Filed: Apr. 15, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr., Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.; CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appeal from the United
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr., Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.; CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appeal from the United ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1195
MARY T. LACLAIR, Individually and as Personal
Representative of the Estate of Cameron J. LaClair, Jr.,
Plaintiff – Appellant,
v.
SUBURBAN HOSPITAL, INCORPORATED,
Defendant – Appellee,
and
PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.;
CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain;
SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE
SYSTEM, INC.,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cv-00896-PJM)
ARGUED: January 31, 2013 Decided: April 15, 2013
Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM,
Washington, D.C., for Appellant. Michael E. von Diezelski,
ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee.
ON BRIEF: Jacqueline T. Colclough, REGAN ZAMBRI LONG & BERTRAM,
Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Mary T. LaClair, individually and as personal
representative of the estate of her husband, Cameron J. LaClair,
Jr., appeals the district court’s order finding that the
Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical
Therapy and Sports Medicine (“PTSM”), were joint tortfeasors
with respect to her husband’s injuries sustained while he was a
patient at Suburban. Mr. LaClair was first injured while
receiving physical therapy at PTSM. After undergoing surgery at
Suburban for that injury, he was further injured by the actions
of Suburban’s patient care technicians. Suburban asks us to
affirm the district court’s conclusion that it is a joint
tortfeasor with PTSM because its actions did not constitute a
superseding cause of harm to Mr. LaClair.
In unraveling this appeal, Maryland law directs us to
several provisions of the Restatement (Second) of Torts, each of
which is grounded in the idea that an intervening act is not a
superseding cause if it was foreseeable at the time of the
primary negligence. Because the harm and injuries sustained at
Suburban were foreseeable consequences of the alleged negligence
of PTSM, Suburban’s actions were not a superseding cause of Mr.
LaClair’s injuries. Thus, Suburban and PTSM are joint
tortfeasors, and we affirm.
3
I.
A.
On November 1, 2007, Mr. LaClair, a “vibrant former
CIA officer” in his mid-80s, J.A. 211, 1 sustained an injury while
receiving physical therapy at the PTSM facility (the “November 1
incident”). He was attempting to secure himself in a piece of
exercise equipment and fell onto the floor, while his physical
therapist had stepped away. He was taken by ambulance to
Suburban, where he was diagnosed with a cervical fracture and
dislocation.
Dr. Alexandros Powers, a neurosurgeon, performed
surgery on Mr. LaClair on November 3, 2007. The surgery
entailed Dr. Powers inserting screws and rods to secure Mr.
LaClair’s spine. According to Dr. Powers, the surgery “was
successful and proceeded without complication, and Mr. LaClair’s
prognosis at that time included a complete and total recovery
free from future cervical spine surgery.” J.A. 227.
Dr. Powers stated that, as of the morning of November
6, 2007, Mr. LaClair was “recovered and was to be discharged
[from Suburban] to a rehabilitation facility” the next day, and
“there was no plan or expectation for subsequent cervical spine
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
surgeries due to the success of the November 3 surgery[.]” J.A.
228. Later on November 6, Mr. LaClair was transferred from ICU
to a regular room, and his catheter was removed. He needed
assistance using the bathroom, and, after Mrs. LaClair called
several times for assistance, two patient care technicians
responded. Mr. LaClair used the bathroom, and the patient care
technicians attempted to reposition him in his hospital bed.
Although Suburban claims Mrs. LaClair “resort[s] to
hyperbole when referring to the conduct of November 6,” and the
patient care technicians, while perhaps negligent, were
“performing their normal duties when they were aiding Mr.
LaClair and repositioning him in bed,” Br. of Appellee 6, Mrs.
LaClair views the incident as out of bounds because her
husband’s “head was violently pushed against the side rail of
the bed and he cried out in pain,” Br. of Appellant 4. Mrs.
LaClair testified that one of the patient care technicians was
“very rough,” explaining, “her motions were gross motions. They
weren’t careful motions. And I thought, with somebody with a
broken neck, I think I’d be careful, but there was none of
that.” J.A. 362-63 (the “November 6 incident”).
There is no dispute that Mr. LaClair sustained
additional injuries as a result of the November 6 incident. Dr.
