Proximate Cause

An act from which an injury results as a natural, direct, uninterrupted consequence and without which the
injury would not have occurred.
Proximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space
nor the first event that sets in motion a sequence of events leading to aninjury. Proximate cause produces
particular, foreseeable consequences without the intervention of any independent or unforeseeable cause
. It is also known as legal cause.
To help determine the proximate cause of an injury in Negligence or other TORT cases, courts have devis
ed the "but for" or "sine qua non" rule, which considers whether the injurywould not have occurred but for
the defendant's negligent act. A finding that an injury would not have occurred but for a defendant's act es
tablishes that the particular act or omissionis the proximate cause of the harm, but it does not necessarily
establish liability since a variety of other factors can come into play in tort actions.
Some jurisdictions apply the "substantial factor" formula to determine proximate cause. This rule consider
s whether the defendant's conduct was a substantial factor in producing theharm. If the act was a substan
tial factor in bringing about the damage, then the defendant will be held liable unless she can raise a suffi
cient defense to rebut the claims.

Last Clear Chance

In the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's contributory Negligen
ce and permits him or her to recover, in particular instances, damagesregardless of his or her own lack of
ordinary care.
The rule of last clear chance operates when the plaintiff negligently enters into an area of danger from whi
ch the person cannot extricate himself or herself. The defendant has thefinal opportunity to prevent the ha
rm that the plaintiff otherwise will suffer. The doctrine was formulated to relieve the severity of the applicati
on of the contributory negligence ruleagainst the plaintiff, which completely bars any recovery if the perso
n was at all negligent.
There are as many variations and adaptations of this doctrine as there are jurisdictions that apply it. Four
different categories have emerged, which are classified as helplessplaintiffs, inattentive plaintiffs, observa
nt defendants, and inattentive defendants.

Helpless Plaintiffs
Where the plaintiff's previous negligence has placed him or her in a position from which the person is pow
erless to extricate himself or herself by the exercise of any ordinary care,and the defendant detects the da
nger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover.

There must be proof that the defendant discovered the situation, had the time to take action that would ha
ve saved the plaintiff, but failed to do what a reasonable person would havedone. In the absence of any o
ne of these elements, the courts deny recovery.
If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid injury to the
plaintiff, some courts have permitted recovery under the rationale that thedefendant's subsequent neglige
nce is the proximate cause, or direct cause, of the injury, rather than the contributory negligence of the pla
intiff. The defendant must have been able tohave discovered the peril through appropriate vigilance so as
to avoid its harmful consequences to the plaintiff.

Inattentive Plaintiffs
In another group of cases, the plaintiff is not helpless but is in a position to escape injury. The person's ne
gligence consists of failure to pay attention to his or her surroundings anddetect his or her own peril. If the
defendant discovers the plaintiff's danger and inattentiveness, and is then negligent, a majority of courts a
llows the plaintiff to recover. Some courtshold that the defendant must actually recognize the plaintiff's da
nger and inattention. Most courts apply a more objective standard; they require only that the defendant di
scover thesituation and that the plaintiff's peril and inattentiveness be evident to a reasonable person. The
discovery can be proved by Circumstantial
Evidence. There is an additionalessential qualification that the defendant can frequently, reasonably assu
me until the last moment that the plaintiff will protect himself or herself, and the defendant has no reason t
oact until he or she has some notice to the contrary.
If the defendant does not discover the plaintiff's situationbut could do so with appropriate vigilance
neither party can be viewed as possessing the last clear chance. The plaintiffis still in a position to escape
, and his or her inattentiveness persists until the juncture of the accident, without the interval of superior o
pportunity of the defendant. The plaintiffcannot reasonably demand of the defendant greater care for his o
r her own protection than that which he or she as plaintiff would exercise for himself or herself. Nearly all
of thecourts have ruled that, in this situation, there can be no recovery.

Observant Defendant
The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the harm and a
ssumes that a duty exists to act under the circumstances. The personperceives the plaintiff's helpless or i
nattentive condition, but thereafter is negligent in failing to act so as to prevent the plaintiff's harm. In most
instances, the defendant's conduct isitself the cause of the plaintiff's danger, but this is not a requirement
so long as a duty to act exists.
The plaintiff must prove that the defendant actually saw him or her and that a reasonable person would h
ave known that he or she was inattentive or helpless. This is determined byan objective test entailing circ
umstantial evidence of the defendant's state of mind. The defendant cannot assert unawareness of the pl
aintiff's powerlessness or inattentiveness whenthat fact would have been evident to any observer.

