70. In his action against the driver, for which of his injuries may the pedestrian recover damages?

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. The element of proximate cause is satisfied if the defendant could have reasonably foreseen the consequences of his negligence. The last element of negligence is actual damage, which requires a showing that the plaintiff suffered physical harm.

Once the final element of a negligence action has been established, the plaintiff may recover for ALL damages, including past, present, and prospective, both special and general. For example, the plaintiff may recover economic damages, such as medical expenses and lost earnings, as well as non-economic damages, such as pain and suffering. It is generally not necessary that the defendant foresee the extent of the harm. When a plaintiff is unusually susceptible to injury, the defendant will still be liable for subsequent injuries because he takes the victim as he finds him.

B is correct. The key to this question is understanding the proper sequence of proving a negligence action. The elements of negligence include duty, breach, cause in fact, proximate cause, and damages. Foreseeability plays an important role in making a prima facie case for negligence. Specifically, the defendant will be liable if the consequences of his actions were reasonably foreseeable. Once a plaintiff meets the elements of negligence, he may recover ALL damages, regardless of whether they were foreseeable.

Here, the jury found that the pedestrian's fall was a normal consequence of the original injury, but that the driver could not have foreseen that his negligence would cause the pedestrian's fall. After the jury determined, in its fact-finding role, that the fall was a natural consequence of the original injury, the analysis moves on to which types of damages may be recovered based on that finding. Defendants are liable for all damages, regardless of foreseeability, once it has been established that they are liable for the original injury. When the original injury is a substantial factor in causing subsequent damages, the defendant will be liable.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. The phrase «takes the victim as he finds him» refers to the principle that a negligent defendant must pay for the full extent of the injuries to the plaintiff even if the plaintiff was unusually vulnerable to injury. There is no indication here that the pedestrian was unusually vulnerable before the accident.

C is incorrect. The separability of an injury becomes an issue when two or more defendants cause harm to the plaintiff; separability relates to the question of whether damages for specific injuries can be allocated among the defendants. Here, we are dealing with the consequences of multiple injuries caused by a single defendant, not the question of whether responsibility should be apportioned among several defendants.

D is incorrect. This answer choice applies principles of proximate cause, whereas this question is testing the issue of the scope of recoverable damages. There is no proximate cause or foreseeability limitation on the extent of damages. The driver is liable for all consequential damages arising from injuries suffered by the plaintiff, even if some of the injuries did not materialize for some time after the initial accident.