Tort Final Flashcards
General elements for intentional torts
(1) Act– External manifestation of defendant’s will
(2)Intent (purpose and knowledge to subst certainty)
(3)XXX– different for each element
(4) Cause in fact
(5) Injury
Battery element
(1) act
(2) intent– to make contact
* (purpose of making contact)
* (and knowledge to subst certainty) (Single and Dual intent)
(3) Harmful/offensive contact to P ) OR
* (Offensive (would offend RP))
(4) Cause in fact
(5) Injury (presumed)
Battery – intent to cause contact test
Single intent MAJ- (1) purpose/ knowledge to subst certainty- Contact
Dual Intent MIN- (1) purpose/ know to substant certainty - contact (2) Appreciated the H/O of the contact
Assault elements
(1) act- external manifestation of D’s will
(2) Intent - to cause apprehension (Purpose and Knowledge to substant certainty
(3) Plaintiff (reasonably) suffers apprehension of imminent H/O contact
(4) Cause in fact
(5) Injury presumed
Transferred intent only between two elements:
Assault and battery
Types of transferred intent
Person - person: purpose/knowledge to subst certainty of contact to A, instead hit B
Tort-tort: Purpose/ knowledge to subst certainty apprehension to A, but end up making contact to A
Both person and tort: purpose/ knowledge to substant certainty of causing apprehension to youths in car, end up making contact with neighbor
False Imprisonment elements
(1) act
(2) Intent (purpose/ knowledge to substant certainty) confine/ restain
(3) Plaintiff is confined/ restrained in a bounded area
(4) Cause in Fact
(5) Injury presumed if P conscious of confinement; If not conscious of confinement, need actual harm
Intentional Infliction of Emotional Distress
(1) Act
(2) intent - to cause emotional distress (purpose// knowledge to substant certainty)
(3) Extreme/ Outrageous conduct
(4) Cause in Fact
(5) Severe Emotional Distress (need both subjective and objective)
* Subjective:
* Objective: RP would also suffer (**except that this part doesn’t apply if the D know of the P’s particular vulnerability/ sensitivity
** Case where mother assured of son’s gravesit would be kept, but was actually now well maintained at all did not equal IIED
Reckless Infliction of Emotional Distress
(1) Act
(2) Recklessness- D consciously disregard substantial probability of causing P SED
(3) Extreme/ Outrageous conduct
(4) Cause in fact
(5) Severe Emotional Distress (SED) (NEED BOTH SUBJ AND OBJ)
* P subjectively suffer SED
* Reasonable Person would suffer SED (** not required if D knew of P’s particular sensitivity)
** think of case where marina recorded women changing= RIED
Indirect IIED elements
(1) Act
(2) Intent –to the indirect P (p who suffers ED)
(3) Extreme/ outrageous conduct
(4) Cause in fact
(5) Severe Emotion Distress (NEED BOTH SUBJ and OBJ)
** P subjectively suffers SED
** RP would suffer SED( **,not required if D knew of P’s particular sensitivity)
(6) Plaintiff present and family member OR present and physical manifestation
If D knew of P’s vulnerability/ susceptibility bring up knowledge three times where:
- Intent
- Extreme/ Outrageous conduct
- SED– objective element goes away
Trespass to land elements
(1) act
(2) intent (purpose/ knowledge to subst certainty)
(3) Interference with P’s exclusive control of land
(4) Cause in Fact
(5) injury (presumed)
Trespass to Chattel (dispossession / Intermeddling)
(1) act
(2) intent - to dispossess/intermeddle (purpose/knowledge to subst certainty)
(3) Dispossess or Intermeddling of P’s property
(4) Cause in Fact
(5) Dispossession (thinks this is mine) – Injury presumed
Intermeddling( touch/ mess with P’s chattel)- need actual damage, damage to chattel based on loss use if subst amount of time
Intermeddling
Touching/messing with P’s chattel always recognizing that it’s the P’s
- Harm? **Need actual damage/harm– damage to chattel or based on loss use (if subst time)
Ex: A takes B’s pen for quick use, uses it, and gives it back== Intermeddling but not injury
Dispossession
D thinks “this is mine”
Harm? Liability automatic if dispossession (injury presumed)
Ex: A mistakenly takes B pen thinking it’s A’s pen and keeps it= Dispossession, injury presumed
A takes B’s pen thinking it’s A’s. Gives it back 2 minutes later when realizing it’s B’s== Dispossession, injury presumed
Details on Dispossession and Intermeddling
** Intermeddling can turn into dispossession if there is accidental destruction
** Quality/Value does not matter
** Dispossession can also recover damages to chattel
Conversion elements
(1) Act
(2) intent (purpose or know to subst certainty)
(3) Serious interference with P’s exclusive possession of Personal Property
(4) Cause in fact
(5) Injury – presumed (but practically actual damage to chattel)
- Heavily look at this if there is total destruction
- Conversion is so serious you pay fair market value of chattel
Factors to consider for Conversion
Extent & duration of actor’s exercise of dominion and control; D’s intent to assert a right in fact inconsistent with others right to control; good faith vs bad faith; extent and duration of the resulting interference with others right of control; Harm done to the chattel; inconvenience and expense cause to the other
Defenses to Intentional Torts
Consent
Self defense
Defense of Others
Defense of property
Insurance coverage
First amendment defense to IIED
Consent
Does the Plaintiff’s conduct reasonably manifest consent?
