UNPUBLISHED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Affirmed by unpublished per curiam opinion.
2

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Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Mary T. LaClair, individually and as personal 

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

Jr., appeals the district court’s order finding that the 

Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical 

Therapy and Sports Medicine (“PTSM”), were joint tortfeasors 

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

patient at Suburban. Mr. LaClair was first injured while 

receiving physical therapy at PTSM. After undergoing surgery at 

Suburban for that injury, he was further injured by the actions 

of Suburban’s patient care technicians. Suburban asks us to 

affirm the district court’s conclusion 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 it was foreseeable at the time of the 

primary negligence. 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 and PTSM are joint 

tortfeasors, and we affirm.
4

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. Alexandros Powers, a neurosurgeon, performed 

surgery on Mr. LaClair on November 3, 2007. The surgery 

entailed Dr. Powers inserting screws and rods to secure Mr. 

LaClair’s spine. According to Dr. Powers, the surgery “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.
5

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

228. 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 for assistance, two patient care technicians 

responded. 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 technicians, while perhaps negligent, were 

“performing their normal duties when they were aiding 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. They 

weren’t careful motions. 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 
6

in previous surgery, ligament damage and hemorrhage, nerve root 

injury at the level of C7 and C8 and spinal cord injury.” J.A. 

228. He determined Mr. LaClair could no longer be discharged on 

November 7 as previously scheduled, but rather, needed to 

undergo an additional surgery on November 8. Mr. LaClair later 

underwent a third surgery on February 6, 2008, at Georgetown 

University Hospital. He spent nearly five months hospitalized, 

underwent plaster 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 
7

November 6 incident (filed 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 

incurred from the November 6 incident at Suburban. See J.A. 48 

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

[] where he was diagnosed with a cervical fracture and 

dislocation. Plaintiff remained at Suburban until November 13, 

2007, where he underwent two surgical procedures to repair his 

cervical fracture, among other things.”). During discovery, 

however, Dr. Powers testified on January 5, 2010, 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. 
8

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. This litigation settled on 

May 31, 2011. 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 alone would be liable. Pursuant to the 

Settlement Agreement, Suburban agreed to make an 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 
9

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 on January 24, 2012, naming Suburban as a joint 

tortfeasor “for reasons stated in the record.” 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.
10

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 firm conviction that a mistake has been 

committed.” 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. See Erie R.R. v. Tompkins, 

304 U.S. 64, 78 (1938). 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. 
11

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] occurred as a 

result of [PTSM’s] alleged tortious conduct.” Pittway Corp. v. 

Collins, 973 A.2d 771, 788 (Md. 2009). Accordingly, PTSM avoids 

liability for the November 6 incident “only if the intervening 

negligent act,” i.e., Suburban’s conduct, “is considered a 

superseding cause of the harm to” Mr. LaClair. 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. Pittway is the seminal Maryland case on 

superseding cause, providing a framework for analyzing an 

argument that an intervening act cuts off the liability of an 
12

original tortfeasor. The 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 at 789 (internal quotation marks and 

alteration omitted). 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 importance in 

determining whether an intervening force is a 

superseding cause of harm to another:

(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 
13

subjects the third person to liability to 

him;

(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 sustained on November 1, and thus, 

“different in kind.” See Br. of Appellant 3-9. We first note 

that we would be hard-pressed to find a case regarding 

subsequent negligent medical care in which there 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 
14

(Md. 2001) (“[W]hen a physician negligently treats the 

plaintiff’s injuries, the physician becomes liable to the 

plaintiff to the extent of the harm caused by the physician’s 

negligence. Thus, the physician’s negligent treatment is a 

subsequent tort for which both the doctor and the 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 resulted from Mr. LaClair’s 

repositioning in his bed. 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.” Restatement (Second) 

of Torts § 435(2) cmt. c (1965). Comment (d) provides, in part, 

“The court’s judgment as to whether the harm is a highly 

extraordinary result is made after the event with the full 

knowledge of all that has happened. This includes those 
15

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. LaClair presents testimony from three 

neurosurgeons that the “application of [the patient care 

technicians’] force to the body of an elderly, post-operative 

cervical spine patient . . . had never before been witnessed or 

known to them in all their years of practice as 

Neurosurgeons[.]” Br. of Appellant 27 (citing J.A. 190, 222, 

229). 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: “knowing that such a 
16

force has intervened.” 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 alreadyinjured spine would be further injured by being positioned into 

a hospital bed. Id. at 1342. 

Again, we agree with the district court that 

Suburban’s actions were not “so extraordinary as to bring about 

a conclusion of separate intervening cause.” J.A. 766. Thus, 

factor (b) also weighs in favor of Suburban.
17

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

negligent conduct,”5 and whether the manner in which the 

intervening act was done was “extraordinarily 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)
18

found, “the act, . . . the putting back in bed is not itself 

extraordinary.” J.A. 767. Mrs. LaClair’s attorney 

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

to put this man back in bed. That’s not unforeseeable; correct? 

Mr. Regan: Yes.”). 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.” Restatement 

(Second) of Torts § 447(c). Indeed, Maryland courts have held 

that original tortfeasors are liable for more significant harm 

inflicted by intervening negligent medical 

professionals. See Underwood-Gary, 785 A.2d at 713 (“[An] 

original tortfeasor is liable for additional harm caused by a 

treating physician’s improper diagnosis and unnecessary 

surgery[.] 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.
19

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 tear in her heart, finding physicians and original 

defendant driver to be “joint” yet “subsequent tortfeasors” 

under Maryland’s Uniform Contribution Among 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. Upon 

admission to the hospital, a physician ordered a blood 

transfusion, but the nurse used the wrong type of 

blood. See id. at 533. As a result of this mistake, the 

plaintiff suffered “bleak prospects of future pregnancies” and 

was projected to have “difficult gestation from both an 

emotional and physical point of view.” Id. The plaintiff filed 

suit against the hospital first, ultimately reaching an 

agreement and signing a release as to damages stemming only from 
20

the blood transfusion. See id. at 533-34. Later, when the 

plaintiff filed suit against the allegedly 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. Id. at 543.

Notably, the Maryland Court of Special Appeals has 

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

careful to point out that the injuries [broken bones and 

inability to have children] were peculiarly separate and 

divisible[.]” 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.
21

abnormal or extraordinary. 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 could not have been anticipated by the original 

tortfeasor.” Id. (internal quotation marks omitted). 

Therefore, courts should look to both the foreseeability of the 
22

harm suffered by the plaintiff, as well as the foreseeability of 

the intervening act itself. See id. at 792. 

Any doubt that 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, and may possibly 

experience negligent medical care there. Mr. LaClair’s ultimate 

injuries and the manner in which they occurred were not 

extraordinary, nor were these unfortunate consequences

unforeseeable.

IV.

For the foregoing reasons, the judgment of the 

district court is

AFFIRMED.