Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 15.01 (6th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
December 2017 Update
Part II. Negligence—Risk—Misconduct—Proximate Cause
Chapter 15. Proximate Cause
WPI 15.01 Proximate Cause—Definition
The term “proximate cause” means a cause which in a direct sequence [unbroken by any superseding cause,] produces the [injury] [event] complained of and without which such [injury] [event] would not have happened.
[There may be more than one proximate cause of an [injury] [event].]
NOTE ON USE
This instruction is the standard definition of proximate cause. For alternative wording, see WPI 15.01.01, Proximate Cause—Definition—Alternative.
When the substantial factor test of proximate causation applies, use WPI 15.02, Proximate Cause—Substantial Factor Test, instead of WPI 15.01 or WPI 15.01.01.
Use bracketed material as applicable. Use the bracketed phrase about a superseding cause when it is supported by the evidence. If this bracketed phrase is used, then WPI 15.05, Negligence—Superseding Cause, must also be used.
The last sentence in brackets should be given only when there is evidence of a concurring cause. If the last sentence is used, it may also be necessary to give WPI 15.04, Negligence of Defendant Concurring with Other Causes.
Elements of proximate cause. Proximate cause under Washington law recognizes two elements: cause in fact and legal causation. See Christen v. Lee, 113 Wn.2d 479, 507, 780 P.2d 1307 (1989); Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985), and cases cited therein. Cause in fact refers to the “but for” consequences of an act — the physical connection between an act and an injury. WPI 15.01 describes proximate cause in this factual sense. Hartley v. State, 103 Wn.2d at 778. The question of proximate cause in this context is ordinarily for the jury unless the facts are undisputed and do not admit reasonable differences of opinion, in which case cause in fact is a question of law for the court. Baughn v. Honda Motor Co., Ltd., 107 Wn.2d 127, 142, 727 P.2d 655 (1986); Estate of Bordon ex rel. Anderson v. State, Dept. of Corrections, 122 Wn.App. 227, 95 P.3d 764 (2004) (estate could not show that, but for negligent supervision, parolee would have been in jail and unable to kill plaintiff decedent); Estate of Jones v. State, 107 Wn.App. 510, 15 P.3d 180 (2000) (jury question whether had juvenile offender's score been non-negligently calculated, he would have been in prison and unable to murder plaintiff decedent).
Legal causation involves a determination of whether liability should attach as a matter of law given the existence of cause in fact. It is a much more fluid concept, grounded in policy determinations as to how far the consequences of a defendant's acts should extend. Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 176 P.3d 497 (2008); Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 951 P.2d 749 (1998). The focus is on “whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.” Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d at 478–79. This inquiry depends on “mixed considerations of logic, common sense, justice, policy, and precedent.” See Hartley v. State, 103 Wn.2d at 779; Tyner v. State Dept. of Social and Health Services, Child Protective Services, 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). The existence of a duty does not necessarily imply legal causation. Although duty and legal causation are intertwined issues (see Taggart v. State, 118 Wn.2d 195, 226, 822 P.2d 243, 258 (1992)), “[l]egal causation is, among other things, a concept that permits a court for sound policy reasons to limit liability where duty and foreseeability concepts alone indicate liability can arise. Thus, legal causation should not be assumed to exist every time a duty of care has been established.” Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d at 479–80.
There have been many attempts to define “proximate cause.” In Washington it has been defined both as a cause which is “natural and proximate,” Lewis v. Scott, 54 Wn.2d 851, 341 P.2d 488 (1959), and as a cause which in a “natural and continuous sequence” produces the event, Cook v. Seidenverg, 36 Wn.2d 256, 217 P.2d 799 (1950). Some jurisdictions, in an effort to simplify the concept of proximate cause for jurors, have substituted the term “legal cause.” See, e.g., Connecticut's civil jury instruction 3.1-1 and Restatement (Second) of Torts § 9 (1965). However, the “direct sequence” and “but for” definition adopted in this instruction is firmly entrenched in Washington law. See Alger v. City of Mukilteo, 107 Wn.2d 541, 730 P.2d 1333 (1987) (“direct sequence”); Tyner v. State Dept. of Social and Health Services, Child Protective Services, 141 Wn.2d at 82 (“but for”).
Superseding cause. The pattern instruction includes the bracketed phrase “unbroken by any superseding cause.” Prior to 2009, this phrase was worded as “unbroken by any new independent cause.” The committee rewrote this phrase so that the instruction better integrates with the wording of WPI 15.05. No change in meaning is intended — the phrase “unbroken by any new independent cause” is an expression of the doctrine of superseding cause. See Humes v. Fritz Companies, Inc., 125 Wn.App. 477, 499, 105 P.3d 1000 (2005). The bracketed phrase should be used only when there is evidence of the doctrine's applicability. See Humes v. Fritz Companies, Inc., 125 Wn.App. at 499 n.5.