Justification Defenses
(1) Self Defense
(2) Defense to others
(3)Defense of Property
1- Reasonable belief of the need to defend
2- Response must be proportional
Insurance coverage?
Negligence elements
(1) duty
* Does the duty even exist?
* Act consistent with the applicable SOC (act like a RP would have under similar circumstances)
(2) Breach (of duty)
(3) Cause in Fact
(4) Proximate Cause
(5) Actual Harm
Default SOC (for duty)
How a RP would have acted under similar circumstances
- Jury considers Dangerous instrumentality, Emergency, Superior Skills/ knowledge, Physical disability
- jury does not consider mental disability
Kid SOC
How a reasonable kid of the same age, experience, and intelligence would have acted under similar circumstances
**Exceptions: adult activity or inherently dangerous activity (revert back to adult RP)
Prof SOC
How a reasonable professional, exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances
Doctor SOC
How a reasonable doctor [in the same community] exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances
* strict liability
* Modified locality
* national
Breach
Did the defendant act inconsistent with the applicable SOC?
Breach if acted unlike a RP would have acted under similar circumstances (assume RP SOC)
Assault apprehension element
P (reasonably) suffer an apprehension of imminent H/O contact. To satisfy this element, the P must suffer an apprehension, a RP would have suffered the apprehension, and the apprehension must be of imminent (instant) H/O contact
Intent
Intent is met is the D acts for the purpose of making contact or acts with knowledge to substantial certainty that contact will result. Also transferred intent can be used to satisfy intent; if the D has intent for another person/tort
Extreme/Outrageous conduct
Conduct is E/O if a typical community member would stand up and exclaim outrageous
- Can look at power imbalance and superior knowledge (knew of vulnerability)
Self Defense
The first element is whether the D reasonably believed he needed to defend himself. Here **
The second element is whether the D’s response was proportional to the threat P presented. So if the P threatens with fists, a proportional response is fists. Here **
Example of duty written up
(1) does the duty even exist?