Powers examined Mr. LaClair and found “a fracture of the C7
endplate, dislocation at C6/C7, dislodging of the screws placed
5
in previous surgery, ligament damage and hemorrhage, nerve root
injury at the level of C7 and C8 and spinal cord injury.” J.A.
228. He determined Mr. LaClair could no longer be discharged on
November 7 as previously scheduled, but rather, needed to
undergo an additional surgery on November 8. Mr. LaClair later
underwent a third surgery on February 6, 2008, at Georgetown
University Hospital. He spent nearly five months hospitalized,
underwent plaster casting of his cervical spine, developed
bedsores, and ultimately required a feeding tube.
Mrs. LaClair presented evidence to the district court
that as a result of the November 6 incident, Mr. LaClair’s
medical bills totaled over $1.05 million and had a projected
future cost of $900,000. Another physician testified that
absent the November 6 incident, his medical and rehabilitation
expenses would have been only $75,000 to $125,000.
B.
The LaClairs filed two separate lawsuits: first,
against PTSM for injuries stemming from the November 1 incident
(filed March 19, 2009) (the “PTSM lawsuit”), and second, against
Suburban for “separate and distinct” injuries stemming from the
6
November 6 incident (filed April 15, 2010) (the “Suburban
lawsuit”). 2
The PTSM lawsuit alleged that PTSM was responsible for
not only the injuries and damages incurred from the November 1
incident at PTSM’s facility, but also the injuries and damages
incurred from the November 6 incident at Suburban. See J.A. 48
(PTSM Complaint) (“Plaintiff was taken via ambulance to Suburban
[] where he was diagnosed with a cervical fracture and
dislocation. Plaintiff remained at Suburban until November 13,
2007, where he underwent two surgical procedures to repair his
cervical fracture, among other things.”). During discovery,
however, Dr. Powers testified on January 5, 2010, that the
injuries stemming from the November 1 incident were “separate,
distinct, and divisible” from those sustained by the November 6
incident. Id. at 229, 262-329.
Subsequently, the LaClairs settled with PTSM for $1
million on March 5, 2010. The Settlement Agreement specifically
recognized that the LaClairs would be pursuing separate claims
against Suburban, in connection with the November 6 incident
alone:
2
Mr. LaClair passed away on November 4, 2011, during the
course of this litigation. Mrs. LaClair took over as personal
representative of his estate and was substituted as Plaintiff on
January 25, 2012.
7
In any future action against [Suburban], the
plaintiffs agree to file a pre-trial motion with the
court attempting to establish that the conduct of
Suburban . . . constituted superintervening
negligence, and that these defendants are not joint
tortfeasors with Suburban[.] The purpose of this
requirement is to obviate the need for [PTSM] to be
named as [a] part[y] in any future litigation.
J.A. 179.
The Suburban lawsuit, filed about six weeks after the
PTSM settlement, alleges that Mr. LaClair suffered injuries from
the November 6 incident that were separate and distinct from
those of the November 1 incident. This litigation settled on
May 31, 2011. Pursuant to the Settlement Agreement between the
LaClairs and Suburban, however, the parties agreed to submit to
the district court the question of whether PTSM and Suburban
were joint tortfeasors in connection with the November 6
incident, or whether those injuries were separate and distinct
such that Suburban alone would be liable. Pursuant to the
Settlement Agreement, Suburban agreed to make an initial
$650,000 payment to the LaClairs and further agreed to make an
additional payment of $600,000 in the event that the court found
PTSM and Suburban were not joint tortfeasors as to the November
6 incident.
C.
In accord with the PTSM Settlement Agreement, the
LaClairs filed a pre-trial motion in the Suburban lawsuit on
8
June 10, 2011, asking for judicial determination that Suburban
was a “successive tortfeasor” and therefore, not entitled to
joint tortfeasor credit for the November 6 incident. J.A. 140. 3
That same day, Suburban filed a memorandum explaining why it
should bear joint tortfeasor status with PTSM.
