In the early 1970’s there was an  African American comedian, Flip Wilson, who hosted his own weekly comedy series and earned a Golden Globe and two Emmy Awards he was  so talented. One of  his hilarious routines involved acting out a character,  Geraldine,  who was married to long suffering Reverend LeRoy, pastor of the Church of What’s Happening Now.  Her  excuse  for everything she did wrong was:  “The devil made me do  it.!” As Flip enacted in a famous routine, Pastor LeRoy discovers his irresponsible wife has bought an expensive dress and he explodes:

“What on earth ever possessed you to buy such a thing?” he demands. “The devil made me do it!” Geraldine protests. She tells her husband: “It’s not my fault!” I was walking down the street, minding my own business, when all at once the devil said to me, ‘Oh, my! Will you look at that fancy dress in the window over there!’ Never you mind about that dress, devil,’ I said to him. ‘I ain’t got nuthin’ to do with a dress like that! ‘Well,’ said the devil, ‘it won’t hurt to just look at it, will it?  No, I guess not,’ I said. So I went over to the dress shop and looked in the window. My, that dress sure was fine! ‘Why don’t you go inside and have a closer look,’ said the devil. ‘After all, you’re just lookin’. So I went inside the shop to have a closer look. That dress was even more fancy inside the store than it was outside.

‘Why don’t you try it on,’ the devil said. Uh, uh, Mister devil,’ I said. ‘You know better than that! My husband would never let me buy a dress like that!’ ‘Can’t hurt to try it on,’ the devil said. ‘Reverend Leroy, he don’t even have to know! So I tried the dress on. Why, it was like I was poured into it, it fit so good! ‘Oh, you know that dress was made just for you,’ the devil said. ‘It wouldn’t be right to let some other woman have it.’ So before I knew what I was doing, I bought it!  Like I said, the devil made me do  it.

We’ve already talked about admissions of  liability made to tactically keep out liability evidence as well as the psychology of defense apology. See for example:  But, what we more frequently see is a refusal to accept responsibility by a defendant either through evasion, lying or blaming  others. Starting with Genesis with Adam blaming  his wife and his wife blaming the serpent, humans have been reluctant to accept the fault of their own actions. Instead,  human nature resorts  to lies, evasion and blaming  others. This excuse has as much validity as  Geraldine’s protest of innocence because “The devil made me do it.” The defendant might as well have used the  same excuse.

The consequence of refusing to accept responsibility is that when unethical or negligent  behavior is not acknowledged, remedied or  punished, society is taught it’s acceptable to condone the behavior.  However, all members of  society are expected to adhere to legal, ethical or moral codes of  basic honesty for our collective good. If we allow individuals to benefit from their dishonesty and  are  permitted to avoid being responsible for what they do,  we create a  world like Gordon Gekko in the movie Wall  Street who taught that “greed is good.” Our collective values determine what  is right and wrong. These values are reflected in our laws of  conduct and in our enforcement of what we all believe is reasonable conduct. A failure  to  enforce these rules is to approve and  condone  dishonesty.

The reason we punish our children for lying,  stealing or dishonesty is  because we  want them to learn proper values  which include being honest when they are wrong and responsible for what they do. One of the duties of parents  is to  teach our children to take responsibility for their  actions. All of us, as parents, at some  time  or another, have had our children try to blame others and avoid taking  responsibility for their conduct. We have had to teach them the importance of being honest and taking personal responsibility for what  they have  done  or failed to do. Our judicial system follows same policy by holding  wrongdoers responsible as a protection and benefit to all of society. What we do by our verdicts is to set community standards  for conduct and reinforce the importance of honesty regarding  personal responsibility.

Posted in Defenses | Leave a comment


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.

Posted in Defenses | Leave a comment


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.”

Posted in Defenses | Leave a comment