Can Pessimism be Useful?: What is Reasonably Foreseeable?

What is reasonably foreseeable? (Did the bunny have to die?)

Let me start off by telling you that I have created a soon-to-be-released board game called “Pessimystic– the board game for pessimists”. The objective of the game, and this series of blogs, is to stomp out the idea that Optimists are wonderful winners and Pessimists are sour-pussed whiners.

What is reasonable foreseeability? “Foreseeability” refers to the concept where a person should have been able to reasonably predict that it’s actions or inaction would lead to a particular consequence.

Foreseeability is another word for predictability. An accident may have been foreseeable if a reasonable and prudent person would have predicted it would happen.

I am still haunted, nine months later, due to an accident that occurred because I, perhaps, did not exercise reasonable foreseeability.

Reasonable foreseeability is a legal concept used to determine if someone (a defendant in a law suit) was negligent and caused harm to another person (a claimant in a lawsuit). If you have a written contract with someone that defines what each party to the contract must do or not do and the other party violates the contract, which causes you harm, then it is only a matter of determining the damages (putting a dollar value on the harm caused).

In cases where someone is harmed and there is no contract it becomes trickier. These are often called “accidents”.

For example, a driver who speeds through an unmarked intersection without stopping did not behave in a reasonably prudent manner. A reasonably prudent driver would have slowed and completely stopped, in an effort to avoid a possible accident in this unsafe situation; as they would be aware that another vehicle could be coming at any moment.

The “reasonable person” is a hypothetical individual who approaches any situation with the appropriate amount of caution and then sensibly takes action. It is a standard created to provide courts and juries with an objective test that can be used in deciding whether a person’s actions constitute negligence.

Applying Reasonable Foreseeability to a Wide Range of Activities

Pessimystic – the board game for pessimists is about applying reasonable foreseeability to a wide range of activities, from common tasks that we perform every day to the more adventurous. The game requires Players to identify anything negative about the act which includes more than just the potential consequences of the act, such as anything negative about the act itself or the type of person who would perform such an act.

Game Category questions are presented as Optimistic Statements such as “Robbing a bank… never hurt anyone”. You receive higher points for identifying the negative connections to robbing a bank which are most likely.

Players then provide examples which refute the Optimistic Statement in the order of probability such as:

1. You are arrested
2. You don’t get any money
3. You are shot
4. You go to prison
5. You have to hurt or kill someone

These are all potential negative consequences of robbing a bank but what about the person doing the bank robbing?

If you rob a bank, you must be a dishonest criminal – the probability is 100%, therefore this is the top answer with the highest points.

You must also be in desperate need of money which is not a good thing to be. Not all bank robbers do it only for the money, but the probability is, say, 90%, therefore this is the second-best answer.

We could debate the probability ranking of the next four answers but not all bank robbers get caught, shot, or don’t get any dough. Some bank robbers are successful and get away scot-free.

We all have a Duty of Care to ourselves and our surroundings

It was a Saturday morning on the first sunny warm weekend in May near Toronto Canada. We pulled all the garden furniture out of the shed to setup the patio area. I had to pull the lawnmower out so that we could have easier access to the stuff we wanted. At the end of the day there was still stuff on the lawn so I couldn’t cut the grass as planned. My wife told me to put the lawnmower back in the shed and I pointed out that there was no rain in the forecast so I might as well leave it outside.

The next morning, I went into the backyard and completed the patio setup by moving everything off the lawn. It was around 11:00 AM and I could now mow the lawn. I went over to the gas-powered lawnmower, pumped the gas handle a few times and pulled the cord.

Something shot out from the side of the lawnmower and I thought “why would starting the lawnmower cause the front wheel to fly off?” Then I realized what it was – a small bunny rabbit. I cried out the F- word really loud and kept saying it over and over. I heard the neighbor’s back door slam open and she called out “what happened!” thinking her husband may have had a horrible accident.

I had to explain to her what had happened which made me feel even worse. The little rabbit was in three pieces. My wife appeared and I asked her to get some paper towels and a bag. She came back and I put the little victim in the bag. I turned to my wife and said: “how could I have possibly known that there was a rabbit hiding under the lawnmower?” I was expecting her to agree with me, but she didn’t. She didn’t nod or say anything to make me feel less guilty. Her silence said: “you left the lawnmower out all night so it was reasonably foreseeable that a creature may be underneath it.”

Now you may be thinking that that is a very unreasonable expectation on her part, but I have failed to disclose a salient piece of information. That little rabbit had been visiting our backyard every day for the  previous couple of weeks. It made me feel happy to look into the backyard and see the little rabbit nibbling the grass. I would sometimes take a photo. Here’s one of the cute little guy shortly before the tragic accident, and visible in the background is what would prove to be the killing machine.