The district court held a motions hearing on January
20, 2012, and decided that Suburban was indeed a joint
tortfeasor with PTSM such that Mrs. LaClair could not recover
additional damages. The district court explained,
[T]his was not highly extraordinary. That this
kind of thing could well have happened, even if the
doctors did not see it or had seen it themselves. But
a reasonable man knowing what they knew at the time
would conclude that this sort of thing might happen.
. . . I am persuaded by the fact that if what happens
is reasonably close to the reason for the initial
hospitalization, which is what this was, then you
really do have a kind of a continuous flow here, and
whatever negligence you have is really part and parcel
of the initial negligence, too.
And so I do conclude on these facts that the
liability of the – the defendant, Suburban Hospital,
is joined and not independent.
J.A. 771. The court entered a short, one-page order to this
effect on January 24, 2012, naming Suburban as a joint
tortfeasor “for reasons stated in the record.” Id. at 797. It
is from that order that Mrs. LaClair appeals.
3
Solely for purposes of the motion on the causation issue,
Suburban conceded that it was negligent on November 6, 2007, but
it continued to dispute all issues of causation and damages.
9
II.
The parties submit that the district court’s order is
reviewed for clear error. However, this analysis necessarily
involves deciding whether the district court correctly applied
Maryland law, and thus, we approach this appeal “by inspecting
factual findings for clear error and examining de novo the legal
conclusions derived from those facts.” F.C. Wheat Mar. Corp. v.
United States, 663 F.3d 714, 723 (4th Cir. 2011). A finding is
clearly erroneous when “although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, N.C.,
470 U.S.
564, 573 (1985) (internal quotation marks omitted).
Because this case is in federal court based on
diversity jurisdiction, the substantive law of the forum state —
in this case, Maryland — applies. See Erie R.R. v. Tompkins,
304 U.S. 64, 78 (1938). We should determine:
how the [Court of Appeals of Maryland] would rule. If
th[at] [court] has spoken neither directly nor
indirectly on the particular issue before us, we are
called upon to predict how that court would rule if
presented with the issue. In making that prediction,
we may consider lower court opinions in [Maryland],
the teachings of treatises, and the practices in other
states.
10
Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433
F.3d 365, 369 (4th Cir. 2005) (internal quotation marks and
citations omitted).
III.
A.
PTSM will not be jointly liable for the November 6
incident “if it appears highly extraordinary and unforeseeable
that the plaintiffs’ injuries [on November 6] occurred as a
result of [PTSM’s] alleged tortious conduct.” Pittway Corp. v.
Collins, 973 A.2d 771, 788 (Md. 2009). Accordingly, PTSM avoids
liability for the November 6 incident “only if the intervening
negligent act,” i.e., Suburban’s conduct, “is considered a
superseding cause of the harm to” Mr. LaClair.
Id. at 789; see
also Morgan v. Cohen,
523 A.2d 1003, 1004-05 (Md. 1987) (“It is
a general rule that a negligent actor is liable not only for
harm that he directly causes but also for any additional harm
resulting from normal efforts of third persons in rendering aid,
irrespective of whether such acts are done in a proper or a
negligent manner.”).
Maryland courts (and federal district courts sitting
in diversity) have addressed the superseding cause issue with
varying results. Pittway is the seminal Maryland case on
superseding cause, providing a framework for analyzing an
argument that an intervening act cuts off the liability of an
11
original tortfeasor. The Court of Appeals of Maryland
explained:
The defendant is liable where the intervening causes,
acts, or conditions were set in motion by his earlier
negligence, or naturally induced by such wrongful act
. . . or even it is generally held, if the intervening
acts or conditions were of a nature, the happening of
which was reasonably to have been anticipated[.]
Pittway, 973 A.2d at 789 (internal quotation marks and
alteration omitted). Pittway recognizes that Section 442 of the
Restatement (Second) of Torts establishes the test applied in
Maryland courts for analyzing superseding cause:
The following considerations are of importance in
determining whether an intervening force is a
superseding cause of harm to another:
(a) the fact that its intervention brings
about harm different in kind from that which
would otherwise have resulted from the
actor’s negligence;
(b) the fact that its operation or the
consequences thereof appear after the event
to be extraordinary rather than normal in
view of the circumstances existing at the
time of its operation;
(c) the fact that the intervening force is
operating independently of any situation
created by the actor’s negligence, or, on
the other hand, is or is not a normal result
of such a situation;
(d) the fact that the operation of the
intervening force is due to a third person’s
act or his failure to act;
(e) the fact that the intervening force is
due to an act of a third person which is
wrongful toward the other and as such
12
subjects the third person to liability to
him;
(f) the degree of culpability of a wrongful
act of a third person which sets the
intervening force in motion.
