The injury would NOT have occurred but for the negligence of the D
Loss of Chance
Reduction in the chance of survival/opportunity (IE: failure to diagnose, child birth problems)
NC does NOT recognize Loss of Chance;
- Damages limited—awarded damages only caused directly by premature death (IE lost
- earnings and additional medical expenses)
- determines cause if fact if there is a loss of chance in survival
- Doctrine has
- not been extended beyond medical malpractice
Substantial test factor
- D’s act was a material or substantial factor in causing harm to P, they
- are liable, even though either party’s act alone is sufficient to cause the
- act negligent and either could cause injury
Joint and several liability
- two separate acts of negligence combine to create
- a single, indivisible harm, both parties are liable even though each party’s
- act alone did not cause it.
2 sources of harm, both cause of injury-takes two to tango
- two joint acts of negligence but P cannot identify which D caused
- injury…burden shifts to D to prove they were not responsible for harm
Market Share liability
- Market Share Liability (percentages)—Each D is liable for
- damages that is equivalent to its share of the market, unless it demonstrates that it could not have
- been the cause of harm
Injury caused by the act of D without any intervening causes
liability for unforeseeable consequences
P prefers this jurisdiction
Reasonable foreseeability—Wagon Mound — NC
No liability for unforeseeable consequences; if P's harm was reasonably foreseeable to the reasonable person at the time of the negligent act, proximate cause satisfied
a defendant takes a plaintiff as he finds him.
- Once a plaintiff sustains a foreseeable injury, even a trivial one, the defendant
- is liable for all unforeseen physical, emotional, mental consequences injuries,
- so long as they do not stem from superseding causes.
- Intervening Cause— any act between the D’s
- negligence and the P’s ultimate harm.
- Superseding Cause—intervening cause that is
- unforeseeable or independent of the D’s negligent act.
... breaks the chain of causation and severs liability to original negligent D.
Types of superseding causes: Original negligent D not liable for:
1. Usually criminal acts of 3rd persons
2. Acts of god
3. Intentional torts of 3rd persons
Types of foreseeable intervening causes: original negligent D liable for:
1. Subsequent medical malpractice
2. Subsequent disease
3. Subsequent Accident
4. Attempt to escape danger creted by D
5. Negligence of rescuer
- Doctrine—Danger invites rescue.
- Allows an injured rescuer to sue the party which caused the danger requiring the
- rescue in the first place…. Allows a P to go to the jury to determine
Rescue doctrine requirements:
- 1. D was negligent to the person rescued
- 2. peril/appearance of peril was immient
- 3. reasonably prudent person would conclude peril existed
- 4. rescuer acted with reasonable care