It has been held by the Court of Appeals that foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated. DiPonzio v. Riordan, 89 N.Y.2d 578, 583 (1997). This concept dates back to Judge Benjamin Cardozo's opinion in Palsgraf v. The Long Island Railroad Company, 248 N.Y. 339 (1928), when Ms. Palsgraf was denied recovery for her injuries as a matter of law because her physical location was so remote to the location of the arguable negligence that, as to her, the act was not negligence at all. Id. at 341.

The Court of Appeals made it clear in Danielenko v. Kinney Rent A Car, 57 N.Y.2d 189, 204 (1982) that whether a breach of duty has occurred depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendant's conduct. Aside from the proximate cause defenses which the case may involve, the element of foreseeability is a separate concern and should be addressed as such by counsel and the court. The foreseeability defense is frequently blended into the issue of causation, but there are clear advantages to the defense where the distinction can be articulated.

The Spectrum of Foreseeability

The foreseeability issue in Palsgraf derived from whether Ms. Palsgraf was a foreseeable plaintiff as to the allegedly negligent acts of the railroad employees who caused the unmarked package of fireworks to explode. The foreseeable plaintiff issue is also seen in the cases involving discharged mental patients who cause harm to third parties, and where incompletely treated tuberculosis patients infect others. However, there may be foreseeability issues even where the status of the plaintiff is not in issue.

In Pasternack v. Laboratory Corporation of America, 27 N.Y.3d 817 (2016), the court was faced with a sole individual with a direct relationship to the defendant laboratory, and the certified question was whether New York law imposed a duty on a medical laboratory which had properly tested a pilot's urine sample, but had arguably mishandled the correct result, causing the FAA to revoke the plaintiff's airman certificates. Writing for the court, Judge Sheila Abdus-Salaam stated that federal guidelines which are ministerial do not implicate the scientific integrity of the testing process, and do not create a duty for the laboratory under New York law. Id. at 825-27. Regardless of whether the laboratory would have been liable for improperly testing the plaintiff's specimen, the court declined to extend the defendant's duty as requested by the plaintiff.

In DiPonzio v. Riordan, supra, the Court of Appeals was faced with the question of whether to extend the duty of the owner of a self-service filling station to its customer who was injured by another customer on the premises of the defendant. Judge Vito Titone observed for the court that although virtually every untoward consequence can be foreseen with wisdom born of the event, the law draws a distinction between remote possibilities and those which are reasonably foreseeable. The court declined to extend the duty of the defendant to an occurrence so unlikely to occur that the risk would commonly be disregarded.

Resolving Foreseeability Issues

The existence and scope of an alleged torfeasor's duty is in the first instance a legal question to be determined by the court. Palka v. Servicemaster Mgt., 83 N.Y.2d 579, 585 (1994). Perhaps more problematic are the cases in which factual determinations need to be made before the trial court is able to address the issue of foreseeability. However, foreseeability remains a question of law, so the trier of fact must then report its findings of fact in response to interrogatories before the court can determine whether a duty exists.

Palsgraf was tried to verdict before the law was settled, but Judge Cardozo stated that the plaintiff was obligated to prove that the negligent act involved dangers “so many and apparent” as to entitle him to be protected. Id. at 345. Clearly there may be a question of fact on the magnitude of the foreseeable risk to the plaintiff from the conduct of the defendant. In the analysis of Judge Titone in DiPonzio, 89 N.Y.2d at 583, he refers to the relationship between the risk created by the actor's conduct and the actual occurrence that caused the harm (emphasis added). In complex medical treatment there will often be factual questions as to the chain of events between the alleged negligence and one or more of the claimed consequences. Whether the actual occurrence causing injury can be identified is often very much a question of fact. The trial court would be unable to make the legal determinations regarding scope of defendant's duty without clear indications as to how the jury has resolved the questions of fact.

While the extraordinary sequence of events between the placement of a portable electric fan, a fire, and resultant water damage allowed the court in Michael Kane Color Litho v. Willowtex, 305 A.D.2d 246 (2d Dept. 2003) to determine that the damages were unforeseeable, the relative positions of the shopper and the department store mechanic over whom she tripped in Greene v. Sibley, Lindsay and Curr Co., 257 N.Y. 190 (1931) required a trial to clarify the facts and demonstrate that reasonable care had been exercised. There the foreseeability of injury to plaintiff ultimately did not create a duty on the part of the defendant.

The New York Pattern Jury Instruction

PJI 2:12 applies to negligence claims including those for medical malpractice. The statement of the law is clear but generic, so the charge is followed directly by a statement that the foreseeability charge should be related to the particular facts of the case. Naturally this means that defense counsel should assist the trial court with carefully stated requests to charge on that topic.

The foreseeability issue will arise from distinct fact patterns, but in order to provide the optimal defense to her client, the defense attorney should also prepare jury interrogatories which will allow the trial court to isolate the elements of the causes of action rather than accepting a general verdict on liability. There will be separate considerations which come into play in determining the issue of foreseeability on different liability issues, and the jury should be asked to address them in turn.

As a simple example, consider the benefit to the deliberations of the fact finder of the following jury interrogatories in a case where a nurse has given a child an injection which caused an anaphylactic reaction resulting in death:

6. Do you find that counsel for the plaintiffs has sustained the burden of proving that on April 2, 2016, when Nurse Richards gave the injection to David Rogers it was foreseeable that a severe anaphylactic reaction was probable?

Yes ________ No _________

If you answered “no”, please skip Question 7 and proceed to Question 8. If you answered “yes” please proceed to Question 7.

7. Do you find that counsel for the plaintiffs has sustained the burden of proving that on April 2, 2016, Nurse Richards departed from accepted nursing practices by giving the injection?

It could be argued that Question 7 subsumes Question 8, but where the real issue in the case is whether the reaction was so remote as to be unforeseeable, the verdict sheet should reflect that the jury considered and determined that issue.

Conclusion

The law draws a clear distinction between remote possibilities and damages which are reasonably foreseeable. This is because no person can be expected to guard against harm from events which are unlikely to occur or cause injury, or which cause harm which is merely possible to anticipate. Developing the foreseeability defense will optimize the outcome of the defense whether the case is resolved by the jury or by the court.

John L.A. Lyddane is a partner and the chair of the medical malpractice defense group at Dorf & Nelson.