67. Is the truck driver likely to prevail in a suit against the car manufacturer?

The elements of a negligence action include: (i) a duty of care; (ii) a failure to conform to that duty («breach»); (iii) causation in fact; (iv) proximate causation; and (v) actual damage.

Proximate cause is a way of keeping a defendant from being liable for far-reaching and bizarre consequences of his actions. Generally, the defendant's actions will be considered the proximate cause of an injury where the consequences were reasonably foreseeable.

An intervening cause is a force that takes effect after the defendant's negligence and contributes to that negligence in producing the plaintiff's injury. If an intervening event is found to be a «superseding cause,» it negates the proximate cause element and will cut off the defendant's liability. The test for whether something is a superseding cause again relies on whether it was foreseeable that it or something like it might occur.

Dependent intervening forces are normal responses or reactions to a situation created by the defendant's negligent act. Dependent intervening forces are almost always considered foreseeable. One type of dependent intervening force is a rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not done recklessly. If the defendant breached that duty by tortiously creating his own or another's peril, a negligence claim is possible so long as the other elements (causation and damages) are met and no other limitations apply (for example, if the rescuer caused his own injuries by attempting the rescue in a grossly negligent manner it will negatively affect the rescuer's recovery). As Cardozo said, «Danger invites rescue.»

A plaintiff is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that the harm will occur. For an assumption of the risk to be considered voluntary, the plaintiff must have had no reasonable choice but to encounter a known danger. If there had been a reasonable alternative available, the plaintiff may have voluntarily assumed the risk. The reasonableness of the alternative is determined by factors such as the dangerousness of the plaintiff's course of action, the degree of inconvenience in using the alternative, and the importance of the interest being pursued by the plaintiff. As such, there are certain situations where generally, the plaintiff does not voluntarily assume the risk, including fraud, duress, force, or emergencies.

D is correct. The facts establish that the car manufacturer's vehicles were negligently designed. Negligently-designed vehicles create a foreseeable risk of danger to those driving, which reasonably invites rescue by third parties. The car manufacturer's negligence thus created a dependent intervening force that was foreseeable — the need for a rescuer and possible danger to that rescuer. As a result, the car manufacturer will be liable for damages suffered by the truck driver, who reasonably acted in assisting the motorist.

A is incorrect. On the contrary, the car manufacturer's negligence was, in fact, the proximate cause of the truck driver's injuries. This is because a defendant's negligence is the proximate cause of harm that results from foreseeable intervening forces. Although some intervening forces will break the chain of proximate causation, foreseeable events will not. Rescuers are generally considered foreseeable plaintiffs following a defendant's negligent conduct creating a dangerous situation.

B is incorrect. An assumption of risk defense requires that the plaintiff's choice was voluntary. If there was no reasonable alternative to the course of action taken, the risk will not be considered assumed. Factors considered in determining whether reasonable alternatives existed include dangerousness, inconvenience of the alternative, and the importance of the interest at stake. Subsequently, emergency situations generally do not impute an assumption of the risk on a plaintiff. Here, the truck driver's choice to help the motorist would not be considered an assumption of the risk given the importance of the interest in providing aid and the fact that the truck driver walked on the side of the road and was not in immediate danger.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. The truck driver will prevail, but not because his injury was a foreseeable result of the car rolling over. Although injuries are a foreseeable result of rollovers, the truck driver's injuries were foreseeable because he was a rescuer in a dangerous situation created by the manufacturer's negligence. The speeding car was an intervening force, but it will not break the chain of proximate causation because danger invites rescue, and it is foreseeable that rescuers may also be injured.