(2) the duty owed is to act consistent with the SOC. Here, the D is a doctor. Thus, the prof SOC applies. D is obligated to act like a reasonable Dr, exercising the level and knowledge…
Methods of demonstrating breach RP SOC
(1) Learned Hand
(2) Negligence Per Se
(3) Res Ipsa Loquitor
(4) Custom
(5) Notice
Methods of demonstrating breach RP SOC
(1) Learned Hand
(2) Negligence Per Se
(3) Res Ipsa Loquitor
(4) Custom
(5) Notice
Methods of establishing breach- prof SOC
(1) Accepted Practice (custom)
(2) Negligence per se
(3) Res Ipsa Loquitor
(4) Informed consent
Methods of establishing breach- PROF SOC
(1) Accepted Practice (custom)
(2) Negligence per se
(3) Res Ipsa Loquitor
(4) Informed consent
Learned Hand test
D breached if: B < PxL
Breach= burden of precaution < probability of injury x severity/gravity of injury
Learned Hand Practice
Breach asks whether the D acted like a RP would have under similar circumstances. One way to evaluate this is to use the Learned Hand test, which compares the burden of precaution versus the probability and severity of the injury caused without the precaution. Here ****
Negligence Per Se
(1) statute specific regarding what is required or prohibited
(2) whatever accident/injury happened to P= what the statute was designed to prevent
(3) P is a member of the class statute designed to protect
MAJ/MIN rule for Negligence Per Se
Evidentiary Effect
MAJ: Unexcused violation of statute= jury MUST find breach
MIN: unexcused violation of statute= Jury MAY find breach
Duty example
After knowing D owed a duty
What is the duty owed? That depends on the applicable SOC. Here, D is not a kid nor a professional. Thus, RP SOC applies and D owes P a duty to act like a RP would under similar cirumstances
Negligence Per Se example
Breach asks whether the D breached that duty owed, or violated the applicable SOC. One method of establishing breach is NPS because texting while driving is illegal. Law works for NPS if 1) specific re required 2) P= member of the class statute was designed to protect and 3) accident/injury what statute designed to prevent . Speeding is breaking statute. MAJ must find breach, MIN may find breach
Negligence Per Se example
Breach asks whether the D breached that duty owed, or violated the applicable SOC. One method of establishing breach is NPS because texting while driving is illegal. Law works for NPS if 1) specific re required 2) P= member of the class statute was designed to protect and 3) accident/injury what statute designed to prevent . Speeding is breaking statute. MAJ must find breach, MIN may find breach
Customs/Accepted Practice
“exercising that level of skill and knowledge common to the profession”
Under PROF SOC,
Ev effect: deviation from accepted practice= VERY STRONG evidence of breach
Compliance with accepted practice= VERY STRONG evidence of no breach
Will need _________ to testify to the prof SOC (to explain the accepted practice)
EXPERTS
Res Ipsa Loquitor (RIL) elements
(1) D has exclusive control of the instrumentality
(2) Occurrence not normally happen unless someone acted unreasonably
Ev effect: permissive interference of breach
RIL practice
Breach: Breach asks whether the D acted like a RP would have under similar circumstances. Here, no one knows why the chair fell on the P. IN cases like these, RIL is an option. RIL applies (1) D has exclusive control of the instrumentality and (2) occurrence not normally happen unless someone acts unreasonably. Here **
Actual Notice, Constructive Notice, and Mode of Operation
???
Informed Consent (medmal)
Traditional Prof SOC (MAJ): what a reasonable doctor (exercising level/skill) would have disclosed
Materiality (MIN): disclose material risks, meaning that risks that would matter to a reasonable patient
Cause in Fact Default test
Satisfied if P’s injury would bot have happened but for the D’s breach
Cause in fact
Pretend the D acted consistent with SOC. Does P’s injury still happen?
Yes– No cause in fact. Injury was inevitable (whether act was reasonable or not)
No– Cause in fact satisfied
Intent to make contact
Purpose OR knowledge to substantial certainty– contact
* Substantial certainty= absolute certainty
MAJ: single intent, purpose or knowledge to make contact
MIN: Dual intent 1) purpose of knowledge to make contact AND 2) appreciates contact is harmful or offensive
Intent for battery example
Intent: Intent for battery is present if the defendant acted with the purpose of causing contact to the plaintiff or if the defendant knew to substantial certainty that his conduct would cause contact to the plaintiff. Here, X acted with purpose to cause contact . XXX He likely also knew to substant certainty that he would cause contact
Cause in fact Test
But For (default test)- always start w this
Multiple sufficient causes
Alternative liability
Market share liability (only for negligence)
Lost chance of recovery
Future injuries
Multiple Sufficient Causes
