Causation in a negligence case

Causation is always an element of a theory of liability in negligence cases. For a plaintiff to win, the injuries must be caused by the accident. 

Many years ago, the Committee in Charge of Jury Instructions changed the Causation Jury Instructions. They substituted the word, "substantial" for the word, "proximate", as a modifier of the word, "cause".  Juries today are told that the accident must be a substantial factor in bringing about the injuries.   The change of this one word makes juries think about the size of a defendant's culpable conduct when they deliberate on negligence and when they deliberate on causation. Before the change, juries only considered the size of a defendant's culpable conduct when they deliberated on negligence.

In negligence cases, a jury allocates percentages to the people who participated in an accident according to the size of their culpability. A participant who is highly culpable is assigned a higher percentage than a participant who is culpable not so much.  The total of culpability must add up to 100%.  This is how a jury accounts for the size of culpability.

Now, however, by the introduction of the word, 'substantial', a jury gets an undeserved second opportunity to take into account the size of culpability first in their deliberations on culpability and again in their deliberations on causation. 

This is akin to making a plaintiff pay the same bill twice. Double charging a plaintiff is simply not fair.

Because a judge does not explain the meaning of the word, "substantial", jurors mistakenly think it refers to the size of culpability. It does not.  The word “substantial” in the context of causation does not mean big but means “has substance” or “is real”.  Juries deliberate on causation in order to filter out 'no cause' cases. Causation deliberations are not the place for juries to filter out 'small cause' cases - that is done by the allocation of percentages.  Both "big" and "small" acts or omissions can be regarded as causes of the accident.  To be considered a cause, an act or omission must be a link in the chain of causation.  Only if an act or omission is outside of the chain of causation shall it not be considered a cause. 

Unsophisticated plaintiffs who are not aware of this defect in the causation charge fall victim to double charging.

On opening, in summation and in the request to charge, a plaintiffs attorney ought to talk about causation in the following manner. Causation is the chain of events that began somewhere, includes the defendant’s conduct and ended in the accident. In deciding the question of causation, the role of the jury is to decide whether the defendant’s conduct is a link in the chain of causation or a stranger to the chain. It is not the job of the jury to evaluate the size of the links in the chain of causation. Links in the chain of causation can be big or small. If a defendant’s conduct is a link, it is a cause of an accident no matter its size; only if a defendant’s conduct lies outside the chain of causation is a finding of no causation justified. The doctrine of causation is not intended to filter out small cause cases, only no cause cases.

John Bosco, a partner in the accident law firm of Bosco and Mascolo, Esqs. LLP, has written extensively on the subject of causation

1. Letter to the New York Law Journal July 3, 1997
2. New York State Trial Lawyers Institute's Bill of Particulars March 2000 in an article entitled, 'Size Matters'
3. Journal of the Association of the Trial Lawyers of America, Trial, December 2003 in an article entitled, 'What a difference a word makes'
4. New York State Bar Association, Torts, Insurance and Compensation Section Journal Winter 2004 Vol. 33 No. 1 in an article entitled 'Making a Lightening Bug'

The Parts of a Premise Case - Slips, Trips and Falls

Has an accident in which you have slipped, tripped and fallen punched a hole into your health or into your pocketbook?

What do I mean by a hole? There are both physical holes and monetary holes. A person who enjoys good health but loses it due to an accident experiences a hole when her good health is taken away and a void is created that is filled by pain and suffering. A person who has a job and enjoys an income but loses it due to an accident experiences a monetary hole. Holes have two significant properties: depth and duration. A hole can be shallow or deep and can be temporary or permanent. Here is a question for your to ponder: Is a 3 foot hole that lasts for one day equal to a 1 foot hole that lasts for 3 days?

In certain circumstances, the law of the State of New York gives you the right to have the holes gouged out of your life filled. What are the circumstances in which you have a right that the holes in your life be filled in a trip, slip and fall?

A trip, slip and fall case has, generally speaking, the following parts:

1. a defect or some sort of problem
2. knowledge of the defect
3. an opportunity to correct it
4. a failure to do so and
5. an injury from the defect

A plaintiff must present evidence that proves each of these elements of a premise's case. If a plaintiff proves most but not all, he or she loses the entire case. Coming close is not good enough. That is why it is easier to be a defendant than a plaintiff. All a defendant needs to do is knock out one of these elements in order to win.

Bosco and Mascolo, Esqs. LLP are accident lawyers who handle all types of slip, trip and fall cases.

The Parts of a Motor Vehicle Accident Case

Being involved in a motor vehicle accident is a necessary but not a sufficient basis in the eyes of New York State Law to get the right to be made whole for the losses done to you by the accident. Many people think that if they suffer losses in a motor vehicle accident, they, ipso facto, get the right to be made whole. This is a a misunderstanding. A motor vehicle accident case does not consist of only one (1) part. There are four (4) parts to a motor vehicle accident case.

1. a negligent motorist
2. injuries
3. a causal connection between the accident and the injuries
4. the magnitude of the injury must rise above a vague, ill defined, imaginary line. The name of the line is the serious injury threshold. A description of this vague, ill defined, imaginary line can be found in New York State Insurance Law §5102(d) where the definition of a serious injury is found.  Can you understand it? Most lawyers and judges don't either. It is a moving target.  Defendants argue that a plaintiff's injuries are not serious but minor. Plaintiffs argue that a plaintiff's injuries are not minor but serious.  The jury is given the description of a serious injury found in New York State Insurance Law §5102(d) and applies it to the evidence that was presented during the trial to decide whether the injuries are minor or not.

The plaintiff must present evidence at a trial that proves all four (4) of the parts of a motor vehicle accident case. If the plaintiff only proves three (3) out of the four (4) parts, the plaintiff loses the entire case. There is no victory in coming close. All a defendant needs to do is knock out one (1) of the four (4) parts and the defendant wins. That is why it is easier to be a defendant than a plaintiff.  A defendant picks out the weakest of the four (4) parts and hammers away.

Sometimes it is unclear immediately after an accident whether or not the injuries of an injured person have the magnitude to get passed the serious injury threshold.  All of the other three (3) parts of a motor vehicle accident case are usually clear right after the accident but sometimes not the magnitude of the injuries.  Time needs to pass to see whether the consequences of the injuries rise or fall. At Bosco and Mascolo, Esqs. LLP we accept motor vehicle accident cases immediately if the other parts are strong even though the magnitude of the injuries is unclear. This way we can make sure everything is done right. After about six (6) to nine (9) months post accident, we can tell, having collected and reviewed the medical evidence, whether the evidence of the magnitude of the injuries is sufficient to continue to pursue a case. If it is, the case goes on. If not, we let you know.