CACI No. 432. Affirmative Defense - Causation: Third-Party Conduct as Superseding Cause

Judicial Council of California Civil Jury Instructions (2023 edition)

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432.Affirmative Defense - Causation: Third-Party Conduct as
Superseding Cause
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because of the later misconduct
of [insert name of third party]. To avoid legal responsibility for the harm,
[name of defendant] must prove all of the following:
1. That [name of third party]’s conduct occurred after the conduct of
[name of defendant];
2. That a reasonable person would consider [name of third party]’s
conduct a highly unusual or an extraordinary response to the
3. That [name of defendant] did not know and had no reason to
expect that [name of third party] would act in a
[negligent/wrongful] manner; and
4. That the kind of harm resulting from [name of third party]’s
conduct was different from the kind of harm that could have
been reasonably expected from [name of defendant]’s conduct.
New September 2003; Revised June 2011, December 2011
Directions for Use
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
If, as a matter of law, a party is liable for subsequent negligence, as in subsequent
medical negligence, this instruction should not be given.
Sources and Authority
‘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
“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 actors 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 actors 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.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1348, 1349
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-O, Causation
Issues, 2:2444 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, 2:1326 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.74
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.321
(Matthew Bender)

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