Monthly Archives: January 2015

Do “Accidents Happen?” What Jurors Need to Know about Legal Responsibility

There is nothing in the jury selection process that is more important for the parties to explore than the internal “architecture” of the minds of the jurors.  The jury is the decision-maker.  This architecture will dictate, in large part, the filter through which the evidence will be viewed.  A simple example may illustrate this point best.  Suppose there are two jurors: one comes from a lifetime of experience which has given rise to the firm conviction that the police would not arrest an innocent person; the second comes from a lifetime of experience giving rise to the firm conviction that police often arrest innocent people.  One would not expect either person to give up their convictions.  And, more important, one would not expect these two jurors to give equal weight to the testimony of the arresting police officer.

There is little that a lawyer can do during the jury selection process to change deeply held convictions of jurors.  Generally, it is foolish – and probably offensive – to try. The most a lawyer can hope to do is to use challenges to (1) remove from the jury those members of the jury venire whose convictions are inimical to his or her case or (2) to shed light upon the juror’s predispositions in the hope that the juror in question will try to rein them in – or, perhaps, that other jurors will be aware of such a bias and discount the juror’s analysis accordingly.  One should not underestimate, however, the many areas where jurors have no firm convictions – areas which have been outside the common experience and where the jurors are relying upon analogies to common experiences to guide them.  If the proper analogy or metaphor can be given, lawyers can offer to jurors a way to reason their way to a just result in situations new to them.

In the context of personal injury or tort cases, there is one notion that often informs the internal architecture of many members of the jury.  It is this: “Accidents happen.” 

The phrase is commonplace.   We all have heard it so frequently that we accept it without question – without thinking.  It has become imbedded in our analytical architecture.  Yet, it is, notwithstanding its currency, quite often, untrue.  This unexamined belief can get in the way of appropriate juror analysis of questions governing allocation of responsibility based upon fault.  It is a “thought-bite” or “thought fragment,” but should not take the place of reflection.  When jurors think about this, there is a chance that they will realize that it simply does not apply to many situations presented in the courtroom.

We, as children, benefited from the notion that “accidents happen,” because it allowed for mistakes to be made without the conduct being regarded as blameworthy.  It is a kindness for those too young to accept responsibility or for whom “blame” would be hurtful to suggest that “accidents happen.”  It is a modest allowance for the unpredictability and uncontrollability of a complex world.  In a child’s world, knocking over a glass of milk may be an “accident.”  Woops.

Is this belief appropriate as an assumption in the courtroom?  Often not.  As adults, like it or not, our daily lives are circumscribed by rules, laws, procedures and expectations.  It is what distinguishes an adult life from that of an infant or young child.  Daily life for adults often involves navigating among rules governing social interactions and activities. In fact, one could, without being charged with the sin of over-simplification, reasonably contend that the single thing that best defines the separation between childhood and adulthood is the subjection of oneself to rules.

Torts are “civil wrongs” and reflect the community consensus that the conduct under review was “wrong.”  Negligence is a tort.  It is a tort based on “carelessness” or, more precisely, failing to comport with the standard of reasonable care to which we all are held as part of the social compact. In the adult world, the rules of responsibility assure that only rarely will injured people be injured by a third party without some element of carelessness.

The truth is this:  in the adult world in which we live, we are much, much safer if we all acknowledge that injuries are most often the result of carelessness or avoidable error.  Why are we safer?  We are all safer, because the tort system, by assigning responsibility and assuring compensation to us when we are injured, deters others from careless or wrongful conduct. We are all safer because, by creating rules in advance and assigning responsibility based on breaking those rules, we encourage creation of a world in which expectations for our conduct and the consequences of violating those expectations are clear.  The consequence: fewer rules are broken.  When they are, those injured are compensated.  It is a safer and better world.

If we lived in a world where we were victims of unavoidable accidents, we would feel less safe.  As victims of uncontrollable circumstances which nothing can prevent, we would be rendered powerless.  Fortunately, we discover, on close examination, that in modern society pure accidents (those occurring without any carelessness) are relatively rare.  This means that, by setting and enforcing expectations for safe conduct, we can all be safer – and victims (sometimes we, ourselves) can be compensated.

Let’s take an example such as, say, being struck by lightning.  At first blush, this could be regarded as a pure accident.  On closer examination, though, is it truly an accident if the injured party is standing atop a hill during a golf tournament?  Let’s ask the National Oceanic and Atmospheric Administration (NOAA) and the Professional Golfing Association (PGA)..

On NOAA’s website at: “,” we are enlightened by the headline: “Lightning Safety: When Thunder Roars, Go Indoors!”  Public Release 2001-070 entitled “Lightning Kills, Play it Safe” was jointly issued by the NOAA and PGA TOUR.  PGA TOUR champion Rocco Mediate states:  “Lightning death statistics are startling…. Whether you’re a golfer, or someone who just enjoys being outdoors, we can all guard against being hit. Education and preparation are key.”  The Release notes: “During the past 30 years, lightning strikes have killed an average of 73 people each year – more than the annual number of fatalities caused by tornadoes or hurricanes. In 2000, 51 were fatally hit by lightning, compared to 37 flood casualties and 29 tornado deaths.”