Negligence concurring with other causes. An instruction combining parts of WPI15.01 and WPI15.04 15.04, Negligence of Defendant Concurring with Other Causes, was approved in Stevens v. Gordon, 118 Wn.App. 43, 74 P.3d 653 (2003) (WPI 15.04 was previously numbered as WPI 12.04).
Substantial factor test. Section 431 of the Restatement (Second) of Torts sets forth the substantial factor test of proximate cause, under which a defendant's conduct is a proximate cause of harm to another if that conduct is a substantial factor in bringing about the harm. In Blasick v. City of Yakima, 45 Wn.2d 309, 274 P.2d 122 (1954), the Supreme Court rejected this approach in favor of the “but for” definition contained in WPI 15.01 for general negligence actions. Courts continue to reject the substantial factor test except in limited circumstances. Fabrique v. Choice Hotels Intern., Inc., 144 Wn.App. 675, 183 P.3d 1118 (2008) (salmonella exposure); Gausvik v. Abbey, 126 Wn.App. 868, 107 P.3d 98 (2005) (negligent investigation of child abuse). For a more detailed discussion of the substantial factor test and the types of cases to which it applies, see WPI 15.02, Proximate Cause—Substantial Factor Test.
Multiple proximate causes. Using WPI 15.01 without the last paragraph is error if there is evidence of more than one proximate cause. Jonson v. Chicago, M., St. P. and P. R. Co., 24 Wn.App. 377, 601 P.2d 951 (1979).
An instruction setting forth the legal effect of multiple proximate causes is necessary when both sides raise complex theories of multiple causation. Goucher v. J.R. Simplot Co., 104 Wn.2d 662, 709 P.2d 774 (1985); Brashear v. Puget Sound Power & Light Co., Inc., 100 Wn.2d 204, 667 P.2d 78 (1983). Failure to give WPI 15.04, Negligence of Defendant Concurring with Other Causes, may be reversible error even though WPI 15.01 is given including the bracketed last paragraph. WPI 15.01 does not inform the jury that the act of another person does not excuse the defendant's negligence unless the other person's negligence was the sole proximate cause of the plaintiff's injuries. Brashear v. Puget Sound Power and Light Co., Inc., supra (failure to give WPI 15.04 was reversible error); Jones v. Robert E. Bayley Const. Co., Inc., 36 Wn.App. 357, 674 P.2d 679 (1984) (failure to give WPI 15.04 was error, but harmless given the jury's special verdict findings), overruled on other grounds in Brown v. Prime Const. Co., Inc., 102 Wn.2d 235, 684 P.2d 73 (1984). In Torno v. Hayek, 133 Wn.App. 244, 135 P.3d 536 (2006), it was not error to refuse WPI 15.04 where both defendants admitted liability (successive car accidents) but disagreed on which defendant caused particular medical expenses.
Foreseeability. It is error to add to WPI 15.01 the words “even if such injury is unusual or unexpected.” Blodgett v. Olympic Sav. and Loan Assoc'n, 32 Wn.App. 116, 646 P.2d 139 (1982). It is improper to inject the issues of foreseeability into the definition of proximate cause. State v. Giedd, 43 Wn.App. 787, 719 P.2d 946 (1986); Blodgett v. Olympic Sav. and Loan Association, supra.
Whether to supplement the pattern instructions on proximate cause. The preferred practice is to use the proximate cause language from the applicable pattern instruction or instructions. See Stevens v. Gordon, 118 Wn.App. at 53; Humes v. Fritz Companies, Inc., 125 Wn.App. at 498. Washington case law has occasionally approved instructions that supplement WPI 15.01 with more specific language as to what does, or does not, constitute proximate cause. See, e.g., Vanderhoff v. Fitzgerald, 72 Wn.2d 103, 107–08, 431 P.2d 969 (1967); Young v. Group Health Co-op. of Puget Sound, 85 Wn.2d 332, 340, 534 P.2d 1349 (1975); Richards v. Overlake Hosp. Medical Center, 59 Wn.App. 266, 277–78, 796 P.2d 737 (1990); Safeway, Inc. v. Martin, 76 Wn.App. 329, 885 P.2d 842 (1994).
Practitioners should use care in deciding whether to expand upon the standards in the pattern instructions. Such modifications are not always necessary, and they need to be written neutrally so as to avoid unduly emphasizing one party's theory of the case. See Ford v. Chaplin, 61 Wn.App. 896, 899–901, 812 P.2d 532 (1991).
[Current as of June 2009.]
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