Negligence - Problems relating to remote or unforeseeable ca...

Learning Outcomes

This article examines problems of remoteness and unforeseeability in negligence on the MBE, including:

• Distinguishing proximate cause (legal cause) from actual cause (cause-in-fact) and recognizing how the two questions are separated on bar exam questions.
• Applying the foreseeability and “scope of the risk” tests to determine which harms fall within the defendant’s liability and which are too remote.
• Analyzing foreseeable versus unforeseeable plaintiffs using the Palsgraf “zone of danger” framework and contrasting the Cardozo and Andrews approaches where relevant.
• Separating unforeseeable type of harm from unforeseeable extent of harm, and using the eggshell-plaintiff rule to evaluate liability and damages.
• Identifying direct-cause and indirect-cause fact patterns and spotting when intervening forces or chains of events are likely to raise proximate-cause issues.
• Classifying intervening causes as dependent or independent and determining when they become superseding causes that cut off the original tortfeasor’s liability.
• Evaluating how later negligence, intentional torts, criminal acts, medical malpractice, rescue efforts, and “acts of God” interact with proximate cause on MBE-style hypotheticals.
• Developing exam-ready reasoning steps and terminology for selecting the best answer choice when multiple possible causes or superseding events appear in a single question.

MBE Syllabus

For the MBE, you are required to understand proximate cause within negligence, with a focus on the following syllabus points:

• Distinguish actual cause from proximate (legal) cause.
• Apply foreseeability to determine the scope of liability and the “scope of the risk.”
• Distinguish foreseeable from unforeseeable plaintiffs using the zone-of-danger concept (Palsgraf).
• Analyze cases where the manner, type, or extent of harm is unusual or extreme.
• Differentiate direct-cause cases from indirect-cause cases involving intervening forces.
• Identify intervening causes (negligent, intentional, criminal, or natural) and determine when they are dependent vs. independent.
• Decide when an intervening cause is superseding and cuts off liability.
• Apply special rules for rescuers, medical malpractice, subsequent accidents or diseases, and criminal acts of third parties.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. To establish proximate cause in a negligence action, the plaintiff must generally show that:
   1. The defendant's conduct was the sole cause of the injury.
   2. The plaintiff's injury was a reasonably foreseeable consequence of the defendant's negligent act.
   3. The defendant intended the specific harm that occurred.
   4. But for the defendant's conduct, the injury would not have occurred.
2. Driver negligently runs a red light, causing Pedestrian to jump back onto the curb. Seconds later, a meteorite strikes Pedestrian. Is Driver liable for Pedestrian's injuries from the meteorite?
   1. Yes, because Driver's negligence set the events in motion.
   2. Yes, under the "eggshell plaintiff" rule.
   3. No, because the meteorite strike was an unforeseeable, superseding cause.
   4. No, because Driver lacked the intent to harm Pedestrian.
3. Which of the following intervening forces is LEAST likely to be considered unforeseeable and thus LEAST likely to prevent the original tortfeasor's liability?
   1. Negligent medical treatment aggravating the plaintiff's initial injury.
   2. An intentional criminal act by a third party that exploits the situation created by the defendant's negligence.
   3. A subsequent accident caused by the plaintiff's weakened condition resulting from the initial injury.
   4. Negligence of rescuers coming to the plaintiff's aid after the initial injury.

Introduction

Once actual cause (cause-in-fact) is established in a negligence claim, the analysis shifts to proximate cause, also called legal cause. Proximate cause addresses the scope of liability: even if the defendant’s conduct was a factual cause of the injury, should the law treat the defendant as responsible for this particular harm to this particular plaintiff?

Actual cause asks whether the injury would have occurred “but for” the defendant’s conduct (or whether the conduct was a substantial factor when there are multiple sufficient causes). Proximate cause, by contrast, asks whether the connection between the conduct and the injury is close enough—rather than too remote or bizarre—to justify liability.

The central inquiry is whether the plaintiff’s injury is among the risks that made the defendant’s conduct negligent in the first place. Unforeseeable plaintiffs, unforeseeable types of harm, or unforeseeable intervening forces can break the chain of proximate causation, relieving the defendant of liability even if actual cause is satisfied.