As the creator of a game which promotes pessimism as a virtue which heightens awareness, vigilance, and constant risk-scanning, how could I have not thought to check under the lawnmower before pulling the handle? To this day I think about it often and still feel guilty. But was it reasonably foreseeable that a rabbit was under the lawnmower?

Negligence in the case of Rabbit versus Happy Pessimyst

Let’s say the rabbit’s family charged me with negligence. Here’s some legal mumbo-jumbo with my highlights:

A successful negligence-based claim hinges on the plaintiff’s ability to prove a defendant did not act reasonable. This involves showing that the risk of harm was foreseeable, which means the defendant was aware of their actions being wrong; as well as establishing the alternative action which a reasonable person would have taken.

The jury will objectively consider the individual’s conduct based on the person’s knowledge, awareness, and mental capacity to behave similarly to a reasonable person. The law, though, will not make unique allowances for beginners, learners, or trainees in a special skill. They are held to the same level of care or conduct that a person who is reasonably skilled would exercise.

If the game (Pessimystic – the board game for pessimists) had a question scenario: “Cutting your grass with a power lawnmower… never hurt anyone” what would the top six most likely negative connections be? The game requires lateral-thinking, which means there is not one correct set of answers: there are multiple paths of reasoning which can lead to different answers. The assumptions made about the scenario determine the different pathways.

As per the question, we know it’s a “power lawnmower” which could be:

1. A gas-powered lawnmower
2. An electric-cord-powered lawnmower
3. An electric battery-powered lawnmower
4. A gas-powered riding lawnmower

The recommendation is to always assume the option which will generate the most negative connections because this will provide you with more possible answers to choose from. Another assumption is on what day of the week and at what time of day is the lawn being mowed.

              Gas-powered lawnmower assumption:                                            Electric-cord-powered lawnmower assumption:

At my trial for negligence in the case of a young rabbit who hid under a lawnmower the first piece of damning evidence would be the following comparison of where the rabbit had been seen previously and where the lawnmower was sitting overnight – the exact same spot.

My defense would be that I am not an expert in rabbit behavior and therefore could not be expected to know that a rabbit might hide under a lawnmower. In fact, when the tragedy happened, that’s what I kept asking myself. This same rabbit had been visiting our yard regularly and would sit out in the open nibbling grass. Never did he experience any threats or danger. There was no reason for him to crawl under the lawnmower. I just did an internet search for: “rabbit under lawn mower” and every item is about not running over rabbit nests with baby rabbits. Not one suggests that a small rabbit might crawl under a lawnmower left out on the lawn.

If my wife takes the stand to explain why, right after the accident, when I desperately needed some comforting assurance that I was not to blame, she gave me nothing but an icy cold stare. I am pretty sure she would crack under cross-examination and have to admit that her icy cold stare did not mean that it was reasonably foreseeable that the rabbit was under the lawnmower; it meant that if I had followed her instructions and put the lawnmower back in the shed overnight this accident would not have happened. Which is true.

In Conclusion: And the verdict is …

I believe I would be found NOT GUILTY of negligence because foreseeing that a rabbit could be hiding

under a lawnmower was NOT reasonably foreseeable. If we assume that the lawn was being mowed early on a Sunday morning with a noisy gas-powered lawnmower it is much more likely that a neighbor would complain about the noise than someone killing a rabbit.

Another rabbit has been visiting our backyard, probably one of my victim’s siblings. I have been leaving lettuce and carrots out on the lawn in an attempt to assuage the guilt I still feel.

We learn from our mistakes: I now make a point of rolling the lawnmower a few feet before I pull the handle.

I hope that this has provided a useful example of reasonable foreseeability as well as illustrating how Pessimystic – the board game for pessimists is an exercise in applying the concept of reasonable foreseeability to a wide range of non-legal situations.

Moving along

I look forward to hearing your comments on my guilt or innocence.

If you are interested in the game there are links to additional info below.

If you are mildly interested you might want to sign up to receive future newsletters.

As a pessimist myself, I, of course, don’t really expect the board game, or this blog, or the campaign to redeem the reputations of pessimists, to become successful. But hey, ya never know, even pessimists are occasionally wrong.

Thanks for your attention. Yours truly,

The Happy Pessimyst

I shall return. Although, something bad might happen which prevents my return.

Email: pessimysticbgame@gmail.com

Website: Pessimystic – the board game for pessimists