Problems with Foreseeability

Two Problems with Foreseeability (another view)

1. Foreseeability can erroneously include a non-causal player.

Take a medmal case. It is established that A negligently operates on B (he fails to wear gloves). One of the foreseeable risks of A’s negligence is that B will develop X (illness, disease, etc.). Simply showing that A is negligent and that it’s foreseeable that A’s negligence causes X doesn’t follow logically that A’s negligence did cause X. One MUST look ex-post and see if there were any breaks in the causal chain to assure that A’s negligence really did cause X and that it wasn’t just within the realm of foreseeable options that A’s negligence MAY cause. Otherwise, you put A at risk of being sued for something that he didn’t do.

It is not enough to prove that A was negligent and that one of the foreseeable results was that X may happen. Nor was it enough the it was foreseeable and a but-for cause. Without the operation, B would not have developed X. One must show that A was negligent and that A’s negligent act caused X without any intervening factors.

Again, It’s not enough that A’s negligence could foreseeably cause X and that A was negligent and X happened (Lama v. Borras). One must look back and show that A’s negligent act caused X to happen, i.e. that there is an unbroken causal chain between A’s negligent act and X’s occurrence. Foreseeability as a determining factor for causation doesn’t provide that. It only provides a likely future world in which that could happen, not that it did happen. It must be seen ex post.


2. Foreseeability can also erroneously exclude a causal player.

In the famous Palsgraf case, there is an unbroken line of actions from D’s push to P’s harm. No grossly negligent acts, intentional torts, bizarre acts of God or Intervening pre-emptive causes. D was negligent because his act could have foreseeably and unreasonably harmed the people around him (foreseeability is fine when determining whether an act is negligent). However, regardless of whether P’s harm was foreseeable,
1) D’s act was negligent
2) The negligent aspect of D’s act caused P’s harm.