96. Will the pedestrian be likely to prevail in that action?

The issue in this question is tortfeasors acting in concert. Under principles of joint and several liability, when two defendants act in concert (together and by agreement) and cause harm to the plaintiff, the plaintiff can recover the full amount of plaintiff's damages from either defendant.

C is correct. The man and woman were together acting tortiously (they were engaging in an illegal race and driving over the speed limit — that action could arguably be deemed negligence, strict liability under an abnormally dangerous activity analysis, or both), and that act caused harm to the pedestrian. The pedestrian could recover from either the man or the woman for the entire amount she was harmed, and the fact that one of them has no assets does not prevent recovery of the full amount from the other defendant. If the pedestrian recovers from the man, she could seek to recover from the woman for any excess the man owed, though that effort might be futile given that the facts stated she has no insurance or assets.

A is incorrect. The man did not have to cause the injury because he was acting in concert with the woman in the tortious activity. By doing so, he is liable for the whole harm the plaintiff suffered.

B is incorrect. Although the man was driving carefully, the question establishes that he was driving negligently because he was engaged in an illegal drag race driving over the speed limit. Additionally, his actions could be deemed to trigger strict liability because they were abnormally dangerous. Strict liability applies under that doctrine when engaging in an action (i) could foreseeably lead to substantial harm even when the participants are being careful; and (ii) the action is not one normally undertaken.

Drag races create just such a risk even when the drivers are operating carefully, and it is not a normal activity. Although drag racing is not one of the hallmark examples of abnormally dangerous activities like blasting or storing dangerous chemicals, the man and woman are potentially liable under strict liability as well. Joint and several liability applies to such situations, not just negligence actions. The fact that a defendant was being careful is not a defense to a strict liability claim.

D is incorrect. This answer choice oversimplifies the law. It suggests that the man is liable because he was acting negligently, but his negligence was not the actual cause of the harm—the facts do not state that the woman's tire blew out because of the man's action. Thus, the man is not directly liable under a negligence theory. This answer choice cannot be read to suggest the man is liable under a strict liability theory either because the answer references only driving over the speed limit, and driving over the speed limit is not alone an abnormally dangerous activity (an illegal drag race that involves driving over the speed limit, however, arguably rises to the level of an abnormally dangerous activity).