DEALING WITH THE DEFENSE “IT WOULD HAVE HAPPENED NO MATTER WHAT WAS DONE”

Guest Blogger:  PAUL N. LUVERA

Photo credit: srqpix via Remodel Hackers / CC BY

Photo credit: srqpix via Remodel Hackers / CC BY

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.

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