Inattentive Defendant
The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in order to see the pl
aintiff in time to avoid the harm, perceive the person's helpless orinattentive condition, and thereby exerci
se reasonable care to act in time to avoid the harm. Due to the defendant's negligence, however, he or sh
e fails to see the plaintiff in time,and injury occurs.

Application of Doctrine
There are four possible cases in which the rule of last clear chance can be applied.
The typical last clear chance situation involves the helpless plaintiff against the observant defendant, and
all courts that accept the doctrine will apply it. The few courts that do notrecognize the rule attain the sam
e result under the doctrine of willful and wanton misconduct.
In the helpless plaintiff-inattentive defendant and the inattentive plaintiff-observant defendant cases, most
jurisdictions that acknowledge the rule apply it.
Where the case entails the inattentive plaintiff against the inattentive defendant, the justifications for the r
ule are eliminated, and nearly all jurisdictions refuse to apply it.
The defendant's negligence must occur subsequent to that point in time when the person discovered or s
hould have discovered the plaintiff's peril.

Negligence
Conduct that falls below the standards of behavior established by law for the protection of others against
unreasonable risk of harm. A person has acted negligently if he or she hasdeparted from the conduct exp
ected of a reasonably prudent person acting under similar circumstances.
In order to establish negligence as a Cause of
Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the def
endant breached that duty byfailing to conform to the required standard of conduct, the defendant's neglig
ent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
The concept of negligence developed under English Law. Although English Common
Law had long imposed liability for the wrongful acts of others, negligence did not emerge as anindepende
nt cause of action until the eighteenth century. Another important concept emerged at that time: legal liabil
ity for a failure to act. Originally liability for failing to act wasimposed on those who undertook to perform s
ome service and breached a promise to exercise care or skill in performing that service. Gradually the law
began to imply a promise toexercise care or skill in the performance of certain services. This promise to e
xercise care, whether express or implied, formed the origins of the modern concept of "duty." Forexample,
innkeepers were said to have a duty to protect the safety and security of their guests.

The concept of negligence passed from Great Britain to the United States as each state (except Louisian
a) adopted the common law of Great Britain (Louisiana adopted the Civil
Law of France). Although there have been important developments in negligence law, the basic concepts
have remained the same since the eighteenth century. Today negligence isby far the widest-ranging tort,
encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important c
oncepts in negligence law is the "reasonableperson," which provides the standard by which a person's co
nduct is judged.

The Reasonable Person

A person has acted negligently if she has departed from the conduct expected of a reasonably prudent pe
rson acting under similar circumstances. The hypothetical reasonableperson provides an objective by whi
ch the conduct of others is judged. In law, the reasonable person is not an average person or a typical per
son but a composite of the community'sjudgment as to how the typical community member should behav
e in situations that might pose a threat of harm to the public. Even though the majority of people in the co
mmunitymay behave in a certain way, that does not establish the standard of conduct of the reasonable p
erson. For example, a majority of people in a community may jay-walk, butjaywalking might still fall below
the community's standards of safe conduct.
The concept of the reasonable person distinguishes negligence from intentional torts such as Assault
and
Battery. To prove an intentional tort, the plaintiff seeks to establish thatthe defendant deliberately acted to
injure the plaintiff. In a negligence suit, however, the plaintiff seeks to establish that the failure of the defen
dant to act as a reasonable personcaused the plaintiff's injury. An intoxicated driver who accidentally injur
es a pedestrian may not have intended to cause the pedestrian's injury. But because a reasonable person
would not drive while intoxicated because it creates an unreasonable risk of harm to pedestrians and othe
r drivers, an intoxicated driver may be held liable to an injured plaintiff fornegligence despite his lack of int
ent to injure the plaintiff.
The law considers a variety of factors in determining whether a person has acted as the hypothetical reas
onable person would have acted in a similar situation. These factors includethe knowledge, EXPERIENC
E and perception of the person, the activity the person is engaging in, the physical characteristics of the
person, and the circumstances surroundingthe person's actions.Knowledge, EXPERIENCE and Perce
ption The law takes into account a person's knowledge, experience, and perceptions in determining whet
her theindividual has acted as a reasonable person would have acted in the same circumstances. Condu
ct must be judged in light of a person's actual knowledge and observations, becausethe reasonable perso
n always takes this into account. Thus, if a driver sees another car approaching at night without lights, the
driver must act reasonably to avoid an accident, eventhough the driver would not have been negligent in f
ailing to see the other car.
In addition to actual knowledge, the law also considers most people to have the same knowledge, experie
nce, and ability to perceive as the hypothetical reasonable person. In theabsence of unusual circumstanc
es, a person must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car