Two conducts, either of which ALONE would have caused the same damage, instead combine to cause the damage
Test 1 Substantial Factor (MAJ): D’s conduct is the Cause in Fact of P’s harm if it was a substantial factor in causing the harm
Test 2 3rd restatement (MIN) asks whether the conduct was sufficient to cause the P’s harm
- think multiple fires case
Multiple but for causes
** There can be multiple but for causes
Alternative Liability
2 or more conducts, but only one caused the harm and we don’t know which one
Test: 2 or more tortious actors *creating similar risk of harm, but only actor’s conduct caused the harm (and we don’t know which one), burden shifts to D to disprove cause in fact (to show D wasn’t cause)
** Think two shooters case
Market Share Liability (only negligence)
(1) Sue substantial share of the market
(2) burden shifts to Ds to negate cause in fact
(3) liable $$ based on their market share
Market Share Liability (only negligence)
(1) Sue substantial share of the market
(2) burden shifts to Ds to negate cause in fact
(3) liable $$ based on their market share
Lost chance of Recovery
Facts: Plaintiff in bad shape before gets to ER and then Er doc commits malpractice. P dead
** Remember the burden of proof is preponderance of the evidence (more likely than not, by 51%)
Types of lost chance of recovery
All or nothing Trad approach (MIN): Injury = death
Can’t recover $$ for death if the death was inevitable, regardless of the malpractice
Lost chance of recovery modern approach (MAJ): Injury= lost chance of survival
Damages based on thar decreases lost chance of survival
Chance of future injury
All of nothing (MAJ): prove more likely than not (51%) that future injury will happen
* Full damage for that future injury
Chance of future injury (MIN): Prove more likely that not (51%) that they will a [whatever %] chance of a future injury
* Damages based on the chance of the future injury
Proximate Cause
Factual question regarding what type of consequence’s the D shouldn’t be liable for
Types of proximate cause
Foreseeability (MAJ)
Direct Consequences (MIN)
Intervening cause– Proximate caue
Anything that happens between D’s conduct and P’s injury (chronologically)
**Intervening cause will cut off the direct connection, an act in the middle breaks the causal chain
For direct consequences= negates proximate cause
Foreseeability= it depends
Act example
Act: this element is satisfied if the defendant’s conduct was an external manifestation of his will, meaning whether it was voluntary and the result of a conscious chouse. Here**
Intent for trespass Example
Intent: Intent is satisfied if D acted for the purpose of entering land or acted knowing to substantial certainty that conduct would result in entering land
But-for example
C/F:
Default test for cause in fact is the but for test. But-for is satisfied if the P’s injury would not have happened but-for the D’s conduct. How to apply– ask if the D acted not tortiously, would the P still be hurt? Here***
Eggshell Plaintiff Rule
Take the P as they are
- D still has to pay all P’s damages, even if P had a pre-existing condition, which led to her damages being more.
Physical conditions, mental conditions, shabby millionare
Foreseeability (MAJ):
satisfied if the general type of accident/injury was a foreseeable consequence of the D’s conduct
(policy– negligent D’s should only be liable for the foreseeable injuries)
Direct Consequences (MIN):
satisfied if there’s a direct connection between the D’s conduct and the P’s injury
* D will be liable for any consequences that are a direct result of conduct
Superseding Cause (was the intervening act foreseeable?
If the intervening act was foreseeable: proximate cause still exists (the D’s conduct is still proximate cause)
If the intervening act was unforeseeable: the intervening act is a superseding cause. Superseding cause negates proximate cause; D’s conduct not the proximate cause
Proximate cause example
Proximate Cause: the majority test is foreseeability; it asks whether the general type of accident/ injury that happened to the P was a reasonably foreseeable consequence of the D’s conduct. If there’s an intervening- if foreseeable, proximate cause still exists; if unforeseeable that’s a superseding cause and the D’s conduct not proximate cause. Here***
Proximate cause: the minority test is direct consequences; is asks whether there’s a direct connection between the D’s conduct and the P’s injury. An intervening act between the D’s conduct and the P’s injury negates proximate cause. Here *****
Duty– does D owe P a duty? elements
(1) any relationship between D and P
(2) Whether the P was foreseeable (foreseeability at risk)
(3) Public Policy
Or apply special rules for duty
Special rules for duty
Premise Liability cases
Premise liability Cases
When Plaintiff hurt by dangerous condition of D’s land
* Depends on P’s status; if they are a trespasser, kid trespasser, licensee, or invitee