Restatement (Second) of Torts § 442 (1965); Pittway, 973 A.2d at
789.
B.
We conclude that the district court did not err in
finding that Suburban and PTSM were joint tortfeasors.
1.
The majority of the Restatement Section 442 factors
weigh in favor of a conclusion that Suburban and PTSM were joint
tortfeasors.
a.
As to factor (a), above, Mrs. LaClair attempts to show
that the injuries sustained on November 6 were “separate and
distinct” from those sustained on November 1, and thus,
“different in kind.” See Br. of Appellant 3-9. We first note
that we would be hard-pressed to find a case regarding
subsequent negligent medical care in which there was not a
“separate and distinct” injury after the injury caused by the
initial actor’s negligence. This, alone, does not lead us to
the conclusion that the negligent medical care is a superseding
cause of harm. See Underwood-Gary v. Mathews, 785 A.2d 708, 713
13
(Md. 2001) (“[W]hen a physician negligently treats the
plaintiff’s injuries, the physician becomes liable to the
plaintiff to the extent of the harm caused by the physician’s
negligence. Thus, the physician’s negligent treatment is a
subsequent tort for which both the doctor and the original
tortfeasor are jointly liable.” (internal citations omitted)).
In any event, the harm brought about by the November 6 incident
was not so different from the type of harm that is likely to
result from an 86-year-old man’s fall from a piece of exercise
equipment, even assuming, as Mrs. LaClair would have us do, that
a severe spinal cord injury resulted from Mr. LaClair’s
repositioning in his bed. For these reasons, factor (a) weighs
in favor of Suburban.
b.
In addressing factor (b), the Restatement directs us
to look to Restatement (Second) of Torts § 435(2), Comments (c)
and (d). Comment (c) provides, in part, “Where it appears to
the court in retrospect that it is highly extraordinary that an
intervening cause has come into operation, the court may declare
such a force to be a superseding cause.” Restatement (Second)
of Torts § 435(2) cmt. c (1965). Comment (d) provides, in part,
“The court’s judgment as to whether the harm is a highly
extraordinary result is made after the event with the full
knowledge of all that has happened. This includes those
14
surroundings of which at the time the actor knew nothing but
which the course of events discloses to the court.” Id. cmt. d.
Comment (d) continues:
[The court] also follows the effects of the actor’s
negligence as it passes from phase to phase until it
results in harm to the plaintiff. In advance, the
actor may not have any reason to expect that any
outside force would subsequently operate and change
the whole course of events from that which it would
have taken but for its intervention. None the less,
the court, knowing that such a force has intervened,
may see nothing extraordinary either in its
intervention or in the effect which it has upon the
further development of the injurious results of the
defendant’s conduct. This is particularly important
where the intervening force is supplied by the act of
a human being . . . , which is itself a reaction to
the stimulus of a situation for which the actor is
responsible.
Id.
Mrs. LaClair presents testimony from three
neurosurgeons that the “application of [the patient care
technicians’] force to the body of an elderly, post-operative
cervical spine patient . . . had never before been witnessed or
known to them in all their years of practice as
Neurosurgeons[.]” Br. of Appellant 27 (citing J.A. 190, 222,
229). However, as explained by Comment (d) above, PTSM may have
had no reason to expect that Mr. LaClair would be injured by
being repositioned in his hospital bed, but the proper way to
view the situation is after-the-fact: “knowing that such a
15
force has intervened.” Restatement (Second) Torts § 435 cmt. d
(emphasis added).
