shoot the nearby Coca-Cola machine in order to get the coins he needs. Wynn’s is very reluctant to do that and finally tells Mandrake “Okay, I’m going to get your money for you. But if you don’t get the president of the United States on the phone, you know what’s going to happen to you? What? Asked Mandrake. You’re going to have to answer to the Coca-Cola Company.” Wynn’s illogical greater concern about the Coke machine owner’s anger over a Nuclear bomb attack does illustrate the often mixed up priorities of insurance companies in settlement negotiations – too often concerned with irrelevant issues like saving face over financial disaster.

As a basic theme, Spector used this concept: “This woman was minding her own business, taking care of her children, thrust into an emergency not of her own making, killed in her own back yard, by a power line that fell on a clear, sunny day, through no fault of her own. He emphasized it in summation and Spector would repeat the phrase “on a clear sunny day” six times in the first few minutes of the speech.

Using this theme, he told the jury:

“Res Ipsa Loquitur” is Latin for the thing speaks for itself. We learned it in the first two weeks of law school. I could have tried this case very differently. I could have simply proven that it was a clear, sunny day and the line fell. I could’ve relied upon that fact by itself. I don’t have to prove anything more.” Then he went on to tell the jury about the facts of the English case which created the concept that he had learned in law school. A barrel fell from a second-floor window and hit a pedestrian. Nobody knew how or why and it didn’t matter. “It’s unimportant. The person who owns the property has responsibility to keep barrels from rolling out of the window. The mere fact that he was struck by barrel while walking down the sidewalk is enough. But we went further and showed you why it happened even though we didn’t have to do that.”

Regarding proof of punitive conduct, he asked the jury: “What if someone is driving their car down Fifth Avenue, the main street in Pittsburgh, and looks down for a moment to fiddle with the radio dials and gets into an accident injuring someone. That would be negligence but not recklessness. But if that person decides he’s going to close his eyes driving down Fifth Avenue and he hit somebody, that’s recklessness and what we have here.”

As  to punitive damages, in Pennsylvania the plaintiff is not allowed to suggest a figure for punitive or compensatory damages. The power company’s net worth was $244 million and he used a comparison to the power company as a person with only $10 to their name regarding punitive damages. He asked:

“Suppose you are called upon to decide how much you’re going to take from them in order to punish them. You could take a penny from this person who’s worth $10 (he put a penny on the jury rail) What will the person say who’s worth $10 from whom you’ve taken a penny? They would brush it off their shoulders like lint. Suppose you took a dime (putting a dime on the jury rail) what will they say? Well, it’s more than lint off the shoulder, but not much. Let’s say you take a dollar from them (putting a dollar bill next to the two coins) that probably hurts a lot more. Now I’m not suggesting you take 10% from them, which is what a dollar would be. Or 1%, which is what a dime will be. Or 1/10 of 1% which is what a penny would be. When I suggest to you is appropriate is to say: What would it take if it were a guy with $10 to make him feel it and to make them not do it again?”

It took just 90 minutes to render a verdict in a complicated case that lasted several weeks. The verdict was $48 million in compensatory and $61 million in punitive for a total of $109 million. Jurors afterward talked about “the clear sunny day” and using the $10 illustration to compute their punitive damages.

A great trial result from a great trial lawyer relying  upon hard work and preparation to achieve this result.

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