Also known as: supervening negligences · subsequent negligence
Written by attorneys · grounded in primary & secondary sources — see below
Negligence by one party that arises after another party's contributory negligence has already placed the first party at risk of harm. The later negligence supplies the final opportunity to prevent injury when the initial negligent party is helpless to avoid it.
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Ashley bypassed a lockout rule and became trapped inside a turbine nacelle with his legs exposed to rotating blades. Andrew received repeated alerts and camera access but delayed the shutdown to avoid an output interruption. Because Ashley could no longer extricate himself, Andrew's failure to act on the existing opportunity supplied the supervening negligence that permitted recovery despite Ashley's initial shortcut.
Harbor Lines left a ladder unrepaired, causing Calvin's knee to become unstable. Months later a Port Atlantic crane operator negligently swung a load that forced Calvin to jump, collapsing the weakened knee. Whether Harbor Lines bears responsibility for the additional harm turns on how the jurisdiction resolves the open question of liability when an original injury combines with later third-party negligence.
Supervening negligence supplies the final opportunity for the defendant to avoid harm after the plaintiff has already placed himself in peril through his own negligence. Under Restatement (Second) of Torts § 479 the plaintiff may still recover when he is unable to avoid the harm by reasonable care and the defendant negligently fails to use his then-existing opportunity.
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The Restatement (Second) of Torts § 460 Caveat expressly declines to take a position on that question. Some jurisdictions may treat the original negligence as a continuing cause while others may view the third party's negligence as a superseding cause that cuts off liability.
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The plaintiff must prove he negligently subjected himself to risk, was unable to avoid the harm immediately before it occurred by reasonable vigilance, and that the defendant negligently failed to use a then-existing opportunity to prevent the injury.
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Because the Restatement Caveat leaves the question open, courts in different jurisdictions may reach opposite results when an original injury combines with subsequent third-party negligence. The correct answer therefore recognizes that liability depends on how the particular jurisdiction resolves the proximate-cause question rather than on any categorical rule.
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