Key Term: Proximate Cause
A legal limitation on liability in negligence; requires that the plaintiff's injury be a foreseeable consequence of the defendant's negligent conduct—i.e., the injury must fall within the scope of the risk that made the conduct negligent.

Key Term: Foreseeability
The predictability of an event or result based on what a reasonably prudent person would anticipate under the circumstances. In proximate cause analysis, foreseeability focuses on the type of harm and the class of persons at risk, not precise details.

On the MBE, proximate cause questions often appear in fact patterns with long chains of events, multiple actors, or strange accidents (explosions, fires, criminal assaults, natural disasters). The task is to decide whether the harm is “too remote” or whether it is a normal, foreseeable consequence of the original negligence.

Proximate Cause: The Foreseeability Test

The prevailing test for proximate cause is foreseeability. The defendant is generally liable only for those consequences of negligence that were reasonably foreseeable at the time of the negligent act or omission. The modern “scope of the risk” formulation captures this idea:

Key Term: Scope of the Risk
The set of harms whose possibility made the defendant’s conduct negligent. A defendant is liable only for harms that result from the risks that made the conduct unreasonably dangerous.

It is not necessary that the defendant foresee the exact sequence of events or the precise manner in which the harm occurs. It is enough that:

• A foreseeable kind of plaintiff
• Suffers a foreseeable kind of harm
• From the general type of risk that made the conduct negligent.

Foreseeable Plaintiffs and the Zone of Danger

The famous case Palsgraf illustrates the link between duty and proximate cause.

Under the majority (Cardozo) view, duty is owed only to foreseeable plaintiffs, those within the zone of danger created by the defendant’s conduct. If the plaintiff is outside that zone, the defendant owes no duty to that plaintiff, and analysis ends at the duty stage.

Key Term: Zone of Danger
The area around the defendant’s conduct within which a reasonably prudent person would foresee a risk of physical harm. Only plaintiffs within this zone are “foreseeable plaintiffs” under the majority view.

Under the minority (Andrews) view, a duty is owed to everyone, but proximate cause is used to limit liability. The question becomes whether the defendant’s negligence was a “natural and continuous sequence” leading to the injury, or whether the chain was broken by an abnormal, unforeseeable event.

Though the two approaches place the foreseeability inquiry in different doctrinal boxes (duty vs. proximate cause), they usually reach the same bottom line on the MBE: no liability for unforeseeable plaintiffs whose injuries are not within the zone of danger.

Unforeseeable Extent of Harm

The “eggshell plaintiff” rule applies to the extent of harm.

Key Term: Eggshell Plaintiff Rule
Once the defendant negligently causes a foreseeable type of physical injury to a plaintiff, the defendant is liable for the full extent of that injury, even if the extent is unforeseeable because of the plaintiff’s preexisting susceptibility or condition.

If the type of harm (e.g., physical injury from a car crash) is foreseeable, the defendant must “take the plaintiff as found.” It does not matter that:

• The plaintiff is unusually fragile or has a preexisting disease.
• The extent of damages is enormous compared to what would usually occur.

The eggshell rule does not expand the scope of liability to completely different types of harm; it only governs the severity of a foreseeable type of harm.

Unforeseeable Type of Harm

By contrast, if the defendant’s negligence creates a risk of a particular type of harm, but a completely different and unforeseeable type of harm occurs, the defendant is generally not liable. This is a scope-of-risk problem.

A defendant is liable if the injury is a result of the very risk that made the conduct negligent—not for harms that arise from entirely different dangers.

For example, if a driver negligently leaves a car unlocked with the engine running, the foreseeable risks include theft and careless driving by a thief. If a freak lightning strike hits the car and causes an explosion that injures a passerby, that injury may be outside the scope of the risk created by leaving the car running (depending on the jurisdiction).

In exam terms, separate unforeseeable extent (eggshell plaintiff—no cutoff) from unforeseeable type of harm (scope-of-risk—likely no proximate cause).

