CACI 432 Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause

New September 2003; Revised June 2011, December 2011

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A superseding cause instruction should be given if the issue is raised by the evidence. (See Paverud v. Niagara Machine and Tool Works (1987) 189 Cal.App.3d 858, 863 [234 Cal.Rptr. 585]; disapproved in Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d. 298] [there is no rule of automatic reversal or inherent prejudice applicable to any category of civil instructional error].) The issue of superseding cause should be addressed directly in a specific instruction. (See Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 10 [116 Cal.Rptr. 575]; disapproved in Soule, supra, 8 Cal. 4th at p. 580.)

Superseding cause is an affirmative defense that must be proved by the defendant. (Maupin v. Widling (1987) 192 Cal.App.3d 568, 578 [237 Cal.Rptr. 521].) Therefore, the elements of this instruction are phrased in the affirmative and require the defendant to prove that they are all present in order to establish superseding cause. (See Martinez v. Vintage Petroleum (1998) 68 Cal.App.4th 695, 702 [80 Cal.Rptr.2d 449].)

If, as a matter of law, a party is liable for subsequent negligence, as in subsequent medical negligence, this instruction should not be given.

•“ ‘It is well established … that one’s general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person.’ In determining whether one has a duty to prevent injury that is the result of third party conduct, the touchstone of the analysis is the foreseeability of that intervening conduct.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1148 [210 Cal.Rptr.3d 283, 384 P.3d 283], internal citation omitted.)

•“This issue is concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff’s injury, the defendant should be held responsible for the plaintiff’s injury where the injury was brought about by a later cause of independent origin. This question, in turn, revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff’s injuries.” (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199 [60 Cal.Rptr. 499, 430 P.2d 57].)

•“ ‘A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ If the cause is superseding, it relieves the actor from liability whether or not that person’s negligence was a substantial factor in bringing about the harm.” (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1031 [47 Cal.Rptr.2d 348], internal citation omitted; see Restatement 2d of Torts, § 440.)

•“The rules set forth in sections 442–453 of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause which prevents antecedent negligence of the defendant from being a proximate cause of the harm complained of have been accepted in California. Under these rules the fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant’s conduct and the manner in which the intervening act is done is not extraordinarily negligent.” (Stewart v. Cox (1961) 55 Cal.2d 857, 864 [13 Cal.Rptr. 521, 362 P.2d 345], internal citations omitted.)

•“This test is but another way of saying that foreseeable intervening ordinary negligence will not supersede but such negligence, if ‘highly extraordinary,’ will supersede. [¶] ‘[T]he fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if … the act is a normal response to a situation created by the defendant’s conduct and the manner in which the intervening act is done is not extraordinarily negligent. …’ This test is but another way of saying a normal, but negligent, intervening response will not supersede but an extraordinarily negligent response will supersede.” (Martinez, supra, 68 Cal.App.4th at p. 701 [holding that highly extraordinary negligence or extraordinarily negligent response obviates need to prove unforeseeable risk of harm].)

•“Intervening negligence cuts off liability, and becomes known as a superseding cause, if ‘ “it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable … .” ’ ” (Martinez, supra, 68 Cal.App.4th at pp. 700–701, original italics.)

•“ ‘[T]he defense of “superseding cause[]” … absolves [the original] tortfeasor, even though his conduct was a substantial contributing factor, when an independent event [subsequently] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.’ … [¶] To determine whether an independent intervening act was reasonably foreseeable, we look to the act and the nature of the harm suffered. To qualify as a superseding cause so as to relieve the defendant from liability for the plaintiff’s injuries, both the intervening act and the results of that act must not be foreseeable. Significantly, ‘what is required to be foreseeable is the general character of the event or harm … not its precise nature or manner of occurrence.’ ” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th 746, 755–756 [155 Cal.Rptr.3d 693], original italics, internal citations omitted.)

•“ ‘Third party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable. … “The foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was ‘a substantial factor’ in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred.” … It must appear that the intervening act has produced “harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.” … [¶] … [F]oreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion. … Thus, the issue of superseding cause is generally one of fact. …’ ” (Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 417 [119 Cal.Rptr.3d 366].)

•“The intervening negligence (or even recklessness) of a third party will not be considered a superseding cause if it is a ‘normal response to a situation created by the defendant’s conduct’ and is therefore ‘ “… within the scope of the reasons [for] imposing the duty upon [the defendant] to refrain from negligent conduct” ’ in the first place.” (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 373 [163 Cal.Rptr.3d 55], internal citations omitted.)

•“Under the theory of supervening cause, the chain of causation that would otherwise flow from an initial negligent act is broken when an independent act intervenes and supersedes the initial act.” (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 26 [22 Cal.Rptr.2d 106].)

•“[T]he intervening and superseding act itself need not necessarily be a negligent or intentional tort. For example, the culpability of the third person committing the intervening or superseding act is just one factor in determining if an intervening force is a new and independent superseding cause.” (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1277 [168 Cal.Rptr.3d 499] [unforeseeable bankruptcy can be superseding cause].)

•“Whether an intervening force is superseding or not generally presents a question of fact, but becomes a matter of law where only one reasonable conclusion may be reached.” (Ash, supra, 223 Cal.App.4th at p. 1274.)

•“[O]ne does not reach the issue of superseding cause until one is satisfied that the record supports a finding of negligence on the part of the defendant and a further finding that but for such negligence the accident would not have occurred. This, at least, has been the approach of our Supreme Court. … [S]uch an approach may be analytically wrong, because a finding that plaintiff’s harm was due to a superseding cause, is, in reality, a finding that the cause which injured the plaintiff was not a part of the risk created by the defendant.” (Ewart v. Southern California Gas Co. (1965) 237 Cal.App.2d 163, 169 [46 Cal.Rptr. 631].)

•“The potential for error in the [instruction] lies in the ambiguity of the words ‘extraordinary’ and ‘abnormal.’ These terms could be interpreted as meaning either: A. Unforeseeable (unpredictable, statistically extremely improbable, etc.); or B. Outside the scope of that which would be done by ordinary man. The instruction was correct if interpreted in sense A, since defendant’s conduct would not in fact give rise to liability if the criminal act were unforeseeable. However, the instruction was incorrect if interpreted in sense B. Such an interpretation would almost invariably preclude liability for failure to police against criminal conduct, since there are very few situations indeed to which ordinary men would respond by committing serious criminal offenses. Yet it is not the law that one has no duty to protect against foreseeable criminal acts.” (Campodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 807 [89 Cal.Rptr. 270], original italics.)

•“Proximate cause analysis is also concerned with intervening forces operating independent of defendant’s conduct. Multiple elements are weighed in determining whether an intervening force is a superseding cause of harm to the plaintiff, thus absolving defendant from liability: ‘(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; [¶] (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; [¶] (c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; [¶] (d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act; [¶] (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; [¶] (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.’ ” (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 197 [231 Cal.Rptr.3d 324], internal citations omitted.)