hit by a train at an unobstructed railroadcrossing cannot claim that she was not negligent because she did
not see or hear the train, because a reasonable person would have seen or heard the train.
Also, a person cannot deny personal knowledge of basic facts commonly known in the community. The re
asonable person knows that ice is slippery, that live wires are dangerous,that alcohol impairs driving abilit
y, and that children might run into the street when they are playing. To act as a reasonable person, an indi
vidual must even take into account her lackof knowledge of some situations, such as when walking down
a dark, unfamiliar corridor.
Finally, a person who undertakes a particular activity is ordinarily considered to have the knowledge com
mon to others who engage in that activity. A motorist must know the rules ofthe road and a product manuf
acturer must know the characteristics and dangers of its product, at least to the extent they are generally
known in the industry.
Special Skills If a person engages in an activity requiring special skills, education, training, or experience
, such as piloting an airplane, the standard by which his conduct ismeasured is the conduct of a reasonab
ly skilled, competent, and experienced person who is a qualified member of the group authorized to enga
ge in that activity. In other words, thehypothetical reasonable person is a skilled, competent, and experien
ced person who engages in the same activity. Often persons practicing these special skills must be licens
ed,such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these speci
al skills, whether qualified or not, is held to the standards of conduct of thoseproperly qualified to do so, b
ecause the public relies on the special expertise of those who engage in such activities. Thus, an unlicens
ed driver who takes his friends for a joyride isheld to the standard of conduct of an experienced, licensed
driver.
The law does not make a special allowance for beginners with regard to special skills. The learner, beginn
er, or trainee in a special skill is held to the standard of conduct of personswho are reasonably skilled and
experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a
first-time driver clearly does not possessthe experience and skill of an experienced driver. Although it may
seem unfair to hold the beginner to the standards of the more experienced person, this standard protects
thegeneral public from the risk of a beginner's lack of competence, because the community is usually def
enseless to guard against such risks.
Physical Characteristics The law takes a person's physical characteristics into account in determining w
hether that person's conduct is negligent. Whether a person's conduct isreasonable, and therefore not ne
gligent, is measured against a reasonably prudent person with the same physical characteristics. There a
re two reasons for taking physicalcharacteristics into account. A physically impaired individual cannot be
expected to conform to a standard of conduct that would be physically impossible for her to meet. On the
other hand, a physically challenged person must act reasonably in light of her handicap, and she may be
negligent in taking a risk that is unreasonable in light of her known physicallimitations. Thus, it would be n
egligent for a blind person to drive an automobile.
Mental Capacity Although a person's physical characteristics are taken into account in determining negli
gence, the person's mental capacity is generally ignored and does notexcuse the person from acting acco