For example, in Henley v. Prince George’s Cnty., the
Court of Appeals of Maryland explained the difference between
foreseeability when considering the existence of a duty and, as
here, causation: “Foreseeability as a factor in the
determination of the existence of a duty involves a prospective
consideration of the facts existing at the time of the negligent
conduct. Foreseeability as an element of proximate cause
permits a retrospective consideration of the total facts of the
occurrence[.]” 503 A.2d 1333, 1341 (Md. 1986) (emphases added).
Viewing the facts of this case retrospectively, there is “an
appropriate nexus” between the November 1 incident and injuries
and the November 6 incident and injuries such that it is “at
least a permissible conclusion” that Mr. LaClair’s already-
injured spine would be further injured by being positioned into
a hospital bed.
Id. at 1342.
Again, we agree with the district court that
Suburban’s actions were not “so extraordinary as to bring about
a conclusion of separate intervening cause.” J.A. 766. Thus,
factor (b) also weighs in favor of Suburban.
16
c.
Considering the cross-referencing set forth in
Restatement (Second) Section 442, factors (c), (e), and (f) 4 boil
down to the same core inquiries: whether Suburban’s actions
were “a normal consequence of a situation created by the actor’s
negligent conduct,” 5 and whether the manner in which the
intervening act was done was “extraordinarily negligent.”
Restatement (Second) Torts §§ 443, 447(c) (1965).
First, clearly, Mr. LaClair would not have sustained
the injuries on November 6 if PTSM’s negligence had not put him
in the hospital in the first place. 6 And the district court
4
As to factor (d), the district court dismissed this factor
as irrelevant to the inquiry, but it only appeared to analyze
the “failure to act” portion of § 442(d). See J.A. 767-68.
While this may have been legal error, even assuming factor (d)
weighs in favor of Mrs. LaClair, the balance of the factors
nonetheless weighs in favor of Suburban.
5
The comments to factor (c) explain that the “situation
created by the actor’s negligence” means any situation that the
original tortfeasor’s actions were a substantial factor in
bringing about. See Restatement (Second) of Torts §§ 447(c),
442(c) cmt. d.
6
Indeed, the LaClairs themselves believed the November 6
incident to be a foreseeable consequence of the November 1
incident. They recognized as much in their initial complaint
against PTSM, which sought to hold PTSM liable for “two surgical
procedures” at Suburban. J.A. 48 (emphasis added). In
addition, on July 12, 2009, the LaClairs answered
interrogatories and listed the following as caused by the PTSM’s
negligence: admission to Suburban from November 1 to November
13, 2007; admission to the rehabilitation center from November
13 to November 30; admission to Georgetown University for
(Continued)
17
found, “the act, . . . the putting back in bed is not itself
extraordinary.” J.A. 767. Mrs. LaClair’s attorney
agreed. See id. at 709 (The Court: “[T]he objective anyway was
to put this man back in bed. That’s not unforeseeable; correct?
Mr. Regan: Yes.”). The district court did not err in finding
that it is a “normal consequence,” (i.e., foreseeable) that a
cervical spine patient might sustain additional spinal injuries
at the hands of medical professionals.
As to the manner in which the negligent act was done,
we should consider the injuries and the degree of culpability of
the patient care technicians. Even if the patient care
technicians were “very rough,” J.A. 362, that does not quite get
us to the level of “extraordinarily negligent.” Restatement
(Second) of Torts § 447(c). Indeed, Maryland courts have held
that original tortfeasors are liable for more significant harm
inflicted by intervening negligent medical
professionals. See Underwood-Gary, 785 A.2d at 713 (“[An]
original tortfeasor is liable for additional harm caused by a
treating physician’s improper diagnosis and unnecessary
surgery[.] This rule is based on the premise that the negligent
actor, by his or her conduct, has placed the plaintiff in a
surgery from February 5 to February 25, 2008; and home nursing
care from April 2008 to July 2009. See
id. at 64-78.
18
position of danger and should answer for the risks inherent in
treatment and rendering aid.” (citing Restatement (Second) of
Torts § 457 cmt. c, illus. 1)); Richards v. Freeman, 179 F.