Direct vs. Indirect Cause Cases

It is often useful to classify cases as direct cause or indirect cause cases.

Key Term: Direct Cause Case
A case in which there is no intervening force between the defendant’s negligence and the plaintiff’s injury; the harm flows in an uninterrupted sequence from the defendant’s act to the injury.

Key Term: Indirect Cause Case
A case in which some intervening force (another person’s act, an act of nature, etc.) comes into play between the defendant’s negligent conduct and the plaintiff’s injury.

In direct cause cases, courts are relatively generous about proximate cause. If the type of harm is a foreseeable result of the negligent conduct, liability usually follows even if:

• The manner in which the harm occurs is unusual, or
• The extent of harm is greater than expected.

In indirect cause cases, the focus shifts to whether the intervening force is foreseeable. Foreseeable intervening forces usually do not break the chain; unforeseeable ones may be superseding and cut off liability.

Intervening and Superseding Causes

An intervening cause is any force that comes into play after the defendant’s negligent act and contributes to the plaintiff’s injury.

Key Term: Intervening Cause
A later event or act that occurs after the defendant’s negligent conduct and contributes to producing the plaintiff's injury.

The key question is whether the intervening cause is also a superseding cause.

Key Term: Superseding Cause
An intervening cause that is so unforeseeable and extraordinary that it breaks the chain of causation between the defendant’s negligence and the plaintiff’s injury, relieving the original defendant of liability.

Many outlines further distinguish dependent and independent intervening forces, which is helpful on the MBE.

Key Term: Dependent Intervening Force
A force that occurs in response to or as a normal reaction to the situation created by the defendant’s negligence (e.g., rescue efforts, medical treatment, evasive actions).

Key Term: Independent Intervening Force
A force that operates on the situation but is not a normal response to the defendant’s conduct (e.g., extraordinary acts of nature, random criminal acts unrelated to the risk created).

As a general pattern:

• Dependent intervening forces are usually foreseeable and not superseding.
• Independent intervening forces are more likely to be unforeseeable and superseding—but not always.

Foreseeable Intervening Forces

Foreseeable intervening forces do not cut off the defendant's liability. The original tortfeasor remains liable if:

• The intervening force is a natural or normal response to the danger created, or
• The intervening force is itself reasonably foreseeable.

Common examples that are almost always foreseeable on the MBE:

• Negligent Medical Treatment
  Subsequent negligent medical care for injuries caused by the defendant is a classic dependent intervening force. It is foreseeable that injured plaintiffs will seek treatment and that some providers will be careless. The original defendant is liable for any additional harm caused by the malpractice (often jointly with the medical provider).

• Negligent Rescue and Rescuer Injuries
  “Danger invites rescue.” If the defendant’s negligence places someone in danger, it is foreseeable that rescuers will attempt to help and may themselves be negligent or injured. The original defendant is liable both for additional harm to the original victim and for injuries to rescuers, subject to comparative fault.

• Efforts to Protect Person or Property; Reaction Forces
  Reasonable efforts by the plaintiff or others to protect life or property (e.g., running, swerving, fleeing a fire) are normal reactions. Crowd stampedes, collisions during escape, and similar reaction forces are typically foreseeable.

• Subsequent Diseases or Accidents
  If the defendant’s negligence leaves the plaintiff weakened or disabled, subsequent illnesses or accidents flowing from that weakened condition—such as slipping while on crutches or contracting pneumonia while immobilized—are foreseeable and within the scope of liability.

• Ordinary Negligent Acts of Third Parties
  Ordinary negligence by third parties is usually foreseeable; the fact that someone else was also negligent rarely cuts off liability. Only extraordinary negligence or unusual conduct tends to be superseding.

Unforeseeable Intervening Forces (Superseding Causes)

An intervening force that produces highly unusual or unforeseeable results may be deemed superseding, breaking the causal chain.

Categories commonly tested as potential superseding causes:

• Criminal Acts and Intentional Torts of Third Parties
  Intentional or criminal acts by third parties are often treated as independent intervening forces. As a default rule, they are superseding causes and cut off liability unless the defendant’s negligence created or increased the risk of that very type of misconduct.

