Foreseeable Plaintiff Versus Foreseeable Harm

One of the common mistakes I find students make—whether they be first-year law students or just months away from taking the bar exam—is that they conflate the concepts of foreseeable plaintiff and foreseeable harm when they examine the prima facie elements of negligence.

These are two related but separate concepts, dealing with two different elements of negligence.

Remember that negligence requires the following elements: (i) duty; (ii) breach; (iii) causation (which includes both actual causation and proximate causation); and (iv) damages.

When trying to establish the first element—duty—a two-part analysis is required: First, one needs to examine whether the plaintiff is foreseeable. After all, a defendant owes a duty of care only to foreseeable plaintiffs. Once there has been a foreseeable plaintiff found, the second part of the analysis is the determination of the applicable standard of care that the defendant owes the foreseeable plaintiff. If there is no foreseeable plaintiff, then there is no need to determine what the applicable standard of care is. Generally speaking, for bar exam purposes, foreseeable plaintiffs are those individuals who are within the zone of danger of defendant’s negligent conduct. In other words, who are the individuals who might be injured by defendant?

When trying to establish proximate causation, one needs to examine whether the plaintiff suffered a foreseeable harm that is not too remote and is within the risk created by the defendant’s conduct.

While there is some connection between a foreseeable plaintiff and foreseeable harm, an examination of each pertains specifically to duty and proximate causation, respectively.

So, to recap: When discussing the element of duty, examine whether the plaintiff is foreseeable. When discussing the element of proximate causation, examine whether the harm suffered by the plaintiff was a foreseeable consequence of the defendant’s conduct.