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3.1-8  Proximate Cause - Superseding Cause

Revised to January 1, 2008

NOTE:  The doctrine of superseding cause was partially abandoned in Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003).  See discussion below.

The defendant claims that he did not legally cause the plaintiff's alleged injury because that injury was produced, in material part, by a superseding cause.  A superseding cause is any intentionally harmful act, force of nature, or criminal event, unforeseeable by the defendant, which intervenes in the sequence of events leading from the defendant's alleged negligence to the plaintiff's alleged injury and proximately causes that injury.  Under our law, the intervention of such a superseding cause prevents the defendant from being held liable for the plaintiff's injury on the theory that, due to such superseding cause, the defendant did not legally cause the injury even though (his/her) negligence was a substantial factor in bringing the injury about.  Therefore, when a claim of superseding cause is made at trial, the plaintiff must disprove at least one essential element of that claim by a fair preponderance of the evidence in order to prove, by that standard, its own conflicting claim of legal causation.

In this case, the defendant claims, more particularly, that <describe alleged intervening conduct or event claimed to constitute a superseding cause> was a superseding cause of the plaintiff's alleged injury, and thus that (his/her) own negligence did not legally cause that injury.  Because such intentionally harmful (conduct / force of nature / criminal event), if unforeseeable by the defendant, would constitute a superseding cause of the plaintiff's alleged injury if it occurred as claimed by the defendant and if it proximately caused the plaintiff's injury, the plaintiff must disprove at least one essential element of that claim by a fair preponderance of the evidence in order to prove that the defendant legally caused that injury.  The plaintiff can meet this burden by proving either 1) that the conduct claimed to constitute a superseding cause did not occur as claimed by the defendant, either because it did not occur at all or because it was not engaged in with the intent to cause harm; or 2) that such conduct was foreseeable by the defendant, in that the injury in question was within the scope of the risk created by the defendant's conduct; or 3) that such conduct was not a substantial factor in bringing about the plaintiff's alleged injury. These, of course, are questions of fact for you to determine based on the evidence.  Keep in mind, however, that the defendant does not have any burden to prove the existence of a superseding cause. The burden at all times rests upon the plaintiff to disprove the defendant's claim of superseding cause as a necessary part of (his/her) proof that the defendant legally caused the plaintiff's injury.

Authority

See 2 Restatement (Second), Torts § 442B (1965); 2 Restatement (Second), supra, § 448 ("The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of (his/her) negligent conduct realized or should have realized that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime"); 2 Restatement (Second), supra, § 449 ("If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby").

Doe v. Manheimer, 212 Conn. 748, 759 (1989) (following Restatement (Second), Torts § 442B, by holding that "a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by a third person and is not within the scope of the risk of created by the defendant's conduct. . . .  'The reason [for the general rule precluding liability where the intervening act is intentional or criminal] is that in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of (his/her) act is shifted to him.' 2 Restatement (Second), Torts § 442B, comment c.  'Such tortious or criminal acts may in themselves be foreseeable, [however,] and so within the scope of the created risk. . . .'").

Notes

Prior to 2003, Connecticut courts used the term "superseding cause" to describe intervening causes of two types, which operated to defeat claims of liability against defendant tortfeasors in different ways.  First, the term was used to describe any cause intervening between the time of the defendant's allegedly tortious conduct and that of the plaintiff's claimed injury which contributed so substantially to the production of the injury as to make the defendant's contribution to the injury merely trivial or inconsequential, and thus to establish that the defendant's conduct was not a proximate cause of the injury.  See, e.g., Corey v. Phillips, 126 Conn. 246, 254-55 (1939) ("'[t]he injury resulting from [negligent conduct] need not be the direct or immediate result of the wrongful act; if it is probable and a natural result, that is according to the operations of natural laws, it is enough,' nevertheless, 'the connection between negligence and injury may be broken by what the law terms an intervening cause, if the intervening cause in fact break the connection; . . . the intervening cause . . . must be a cause, whether intelligent or not, which so entirely supersedes the operation of the defendant's negligence that it alone, without his negligence contributing thereto in any degree, produces the injury . . . ."); Boileau v. Williams, 121 Conn. 432, 439-41 (1936).  This usage was formally abandoned by our Supreme Court in Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003), because it erroneously suggested to jurors that the plaintiff did not bear the entire burden of proof on the issue of proximate causation.  The interplay between the defendant's tortious conduct and other alleged causes of the plaintiff's claimed injury is covered by Instruction 3.1-5, Proximate Cause - Multiple Causes.

Second, the term was used, as in 2 Restatement (Second), Torts § 440 (1965) and Doe v. Manheimer, supra, 212 Conn. 759, to describe any cause intervening between the time of the defendant's allegedly tortious conduct and that of the plaintiff's claimed injury which, although not disproving that the defendant's conduct  proximately caused the plaintiff's claimed injury, prevented the defendant's conduct from being considered a legal cause of that injury.  Such superseding causes, as described in the foregoing instruction and explained above, are limited to intentionally harmful acts, forces of nature, or criminal events, unforeseeable by the defendant, which intervene in the sequence of events leading from the defendant's alleged negligence to the plaintiff's alleged injury and proximately cause that injury.  See Barry v. Quality Steel Products, Inc., supra, 263 Conn. 439 n.16 (confirming the continuing viability of the superseding cause doctrine in "cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct").

Our courts have not decided which party bears the burden of proof with respect to claims of superseding causes except in cases where that term has been used in the manner disapproved of in Barry v. Quality Steel Products, Inc., supra.  See, e.g., Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383 (1982) ("[p]roximate cause results from a sequence of events unbroken by a superseding cause, so that its causal viability continued until the moment of injury or at least until the advent of the immediate injurious force").  Hence, although it might reasonably be suggested that the burden of pleading and proving superseding cause, as defined in the Restatement, should rest on the defendant, because its existence depends upon proof of extrinsic facts not logically inconsistent with the basic elements of probable cause, the above-quoted passage from Coburn v. Lenox Homes, Inc. suggests to the contrary, for it does not distinguish, for this purpose, between the two then-existing types of superseding cause.  Therefore, this instruction treats superseding cause as a claim inconsistent with legal causation that the plaintiff must disprove by a fair preponderance of the evidence whenever it is raised by the defendant at trial as a basis for defeating the plaintiff's claim of legal causation.
 


 

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