Foreseeability: What Constitutes Preparedness in the Face of COVID-19?

By G. Christopher Ritter, Esq., Britta Stanton, Esq., and Clint Townson, Ph.D.

Whether a plaintiff’s damages were foreseeable is often the key dispute in a lawsuit. The plaintiff argues the defendant should have foreseen and prepared for the harmful event; in response, the defendant insists no reasonable person could have foreseen the need to guard against the event. These two competing arguments will arise again and again in post-COVID-19 litigation.

As the COVID-19 pandemic has unfolded, IMS has been conducting research, including focus groups with mock jurors across three U.S. venues, to help clients gain a clear view of the context surrounding their cases and jurors’ attitudes. In our research, we found that jurors’ responses to this dilemma were nearly evenly split: 51% agreed that the COVID-19 pandemic was an unforeseeable, worldwide tragedy that has caught everyone by surprise — compared to 49% who disagreed with those conclusions.

In our focus groups, a large percentage of the mock jurors used the familiar concept of “preparedness” to evaluate the legal element of foreseeability. Jurors expect people to prepare for occurrences that can reasonably be expected to occur. The question for mock jurors then became whether people could reasonably have expected and prepared for this pandemic. The vast majority of mock jurors in our study believed there is no historical equivalent to the COVID-19 experience.

This lack of precedent led to extensive discussions revolving around four questions:

(1) How does one assess foreseeability and a defendant’s obligation to prepare for an event if members of society have not previously experienced such an event?

(2) Can a person or business be culpable for injuries caused by an unprecedented event?

(3) Is the unprecedented nature of the event irrelevant because certain defendants have an obligation to always be prepared for certain types of events?

(4) Does a larger or more sophisticated party have a greater obligation to prepare for unexpected or unprecedented situations?

In Depth Analysis

For more insights visit our COVID-19 Client Resource Hub.

Contact us today to discuss the specific needs of your case and learn more about the application of these insights for your client.

IMS ExpertServices

IMS ExpertServices delivers consultative trial and expert services for the most influential global firms. Over nearly three decades and through more than 20,000 cases and well over 1,000 trials, clients have trusted IMS to equip them with the perspective and tools they need to help their clients succeed. With offices in the San Francisco Bay Area, Dallas, Pensacola, and New York, the company provides trial strategy consulting, jury consulting, trial graphics consulting, trial presentation consulting, and expert witness recruitment and management. IMS has earned nine consecutive rankings on the Inc. 5000 list, won recognition by The National Law Journal in six categories of its “Best of 2020” awards, by Corporate Counsel Magazine as winner in eight categories of its “Best of 2019” awards, and as “Go-To Thought Leader” for two consecutive years by The National Law Review.


FEATURING: Christopher Ritter, Esq.

Chris Ritter is a highly sought advisor for top clients seeking guidance and perspective on case theme development, persuasion graphics development, witness preparation, and focus group and mock trial research. Chris graduated from the University of Chicago Law School and actively tried cases for nearly fifteen years. Read more about Christopher Ritter>>


FEATURING: Britta Stanton, Esq.

As a former trial attorney, Britta pays rigorous attention to details and reviews case issues with laser-like focus. An experienced trial lawyer with nearly twenty years of practice in state and federal venues, and now as a trusted strategy advisor with the company, Britta has advised clients on hundreds of cases and trials. Read more about Britta Stanton>>  


FEATURING: Clint Townson, Ph.D.

With a Ph.D. in the field of communication, Clint knows how to deliver crisp, effective courtroom messages. His work as a university instructor enabled him to develop an adaptive instructional style which he now uses when he prepares different types of witnesses for trial. Read more about Clint Townson>>

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