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That Never Happened Before – Defense to an Accident Case?

When They Say 'That Never Happened Before'
That Never Happened Before

Something happens.  There’s an accident.  Someone runs out and says “that never happened before.”

Even after the injuries are treated and the accident is reported to higher-ups in management or an insurance company, this phrase is often repeated as if to say, we did nothing wrong, it’s your own fault.

But does the law support this?

When Accidents Happen in Unique Circumstances

A rock radio station held a contest in which the DJ drove around the listening area giving hints on his location.  Cash prizes went to the first listener to find him.  Two teenage drivers chased the DJ from one location to the next to bag the prize.  Speeds hit up to 80 miles per hour.

When the DJ took an off-ramp from a highway, the teens followed, and one of the teens forced another vehicle off the road where it overturned, killing the driver.

A wrongful death verdict of $300,000 against the radio station was appealed.  Radio station owners questioned whether they owed a legal duty to the accident victim based on the contest.  The crash and death were directly caused by the teen driver.  Could fault be pushed back to the radio station?

Applying Negligence Law

Negligence law requires all persons to use ordinary care to prevent others from being injured as a result of their conduct.  This duty, though, is tempered by whether conduct could foreseeably cause the harm.  Holding the radio station responsible would require that car accidents were a foreseeable risk of harm from the contest.

The court found plenty of evidence making the accident foreseeable.  The contest was held in summertime, when young listeners were on vacation, free from school.  The prize was money and “momentary notoriety” on a big city radio station.  So, in Weirum v. RKO General, Inc., the California Supreme Court said it was foreseeable that young listeners would race to contest sites and in their haste, disregard the demands of highway safety.

That Never Happened Before

One of the things radio station attorneys claimed was that they shouldn’t be liable because this type of injury never happened before.  But the court said that the fact that a particular kind of an accident has not happened before does not show that such an accident is one which might not reasonably have been anticipated.

In other words, that “it hadn’t happened before” confused the legal concept of foreseeability with hindsight, and would mean the first person injured would not be compensated.  This case hinged on the issue of whether the radio station had a legal duty.  But foreseeability of the risk, a primary element in establishing the element of duty requires looking forward.

“That never happened before” fails as shield against liability where substantial evidence exists, as in this case, that the conduct of the defendant created an unreasonable risk of harm.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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