AMI 501 Proximate Cause—Concurring Proximate Cause—Definition

Use the second paragraph only when there is evidence that the injury may have been produced by two or more concurrent causes.

Use AMI 503 in addition to this instruction when intervening cause is an issue.

When an act of God may be a concurring cause, also use AMI 611.

Proximate cause exists when a negligent act leads to damages in a natural and continuous sequence, unbroken by any efficient intervening cause. Kubik v. Igleheart, 280 Ark. 310, 311–12, 657 S.W.2d 545, 546 (1983). For an injury to be the natural and probable consequence of an act, the consequence of the act might and ought to have been foreseen by the defendant as likely to flow from that act and the act must, in a natural and continuous sequence unbroken by any new cause, operate as the cause of injury. Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 285, 351 S.W.2d 451, 454–55 (1961). Foreseeability is an element in determining whether a person is negligent and has nothing to do with proximate cause. Negligence must proximately cause a given result in order to justify a finding of negligence or contributory negligence, but negligence and proximate cause are two separate and independent legal concepts. Collier v. Citizens Coach Co., 231 Ark. 489, 492, 330 S.W.2d 74, 76 (1959). The question of proximate cause, given negligence, is more often than not a question of fact, to be determined by viewing attendant circumstances, and proximate cause may be shown by circumstantial evidence. St. Louis Sw. Ry. Co. v. Pennington, 261 Ark. 650, 662, 553 S.W.2d 436, 441 (1977).

It is error to delete the bracketed paragraph when there is substantial evidence that the injury may have been produced by two or more concurring causes, Blythe v. Byrd, 251 Ark. 363, 364, 472 S.W.2d 717, 718 (1971), unless the error is rendered harmless by other circumstances. In Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993), the failure to give the instruction on multiple proximate causes was rendered harmless by the giving of a comparative fault instruction, which contemplated the comparison of two causes of an accident and the negligence associated with each. In Smith v. Goble, 248 Ark. 415, 452 S.W.2d 336 (1970), the failure to give an instruction allowing the jury to find more than one proximate cause was rendered harmless by instructions requiring the jury to find that an automobile brake was not defective or that, if it was defective, the defect was not a proximate cause of the accident before the jury could find in favor of the manufacturer and against the driver.

In some opinions the fact that the defendant could or should have foreseen the injury has been mentioned in the definition of proximate cause. Booth & Flynn v. Price, 183 Ark. 975, 980, 39 S.W.2d 717, 720 (1931); Wis. & Ark. Lumber Co. v. Scott, 153 Ark. 65, 72, 239 S.W. 391, 392 (1922). This fact, however, is omitted in the instruction defining proximate cause because it is properly part of the definition of negligence. Hartsock v. Forsgren, Inc., 236 Ark. 167, 169, 365 S.W.2d 117, 118 (1963) (citing Collier, 231 Ark. 489, 330 S.W.2d 74).

Proximate cause may be shown from circumstantial evidence. White River Rural Water Dist. v. Moon, 310 Ark. 624, 627, 839 S.W.2d 211, 212 (1992).

In 2003, Ark. Code Ann. § 16-55-202 was amended to provide that, with respect to all affected causes of action accruing on or after March 25, 2003, the fault of non-parties can be considered in assessing percentages of fault when either the plaintiff has entered into a settlement agreement with a non-party or when a defendant files the statutory 120-day notice prior to trial that a non-party was wholly or partially at fault. In Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, however, the Arkansas Supreme Court ruled that Ark. Code Ann. § 16-55-202 contravenes the separation of powers provisions of the Arkansas Constitution, Article 4, § 2 and Amendment 80, § 3, by effectively establishing a procedure for litigating the fault of non-parties “that conflicts with our ‘rules of pleadings, practice and procedure.’” Johnson, 2009 Ark. 241, at 6 (quoting Amendment 80, § 3). The court held both subsections 202(a) and (b) unconstitutional. Id. at 8.

Johnson thus restored the law on non-party fault to its previous status, under which, pursuant to Ark. Code Ann. § 16-64-122(a), the jury is not permitted to assign a percentage of fault to a person who is not a party to the suit. See also McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 743-44 (8th Cir. 2010) (ruling that Johnson mooted claim to apportionment of fault to non-party because law reverted to what it was before passage of 2003 amendment to Ark. Code Ann. § 16-55-202).

It is proper to give AMI 501 and 502 where the defendant contends that a non-party is the sole proximate cause of the plaintiff's damages. Belz-Burrows L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002).

The “frequency, regularity, and proximity” test was adopted for asbestos cases in Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002).