  Examples where criminal conduct may not be superseding:

  • A landlord negligently fails to provide required locks and lighting in a high-crime building; a foreseeable assault occurs.
  • A parking garage provides no security in an area known for car theft; theft and subsequent negligent driving by the thief are foreseeable.

  Contrast situations in which the criminal act is entirely unexpected and not within the risk created, such as an arsonist deliberately igniting spilled oil where the defendant merely negligently spilled it.

• Extraordinary Acts of Nature (“Acts of God”)
  Natural forces (earthquakes, tornadoes, freak lightning strikes) are superseding if they are extraordinary in magnitude or kind under the circumstances and were not made more likely by the defendant’s negligence. If the negligence increases the risk from such natural forces (e.g., failing to secure scaffolding in a region where strong storms are common), the natural event may be treated as foreseeable and not superseding.

• Highly Unusual Negligent Acts of Third Parties
  Grossly bizarre or extraordinary negligence by a third party can sometimes be superseding, particularly if it is wholly independent of the risk created by the defendant. The bar exam typically signals this by emphasizing how “freakish” or unprecedented the later conduct is.

• Suicide or Deliberate Self-Harm
  Traditionally, suicide was often viewed as a superseding cause. Modern law is more developed: where the defendant has a duty of care in a custodial or mental-health setting and negligently fails to prevent suicide that is a foreseeable result of mental illness, proximate cause may still be found. This level of detail is rarely tested on the MBE, but exam facts may describe suicide in a casual negligence case (like a car accident) as superseding.

Worked Example 1.1

Driver negligently crashes into a utility pole, causing a power outage in the neighborhood. As a result, Homeowner's electronically controlled security system fails. Burglar, noticing the outage and lack of security lights, breaks into Homeowner's house and steals valuables. Is Driver liable for the value of the stolen items?

Answer:
Likely no. Even though the power outage was an actual and foreseeable result of Driver's negligence, Burglar’s intentional criminal act is an independent intervening force. Unless Driver’s negligence created or increased a specific risk of burglary (e.g., by disabling security at a known target, or in circumstances where such crimes are common when power is out), the burglary is probably an unforeseeable, superseding cause. The chain of proximate causation between Driver’s negligence and the theft is broken.

Worked Example 1.2

Motorist negligently injures Biker, breaking Biker's leg. While Biker is recovering in the hospital, Nurse negligently administers the wrong medication, causing Biker additional injury. Is Motorist liable for the injuries caused by Nurse’s negligence?

Answer:
Yes. Subsequent negligent medical treatment is a classic dependent intervening force and is considered foreseeable. Motorist’s negligence made medical treatment necessary and created the risk of negligent care. Motorist is liable for both the original injury and the aggravation caused by Nurse’s negligence, usually jointly with Nurse.

Worked Example 1.3

Store negligently leaves a large spill on the floor without warning signs. Patron slips, fractures her wrist, and is taken to the hospital. Friend rushes to the hospital to visit Patron, runs a red light, and in the resulting collision Patron (already in an ambulance) suffers further injury. Is Store liable for the additional injury from the car accident?

Answer:
Likely yes. Patron’s need to travel to the hospital, and the resulting travel-related risks, are foreseeable consequences of the initial negligence. The Friend’s ordinary negligence is a foreseeable intervening act; it is not so extraordinary as to be superseding. Store’s liability extends to injuries sustained in a subsequent accident caused by the plaintiff’s weakened condition or necessary travel for treatment.

Worked Example 1.4

Contractor negligently leaves a small hole in a sidewalk, creating a tripping hazard. Healthy Adult trips and suffers minor bruises. Frail Plaintiff, who has severe osteoporosis, later trips in the same hole and sustains multiple fractures and massive medical expenses. Contractor argues that such extensive harm was unforeseeable. Is Contractor liable for the full extent of Frail Plaintiff’s injuries?

Answer:
Yes. This is a classic application of the eggshell plaintiff rule. The type of harm—physical injury from tripping—is plainly foreseeable. Once that type of harm occurs, Contractor is liable for the full extent of the injuries, even though the severity was unforeseeable and is due to Plaintiff’s unusual susceptibility.

