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The Nonsubscriber Defender Legal Forum for the Defense of Nonsubscriber Claims and Litigation

Defending Nonsubscriber Lifting Injuries – Part IX – “Foreseeability”

Posted in Lifting Injury Series

In addition to proving “but for” (a.k.a., cause-in-fact) causation, the plaintiff must also prove as a separate element of causation that the injury was foreseeable to the defendant.  In general, to prove foreseeability, the plaintiff must show that a reasonable person would anticipate the harm associated with the defendant’s negligence. Lifting injury cases present an unusual challenge in terms of proving foreseeability.

It is nearly always true that a plaintiff would not have lifted the object which caused him harm if he himself had any reason to expect of foresee that he would injure himself. A person’s capacity to safely lift an object obviously varies by individual. Some persons can individually lift and move 100 lbs or more safely; others cannot. The plaintiff knows his own physical capabilities and limitations better than anyone else including his employer. If the plaintiff was not in a position to foresee his own injury, how was it foreseeable to the employer? Often, the plaintiff will admit these facts when interviewed or even at deposition and it is therefore sometimes possible to secure an outright admission that the plaintiff’s injury was “unforeseeable.” Such admissions can be used to support a motion for summary judgment.

In addition, as pointed out in Part II, there are nearly always viable alternatives to lifting the object alone without assistance. Where the employer has provided a safe method for performing a task, the plaintiff who chooses to proceed in an unsafe manner will have difficulty proving his accident was “foreseeable” to his employer. Again, the case of Fields v. Burleson provides good support for this position. In Fields, the plaintiff testified that “if she had anticipated injury to her back she would never have picked [the tub] up [and] was unable to foresee injury to her back.” The Fort Worth Court of Appeals concluded that the plaintiff could not prove proximate cause.

Practice tip: If you are interviewing or deposing a claimant or plaintiff, get them to commit to the following propositions which can be modified or tailored to fit your situation:

-You would not have lifted the object if you knew you would were going to get injured?

-You know your own physical abilities and limitations better than anyone else including your employer?

-You did not expect or foresee that you would be injured when you picked it up?

-Your injury was unforeseeable to you?

-Your injury was unforeseeable to your employer?

This concludes our series on “Defending Nonsubscriber Lifting Injuries.” The authors welcome comments or questions.