** EXCEPTION: No duty (to licensees or invitees) if dangerous condition is open/obvious. (some states limit this to natural conditions (which makes sense)
Premise liability case- If P is a trespasser
D landowner does not owe any duty in negligence. Landowner will never be liable for negligence to a trespasser
** exception kid trespassers (attractive nuisance doctrine) D will owe duty to kid trespasser if:
(1) Artificial conditions
(2) know/reason to know that kids likely to trespass
(3) know/reason to know risk of SBH or death to kid
(4) kid b/c age doesn’t know the danger (*should component)
Trespassers/Invitees/Lincensee
Trespassers: no present legally
Invitees: mutual benefit for landowner and entrant; mutual business, or public invitee
Licensees: everyone else, including social guests/friends
Premise liability case- If P is a licensee
duty to act reasonably (warn/protect) with respect to dangerous conditions landowner KNOWS about
Premise liability case- If P is an invitee
Duty to act reasonably (warn/protect) with respect to dangerous conditions landowner KNOWS about AND SHOULD KNOW ABOUT (* this is really just normal RP SOC)
Modern (MIN) duty rules for premise liability
(1) still not duty to trespassers, but D owe both licensees and invitees the invitee duty (know and should have known conditions)
(2) D owes Ps the invitee duty (no status differentiation
- D owes duty (to licensees and invitees) for even open/obvious conditions, BUT open/obviousness will be relevant to determine breach
No Duty to help
No liability for failure to help/protect/aid/rescue a person (b/c not duty to help)
Exceptions to no duty to help
(1) special relationship
(2) voluntarily help (volunteer assumes the duty)
***** D can be protected if voluntarily helped by the Good Samaritan Statute– proscribing that D can’t be liable in tort as long as acted in Good Faith
Rescuer injured while voluntarily helping
Rescuer can sue the tortfeasor who created for the rescue
- Rescue doctrine: Creates a duty- original tortfeasor also owes a duty to rescuer
No duty to protect
Very similar to helping situations, but slightly different b/c 3 actors (D,P, and person P needs protection from)
- practical need to control if duty did exist
** Under common law, generally no duty to control the conduct of a 3rd part to protect another from harm
No duty to Protect exceptions–
Special relationship between D and
* Person who needs to be controlled OR
* P(person who needs protection)
Negligent Infliction of Emotional Distress (NIED) Three tests
(1) Impact test
(2) Danger Zone test
(3) Dillion Test
- Courts have determined that if the P’s only injury is ED, D will owe duty to P only in certain factual circumstances
- Courts generally hesitant to for emotional injuries
NIED - Impact test (MIN)
(1) physical impact
(2) [physical manifestation of the emotional distress]
- minority test
NIED- Danger Zone (Min but more common)
(1) P in immediate area of physical danger
(2) [physical manifestation]
- minority test (but more common than impact rule
NIED– Dillon Test (MAJ)
(1) Near scene of the accident
(2) Sensory and contemporaneous observance of death/ SBH
(3) Close relationship between P and victim
(4) [physical manifestation]
- majority rule
NIED MAJ example
Duty: Brother suffered only emotional distress. The majority rule for whether the D owes a duty to the P who suffers only ED is Dillon. First requirement is that P be near the scene of the accident Here** second requirement is to sensory and contemporaneously observe. Here*** Third requirement is that there be a close relationship between the P and victim; here ** Some states require the P have a physical manifestation; here **
NIED MAJ example
Duty: Brother suffered only emotional distress. The majority rule for whether the D owes a duty to the P who suffers only ED is Dillon. First requirement is that P be near the scene of the accident Here** second requirement is to sensory and contemporaneously observe. Here*** Third requirement is that there be a close relationship between the P and victim; here ** Some states require the P have a physical manifestation; here **
Duty rules when P’s ONLY injury is economic
MAJ: When P’s only injury is economic- No Duty
Defining economic injury= think money aka lost profits, cash, etc.
Wrongful Pregnancy/ Wrongful Birth/ Wrongful life– Negligence claim (all medmal)
Wrongful pregnancy: Medmal in sterilization; Injury= a healthy baby; MAJ- yes duty, but damages are limited (pregnancy expenses
Wrongful Birth: Medmel is diagnosis of fetal abnormalities; Injury= lost chance to terminate; MAJ - yes duty
Wrongful Life: Medmal in diagnosis of fetal abnormalities; Injury= being born (kid’s claim); MAJ- No duty
Primary Assumption of the Risk (NO DUTY RULE)
No duty will exist if:
(1) risk that can’t be eliminated OR really $$ to eliminate
(2) Risk is obvious (not subj, general question if risk is obvious)
Defenses to Negligence 3 step analysis
(1) Is the plaintiff at fault?
(2) how much is the plaintiff at fault?
