WPIC 90.08 Vehicular Homicide and Assault—Conduct of Another

Use this instruction only when there is evidence of an intervening cause such that defendant's driving would not be a proximate cause of the death or injury.

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

Use this instruction with WPIC 90.07 (Vehicular Homicide and Assault—Proximate Cause—Definition), including the last paragraph which states that there may be more than one proximate cause of a death.

Use the bracketed second paragraph, as applicable, if the evidence permits a finding that the conduct of the deceased or injured person or another constituted a superseding or intervening cause of death.

Use this instruction with WPIC 4.01 (Burden of Proof—Presumption of Innocence).

This instruction, which was an adaptation of WPIC 25.03 (Conduct of Another), is drafted to be used specifically for vehicular homicide and vehicular assault cases. See the Comment for WPIC 25.03 (Conduct of Another) for further discussion.

Superseding intervening act. Contributory negligence is not a defense in vehicular homicide and vehicular assault. However, if the death or substantial bodily harm was caused by a superseding intervening event, the defendant avoids liability even though his driving caused the death or injury. State v. Roggenkamp, 153 Wn.2d 614, 631, 106 P.3d 196 (2005). To escape liability, the defendant must show that the victim's contributory negligence was a supervening cause without which the defendant's contributory negligence would not have caused the collision. State v. Roggenkamp, 115 Wn.App. 927, 945, 64 P.3d 92 (2003), affirmed, 153 Wn.2d 614, 631, 106 P.3d 196 (2005); State v. Frahm, 193 Wn.2d 590, 444 P.3d 595 (2019); State v. Souther, 100 Wn.App. 701, 708–09, 998 P.2d 350 (2000); State v. McAllister, 60 Wn.App. 654, 660, 806 P.2d 772 (1991).

A defendant's conduct is not a proximate cause if some other cause was the sole cause. State v. Meekins, 125 Wn.App. 390, 396–98, 105 P.3d 420 (2005) (citing Nielson v. Eisenhower & Carlson, 100 Wn.App. 584, 593, 999 P.2d 42 (2000); State v. Hursh, 77 Wn.App. 242, 245, 890 P.2d 1066 (1995); State v. Neher, 52 Wn.App. 298, 301 n.3, 759 P.2d 475 (1988), affirmed, 112 Wn.2d 347, 771 P.2d 330 (1989)). An intoxicated defendant may avoid responsibility for a death which results from his or her driving if the death is caused by a superseding, intervening event. RCW 46.61.520.

The jury must be instructed in a way that makes the state's burden of proof clear. State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019). “[U]nder the [vehicular homicide and vehicular assault] statutes, the absence of a superseding intervening cause is not an element of vehicular homicide or vehicular assault”. State v. Imokawa, 194 Wn.2d at 401. The pattern jury instructions given in Imokawa were constitutionally adequate and did not violate due process. State v. Imokawa, 194 Wn.2d at 402–03. The jury in Imokawa received WPIC 4.01 (Burden of Proof—Presumption of Innocence—Reasonable Doubt), WPIC 90.02 (Vehicular Homicide—Elements), WPIC 91.02 (Vehicular Assault—Elements), WPIC 90.07 (Vehicular Homicide and Assault—Proximate Cause—Definition), and WPIC 90.08 (Vehicular Homicide and Assault—Conduct of Another).

Generally “[i]n crimes which are defined to require specific conduct resulting in a specified result, the defendant's conduct must be the ‘legal’ or ‘proximate’ cause of the result.” State v. Rivas, 126 Wn.2d 443, 453, 896 P.2d 57 (1995). The Restatement (Second) of Torts section 440 (Am. Law Inst. 1965) defines superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another when his antecedent negligence is a substantial factor in bringing about.” Intervening force is defined as “one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.” Restatement (Second) of Torts, § 441(1) (Am. Law Inst. 1965). In this event, the second bracketed paragraph should be used. State v. Souther, 100 Wn.App. at 707.

An intervening act is “a force that actively operates to produce harm to another after the actor's act or omission has been committed.” State v. Souther, 100 Wn.App. at 710 (citing Klein v. Pyrodyne Corp., 117 Wn.2d 1, 17 n. 7, 810 P.2d 917, amended by 817 P.2d 1359 (1991)). Regarding the timing of an intervening act, the Souther court stated that: “A force set in motion at a time earlier than the actor's original negligence is an intervening force if it first operates after the actor loses control of a situation and neither knew nor should have known of its existence at the time of his original negligent conduct.” State v. Souther, 100 Wn.App. at 710 n.3; see also State v. Roggenkamp, 115 Wn.App. 927, 945, 64 P.3d 92 (2003) (“A force set in motion at an earlier time is an intervening force if it first operates after the actor has lost control of a situation and the actor neither knew nor should have known of its existence at the time of his negligent conduct.”) (citing Restatement (Second) of Torts § 441 cmt. a (Am. Law Inst. 1965)), affirmed, 153 Wn.2d 614, 630–31, 106 P.3d 196 (2005) (expressly approving the Court of Appeals' analysis).

For a good discussion of proximate cause and foreseeability in Washington, see State v. Frahm, 193 Wn.2d 590, 444 P.3d 595 (2019).

Evidentiary basis for using instruction. Several cases have discussed the factual circumstances that support the use of this instruction. See State v, Meekins, 125 Wn.App. at 399 (citing ER 401, State v. Souther, 100 Wn.App. 701, 998 P.2d 350 (2000), and State v. Hursh, 77 Wn.App. 242, 245, 890 P.2d 1066 (1995)); see also State v. Roggenkamp, 115 Wn.App. at 942–47.