Worked Example 1.5

Chemical Company negligently stores flammable chemicals near a public sidewalk. Company foresees the risk that a cigarette or small fire could ignite the chemicals and injure passersby. Instead, during a freak meteor shower, a meteor hits the barrels, causing an explosion that injures pedestrians. Is Chemical Company liable?

Answer:
This is close, but many courts would find no proximate cause. While an explosion and burn injuries are the type of harm associated with the risk of negligent chemical storage, the intervening cause—a meteor strike—is an extraordinary act of nature. Unless the facts suggest meteors are to be expected (they will not), the meteor is likely a superseding cause. On the MBE, meteors and similarly extreme events are strong signals of a superseding cause.

Worked Example 1.6

Railroad negligently leaves a gate open at a rural crossing. Car Driver lawfully crosses and is struck by Train. Rescuer sees the collision and rushes to pull Driver from the wreckage, but in the process Rescuer is injured when debris falls. Railroad argues that it did not cause Rescuer’s injuries. Is Railroad liable to Rescuer?

Answer:
Yes. Railroad’s negligence created a dangerous situation at the crossing. Rescuer’s attempt to save Driver is a foreseeable reaction to that danger; under the “danger invites rescue” principle, Rescuer is a foreseeable plaintiff. The actions of rescuer are a dependent intervening force and are not superseding. Railroad is liable for Rescuer’s injuries, subject to comparative fault if Rescuer’s conduct was unreasonable.

Exam Warning

Do not confuse foreseeability of the plaintiff (zone-of-danger analysis under duty/Palsgraf) with foreseeability of the type of harm or intervening force (proximate cause analysis).

• A plaintiff might be clearly within the zone of danger but suffer a harm that is outside the scope of the risk or caused by an unforeseeable superseding force.
• Conversely, a plaintiff might suffer a foreseeable type of harm that is within the risk created, even though the precise way the harm occurred was bizarre.

On MBE questions, read the call carefully: if it asks about duty or “to whom the defendant owed a duty,” think about foreseeable plaintiffs and the zone of danger. If it asks specifically about proximate cause, focus on scope of risk and intervening vs. superseding causes.

Key Point Checklist

This article has covered the following key knowledge points:

• Proximate cause limits liability to harms that fall within the scope of the risk created by the defendant’s negligence.
• Foreseeability is the central tool for determining proximate cause; precise manner or sequence of events need not be foreseeable.
• Under the majority (Cardozo) view, duty is owed only to foreseeable plaintiffs within the zone of danger; under the minority (Andrews) view, duty is broader but proximate cause limits liability.
• The eggshell plaintiff rule applies to the extent of harm: once a foreseeable type of physical injury occurs, the defendant is liable for the full extent, even if unusually severe.
• If an entirely different type of harm occurs, outside the risks that made the conduct negligent, proximate cause is usually lacking.
• Direct cause cases (no intervening forces) usually result in liability when the type of harm is foreseeable, even if the chain of events is unusual.
• Indirect cause cases involve intervening forces; the main question is whether those forces are foreseeable or superseding.
• Dependent intervening forces—such as medical malpractice, rescue efforts, protective or evasive actions, and later accidents stemming from a weakened condition—are typically foreseeable and not superseding.
• Independent intervening forces—such as intentional torts, crimes, and extraordinary natural events—are more likely to be superseding, unless the defendant’s negligence created or increased the specific risk of that event.
• Intentional or criminal acts of third parties are usually superseding, but may not be if the original negligence made such misconduct foreseeable (e.g., negligent security in high-crime areas).
• On MBE fact patterns, meteors, bizarre acts of nature, and highly unusual third-party conduct are strong signals of a superseding cause that cuts off liability.

Key Terms and Concepts

• Proximate Cause
• Foreseeability
• Zone of Danger
• Scope of the Risk
• Eggshell Plaintiff Rule
• Intervening Cause
• Superseding Cause
• Direct Cause Case
• Indirect Cause Case
• Dependent Intervening Force
• Independent Intervening Force