(3) What is the effect of Plaintiff’s being at fault
- D has duty to prove
Defenses to Negligence: step (1) is the plaintiff at fault?
(1) breach
(2) Cause in fact
(3) Proximate Cause
(4) Actual Harm
Defense to Negligence: Step 2–How much is the plaintiff at fault
Step 2 is irrelevant in traditional jsx
Nontrad: Compare the D and P’s levels of unreasonableness (who breached more); compare how unreasonably the P acted versus how unreasonable the D acted
Defenses to Negligence: Step 3 - Effect of P’s fault
Traditional- I P is at fault at all, P is BARRED from recovery
Comparative Fault
* Pure CF: Recovery reduced by P’s % of fault
* 49 Modified CF: Recovery reduced by P’s % of fault. Barred if >49%; Reduced recovery id 49% or less
* 50 Modified CF: Recovery reduced by P’s % of fault or barred; barred if >50%; Reduced recovery id 50% or less
Assumption of the Risk two types
Express assumption of the risk
Implied assumption of the risk
Express Assumption of the Risk
If Plaintiff expressly assume the risk, you are barred from recover
Implied Assumption of the risk
(1) P know and appreciated the risk
(2) P voluntarily encounted the risk
If plaintiff impliedly assumed the risk, they are barred from recovery
* This is subjective
Comparative Fault with Implied assumption of the risk
MAJ- IAR no longer independently relevant. States ask whether the P was at fault/negligent/acted unreasonably
MIN: states still uses trad IRA bar. If P assumes risk, they are barred
Failure to Mitigate damaged
Post-injury conduct
Direct reduction: Jury has to subtract out any damages due to P’s failure to mitigate; Jury can’t award any damages due to P’s failure to mitigate
Apportion Fault- Assign P % of fault based on unreasonable failure to mitigate
SofL accrual Date
Discovery rule: when a RP would have discovered that someone else might have caused her injury;
Date of wrong: SofL starts when wrongdoing accrued. fraudulent concealment may be an issue
Fraudulent Concealment: Dr. Knew of the wrongful act and concealed it and P did not know and could not have through reasonable care
Apportionment Rules
When there are multiple D’s– how much each pays
Joint/several Liability (TRAD and MIN)
Several Liability (MAJ AND MOD)
Joint/Several Liability
P can collect all of her damages from one defendant
Even if D1 pays all P’s damages, D1 has contribution claim versus D2 (some reimbursement for what D1 paid)
- amount of contribution depends on fault assignments
Several Liability
D only have to pay their portion of the damages
- if D is assigned 40%, only paying 40% of the damages
Several Liability
D only have to pay their portion of the damages
- if D is assigned 40%, only paying 40% of the damages
Vicarious Liability- Respondeat Superior
Employer is liable for the employee’s torts’
Liable if
(1) employee (not independent contractor
(2) tort committed within scope with employment
Within Scope of employment rules
Going coming rule: commuting to and from work is not within scope of employment
**Exception “special errand”: meaning travel the employer specially requested or part of employee’s usual duties
On special errand:
Frolic- complete departure from the special errand (outside scope of employment)
Detour– Minor deviation from special errand (within scope)
Frolic (outside scope) vs detour (still w/i scope)
Look at:
- employee’s intent
- Nature/ time/ place of the conduct
- Work employee hired to do
- Employer’s reasonable expectations (acts employer should have foreseen employee would do)
- employee’s freedom in pursuing duties
- amount of time consumed in the activity
Employee versus independent contractor
Look at:
- extent of control/degree of supervision
- distinct nature of the worker’s business
- Worker’s specialization
- Materials and place of work
- duration of employment
- method of payment
- relationship of work done to the regular business of employer
- parties and community’s belief
Act element
external manifestation of D’s will; not sleepwalking, etc.
Duty::: is there a duty owed?
Whether a duty exists depends on 3 factors– special relationship, foreseeability of injury to the specific plaintiff, and public policy
Proximate cause: Minority
Minority test is direct consequences, under which a defendant will be liable for all damages/injuries that directly result from the negligent conduct. An intervening cause will cut off proximate cause.
Proximate cause: Majority
Majority test is foreseeability, under which a defendant will be liable for all damages/injuries that are reasonably foreseeable to result from the negligence conduct. An intervening cause will not cut off proximate cause unless it is unforeseeable – making is a superseding cause.