rding to the reasonable person standard. The fact that an individual is lacking in intelligence, judgment, m
emory, or emotional stability does notexcuse the person's failure to act as a reasonably prudent person w
ould have acted under the same circumstances. For example, a person who causes a forest fire by failing
toextinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judg
ment, or EXPERIENCE to appreciate the risk of an untended campfire.
Similarly, evidence of voluntary intoxication will not excuse conduct that is otherwise negligent. Although i
ntoxication affects a person's judgment, voluntary intoxication will notexcuse negligent conduct, because i
t is the person's conduct, not his or her mental condition, that determines negligence. In some cases a pe
rson's intoxication is relevant todetermining whether his conduct is negligent, however, because undertaki
ng certain activities, such as driving, while intoxicated poses a danger to others.
Children Children may be negligent, but they are not held to the same standard of conduct as adults. A c
hild's conduct is measured against the conduct expected of a child ofsimilar age, intelligence, and EXPER
IENCE Unlike the standard for adults, the standard of reasonable conduct for children takes into accoun
t subjective factors such asintelligence and experience. In this sense the standard is less strict than for ad
ults, because children normally do not engage in the high-risk activities of adults and adults dealingwith c
hildren are expected to anticipate their "childish" behavior.
In many states children are presumed incapable of negligence below a certain age, usually seven years. I
n some states children between the ages of seven and fourteen years arepresumed to be incapable of ne
gligence, although this presumption can be rebutted. Once a person reaches the age of majority, usually
eighteen years, she is held to adult standardsof conduct.
One major exception to the rules of negligence exists with regard to children. If a child is engaging in what
is considered an "adult activity," such as driving an automobile or flying anairplane, the child will be held t
o an adult standard of care. The higher standard of care imposed for these types of activities is justified b
y the special skills required to engage inthem and the danger they pose to the public.
Emergencies The law recognizes that even a reasonable person can make errors in judgment in emerge
ncy situations. Therefore, a person's conduct in an emergency is evaluatedin light of whether it was a rea
sonable response under the circumstances, even though, in hindsight, another course of action might hav
e avoided the injury.
In some circumstances failure to anticipate an emergency may constitute negligence. The reasonable per
son anticipates, and takes precautions against, foreseeable emergencies.For example, the owner of a the
ater must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility
of a swimmer drowning. Failure to guardagainst such emergencies can constitute negligence.
Also, a person can be negligent in causing an emergency, even if he acts reasonably during the emergen
cy. A theater owner whose negligence causes a fire, for instance, would beliable for the injuries to the patr
ons, even if he saved lives during the fire.

Conduct of Others Finally, the reasonable person takes into account the conduct of others and regulates
his own conduct accordingly. A reasonable person must even foresee theunlawful or negligent conduct of
others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the
keys in the ignition because of theforeseeable risk of theft, or for failing to slow down in the vicinity of a sc
hool yard where children might negligently run into the street.

Proof of Negligence
In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable
person would have acted under the circumstances. The court will instructthe jury as to the standard of co
nduct required of the defendant. For example, a defendant sued for negligent driving is judged according t
o how a reasonable person would havedriven in the same circumstances. A plaintiff has a variety of mean
s of proving that a defendant did not act as the hypothetical reasonable person would have acted. The pla
intiff canshow that the defendant violated a statute designed to protect against the type of injury that occu
rred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of acustomary practice, or
Circumstantial Evidence.
Statutes Federal and state statutes, municipal ordinances, and administrative regulations govern all kind
s of conduct and frequently impose standards of conduct to be observed. Forexample, the law prohibits dr
iving through a red traffic light at an intersection. A plaintiff injured by a defendant who ignored a red light
can introduce the defendant's violation of thestatute as evidence that the defendant acted negligently. Ho
wever, a plaintiff's evidence that the defendant violated a statute does not always establish that the defen
dant actedunreasonably. The statute that was violated must have been intended to protect against the par
ticular hazard or type of harm that caused injury to the plaintiff.
Sometimes physical circumstances beyond a person's control can excuse the violation of a statute, such
as when the headlights of a vehicle suddenly fail, or when a driver swervesinto oncoming traffic to avoid a
child who darted into the street. To excuse the violation, the defendant must establish that, in failing to co
mply with the statute, she acted as areasonable person would have acted.
In many jurisdictions the violation of a statute, regulation, or ordinance enacted to protect against the har
m that resulted to the plaintiff is considered negligence per se. Unless thedefendant presents evidence ex
cusing the violation of the statute, the defendant's negligence is conclusively established. In some jurisdic
tions a defendant's violation of a statute ismerely evidence that the defendant acted negligently.
Experts Often a plaintiff will need an expert witness to establish that the defendant did not adhere to the
conduct expected of a reasonably prudent person in the defendant'scircumstances. A juror may be unabl
e to determine from his own EXPERIENCE for example, if the medicine prescribed by a physician was r
easonably appropriate for a patient'sillness. Experts may provide the jury with information beyond the co
mmon knowledge of jurors, such as scientific theories, data, tests, and EXPERIMENTS Also, in casesin
volving professionals such as physicians, experts establish the standard of care expected of the professio
nal. In the above example, the patient might have a physician offerExpert
Testimony regarding the medication that a reasonably prudent physician would have prescribed for the p
atient's illness.

