Mary LaClair v. Suburban Hospital, Incorporate

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cv-00896-PJM Copies to all parties and the district court/agency. [999086465].. [12-1195]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mary

T.

LaClair,

individually

and

as

personal

representative of the estate of her husband, Cameron J. LaClair,
Jr.,

appeals

Appellee,
Therapy

the

district

Suburban

and

Hospital,

Sports

Medicine

court’s
Inc.

order

finding

(“Suburban”),

(“PTSM”),

were

that

and

joint

the

Physical

tortfeasors

with respect to her husband’s injuries sustained while he was a
patient

at

Suburban.

Mr.

LaClair

receiving physical therapy at PTSM.

was

first

injured

while

After undergoing surgery at

Suburban for that injury, he was further injured by the actions
of Suburban’s patient care technicians.
affirm

the

district

court’s

conclusion

Suburban asks us to
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

primary negligence.

it

was

foreseeable

at

the

time

of

the

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

tortfeasors, and we affirm.

3

and

PTSM

are

joint

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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.
surgery

on

entailed
LaClair’s

Dr.

Alexandros

Mr.

LaClair

Powers

spine.

Powers,
on

November

inserting

According

a

screws

to

Dr.

neurosurgeon,
3,

2007.

and

rods

Powers,

performed

The
to

the

surgery

secure

surgery

Mr.
“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.

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surgeries due to the success of the November 3 surgery[.]”
228.

J.A.

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

responded.

for

assistance,

two

patient

care

technicians

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

“performing

technicians,

their

normal

while

duties

perhaps
when

negligent,

they

were

aiding

were
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.
weren’t careful motions.

They

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
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in previous surgery, ligament damage and hemorrhage, nerve root
injury at the level of C7 and C8 and spinal cord injury.”
228.

J.A.

He determined Mr. LaClair could no longer be discharged on

November

7

as

previously

scheduled,

but

undergo an additional surgery on November 8.

rather,

needed

to

Mr. LaClair later

underwent a third surgery on February 6, 2008, at Georgetown
University Hospital.
underwent

plaster

He spent nearly five months hospitalized,

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

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November

6

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incident

(filed

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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
See J.A. 48

incurred from the November 6 incident at Suburban.

(PTSM Complaint) (“Plaintiff was taken via ambulance to Suburban
[]

where

he

dislocation.

was

diagnosed

with

a

cervical

fracture

and

Plaintiff remained at Suburban until November 13,

2007, where he underwent two surgical procedures to repair his
cervical

fracture,

however,

Dr.

Powers

among

other

testified

things.”).
on

January

During
5,

2010,

discovery,
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.

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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.
May 31, 2011.

This litigation settled on

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

Settlement

alone

Agreement,

would

Suburban

be

liable.

agreed

to

Pursuant
make

an

to

the

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

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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

January

on

24,

2012,

naming

Suburban

tortfeasor “for reasons stated in the record.”

as

a

joint

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.

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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

committed.”

firm

conviction

that

a

mistake

has

been

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.
304 U.S. 64, 78 (1938).

See Erie R.R. v. Tompkins,

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.

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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]

result of [PTSM’s] alleged tortious conduct.”
Collins, 973 A.2d 771, 788 (Md. 2009).

occurred

as

a

Pittway Corp. v.

Accordingly, PTSM avoids

liability for the November 6 incident “only if the intervening
negligent

act,”

i.e.,

Suburban’s

conduct,

“is

superseding cause of the harm to” Mr. LaClair.

considered

a

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.

superseding

cause,

Pittway

is

providing

the
a

seminal

framework

Maryland
for

case

on

analyzing

an

argument that an intervening act cuts off the liability of an
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original

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tortfeasor.

The

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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

alteration omitted).

at

789

(internal

quotation

marks

and

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
determining
whether
an
intervening
superseding cause of harm to another:

importance in
force
is
a

(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
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subjects
him;

the

third

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person

to

liability

to

(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

“different in kind.”
that

we

subsequent

would

be

negligent

sustained

on

November

See Br. of Appellant 3-9.
hard-pressed
medical

care

to
in

find
which

a

1,

and

thus,

We first note
case

there

regarding
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

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(Md.