If you are a juror and you are presented with this information, do you still believe that being struck by lightning is a pure accident?  Or do you now believe that being careful can help?  Do you feel safer believing that lightning is an “accident?”  I bet not.  I think you feel safer knowing that you can be careful and avoid being struck by lightning.

The Joint Release states:

“The PGA TOUR has teamed up with meteorologists from The Weather Channel to help ensure immediate detection of lightning and hazardous conditions that would threaten the safety of players and fans. The bottom line is ‘if there’s lightning in the area, then tournament play is postponed.””

The Release goes further:

“Safety at golf tournaments is of paramount concern. Each of the over 120 events contested on the PGA TOUR, SENIOR PGA TOUR, and BUY.COM TOUR are staffed with an on-site meteorologist from The Weather Channel. As the “Official Forecaster of the PGA TOUR,” The Weather Channel provides crucial up-to-the-minute weather information to tournament staff. Armed with a sophisticated on-site lightning detection system and computer weather data which pinpoints conditions directly over the golf course, The Weather Channel meteorologists help ensure the safety of competitors, tournament staff and volunteers, and thousands of golf fans.”

Armed with this information, would you now agree that even being struck by lightning may not be an accident?  If someone holds a tournament during a storm where lightning threatens – you might now, based upon this information, fairly conclude that the injuries were caused, at least in part, by someone being careless and negligent in planning and implementation of standard safety measures  So, if even being struck by lightning can lead to liability for carelessly failing to take standard precautions, this probably means that there are many other situations that “seem like accidents” but are actually and properly regarded as the product of a known, and avoidable, cause.

So, do “accidents happen?”  In the well-regulated environment of the highways, automobile collisions are almost never accidents.  Those of us who have or will serve on juries should take note that, although calling something an accident in everyday life means that it was not “intentional,”  in the courtroom, something is not an accident (“it’s nobody’s fault”) if it was the result of negligence – someone acting in a way that falls short of the “reasonable standard of care.”

Highways, unlike much of the world, are specially designed with unambiguous rules called “the right of way” and “rules of the road.”  From the point-of-view of engineering, modern freeways at their best are the product of decades of refinement, with smooth, even surfaces, standard design, minimal distraction, and ample signage.  I would go so far as to say, it is seldom the case when an “accident” on a freeway is actually an “accident” in the sense of it being something that “happens by chance or that is without apparent or deliberate cause.”

We must be careful to be clear about what we mean.  In the courtroom, we cannot say that anything that is unintended is “accidental” and therefore “fault-free.” In negligence cases, we are not dealing with intentional acts, but liability based upon carelessness.  To be a “pure accident,” the injury-causing collision must be something that is not only unintended, but something that is without apparent cause.  Calling something “an accident” can be misleading if the jury hears not only that the event was “unintended”  but also rolls into that understanding the notion that “it is without apparent cause” and that, therefore, no one is liable. 

This is important enough to come at again in a slightly different way.  Social rules governing public safety have given rise to the idea that there is an ordinary and reasonable “standard of care,” the breach of which results in liability (legal responsibility) for negligence.  Negligence results in liability based upon fault – based on carelessness -  even though the negligent act is not intended. Jury confusion and error can result unless it is made clear that the defendant’s liability arises from carelessness, not intention.  It would be misleading for someone to suggest that “accidents happen” if they intended the jury to think that this meant that the defendant should not be held liable just because the conduct was unintended even though careless.  Negligence cases are all about unintended conduct: the question is whether the conduct was careless or not.  If it was careless (beneath the standard of ordinary and reasonable care), liability results

If the cause is someone’s negligence (carelessness), then liability of the negligent party must follow.  The negligent person is “at fault” and “blameworthy,”  notwithstanding the fact that the collision occurred as a product of carelessness, rather than recklessness or intentional misconduct.  These are the rules established in advance to protect all of us.  If someone is negligent, they are held accountable even if they didn’t do it “on purpose.”   

When a collision occurs on the freeway, for example, it is nearly always the case that someone is driving too fast for conditions, speeding, changing lanes without first ascertaining that the lane change can be made with safety, distracted, sleepy, intoxicated, following too closely, failing to maintain control of their vehicle, failing to see that which can be seen, failing to use lights or signals, or simply inattentive.  The “rules of the road” are extremely well-defined, particularly on the freeway system.  For an injury-causing collision to happen, there is almost always, on closer examination, a careless driver who is the apparent cause of the collision.  It was not done “on purpose.”  But, it is not an accident, either.

The jury, by holding careless drivers accountable under the “rules of the road” makes everyone – including the jurors, themselves – safer.  Do accidents happen?  On examination, the answer is: “seldom.”  Those seeking to make justice happen, both jurors and lawyers, are well-served by thinking in terms of the applicable “rules of the road” and expectations regarding conduct when considering injury-producing events.  If the event that caused injury is not random and not without an apparent cause, then it is likely the product of someone, somewhere violating social expectations of careful conduct.  Even if unintended, it is not an accident, but properly regarded as the product of negligence.  The rules of society, set out in advance, tell us when standards of conduct have been violated.  Where they are, accountability requires that liability be assigned to the careless person and that compensation be given to the  injured person.  It is what the law demands.  It is what best protects all of us.