Custom Evidence of the usual and customary conduct or practice of others under similar circumstances c
an be admitted to establish the proper standard of reasonable conduct. Likethe evidence provided by exp
ert witnesses, evidence of custom and habit is usually used in cases where the nature of the alleged negli
gence is beyond the common knowledge ofthe jurors. Often such evidence is presented in cases alleging
negligence in some business activity. For example, a plaintiff suing the manufacturer of a punch press tha
t injured hermight present evidence that all other manufacturers of punch presses incorporate a certain sa
fety device that would have prevented the injury.
A plaintiff's evidence of conformity or nonconformity with a customary practice does not establish whether
the defendant was negligent; the jury decides whether a reasonably prudentperson would have done mor
e or less than is customary.
Circumstantial Evidence Sometimes a plaintiff has no direct evidence of how the defendant acted and
must attempt to prove his case through circumstantial evidence. Of course,any fact in a lawsuit may be pr
oved by circumstantial evidence. Skid marks can establish the speed a car was traveling prior to a collisio
n, a person's appearance cancircumstantially prove his or her age, etc. Sometimes a plaintiff in a neglige
nce lawsuit must prove his entire case by circumstantial evidence. Suppose a plaintiff's shoulder isseverel
y injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operatio
n, sues the doctor in charge of the operation for negligence, eventhough he has no idea how the injury ac
tually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his ca
se by circumstantial evidence.
In cases such as this, the doctrine of Res Ipsa
Loquitur (the thing speaks for itself) is invoked. Res ipsa loquitor allows a plaintiff to prove negligence on
the theory that his injurycould not have occurred in the absence of the defendant's negligence. The plainti
ff must establish that the injury was caused by an instrumentality or condition that was under thedefendan
t's exclusive management or control and that the plaintiff's injury would not have occurred if the defendant
had acted with reasonable care. Thus, in the above example, theplaintiff can use res ipsa loquitor to prov
e that the doctor negligently injured his shoulder.

Duty
A defendant is not liable in negligence, even if she did not act with reasonable care, if she did not owe a d
uty to the plaintiff. In general, a person is under a duty to all persons at alltimes to exercise reasonable ca
re for their physical safety and the safety of their property. This general standard of duty may lead to see
mingly unjust results. For example, if aproperty owner leaves a deep hole in her backyard with no warning
s or barriers around the hole, she should be liable if her guest falls into the hole. But what if a trespasser
enters thebackyard at night and falls into the hole? Although the property owner was negligent in failing to
guard against someone falling into the hole, it would be unfair to require the propertyowner to compensat
e the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to prot
ect a trespasser from harm.
The law uses the concept of duty to limit the situations where a defendant is liable for a plaintiff's injury. W
hether a defendant has a duty to protect the plaintiff from harm is aquestion decided by the court, not the j

ury. Over time, courts have developed numerous rules creating and limiting a person's duty to others, and
sometimes duties are established orlimited by statute. Whether the defendant owes the plaintiff a duty de
pends upon the relationship between the defendant and the plaintiff.
A preexisting relationship can create an affirmative duty to exercise reasonable care to protect another pe
rson from harm. For example, an inn has an affirmative duty to protect itsguests, a school has a duty to its
pupils, a store has a duty to its customers, and a lifeguard has a duty to swimmers.
One always has a duty to refrain from taking actions that endanger the safety of others, but usually one d
oes not have a duty to render aid or prevent harm to a person from anindependent cause. A common exa
mple of this limitation on duty is the lack of a duty to go to the aid of a person in peril. An expert swimmer
with a boat and a rope has no duty toattempt to rescue a person who is drowning (although a hired lifegu
ard would). A physician who witnesses an automobile accident has no duty to offer emergency medical a
ssistanceto the accident victims.
Sometimes a person can voluntarily assume a duty where it would not otherwise exist. If the doctor who e
ncounters an automobile accident decides to render aid to the victims, sheis under a duty to exercise reas
onable care in rendering that aid. As a result, doctors who have stopped along the highway to render med
ical assistance to accident victims havebeen sued for negligence. Many states have adopted "good sama
ritan" statutes to relieve individuals who render emergency assistance from negligence liability.
Even if a plaintiff establishes that the defendant had a duty to protect the plaintiff from harm and breached
that duty by failing to use reasonable care, the plaintiff must still prove thatthe defendant's negligence was
the proximate cause of her injury.