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2001)

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(“[W]hen

plaintiff’s

a

injuries,

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physician

the

negligently

physician

becomes

treats

liable

to

the
the

plaintiff to the extent of the harm caused by the physician’s
negligence.
subsequent

Thus,
tort

the

for

physician’s

which

both

negligent

the

doctor

treatment

and

the

is

a

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

repositioning in his bed.

resulted

from

Mr.

LaClair’s

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.”
of Torts § 435(2) cmt. c (1965).
“The

court’s

judgment

extraordinary

result

knowledge

all

of

is

that

as

to

made
has

Comment (d) provides, in part,

whether
after

the

the

happened.
14

Restatement (Second)

harm

is

a

event

with

This

includes

highly

the

full
those

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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.
neurosurgeons

LaClair
that

the

presents

testimony

“application

of

[the

from

three

patient

care

technicians’] force to the body of an elderly, post-operative
cervical spine patient . . . had never before been witnessed or
known

to

them

Neurosurgeons[.]”
229).

in

all

their

years

of

practice

as

Br. of Appellant 27 (citing J.A. 190, 222,

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:

15

“knowing

that

such

a

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force has intervened.”

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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.
Again,

Id. at 1342.
we

agree

with

the

district

court

that

Suburban’s actions were not “so extraordinary as to bring about
a conclusion of separate intervening cause.”
factor (b) also weighs in favor of Suburban.

16

J.A. 766.

Thus,

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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
conduct,” 5

negligent
intervening

act

was

and
done

whether
was

the

manner

in

“extraordinarily

which

the

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)
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found, “the act, . . . the putting back in bed is not itself
extraordinary.”
agreed.

J.A.

767.

Mrs.

LaClair’s

attorney

See id. at 709 (The Court: “[T]he objective anyway was

to put this man back in bed.
Mr. Regan:

Yes.”).

That’s not unforeseeable; correct?

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.”
(Second) of Torts § 447(c).

Restatement

Indeed, Maryland courts have held

that original tortfeasors are liable for more significant harm
inflicted

by

professionals.

See

intervening

negligent

Underwood-Gary,

785

A.2d

at

medical
713

(“[An]

original tortfeasor is liable for additional harm caused by a
treating
surgery[.]

physician’s

improper

diagnosis

and

unnecessary

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.

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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
defendant
under

tear

in

driver

Maryland’s

her
to

heart,
be

Uniform

finding

“joint”

physicians

yet

“subsequent

Contribution

Among

and

original

tortfeasors”

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.
admission

to

transfusion,
blood.

the
but

hospital,
the

a

nurse

See id. at 533.

physician
used

the

ordered
wrong

a

Upon
blood

type

of

As a result of this mistake, the

plaintiff suffered “bleak prospects of future pregnancies” and
was

projected

to

have

“difficult

gestation

emotional and physical point of view.”

Id.

suit

ultimately

against

the

hospital

first,

from

both

an

The plaintiff filed
reaching

an

agreement and signing a release as to damages stemming only from
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the blood transfusion.
plaintiff

filed

suit

Pg: 20 of 22

See id. at 533-34.
against

the

allegedly

Later, when the
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.
Notably,

the

Maryland

Court

of

Id. at 543.

Special

Appeals

has

limited this case to its facts as “the Court [in Kyte] was
careful

to

inability

point
to

divisible[.]”

have

out

that

children]

the

injuries

were

[broken

peculiarly

bones

and

separate

and

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.

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abnormal

or

Filed: 04/15/2013

extraordinary.

Pg: 21 of 22

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

tortfeasor.”

could

not
Id.

have

been

(internal

anticipated

by

the

quotation

marks

original
omitted).

Therefore, courts should look to both the foreseeability of the

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harm suffered by the plaintiff, as well as the foreseeability of
the intervening act itself.
Any

doubt

that

See id. at 792.
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,

experience negligent medical care there.
injuries

and

the

extraordinary,

nor

manner

in

were

which
these

and

may

possibly

Mr. LaClair’s ultimate

they

occurred

unfortunate

were

not

consequences

unforeseeable.
IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

22