In the previous article, I promised you that I would talk about legal risk in a later article. Okay, this is the later article. I told you that risk is exposure to harm or damage. That harm can take many forms, including but not limited to legal, physical, reputation, emotional, and so on. In this article we focus on legal harm. The discussion will be based on the legal concept of negligence.
3 Parts to the Whole
There are three general elements of negligence: 1) Duty (of care) 2) Breach (of that duty), and 3) Harm (resulting from the breach). We can back into this idea by saying that the harm (or damage) must be quantifiable in dollars. Hence, if someone nearly ran over you while you were in a crosswalk, you cannot bring suit just because he scared the crap out of you. (That’s because crap and dollars do not equate.)
In our society, each person over the age of reason (usually considered to be seven) has an obligation toward society. That obligation requires each of us to act in a reasonable, prudent manner when dealing with others, or when alone, if that solitary behavior could impact other human beings. Our justice system establishes that obligation in so-called black-letter law. Our insurance policies follow the lead of our laws. Want some examples? Okay, here goes.
A person gets her car inspected for safety. It fails inspection. The inspector tells her that the brakes are in such bad condition that the car is unsafe, and should not be driven off the premises. Notwithstanding, she drives away. There you are in the crosswalk, she draws a bead on you and accelerates, beause the light is about to go red, and she is in a hurry. You run, and now you are right in front of her, so she steps on the brake pedal — it goes to the floor!
You are lying in the hospital bed, wondering if she will at least pay your hospital bills. Meanwhile, the prosecutor is drawing up charges against her, because she knew the brakes were defective, and could have known or should have known that the car was therefor unsafe on the highway. In legal terms, she failed the foreseeability test. If a reasonable, prudent person could have foreseen the danger to others (and they could have) then her behavior may be perceived by a court as criminally negligent. Criminal because she knowingly and willingly disregarded the lives of others. Negligent because she had a duty of care to the public, which she breached by operating that car on a public highway, and caused harm thereby. [Doesn't that sound lawyer-ish?]
Yes, you were harmed as a direct result of her behavior — goodness, that’s why you’re in the hospital! Broken left leg, concussion, scratches and bruises. You will have her insurance claims person all over you in a heartbeat, looking to settle. But your lawyer advises you to put off filing a claim for awhile, to determine if any unforseen consequences of the accident arise.
It is six months later. You now file a claim that includes the above-mentioned damages, plus a broken wrist that you sustained in your kitchen. You assert that it happened because you were not too steady on your left leg; it buckled, you fell and broke that wrist.
Sorry about the wrist, but the insurance carrier will not pay for that break. It was not a direct (proximate) consequence of the accident. Well, how about the prolonged separation from your newly wedded husband, while you were in the hospital? Shouldn’t that be worth something for the emotional distress? Maybe, but probably not. You cannot express in dollars how much you missed your hubby while you were laid up.
In summary, the driver of that car exposed herself to legal risk by operating a motor vehicle she knew was unsafe.
A Down Home Risk Assessment
You wake up one morning, go to the window, pull up the shade, and look outside. There are about 2 feet of snow on the ground (except at the end of your driveway, which has about 5 feet, thanks to the snowplow person), it is snowing so hard, you cannot see across the street. You turn on the TV weather and hear that there’s about 2 inches of ice under the snow, and the snow won’t stop until late afternoon.
You pull down the shade, go back to bed, pull the covers over your head.
You have just completed your very own risk assessment: You done good!