Why Does “Easily Preventable” Matter?
A life changing injury caused by negligence requires fair compensation. But when that injury could easily have been prevented, everyone from the person who was injured, to the jurors who determine what fair compensation means, are rightfully going to feel more strongly about what happened. The tragic death of a tourist at Arches National Park comes to mind. In that case, which appears likely to be filed as a wrongful death lawsuit, a park visitor was killed by a malfunctioning gate. An attorney representing the family alleges the death would have been prevented simply by using an inexpensive padlock to secure the gate.
We anticipate some form of emotional reaction to learning that an injury could have been prevented with minimal care or attention to a danger. So what is that emotional reaction based on? When we hear that something terrible happened to someone because someone else broke a rule, we naturally want to hold that person accountable. That does not mean we start with some belief that the at-fault party is a bad person or a bad company, etc. On the contrary, most jurors would likely come in prepared to understand that “people make mistakes”. But we also understand that the right thing to do when someone is harmed because someone else chose to break a rule, the at-fault person must take responsibility and make it right. Anything else amounts to breaking yet another rule that benefits society, and that in turn causes still more harm.
Why does it matter?
So why does it matter if a serious personal injury or a death was easily preventable, and should that have any part in the outcome of a personal injury case?
When we hear that the injury at issue was easily preventable, it should spark a desire to know more. If it was easily prevented, why wasn’t it prevented? Was there carelessness involved? Was it a reckless disregard for others? Was there a calculation about risk, in order to save money? Noticing the fact that a simple fix would have prevented injury leads to insights into the lack of care exercised by the wrongdoer. Maybe a better question is why wouldn’t this be important.
Righteous Outrage = Understanding
Are these facts, which are certainly relevant to the question of whether certain people or companies acted reasonably, so shocking as to result in an unfair outcome? That assumption requires belief in the myth sold hard over the decades by wrongdoers with deep pockets and a strong desire not to be held fully accountable. That myth goes something like this: jurors who experience strong emotions become unhinged, loose all connection with reality, and simply can’t be fair anymore. This is a lie about the capacity of jurors to act fairly based on the truth and facts put before them. This is a lie that comes from outside the courtroom, created by the powerful and spread by people who did not see all the facts juries see, and typically cannot be bothered to dig into all the facts of a case. Because this is a lie about jurors, it is a lie about you, and all or most of the people you know.
Attorneys defending wrongdoers might argue that easily preventable is only relevant if it’s an injury the Plaintiff could have easily avoided. If, however, it shows carelessness or recklessness by their wrongdoer, it is overly emotional and shouldn’t even be mentioned at trial. Some defense attorneys would argue that anything that involves any sort of strong emotion has no place in a trial, and the only thing that matters is that an injury occurred and whether the injury was caused by their insured. So at-fault party who wants to avoid responsibility would say that talking about whether something was easily preventable is tugging heartstrings which is uncomfortable for them. From that perspective, there’s too much risk in emotion, and too much emotion in these facts. Of course, their arguments would be more subtle. Even so, some defense lawyers absolutely make those arguments, and in this context they are absolutely wrong.
For this blog post, I set aside the more technical arguments about relevance that may or may not be argued to be sure the jury hears what’s fair. Of course there are times when certain information would only be used for unjust purposes in the courtroom, and for the sake of justice we should avoid that.
Considering the defense industry point of view, it is easy to see why they generally prefer spreadsheets and arguments about averages over the pain and messiness of what really happened to the human their insured hurt in any one case. But rather than just spreadsheets and formulas, personal injury cases must be about the realities of what happened to hurt humans. They are not about what happened to others or typical medical costs or a formula for determining the value of a lost arm based on how two hundred similar claims resolved. Personal injury cases are appropriately emotional and highly individual. Removing the emotion removes the humanity, and that removes any hope of fairness.
Outrage indicates understanding. Detachment indicates dehumanization and devaluing of suffering. Outrage does not coincide with inability to value a loss. Humans come to me hurt, and part of my job is to get those people and their reality, their messy truth, through a gauntlet of dehumanization and obstruction (aka claim and lawsuit) and show the jury what happened to their neighbor.
How could that be fairly done if the defense or the courts hide the humanity from the decision-makers? How is that true human story going to be fully compensated if we avoid the natural emotion that flows from contemplating the realities of careless or reckless behavior that changes or even ends a life? Who benefits? Is full compensation by the insurance industry so threatening as to outweigh full and fair help for the harmed?
Not only is it appropriate to account for the fact that an injury was easily preventable, in cases where this issue looms large, it is mandatory to give it full time and consideration. As part of the trial process jurors are almost always asked to decide whether the person or company that caused the injury acted reasonably. Whether an injury could have been easily prevented by the at-fault party is always relevant to that question and often to others, and therefore very much matters in personal injury cases.