California Civil Jury Instructions (CACI)

433. Causation: Intentional Tort/Criminal Act as Superseding Cause

[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]’s harm because of the later [criminal/intentional] conduct of [insert name of third party]. [Name of defendant] is not responsible for [name of plaintiff]’s harm if [name of defendant] proves both of the following:

1. That the [intentional/criminal] conduct of [name of third party] happened after the conduct of [name of defendant]; and

2. That [name of defendant] did not know and could not have reasonably foreseen that another person would be likely to take advantage of the situation created by [name of defendant]’s conduct to commit this type of act.

New September 2003

Sources and Authority

  • Restatement Second of Torts, section 448, provides: “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 negligent conduct realized or should have realized the likelihood 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.”
  • The California courts have adopted section 448. (Kane v. Hartford Accident and Indemnity Co. (1979) 98 Cal.App.3d 350, 360 [159 Cal.Rptr. 446].)
  • Section 449 provides: “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.” The Court in Landeros v. Flood (1976) 17 Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], relied on section 449.
  • If the criminal or tortious conduct encountered by the plaintiff was not foreseeable at the time of defendant’s negligence, then the defendant will not be liable. (Kane, supra, 98 Cal.App.3d at p. 360 [rape not a result of failure to uncover bonded employee’s prior theft-related offenses].)
  • Courts have observed that “[c]riminal conduct which causes injury will ordinarily be deemed the proximate cause of an injury, superseding any prior negligence which might otherwise be deemed a contributing cause. [Citation.]” (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1449 [23 Cal.Rptr.2d 34].) However, “[t]he common law rule that an intervening criminal act is, by its very nature, a superseding cause has lost its universal application and its dogmatic rigidity.” (Kane, supra, 98 Cal.App.3d at p. 360.)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1214—1216

California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17

1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)

33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303, 165.322 (Matthew Bender)