{"id":473,"date":"2017-02-17T12:20:12","date_gmt":"2017-02-17T12:20:12","guid":{"rendered":"http:\/\/www.nelsonboydlaw.com\/blog\/?p=473"},"modified":"2021-09-02T20:52:46","modified_gmt":"2021-09-02T20:52:46","slug":"it-was-not-an-accident","status":"publish","type":"post","link":"https:\/\/www.nelsonboydlaw.com\/blog\/articles\/it-was-not-an-accident\/","title":{"rendered":"It Was NOT an “Accident”"},"content":{"rendered":"

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I was in a big-box store the other day. Two girls, probably 6 or 8 years old, were out of control, running around while their mother tried on shoes. When, inevitably, one of them knocked over a display stand, she turned to her mother and said \u201cIt’s OK, it was just an accident.\u201d<\/strong><\/p>\n

If you have been injured as a result of the negligence of another person or corporation, there is a word you need to purge from your vocabulary<\/strong>. You should delete it from your conversation and from anything you write down; it should be banished from your very thought process. That word is \u201cACCIDENT.\u201d<\/strong><\/p>\n

Words matter. The \u201cA\u201d word has a double meaning. Unfortunately, it is often used as a convenient way to refer to an event<\/span> that caused harm, as in \u201cI was going to the store on the night of the accident,\u201d or \u201cI hurt my back in the accident.\u201d HOWEVER, from my experience of talking to thousands of jurors and focus group participants, I have learned this absolute truth: to most people, \u201caccident\u201d is a judgment about moral fault<\/span><\/strong>, and there is no moral fault when an \u201caccident\u201d happens. What the little girl in the store wanted her mother to believe was \u201cI don\u2019t deserve to be punished because I didn\u2019t mean to do it.\u201d She wanted to escape the consequences of her bad behavior, even though it was her intentional bad behavior and her bad choices about how to conduct herself in the store that were the real causes of the crashed display.<\/p>\n

To most people, \u201caccident\u201d means an event for which no one is legally at fault.<\/strong> Let me repeat that: when you, your spouse, your friends, or your doctors refer to the matter at hand as \u201cthe accident,\u201d you are communicating that what happened is one of those things for which no one is at fault, which means, no compensation is due to the injured person.\u00a0<\/span><\/p>\n

Here\u2019s a real-world example: I was conducting a focus group in a case involving the grievous wrongful death of a child. I played a portion of the video deposition of the defendant that plaintiff\u2019s counsel thought was the most powerful evidence against the defendant. In that clip, however, the plaintiff\u2019s lawyer, the defendant\u2019s lawyer, and the defendant all repeatedly used the phrase \u201cthe accident\u201d when talking about the event. When I asked the panel what they thought about the defendant\u2019s testimony, the first comment was \u201cWhy are we here?\u201d When I asked the juror what she meant by that, she said \u201cEveryone said this was an accident. Why are we here; there is nothing to decide.<\/span>\u201d Game over.<\/p>\n

Over and over, I have seen jurors think about fault as a continuum of moral blame. On that continuum, every time<\/span>, \u201caccident\u201d is a lower degree of fault than \u201cnegligence.\u201d This is big trouble since, as they are constantly told in trial, \u201cthe plaintiff has to prove negligence<\/span> to recover.\u201d In fact, according to the law, a rear-end collision on a wet road is a wreck caused by negligence. Many people, however, start out with the belief that this type of wreck is \u201cjust an accident.\u201dDon\u2019t feed that belief. Wrecks are preventable. Bad products are preventable. Under the law, few things are truly an accident.<\/p>\n

Contributing to this is a \u201cThere but for the Grace of God go I\u201d mindset. Not only do jurors not want to live in a world where they can be doing everything right and get injured through no fault of their own, they don\u2019t want to live in a world where they could be held accountable for the kinds of things that \u201cjust happen.\u201d Accidents can happen to anyone; jurors don\u2019t want to establish a precedent for rewarding someone who sues over an accident.<\/p>\n

Defendants win cases by: (1) blaming the plaintiff; (2) shifting the focus to a third party; and (3) distorting reality.<\/p>\n

The \u201cA\u201d word is a classic distortion of reality. Things are rarely<\/span> accidents. You were not hurt \u201cby accident\u201d when someone decided to drive a car too fast on a wet road, or when a manager cut back the staff in a nursing home so that a patient has to choose between risking a fall by trying to get to the bathroom by themselves or soiling their bed.<\/p>\n

Jurors walk into the courtroom with a belief that many things that happen are accidents. Add to that existing belief the phenomenon of \u201cconfirmation bias.\u201d This is the tendency of people to see the world through a filter. We absorb information that confirms what we already believe, and require serious, serious proof of anything that challenges what we already believe.<\/p>\n

Since jurors believe that most bad things are \u201caccidents,\u201d your use of that word fits right into their belief system. You have just created this dynamic: \u201cI believe that no one is at fault for an accident, I think most things are accidents, you just told me this was an accident, that fits into what I believe, that reinforces what I believe, thank you.\u201d And now, because you have reinforced what they believe, the burden of proof required to push this \u201caccident\u201d into a compensable event is somewhere out there beyond the moon. Game over.<\/p>\n

Don\u2019t play the defendant\u2019s game or the insurance company\u2019s game. You are entitled to compensation because of all of the negligent decisions that led to the final, terrible, preventable<\/span> harm. Removing the word \u201caccident\u201d from your vocabulary will better enable everyone to focus on why the event occurred rather than be distracted by their belief that \u201caccidents happen.\u201d \u201cAccidents\u201d don\u2019t happen.<\/p>\n

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