Supp. 2d 556, 560-61 (D. Md. 2002) (where physicians negligently
performed surgeries that left car accident victim with a right
arterial tear in her heart, finding physicians and original
defendant driver to be “joint” yet “subsequent tortfeasors”
under Maryland’s Uniform Contribution Among Tort-Feasors Act
(UCATA)); see also
Morgan, 523 A.2d at 1008 (stating that under
the UCATA, an original tortfeasor and a negligent health care
provider could be considered concurrent tortfeasors concurring
in producing the additional harm).
Kyte v. McMillion, 259 A.2d 532 (Md. 1969), cited by
Mrs. LaClair, does not change this result. There, a young woman
was involved in a car wreck due to a negligent driver, and she
was taken to the hospital and treated for broken bones. Upon
admission to the hospital, a physician ordered a blood
transfusion, but the nurse used the wrong type of
blood. See
id. at 533. As a result of this mistake, the
plaintiff suffered “bleak prospects of future pregnancies” and
was projected to have “difficult gestation from both an
emotional and physical point of view.”
Id. The plaintiff filed
suit against the hospital first, ultimately reaching an
agreement and signing a release as to damages stemming only from
19
the blood transfusion. See id. at 533-34. Later, when the
plaintiff filed suit against the allegedly negligent driver,
McMillion, the court held that McMillion was not included in the
release and thus, the damages awarded to the plaintiff from the
hospital should not be credited to McMillion.
Id. at 543.
Notably, the Maryland Court of Special Appeals has
limited this case to its facts as “the Court [in Kyte] was
careful to point out that the injuries [broken bones and
inability to have children] were peculiarly separate and
divisible[.]” Sullivan v. Miller,
337 A.2d 185, 191 (Md. Ct.
Spec. App. 1975). Even the Kyte court itself declared, “It
should be understood . . . that the decision announced herein
goes no further than the unusual facts and circumstances of this
case.” See
Kyte, 259 A.2d at 543. 7
Therefore, we cannot say that the negligence of the
patient care technicians, either in manner or consequence, was
7
In this appeal, Suburban also contends that the settlement
with PTSM already took into account the damages arising from the
November 6 incident, and points to the LaClairs’ answers to
interrogatories on July 12, 2009, in the PTSM lawsuit. See
supra, note 7. However, while this argument may have some
merit, we do not rely on it because it appears that the LaClairs
shifted gears in the middle of their litigation with PTSM (and
after the interrogatory answers were filed) due to the testimony
of Dr. Powers. Moreover, reliance on this basis is unnecessary
given the weight of other factors in favor of Suburban.
20
abnormal or extraordinary. Thus, factors (c), (e), and (f)
weigh in favor of Suburban.
2.
Examining the Restatement Section 442 factors does not
end our inquiry. The Court of Appeals of Maryland further
explains that Section 447 of the Restatement (Second) of Torts
illuminates these factors:
“The fact that an intervening act of a third person is
negligent in itself or is done in a negligent manner
does not make it a superseding cause of harm to
another which the actor’s negligent conduct is a
substantial factor in bringing about, if
(a) the actor at the time of his negligent
conduct should have realized that a third
person might so act, or
(b) a reasonable man knowing the situation
existing when the act of the third person
was done would not regard it as highly
extraordinary that the third person had so
acted, or
(c) the intervening act is a normal
consequence of a situation created by the
actor’s conduct and the manner in which it
is done is not extraordinarily negligent.”
Pittway, 973 A.2d at 789 (quoting Restatement (Second) of Torts
§ 447). Thus, “a superseding cause arises primarily when
unusual and extraordinary independent intervening negligent acts
occur that could not have been anticipated by the original
tortfeasor.”
Id. (internal quotation marks omitted).
Therefore, courts should look to both the foreseeability of the
21
harm suffered by the plaintiff, as well as the foreseeability of
the intervening act itself. See id. at 792.
Any doubt that the Restatement Section 442 factors
weigh in favor of Suburban is resolved by an analysis of Section
447: PTSM should have realized that an elderly man injured by a
fall from its own exercise equipment would have to go to the
hospital, would receive medical care, and may possibly
experience negligent medical care there. Mr. LaClair’s ultimate
injuries and the manner in which they occurred were not
extraordinary, nor were these unfortunate consequences
unforeseeable.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
22
