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WPI15.05Proximate Cause—Supserseding Cause

6 WAPRAC WPI 15.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 15.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part II. Negligence—Risk—Misconduct—Proximate Cause
Chapter 15. Proximate Cause
WPI 15.05 Proximate Cause—Supserseding Cause
A superseding cause is a new independent cause that breaks the chain of proximate causation between a defendant's negligence and an [injury] [event].
If you find that [the] [a] defendant was negligent but that the sole proximate cause of the [injury] [event] was a later independent intervening [cause] [force] [act of one of the other defendants in this case] [act of a person not a party to this action] that the defendant, in the exercise of ordinary care, could not reasonably have anticipated, then any negligence of the defendant is superseded and such negligence was not a proximate cause of the [injury] [event]. If, however, you find that the defendant was negligent and that in the exercise of ordinary care, the defendant should reasonably have anticipated the later independent intervening [cause] [force] [act], then that [cause] [force] [act] does not supersede defendant's original negligence and you may find that the defendant's negligence was a proximate cause of the [injury] [event].
It is not necessary that the sequence of events or the particular resultant [injury] [event] be foreseeable. It is only necessary that the resultant [injury] [event] fall within the general field of danger which the defendant should reasonably have anticipated.
NOTE ON USE
Use this instruction only when there are issues of multiple causation set forth in the issues instruction, WPI 20.01. Use WPI 15.01 (Proximate Cause—Definition) or WPI 15.01.01 (Proximate Cause—Definition—Alternative) with this instruction.
Use bracketed material as applicable.
If the intervening act relied upon is the act of another defendant, this instruction should be modified to apply by name to the particular defendant. If other concurring causes are in issue, use WPI 15.04 (Negligence of Defendant Concurring with Other Causes), with this instruction.
If juror comprehension would be aided, the instruction may be tailored to a particular case by using the names of the parties and specifying the acts in question, as long as this can be done without appearing to comment on the evidence.
COMMENT
If the original negligence of a defendant is followed by an unforeseeable independent intervening cause, force, or act of a third person (not a party to the case) that is the proximate cause of an injury or event, the chain of proximate causation is broken. Qualls v. Golden Arrow Farms, 47 Wn.2d 599, 602, 288 P.2d 1090 (1955); Bracy v. Lund, 197 Wash. 188, 200, 84 P.2d 670 (1938). If the independent intervening cause, force or act is not reasonably foreseeable, it is deemed to supersede the defendant's original negligence; the defendant's original negligenceceases to be the proximate cause. Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254 (1975); Cook v. Seidenverg, 36 Wn.2d 256, 264, 217 P.2d 799 (1950); Estate of Keck v. Blair, 71 Wn.App. 105, 112, 856 P.2d 740 (1993).
On the other hand, the chain of proximate causation is not broken when the defendant, in the exercise of ordinary care, should reasonably have anticipated that the independent intervening cause, force, or act was likely to happen. Adamson v. Traylor, 60 Wn.2d 332, 339–340, 373 P.2d 961 (1962); Qualls v. Golden Arrow Farms, 47 Wn.2d 599, 602, 288 P.2d 1090 (1955); McLeod v. Grant County School Dist. No. 128, 42 Wn.2d 316, 320, 255 P.2d 360 (1953); Gies v. Consolidated Freightways, 40 Wn.2d 488, 491, 244 P.2d 248 (1952); Bracy v. Lund, 197 Wash. at 200.
If there are varying inferences to be derived from the evidence, the range of reasonable anticipation of foreseeability is a question for the jury. Kennett v. Yates, 41 Wn.2d 558, 565, 250 P.2d 962 (1952). “If the acts are … within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant's negligence.” Cramer v. Dep't of Highways, 73 Wn.App. 516, 521, 870 P.2d 999 (1994).
In Christen v. Lee, 113 Wn.2d 479, 491, 780 P.2d 1307 (1989), the court held that a criminal assault may be a foreseeable result of furnishing intoxicating liquor to an obviously intoxicated person, but only if the drinking establishment that furnished the intoxicating liquor had some notice of the possibility of harm from prior actions of the person causing the injury, either on the occasion of the injury or on previous occasions. Accord Cox v. Keg Restaurants U.S., Inc., 86 Wn.App. 239, 251–52, 935 P.2d 1377 (1997). The court in Christen stated that foreseeability is normally an issue for the jury, but it will be decided as a matter of law when reasonable minds cannot differ.
