WPIC 25.03 Conduct of Another

Use bracketed material as applicable. Use WPIC 25.02 (Homicide—Proximate Cause—Definition) including the last paragraph which states that there may be more than one proximate cause of a death, with this instruction.

Use the bracketed second paragraph, as applicable, if the evidence would permit a finding that the conduct of the deceased or another constituted a superseding or intervening cause of death. Use the bracketed third paragraph only when there is an issue whether the resultant harm falls within the general field of danger that should have been foreseen.

The first paragraph of this instruction is adapted from the first paragraph of WPI 15.04 (Negligence of Defendant Concurring with Other Causes). See 6 Washington Practice, Washington Pattern Jury Instructions: Civil (7th ed.). The second and third paragraphs of this instruction are adapted from WPI 15.05 (Negligence—Intervening Cause). See 6 Washington Practice, Washington Pattern Jury Instructions: Civil (7th ed.). The instruction's second paragraph is phrased in terms of another person's acts rather than another person's omissions. A question exists as to whether an omission by a person other than the defendant can qualify as an independent intervening cause. But the Supreme Court found in State v. Bauer, 180 Wn.2d 929, 329 P.3d 67 (2014), that causation in criminal law is different from causation in civil law. Legal causation in regards to a criminal case is narrower than legal causation in tort cases. State v. Bauer, 180 Wn.2d at 940.

It is well established that contributory negligence is not a defense to the crime of manslaughter or negligent homicide. Evidence of contributory negligence, however, may be material to whether the defendant's negligence was a proximate cause of the death or whether the defendant was negligent at all. See State v. Ramser, 17 Wn.2d 581, 136 P.2d 1013 (1943), and State v. Nerison, 28 Wn.App. 659, 625 P.2d 735 (1981) (citing WPIC 25.03 with approval). But, State v. Souther, 100 Wn.App. 701, 709, 998 P.2d 350 (2000), commented that WPIC 25.03 may be confusing. Souther is a vehicular homicide case. In defending a vehicular homicide case, a defendant may avoid responsibility for a death if the death was caused by a superseding intervening event. State v. Rivas, 126 Wn.2d 443, 453, 896 P.2d 57 (1995). The Court of Appeals believed that WPIC 25.03 may be contradictory because one part of it states that the conduct of another is not a defense, but another part of the instruction states that it could be a defense. In light of Souther, the instruction has been revised to make it clear that the second paragraph is an exception to the first paragraph.

In State v. Perez-Cervantes, 141 Wn.2d 468, 475–76, 6 P.3d 1160 (2000), the Supreme Court stated that an instruction regarding proximate and intervening cause, “which makes it clear that an independent intervening act of the deceased or another does not supersede the defendant's act unless it was the proximate cause of the victim's death or was not reasonably to be anticipated by the defendant,” permitted the defendant to argue that there was an alternative cause of death if the evidence admitted at trial supported a theory that some act of the victim or another superseded the stabbing as the cause of death.

In State v. Bauer, 180 Wn.2d 929, 329 P.3d 67 (2014), the Supreme Court distinguished Perez-Cervantes. In Bauer, the defendant possessed a gun. His girlfriend's child took the loaded gun to school, and the gun discharged. Mr. Bauer was charged and convicted of assault in the third degree. The Supreme Court reversed the conviction, finding that legal causation cannot be based on negligent acts similar to those in civil tort cases.

In contrast, a defendant in a subsequent case was held liable for injuries inflicted by a third party. When driving while intoxicated, the defendant caused an accident that injured another driver. A bystander attempted to aid the injured driver. The bystander was struck by another car and killed. The Washington Supreme Court upheld the defendant's conviction for vehicular homicide. This is because the defendant's acts were “criminal, caused direct harm as well as risk of future harm, and occurred close in time and location to the ultimate harm that befell [the bystander].” State v. Frahm, 193 Wn.2d 590, 599, 444 P.3d 595 (2019).

Questions of proximate cause have arisen frequently in vehicular homicide cases. See, e.g., State v. McAllister, 60 Wn.App. 654, 806 P.2d 772 (1991) (defendant's conviction in a vehicular homicide prosecution reversed because the defendant's negligence, if any, may have been superseded by the negligence of the defendant's wife in improperly securing a door of the vehicle, which the victim later fell through), overruled on other grounds by State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005); State v. Judge, 100 Wn.2d 706, 675 P.2d 219 (1984); State v. Jacobsen, 74 Wn.2d 36, 442 P.2d 629 (1968). For further discussion of proximate cause under the vehicular homicide statute, see the Comment to WPIC 90.02 (Vehicular Homicide—Elements).

In State v. Yates, 64 Wn.App. 345, 824 P.2d 519 (1992), a prosecution for aggravated first degree murder, it was held that the removal of life support from the victim was not a legally cognizable cause of death, since the defendant's conduct created the need for life support in the first instance and the removal of support was not independent of the defendant's conduct. WPIC 25.03 should not be used for similar cases involving removal of life support.

A superseding intervening cause negates the element of proximate causation. As a result, the State has the burden of disproving the existence of a superseding cause. This burden, however, need not be expressly stated in the jury instructions. It is sufficient to explain that (1) the State has the burden of proving all elements of the crime, (2) proximate causation is an element, (3) if a superseding intervening cause exists, proximate causation is absent, and (4) the defendant has no burden of proof. State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019).

For a general discussion of the burden of proof on defenses, see WPIC 14.00 (Defenses— Introduction).