Proximate Cause
Perhaps no issue in negligence law has caused more confusion than the issue of proximate cause. The c
oncept of proximate cause limits a defendant's liability for his negligence toconsequences reasonably rela
ted to the negligent conduct. Although it might seem obvious whether a defendant's negligence has cause
d injury to the plaintiff, issues of causationare often very difficult. Suppose, for example, that a defendant
negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a u
tility pole,resulting in a power outage. Clearly the defendant's negligence has in fact caused both the acci
dent and power outage. Most people would agree that the negligent defendant shouldbe liable for the oth
er driver's injuries, but should he also be liable to an employee who, due to the failure of her electric alar
m clock, arrives late for work and is fired? This questionraises the issue of proximate cause.
Actually, the term proximate cause is somewhat misleading because as a legal concept it has little to do
with proximity (in time or space) or causation. Rather, proximate cause isrelated to fairness and justice, in
the sense that at some point it becomes unfair to hold a defendant responsible for the results of his neglig
ence. For example, Mrs. O'Leary'snegligent placement of her lantern may have started the Great Chicago
Fire, but it would be unjust to hold her responsible for all the damage done by the fire.

In determining whether a defendant's negligence is the proximate cause of a plaintiff's injury, most courts f
ocus on the foreseeability of the harm that resulted from the defendant'snegligence. For example, if a driv
er negligently drives his automobile, it is foreseeable that he might cause an accident with another vehicle
, hit a pedestrian, or crash into astorefront. Thus, the driver would be liable for those damages. But suppo
se the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person t
woblocks away. Assuming that the driver had no idea that the truck was carrying dynamite, it is not forese
eable that his negligent driving could injure a person two blocks away.Therefore the driver would not be li
able for that person's injury under this approach. When applying this approach, courts frequently instruct j
uries to consider whether the harm orinjury was the "natural or probable" consequence of the defendant's
negligence.
A minority of courts hold the view that the defendant's negligence is the proximate cause of the plaintiff's i
njury if the injury is the "direct result" of the negligence. Usually a plaintiff'sinjury is considered to be the di
rect result of the defendant's negligence if it follows an unbroken, natural sequence from the defendant's
act and no intervening, external force acts tocause the injury.

Intervening Cause
Sometimes a plaintiff's injury results from more than one cause. For instance, suppose a defendant neglig
ently injures a pedestrian in an automobile accident. An emergency roomdoctor negligently treats the plai
ntiff, aggravating her injury. The doctor's negligence is an "intervening cause" of the plaintiff's injury. A cau
se of injury is an Intervening Cause only ifit occurs sub-sequent to the defendant's negligent conduct.
Just because an intervening cause exists, however, does not mean that the defendant's negligent conduc
t is not the proximate cause of the plaintiff's injury. The defendant remainsliable if he should have foresee
n the intervening cause and taken it into account in his conduct. If a defendant negligently spills a large q
uantity of gasoline and doesn't clean it up, hewill not be relieved of liability for a resulting fire merely beca
use another person causes the gasoline to ignite, because it is foreseeable that the gasoline might be acc
identally ignited.Also, it is foreseeable that a sudden gust of wind might cause the fire to spread quickly.
Even if an intervening cause is foreseeable, however, in some situations the defendant will still be excuse
d from liability. If the intervening cause is the intentional or criminal conductof a third person, the defendan
t is not liable for this person's negligent conduct. In the example where the defendant spilled gasoline and
did not clean it up, he is not responsible forthe resulting fire if someone intentionally ignites the gas. Also,
sometimes a third person will discover the danger that the defendant created by his negligence under circ
umstanceswhere the third person has some duty to act. If the third person fails to act, the defendant is not
liable. In the gasoline example, suppose the defendant, a customer at a gas station,negligently spills a lar
ge quantity of gas near the pumps. The owner of the gas station sees the spilled gasoline but does nothin
g. The owner of the gas station, not the defendant,would be liable if another customer accidentally ignites
the gasoline.
Sometimes, however, a completely unforeseeable event or result occurs after a defendant's negligence, r
esulting in harm to the plaintiff. An abnormal, unpredictable, or highlyimprobable event that occurs after th
e defendant's negligence is known as a "superseding cause" and relieves the defendant of liability. For ex

ample, suppose a defendantnegligently blocks a road causing the plaintiff to make a detour in her automo
bile. While on the detour, an airplane hits the plaintiff's car, killing the plaintiff. The airplane wascompletely
unforeseeable to the defendant, and thus he cannot be held liable for the plaintiff's death. The airplane wa
s a superseding cause of the plaintiff's death.
Even great jurists have had difficulty articulating exactly what constitutes proximate cause. Although the l
aw provides tests such as "foreseeability" and "natural, directconsequences," ultimately the issue of proxi
mate cause is decided by people's sense of right and wrong. In the example where the defendant spills g
asoline and does not clean it up,most people would agree that the defendant should be liable if a careless
smoker accidentally ignites the gasoline, even if they could not articulate that the smoker was aforeseeabl
e, intervening cause of the fire.

