We are often met with the defense that the thing that injured our client had never injured anyone else. That assertion carries with it the inherent suggestion that not only was the defendant no negligent, there had to be contributory negligence as well. The defense raises issues of foreseeability, causation, and contributory negligence. I don’t have a silver bullet response, but here are few thoughts to consider in dealing with this defense.
- August 15, 1992 Two Australian tourists were killed while hiking in the Alps because a WW One bomb went off. Authorities believe, it went off when one of them accidently hit it with an ice ax while climbing. Many other people had hiked through the same area without striking the bomb, but that doesn’t mean there was no risk of harm. It only means that it was a tragedy waiting to happen sometime if not remedied.
- The issue regarding hazards is whether the likelihood of harm is inherent in the condition and is within the realm of reasonable foreseeability. If it is, a defendant is not entitled to wait until the first victim is injured before having a duty to act. The law doesn’t give a defendant a three strikes before you are out immunity. The question is the probability of harm coupled with the gravity of the likely damage.
- Saying it never hurt anyone before is like a drunk driver who finally causes an accident and says, “But I drove for miles without huring anyone else” Thousands of highway deaths and injuries are caused by drunk and negligent drivers who never hurt anyone before the accident that kills someone. Sooner or later every careless driver is going to claim a victim. The law doesn’t care how many times it happened before where there is a known danger and a failure to fix it.
- Consider General Motors who in 2014 recalled 3.37 million cars at a cost of $2 Billion dollars due to faulty ignition switches that could shut the engine off and prevent airbags from inflating. Out of the millions of cars sold there were a total of 31 crashes. Millions of drivers experienced no problem, but there was an inherent defect that did exist and which killed 13 people before the recall.
- “This Never Happened Before” is the name of a song from Paul McCartney’s 2005 album Chaos and Creation in the Backyard.
COMPARATIVE NEGLIGENCE CONSIDERATIONS
- Moe Levine’s argument: Consider this paper represents 100% of a perfect person. Now tear a little corner off a piece of paper and that represents 1%. There are no people who are 99% perfect and then there are ordinary people and all the law requires is ordinary care. If you tear off 60% you are below ordinary care and the average person’s conduct. It is important to remember there are no perfect people and we are only obligated to exercise average or ordinary care. The law is not unreasonable.
- The key question in evaluating conduct is: “Who was in the best position to know and do something about the hazard?” This was totally preventable. There was a simple remedy to the problem: remove the hazard instead of ignoring it waiting until the first person was injured.