Foreseeability is a question for the jury unless the circumstances of the injury are “so highly extraordinary or improbable as to be wholly beyond the range of expectability.” N.K. v. Corp. of Presiding Bishop, 175 Wn.App. 517, 530, 307 P.3d 730 (2013) (quoting Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P.2d 420 (1997)). “Typically when there is a jury question as to whether an injury is within the general field of danger which the defendant should reasonably have anticipated, the issue is presented in the ‘Proximate Cause—Superseding Cause’ pattern instruction. WPI 15.05.” N.K. v. Corp. of Presiding Bishop, 175 Wn.App. at 530 n.2.
A court order prohibiting a father's contact with his child may be an intervening cause breaking the chain from a negligent CPS investigation only if all the material information was presented to the court that issued the order. Tyner v. Dep't of Social and Health Services, 141 Wn.2d 68, 82, 1 P.3d 1148 (2000); Petcu v. State, 121 Wn.App. 36, 56, 86 P.3d 1234 (2004). A court's refusal to revoke a DUI probationer two days before he drove and killed plaintiff decedent was a superseding intervening cause to the county's negligent probation supervision preceding the court hearing. Bishop v. Miche, 137 Wn.2d 518, 532, 973 P.2d 465 (1999). The decision to prosecute a parent was a superseding intervening cause breaking the causal connection to a negligent CPS investigation. Gausvik v. Abbey, 126 Wn.App. 868, 886–87, 107 P.3d 98 (2005).
A criminal act by a third party is not a superseding cause if it was reasonably foreseeable. See Johnson v. State, 77 Wn.App. 934, 942, 894 P.2d 1366 (1995). The court may determine that a criminal act is unforeseeable as a matter of law “only if the occurrence is so highly extraordinary or improbable as to be wholly beyond the range of expectability. Otherwise, the foreseeability of the criminal act is a question for the trier of fact.” Johnson v. State, 77 Wn.App. at 942. See also Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 114, 75 P.3d 497 (2003) (jury required to segregate damages caused by intentional versus negligent tortfeasors).
It may be a foreseeable result of selling alcohol to a minor that the purchasing minor will share the alcohol with other minors whose intoxication will proximately cause injury to themselves or third persons; whether this result is foreseeable is a question for the jury. See Crowe v. Gaston, 134 Wn.2d 509, 517, 951 P.2d 1118 (1998); Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 477–78, 951 P.2d 749 (1998); Rinks v. Bearss, 83 Wn.App. 334, 338, 921 P.2d 558 (1996). Foreseeability of the result is normally a question of fact, as to which the trier of fact may consider the amount and nature of the alcohol purchased, the time of day, the presence of other minors on the premises or in a vehicle, and statements made by the purchaser to determine whether it was foreseeable the alcohol would be shared. Crowe v. Gaston,134 Wn.2d at 517; Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d at 477–78.
The second paragraph of this instruction, which relates to the foreseeability of a sequence of events or a particular harm or occurrence, is cited with approval in Koker v. Armstrong Cork, Inc., 60 Wn.App. 466, 480 n.6, 804 P.2d 659 (1991). In Koker, the court stated that the test for foreseeability is whether the result of the act of the defendant is within the “ambit of the hazards” covered by the duty imposed on the defendant. In Walker v. State, 67 Wn.App. 611, 615–616, 837 P.2d 1023 (1992), reversed on other grounds, 121 Wn.2d 214, 848 P.2d 721 (1993), the court held that it is proper to give this instruction without the second paragraph if the issue of general field of danger is not raised as a defense.
In Albertson v. State, 191 Wn.App. 284, 361 P.3d 808 (2015), the Court of Appeals held that it was reversible error for the trial court to instruct on the issue of superseding cause in a case where it was alleged that the Department of Social and Health Services conducted “a faulty or biased investigation of child abuse” that resulted “in a harmful placement decision” because the harm suffered by the child “was precisely the kind of harm that would ordinarily occur as a result” of such an investigation. Albertson v. State, 191 Wn.App. at 298.
For further discussion of intervening or superseding causes, see. DeWolf and Allen, 16 Washington Practice, Tort Law and Practice § 5.21 (4th ed.).
[Current as of September 2018.]
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