Defenses to Negligence Liability

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and p
roximately caused the defendant's injury, the defendant can still raisedefenses that reduce or eliminate hi
s liability. These defenses include contributory negligence, comparative negligence, and Assumption of
Risk.
Contributory Negligence Frequently, more than one person has acted negligently to create an injury. Un
der the common-law rule of contributory negligence, a plaintiff whose ownnegligence was a contributing c
ause of her injury was barred from recovering from a negligent defendant. For example, a driver negligent
ly enters an intersection in the path of anoncoming car, resulting in a collision. The other driver was drivin
g at an excessive speed and might have avoided the collision if she had been driving more slowly. Thus,
both drivers'negligence contributed to the accident. Under the doctrine of contributory negligence, neither
driver would be able to recover from the other, due to her own negligence in causing theaccident.
The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant wher
e the plaintiff is also at fault. However, this doctrine often leads to unfairresults. For example, even if a def
endant's negligence is the overwhelming cause of the plaintiff's injury, even slight negligence on the part o
f the plaintiff completely bars hisrecovery. Also, the negligence of many defendants such as corporations,
manufacturers, and landowners creates no corresponding risk of injury to themselves. In such cases thed
octrine of contributory negligence, which can completely eliminate the liability for their negligence, reduce
s their incentive to act safely. As a result, courts and statutes haveconsiderably weakened the doctrine of
contributory negligence.
Comparative Negligence Most states, either by court decision or statute, have now adopted some form
of comparative negligence in place of pure, contributory negligence. Undercomparative negligence, or co
mparative fault as it is sometimes known, a plaintiff's negligence is not a complete bar to her recovery. Ins
tead the plaintiff's damages are reduced bywhatever percentage her own fault contributed to the injury. Th
is requires the jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plain
tiff's injury.For example, suppose a plaintiff is injured in an automobile accident and sustains $100,000 in
damages. The jury determines that the plaintiff was 25 percent responsible for theaccident and that the d

efendant was 75 percent responsible. The plaintiff will then be allowed to recover 75 percent of her dama
ges, or $75,000.
Most states have adopted the "50 percent rule" of comparative negligence. Under this rule the plaintiff ca
nnot recover any damages if her negligence was as great as, or greater than,the negligence of the defend
ant. This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff wh
o is largely responsible for her own injury isunworthy of compensation. A minority of states have adopted
"pure comparative fault." Under that rule even a plaintiff who is 80 percent at fault in causing her injury ma
y still recover20 percent of damages, reflecting the defendant's percentage of fault.
Assumption of Risk Under the assumption of risk defense, a defendant can avoid liability for his neglige
nce by establishing that the plaintiff voluntarily consented to encounter aknown danger created by the def
endant's negligence. Assumption of risk may be express or implied. Under express assumption of risk, pe
rsons agree in advance that one personconsents to assume the risk of the other's negligence. For exampl
e, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any inju
ry thatmight occur while skiing. Thus, even if the ski resort negligently fails to mark a hazard on a trail res
ulting in an injury to a skier, the ski resort may invoke the assumption of riskdefense in the skier's subseq
uent lawsuit.
Assumption of risk may also be implied from a plaintiff's conduct. For example, the defendant gives the pl
aintiff, a painter, a scaffold with a badly frayed rope. The plaintiff, fullyaware of the rope's condition, proce
eds to use the scaffold and is injured. The defendant can raise the implied assumption of risk defense. Th
is defense is similar to the contributorynegligence defense; in the above example, the defendant might als
o argue that the plaintiff was contributorily negligent for using the scaffold when he knew the rope was fra
yed.
The implied assumption of risk defense has caused a great deal of confusion in the courts because of its
similarity to contributory negligence, and with the rise of comparative fault,the defense has diminished in i
mportance and is viable today only in a minority of jurisdictions.