WPI 15.01.01 Proximate Cause—Definition—Alternative

This instruction is an alternative to the traditional definition of proximate cause found in WPI 15.01 (Proximate Cause—Definition). Use bracketed material as applicable.

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 (Proximate Cause—Superseding Cause), must also be used.

The second paragraph should be given only when there is evidence of a concurring cause. In the event the second paragraph is used, it may also be necessary to give WPI 15.04 (Negligence of Defendant Concurring with Other Causes).

The instruction uses the bracketed phrase “unbroken by any superseding cause.” Prior to 2009, the bracketed phrase read “unbroken by any new, independent cause.” The phrase was rewritten so that the instruction better integrates with the instruction directly addressing superseding causes, WPI 15.05. The rewritten phrase does not involve a change in meaning—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 fn.5.

The WPI Committee offers this alternative to the traditional formulation of proximate cause in WPI 15.01 (Proximate Cause—Definition), to respond to concerns about juror comprehension. One study noted that a California instruction similar to WPI 15.01 (Proximate Cause—Definition) produced “proportionately the most misunderstanding” among jurors even though it was the shortest instruction given. See Making Legal Language Understandable: A Psycholinguistic Study of JuryInstructions, 79 Colum. L. Rev. 1306, 1353 (1979).

Three structural or grammatical features of WPI 15.01 (Proximate Cause—Definition) may contribute to its misinterpretation. First, the phrase “in a direct sequence” precedes “produces,” the verb it modifies, creating the impression that the cause itself is a sequence. The prepositional phrase has been relocated in WPI 15.01.01.

Second, the term “proximate cause” may be heard as “approximate cause.” The WPI Committee chose not to address this concern by use of an alternative label, such as “legal cause,” because of the analytical confusion between the two elements of proximate cause, “cause in fact” and “legal cause,” which can result. See Wells v. City of Vancouver, 77 Wn.2d 800, 806, 467 P.2d 292 (1970) (Finley, J., concurring) for a discussion of how this confusion relates to the use of “legal cause” and the “substantial factor” test in the first Restatement of Torts. Some judges have addressed this concern with an aside to the jury, such as “I'm not saying ‘approximate cause,’ but ‘proximate’ cause, which begins with the letter ‘p’.” Providing each juror with a copy of the instructions to follow as the judge reads them also diminishes the potential for confusion.

Third, the traditional definition contains the double negative phrase, “without which such event would not have happened.” However, expressing the “but for” aspect of proximate cause without such a phrase is difficult, and may lead to confusion or misapplication of the standard. The WPI Committee chose instead to simplify the definition by distinguishing the two elements of proximate cause numerically, and by use of the phrase “in the absence of.”

For discussion of other issues relating to the definition of proximate cause, see the Comment to WPI 15.01 (Proximate Cause—Definition).